Teleservices Agreement - E-commerce Support Centers Inc. d/b/a Market Central Inc. and SmartBargains.com LP
TELESERVICES AGREEMENT
THIS AGREEMENT, (the "Teleservices Agreement"), is made this 1st day of
May, 2004, by and between E-commerce Support Centers, Inc. d/b/a Market Central,
Inc., organized and existing under the laws of the State of North Carolina and
having its principal place of business at 1650A Gum Branch Road Jacksonville,
North Carolina 28540 ("Market Central") and SmartBargains.com, LP, organized and
existing under the laws of the State of Delaware having its principal place of
business at 10 Milk Street Boston, MA 02108 (hereinafter referred to as the
"Customer or SB").
RECITALS
1. Market Central is in the business of, among other things, providing
various services including but not limited to contact center and
customer services to customers;
2. The Customer wishes to use Market Central's services ("Services") for
its customers/clients.
NOW THEREFORE, in consideration of the mutual covenants and conditions contained
herein the parties agree to the following:
1. SERVICES. Market Central's methodology for the program will be as follows:
A. Inbound Customer Service Program
Helpdesk Services
Market Central will provide dedicated and pooled customer service
representatives to Customer as needed to support any forecasts provided
by SB. Market Central will provide customer service support for
Customer's products and services. Market Central will provide services
to SB and its various marketing channels and affiliates (collectively,
"SB") via email response, web chat, and inbound 800 services and other
services as mutually agreed. The support provided hereunder will be in
accordance with the service levels set forth in the Statement of Work
attached as Exhibit A and include but is not limited to:
o ORDER MANAGEMENT (INCLUDING, BUT NOT LIMITED TO,
ORDER PLACEMENT AND ORDER INQUIRY)
o SHIPMENT TRACKING
o BILLING INFORMATION AND RECONCILIATION
o PRODUCT KNOWLEDGE ASSISTANCE
o COMPLAINT RESOLUTION
o CONTACT CENTER SERVICES (INCLUDING, BUT NOT LIMITED
TO, INBOUND PHONE, EMAIL, ESCALATION PROCEDURES, AND
RETURNS)
Page 1
<PAGE>
More specifically, customer service representatives ("CSR's") directly
handle issues that include, but are not limited to:
o PRE-SALE AND POST-SALE INQUIRIES FROM SB'S CUSTOMERS
VIA PHONE, EMAIL CHAT, FAX OR POSTAL SERVICE
o ORDER PLACEMENT
o ORDER STATUS INQUIRY
o SHIPMENT TRACKING ISSUES
o COMPLAINTS
o POLICY INQUIRY
o RESOLVING INCORRECT/DAMAGES/DEFECTIVE ORDER ISSUES
o SATISFACTION RESOLUTIONS
o ESCALATIONS
o CUSTOMER CREDITS AND CLAIMS
The goals of dedicated Project Manager and Escalation Managers are to
ensure a steady and uninterrupted flow of communication between
operations and SB. Client services' primary functions include, but are
not limited to:
o MAINTAINING THE STATUS OF ESCALATIONS
o LOST ORDERS
o CUSTOMER FOLLOW-UPS
o CUSTOMER CARE ISSUES
All contacts received by Market Central will be immediately entered
into a trouble ticket or CRM application for tracking. Unless otherwise
agreed to by both parties, all services will be provided in
Jacksonville, NC.
Customer shall be entitled to have certain of its employees on site at
the operating office of Market Central (the "Site Employees"), and such
employees will have access to all Market Central customer inquiry and
call management support systems, including, but not limited to, e-mail
systems, contact management systems, queue management (Custom View) and
workforce management systems. Market Central shall provide the Site
Employees with reasonable furnishings, connectivity access (such as
telephone lines, internet, WMS and data connectivity), lighting and
heat/air conditioning and such other office needs as are generally made
available to Market Central's employees.
Customer may immediately remove any dedicated or pooled CSR, supervisor
or manager from its account.
Customer shall provide Market Central with access to its OMS system,
which identifies all SB's customers, account numbers, billing
information and any other pertinent customer information. Market
Central will provide services to all SB's customers on an
account-by-account basis. Customer will provide Market Central a
comprehensive listing of all FAQ's, including company and product
background.
The pooled and dedicated CSR's will receive monitoring sessions from
their supervisors, the Quality Assurance Department, and the Customer.
The monitoring sessions are used primarily
Page 2
<PAGE>
as a measuring device to track the performance of the representatives.
They are also used as a developmental tool to enhance our customer
service representatives in order to provide the best service to SB.
Market Central will be responsible for hiring, training, and
maintaining the CSR base, provided, however, that Market Central will
obtain the approval of SB prior to hiring any dedicated CSR's for SB's
account. Prior to any dedicated CSR being appointed to SB's account,
Market Central shall obtain the approval of SB that such CSR has
successfully completed the training needed to be a dedicated CSR.
Market Central will also ensure that all CSR's are up to date on policy
changes and procedures that are consistent with SB's values through
bi-monthly ongoing training provided at Market Central's cost.
B. Scripting
Unless otherwise agreed to in writing, scripting will be provided by
Market Central. Customer must approve all scripting, and script changes
prior to program implementation.
C. Hours of Operation
Market Central will provide Services seven days a week, 24 hours a day;
or other period as mutually agreed.
D. Disaster Recovery
Market Central will comply with the terms of the Disaster Recovery Plan
attached to this Agreement as Exhibit B.
E. Customer Database Access
Customer will provide Market Central with access to SmartBargains' OMS
System through SB's CSR website. Market Central will provide Customer
with direct and remote access to Market Central's support systems,
including, but not limited to, contact management applications, queue
management applications, e-mail management applications. Customer's
Site Employees shall have access to workforce management applications.
If the parties mutually agree on the terms and pricing, then Customer
shall have remote access to workforce management applications.
Notwithstanding the foregoing, Customer shall have web reporting
available to it at no charge.
Page 3
<PAGE>
F. Toll Free Number Ownership
All toll free numbers used by Market Central to provide Services will
be the property of SB and held by Market Central for the benefit of
Customer. Market Central will be responsible for payment of the invoice
on Customer's behalf. If for any reason Customer requires the transfer
of any of its toll free numbers, Market Central will immediately make
the necessary arrangements with its long distance carrier. The toll
free numbers will only be transferred after all outstanding and
undisputed invoices have been paid in full.
G. Customer Service Manual
Market Central will comply with the terms of SB's Customer Service
Manual, as amended and updated by SB from time to time.
2. PRICING FOR CUSTOMER SERVICE PROGRAM
A. Pricing
The prices shall be as set forth in the attached Statement of work, and
shall remain in effect for the Initial Term of the Agreement.
Thereafter, any pricing changes shall be as mutually agreed upon
between the parties (the "Pricing Period"). During the Pricing Period,
the prices in effect for the Initial Term shall remain in effect until
such agreement on the pricing changes.
B. Audit Rights.
SB has the right at any time to audit Market Central's books, records,
processes, financial information or similar documents at any time at
SB's expense. However, if such audit shows that Market Central's books,
records, financial information or similar documents are materially
misleading or inaccurate then Market Central will pay any and all costs
associated with such audit. Further, if the results of the audit
indicate that (i) Market Central receives any compensation other than
amounts that it is entitled to receive pursuant to the terms of this
Agreement, all such compensation shall immediately be paid to SB.
Customer and/or its authorized representatives shall have the right
upon 48 hours prior written notice to MC, and at Customer's sole
expense, to audit MC's internal control processes in order to assist
Customer in meeting its obligations under the Sarbanes-Oxley Act or
other applicable financial disclosure law.
3. PAYMENT
Customer will pay Market Central for properly documented Services plus
any applicable taxes.
The weekly cost of services shall be invoiced to Customer upon the
completion of a four week period, and every four weeks thereafter.
Payment is due net thirty (30) days in arrears from the
Page 4
<PAGE>
date of the invoice. Copies of all source documents used to prepare
SB's invoice shall be provided with each invoice.
Market Central will charge a fee for late payment at the lesser of one
percent (1%) per month, or the highest rate permitted by law. Failure
to remit payment within 30 days after due date shall constitute a
default.
Market Central may assign unpaid delinquent charges to a collection
agency for action. In the event Market Central resorts to legal action
to recover monies due, Customer agrees to reimburse Market Central for
all reasonable expenses incurred to recover such monies.
4. TERM AND TERMINATION
A. The term of this Agreement shall begin on the date the contract is
initiated by the Customer and continue for an initial term of 12 months
(the "Initial Term"). This Agreement shall thereafter continue on a
yearly (12 month period) basis unless earlier terminated by either
party upon ninety (90) days written notice to the other.
Notwithstanding the foregoing, in no event shall either party be able
to effect a termination during the period of September 1st through
January 31st.
B. After the Initial Term, Market Central reserves the right to terminate
its Services to the Customer in the event that Market Central ceases to
offer teleservices to third parties upon not less than ninety (90) days
advance notice to Customer. Notwithstanding the foregoing, in no event
shall Market Central be able to effect a termination during the period
of September 1st through January 31st. Market Central undertakes to
continue to offer the Services provided in this Agreement for at least
twelve months from the effective date of this Agreement.
C. Customer reserves the right to terminate its obligation to Market
Central in the event that Customer ceases to conduct business. The
services provided by Market Central are not exclusive. This Agreement
does not in any way prohibit Customer from providing these or similar
services on its own or through another third party or having these or
similar services provided to Customer by another third party.
D. This Agreement may be terminated by either party with cause upon the
commission of a breach of this Agreement which is not cured within
thirty (30) days after the breaching party receives notice. In the
event that the breaching party does not cure the situation within such
thirty (30) days, the non-breaching party has the right to terminate
this Agreement with thirty (30) days written notice.
E. In the event of a termination for any reason, the parties agree to
comply with the terms of the transition plan attached to the Statement
of Work as Exhibit B.
Page 5
<PAGE>
5. INDEMNIFICATION
A. Customer shall be liable to, Market Central and its affiliates,
officers, directors, employees, and agents for any claim, suit, demand,
liability, cause of action, damage or cost (including reasonable
attorneys' fees) asserted by any third party and arising out of or
relating to breach of Customer's covenants or obligations under this
Agreement.
B. Market Central shall indemnify, hold harmless and defend Customer and
its affiliates, directors, officers, employees and agents from and
against any claim, suit, demand, liability, cause of action, damage or
cost (including reasonable attorneys' fees) asserted by any third party
and arising from (i) breach of Market Central's warranties, covenants
or obligations under this Agreement, or (ii) the negligence or
misconduct of Market Central or its officers, employees or agents in
providing the Services hereunder.
C. Notwithstanding any other provision to the contrary, Market Central is
liable for any theft by its employees of any information related to
credit card or other similar transactions.
6. CONFIDENTIALITY
6.1 "CONFIDENTIAL INFORMATION" means confidential or proprietary
information concerning the business, products or customers of a party.
Without limiting the generality of the foregoing, Confidential
Information of SB shall include all information relating to its
customers' ordering and purchase of products, including, but not
limited to, name, e-mail address, billing address, shipping address,
telephone number, credit card number, items ordered and shipped, order
and ship dates (collectively, the "Customer Information"), shipping
information, return information, customer satisfaction information,
quantity and nature of customers, and all information provided directly
by its customers in connection with the ordering or purchase of SB's
products.
(a) Neither SB nor Market Central shall use any Confidential
Information of the other party that it may acquire except in
connection with its performance of activities under this
Agreement. Neither party shall disclose or release any of the
disclosing party's Confidential Information except to its
contractors, consultants and agents who are acting on such
party's behalf and are bound by confidentiality restrictions
as to such Confidential Information at least as strict as
those set forth herein. In addition, each party shall take any
and all necessary precautions to prevent any such disclosure
by its respective employees, officers, directors, consultants,
contractors or agents.
(b) The provisions contained in Section 6.1(a) will not apply
to information (i) that is or becomes generally known to the
public by means other than a breach of duty on the part of the
receiving party, (ii) is known to the receiving party prior to
disclosure by the disclosing party, as established by
receiving party's written records, (iii) is independently
developed by or for the receiving party, as established by the
receiving party's written records or (iv) is generally
released by the disclosing party without restriction.
Notwithstanding anything contained in this Agreement to the
contrary, this Agreement shall not prohibit the receiving
party from disclosing Confidential Information of the
disclosing party to the extent required in order for the
receiving party
Page 6
<PAGE>
to comply with applicable laws and regulations, provided that
the receiving party provides prior written notice of such
required disclosure to the disclosing party and takes
reasonable and lawful actions to avoid and/or minimize the
extent of such disclosure.
(c) The parties acknowledge that any breach or threatened
breach of the provisions of Paragraph 6 of this Agreement
would cause irreparable harm, and that a remedy at law would
be inadequate, and therefore agree that either party shall be
entitled to seek injunctive relief in case of any such breach
or threatened breach.
6.2 Customer Information and Privacy Policy. Without limiting the
generality of Section 6.1 above, other than in connection with
the transactions contemplated by this Agreement, Market
Central shall not, directly or indirectly, use or disclose the
Customer Information, including, but not limited to: (i)
selling or renting any Customer Information; (ii) sending any
written communications, including emails, to any Customers, or
otherwise soliciting any Customers, (iii) marketing to
Customers, and/or (iv) making any use of the Customer
Information, either individually or in an aggregate form.
Market Central shall comply with the terms of SB's privacy
policy as set forth at
http://www.smartbargains.com/privacy.asp and made a part
hereof, as well as its own published privacy policy.
6.3 Publicity. The parties agree that no press release or public
announcement related to the other party or the relationship
between the parties shall be made without the other party's
prior written consent. Notwithstanding the foregoing, Customer
may disclose Market Central's name to Customer's financial
lenders and other third parties as necessary for Customer to
facilitate its business and such other information as may be
required under applicable law.
6.4 Ownership of Intellectual Property. Nothing in this Agreement
shall be deemed to give either party any ownership interest in
any patent, invention, technology, copyright, trademark or
other intellectual property right of the other party.
6.5 Return of Confidential Information. At any time if requested
by either party, and, in any event within 48 hours days of any
termination date, each party will return to the other party
all Confidential Information (in a format designated by the
requesting party) of the other party in its possession and
will not make or retain any copies of such Confidential
Information.
Page 7
<PAGE>
7. REPRESENTATIONS AND WARRANTIES
MARKET CENTRAL REPRESENTS, WARRANTS AND COVENANTS THAT:
a. Market Central is a corporation duly organized and validly existing
under the laws of the State of Delaware and has all requisite power and
authority to execute and deliver, and to perform all of its obligations
under, this Agreement.
b. Market Central's performance of its obligations under this Agreement
will not conflict with or result in a breach or violation of any of the
terms or provisions or constitute a default under any agreement by
which it is bound and that it is not a party to any agreement
containing a non-competition clause or other restriction with respect
to (i) the activities and services which it is required to perform
hereunder, or (ii) the use or disclosure of any information directly or
indirectly related to the transactions contemplated by this Agreement.
c. Market Central has all the appropriate permits, licenses and
registrations to provide the Services hereunder.
d. This Agreement constitutes a legal, valid and binding obligation of
Market Central, enforceable against it in accordance with its terms,
except as such may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and except as may be limited
by general principles of equity.
8. ASSIGNMENT
Neither party may, without the prior written consent of the other party,
assign or transfer this Agreement or any obligation incurred hereunder,
except that Customer upon written notice to Market Central may assign this
Agreement to any affiliated entity, or to a successor entity upon the
merger, reorganization, consolidation, or sale of all or substantially all
of Customer's assets. Any attempt to assign this Agreement in contravention
of this Section shall be void and of no force and effect.
9. FORCE MAJEURE
Neither party will be liable for delays or failures in performance
resulting from acts beyond its reasonable control, including, but not
limited to: embargoes, wars, the elements, labor disputes, acts of a
governmental body, acts of God, fires, floods, provided, however, that
performance of each party's obligations hereunder shall not be excused by
reason of an act of a government authority in the exercise of its
enforcement powers against a party for the alleged violation of any law,
rule or regulation. Any event that prevents either party from performing
its obligations hereunder and that is beyond its reasonable control, and
without the fault or negligence of such party, shall constitute an
excusable delay. The parties will use their best efforts to comply with the
contract. Market Central will not be liable in the event one of the
contingencies mentioned above occurs, however, occurrence of one of the
above mentioned contingencies will also suspend Customer's payment
obligations until the contingency is resolved. If, in spite of Market
Central's best efforts, an event of Force Majeure continues for more than
24 hours, Customer has the right to immediately cancel this Agreement.
Page 8
<PAGE>
10. APPLICABLE LAW
The construction, interpretation and performance of this Agreement is a
contract under the laws of the State of North Carolina, U.S.A., excluding
its choice of law provisions, which shall be the exclusive place of
jurisdiction and venue. Litigation concerning this Agreement may be
commenced in the U.S. Federal Courts located in the State of North
Carolina. In the event of litigation between the parties over this
Agreement or any of its terms, the prevailing party shall be entitled to
recover its reasonable attorneys' fees and costs from the non-prevailing
party in addition to any and all other remedies to which it may be
entitled.
11. NOTICES
Any notices or demands or other communications which under the terms of
this Agreement or under any statute must or may be given or made by
Customer or Market Central shall be in writing and to the respective
parties as set forth herein. Notices to Market Central shall be to the
attention of Legal Dept., General Counsel, Market Central, Inc., 1650A Gum
Branch Road Jacksonville, North Carolina 28540. Notices to Customer shall
be to the attention of Steven Nezer, EVP Operations, 10 Milk Street, 10th
Floor, Boston, MA 02108 with a copy to the Legal Department at the same
address. Either party may change the notice address or addressee by giving
notice thereof to the other party. Notices may be given by first class U.S.
mail (postage pre-paid, registered and with return receipt requested),
nationally recognized express courier, confirmed facsimile, or personally.
Notices shall be deemed to have been given on the date of delivery when
delivered personally or by facsimile, on receipt if delivered by express
courier or by hand, and three (3) days after delivery to the United States
Postal Service if mailed.
12. NON-WAIVER
Neither party's failure at any time to enforce any of the provisions of
this Agreement or any right or remedy available hereunder or at law or
equity, or to exercise any option herein provided shall in no way be
construed to be a waiver of such provisions, rights, remedies of options or
in any way to affect the validity of this Agreement. The exercise by either
party of any rights, remedies or options provided hereunder or at law or
equity shall not preclude or prejudice the other from exercising thereafter
of the same or any other rights, remedies or options.
13. COMPLIANCE WITH LEGAL REQUIREMENTS
Both parties shall comply with all applicable federal, state, and local
laws and executive orders and regulations issued pursuant thereto. Both
parties warrant and represent that they are empowered to enter into this
Agreement and that the signatories hereto can bind the parties to this
Agreement.
14. CONSEQUENTIAL DAMAGES
EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION
4 OF THIS AGREEMENT AND THE CONFIDENTIALITY OBLIGATIONS SET FORTH IN
SECTION 6 OF THIS AGREEMENT, NEITHER PARTY SHALL BE ENTITLED TO INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST
PROFITS, BASED ON ANY BREACH OR DEFAULT OF THIS
Page 9
<PAGE>
AGREEMENT BY THE OTHER PARTY, REGARDLESS OF THE FORESEEABILITY OF SUCH
DAMAGES AND/OR THE KNOWLEDGE OF THE OTHER PARTY.
15. COUNTERPARTS
This Agreement may be executed in one or more counterparts and all such
counterparts shall be treated as the same binding Agreement. In any
litigation between the parties, a photocopy of this Agreement shall be
accepted into evidence.
16. INDEPENDENT CONTRACTORS
The relationship of the parties under this Agreement shall be, and shall at
all times remain, one of independent contractors and not that of employer
and employee, franchiser and franchisee or joint ventures. This Agreement
does not establish or constitute the Customer as the Market Central's agent
for any purposes whatsoever. Nothing contained in this Agreement shall be
deemed to create or be construed as creating a joint venture or partnership
between the parties. Each party is an independent contractor and may not
create any obligation on the other party, express or implied.
17. RELEASES VOID
Neither party shall require releases or waivers of any personal rights from
representatives of the other in connection with visits to its premises and
both parties agree that no such releases or waivers shall be pleaded by
them in any action or proceeding.
18. HEADINGS
All headings contained in this Agreement are inserted for convenience only
and are not intended to affect the meaning or interpretation of this
Agreement or any clause.
19. SEVERABILITY
If any of the terms or conditions in this Agreement are properly found to
be invalid or unenforceable by a government body, the remaining terms or
conditions of this agreement shall not be affected by the finding and shall
continue to apply.
20. ENTIRE AGREEMENT
This Agreement and the attached exhibits constitute the entire Agreement
between Customer and Market Central on the subject matter, and it
supersedes all prior oral or written representations, express or implied,
understandings or agreements, without limitation, any marketing or
promotional material that may be supplied by Market Central. In the event
of a conflict between this Agreement and the Exhibits, this Agreement shall
prevail. This Agreement may not be changed or waived except as permitted by
this Agreement or by a written document that is signed by both parties.
Page 10
<PAGE>
21. SURVIVAL
The rights and obligations of this Agreement which by their nature are
intended to survive expiration or termination shall so survive, including
but not limited to: Sections 1F, 2B, 4E, 5, 6, 7, 10, 11 - 16 and 20.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the day and year first above set forth, to be effective as of May 1, 2004.
SmartBargains.com, LP E-commerce Support Centers, Inc.
d/b/a Market Central, Inc.
/s/ S.M. Joseph /s/ William Hadel
------------------------------------ -----------------------------------
Name Stephen M. Joseph William Hadel, Vice President
Treasurer
Page 11
<PAGE>
MARKET CENTRAL CONTACT CENTER SERVICES STATEMENT OF WORK
EXHIBIT A
1. GENERAL INFORMATION
1.1. This attachment to Statement of Work ("SOW") is attached to and
made a part of that certain Teleservices Agreement effective as
of April 1, 2004 (the "Agreement") by and between Market Central
("MC") and SmartBargains.com, LP ("Customer" or "SmartBargains").
1.2. This SOW relates only to the contact center functions to be
performed by MC at its Jacksonville, NC facility (the "Facility")
on behalf of Customer.
2. SUPPORT OVERVIEW
2.1. The following statements address the primary operating
requirements that MC shall provide to the Customer:
2.2. MC will provide dedicated and pooled customer service
representatives to the Customer for the purpose of
inbound/outbound telephone, e-mail and web chat customer support
for the Customer's products and services offered through
Customer's various marketing channels and affiliates (the
"Services"). The Services performed hereunder are to support
order placement and inquiry, shipment tracking, billing
information and inquiry, product inquiry, upsell and cross sell
of products and services, return inquiry, complaint resolution
and contact center services, including, but not limited to,
e-mail, inbound/outbound phone, fax, US Mail and other contact
center services.
2.2.1. MC will assign account management personnel, which
will serve as Customer's main day-to-day contact, to
coordinate overall program implementation, training
and on-going operations.
3. EQUIPMENT
MC will provide all required general purpose equipment necessary to perform
the Services, except that Customer shall provide and maintain, at
Customer's sole expense, any special, customized or unique equipment or
computer hardware needed to perform the Services.
4. IT SYSTEMS OVERVIEW
MC will provide a variety of systems for use by the service representatives
in supporting inbound/outbound customer contacts including, but not limited
to, [**]. The SmartBargains order management system ("OMS") and customer
service support application ("CSR") will be provided and maintained by the
Customer for order placement and order or billing inquiry.
5. FACILITIES
As of the Effective Date, MC will provide Customer the service
representatives located at its facility at 1650A Gum Branch Road in
Jacksonville, NC.
6. STORAGE OF DATA
All Customer related contact information and history will be kept and
stored within the MC systems at the Facility unless otherwise agreed to by
Customer. The information and history will be stored in a safe and secure
manner with backup at regular intervals.
Page 12
<PAGE>
Customer owns all its customer related contact information and history,
both of which are also the Confidential Information of the Customer. MC
will transfer to the Customer all stored information in a file format
designated by SmartBargains on a monthly basis. There will be no charge for
standard file and format information (they are going to send this over to
us to approve). The initial transfer of all customer related contact
information and history, compiled since April 2001, will be transferred in
a single file within 30 days from the date of the Agreement.
7. TRAINING REQUIREMENTS
7.1. MC shall train its personnel to perform contact center services to
support order placement and inquiry, shipment tracking, billing
information and inquiry, product inquiry, upsell and cross sell of
products and services, return inquiry, complaint resolution and
contact center services including but not limited to e-mail, inbound
phone, fax, US Mail and other contact center services as deemed
necessary. Customer agrees to provide MC with training materials and
applicable reference manuals relating to any specialized training for
processes or systems to be provided to MC under this SOW, which are
different from MC standard services.
7.2. MC will designate certain MC personnel, which may include personnel
that will have special responsibilities for Customer's accounts (each,
an "Associate") to serve as trainers ("Trainers") who will receive
such specialized training. After Customer has trained MC's Trainers,
the Trainers will train the applicable Facility personnel as
appropriate. Customer shall be responsible for all reasonable
pre-approved training expenses, including materials and training time,
associated with such specialized training. MC personnel will attend
Customer specific training classes to keep them abreast of new
requirements, promotions, changes in procedures and updates on current
policies. Training charges are set forth in Exhibit A of this SOW. All
training charges must be pre-approved by Customer. Customer will not
be charged for training due to agent attrition.
7.3. Market Central will provide a monthly summary report of
agent/supervisor/manager turnover. MC and Customer recognize that high
turn-over impacts quality, performance, and training expense. MC and
Customer will define turn over calculation and meet monthly to review
trends and actuals to work towards industry best practice levels.
8. CONTACT CENTER PROCESSES
8.1 ROUTING INBOUND CALLS
MC will route Customer voice calls by DNIS (Dialed Number Identification
Service) or toll free telephone number by agent skill to Multiple
Prioritized Queues, or via ACD prompts, or IVR. MC will provide
Greetings/Recordings as specified by the Customer for answer, queue, hold,
emergencies, closed and holiday situations.
8.2 RESOLVING PRE AND POST SALES INQUIRIES
MC will provide service representatives to support handling Customer
websites issues including, but not limited to, explaining product details
and features, investigating additional features and details not provided on
the websites, and resolving pre and post sales product inquiry by
explaining product details and features and related matters.
8.3 PLACING ORDERS
MC will provide service representative to support handling Customer
websites issues including, but not limited to, placing orders, canceling
orders, requests to add to or delete items from orders, combining orders,
returning items ordered, up sell and cross sell of Customer products and
services, shipping and tracking orders, and claims and adjustments for lost
orders and related matters.
Page 13
<PAGE>
8.4 HANDLING COMPLAINTS
MC will provide service representative to support handling Customer
websites issues, including, but not limited to, requests for credit when
price has been reduced, customer questions the quality of an item, items
missing from an order, customer claims to have received damaged/defective
items, customer claims that there are pieces missing from an item, customer
claims that a promotional rate or discount for an item was not applied as
promised, customer claims that the site details were unclear and the
product is not as expected or represented, requests for password
assistance, claims that the customer received the wrong item, wrong size or
color, claims that the order was never received or that the order shipped
late and related matters.
8.5 HANDLING CUSTOMER ACCOUNT MAINTENANCE
MC will provide service representative to support handling Customer
websites issues, including, but not limited to, requests to change the
account billing name and /or address, shipping name and /or address, change
credit card information, change the account password, change the account
e-mail address or screen name and related matters.
8.6 HANDLING CONTACTS RELATED TO COLLECTIONS ACTIVITY
MC will provide service representative to support handling Customer
websites issues, including, but not limited to, requests for new credit
card when one has been declined, request for new credit card expiration
date, request to validate order information provided, requests to respond
to credit card authorization failure activity, settlement failure activity
and fraud investigation activity, release bank credit card authorizations,
requests for returned item credit and related matters.
8.7 HANDLING GENERAL INQUIRIES
MC will provide service representative to support handling Customer
websites issues including, but not limited to, customer suggestions,
customer compliments, catalogue requests, questions about SmartBargains
company and its affiliates, policies and procedures, requests to do
business with SB or its affiliates, reporting site errors and troubles,
documenting customer contacts and related matters.
8.8 ESCALATION OF CONTACTS
The MC service representative will identify when an issue needs to be
escalated to a higher level of authority for further action in accordance
with the procedures set out in the applicable Customer Service Manual.
Escalations can be any contact type including, but not limited to, request
to replace a product, request to cancel an order that has been sent to
appropriate vendor for fulfillment, requests for credit on damaged /
defective / wrong item (for Corrective Order Placement "COP" tracking),
removal of bank authorizations from a credit card, removal from mailing
lists, account debits, to expedite shipping.
8.9 QUALITY MONITORING
8.9.1 MC and the Customer will participate in quality monitoring
sessions. Weekly MC/Customer standard setting monitoring sessions will
be scheduled at varying times of the business day and will be used to
establish quality standards for customer service interactions. In
addition, the MC Quality Assurance (QA) program will use random
sampling to gain an overall picture of productivity, professionalism
and quality of agent contacts for agent coaching and development
purposes.
8.9.2 Agents will be monitored for telephone calls, e-mails, fax and
on-line communications. Calls are observed live and/or recorded via
Witness Systems. A monitoring form, provided by the Customer, will be
used to evaluate each interaction observed. For online and e-mail
communications, transcripts will be reviewed randomly and
communications evaluated both during live interaction and upon
termination of the session
8.9.3 MC's QA department will monitor and evaluate three to five
percent of the
Page 14
<PAGE>
Customer's communications per week. However, the Customer may request
alternate percentage goals. The evaluated communications monitor forms
are to be logged and tracked for productivity and quality evaluation
for the agent and are reviewed with the customer. Joint Customer/MC
monitoring sessions will be logged and tracked to measure MC's service
quality for KPI's.
8.10 CLAIMS/TRACERS WITH CARRIERS ABOUT NON-RECEIPT OF PACKAGES
8.10.1 MC Service representatives will assist SmartBargains customers
with call, e-mail, fax, etc. inquiries about any order not received.
When the MC Representative determines through package tracking that
the order has been delivered or the package has arrived damaged in
transit, a tracer or claim will be filed with the appropriate carrier
including, but not limited to [**], etc.
8.10.2 An MC representative will be designated as the single point of
contact for shipping claims and tracers. He/she will issue claims,
follow up on claims, contact the customer with claims dispositions and
close claims according to procedures within the Customer Service
Manual.
9. FORECASTING AND SCHEDULING
9.1 On every other Friday, the Customer will provide Market Central with a
forecast for phone, e-mail and chat volumes. Each Bi-weekly Forecast
shall cover the two-week period commencing on the third Monday
following the date the forecast is provided and ending on then
following second Sunday (the "Forecast Period"). Within a week
following the delivery of the Bi-weekly Forecast, the parties will
agree to a staffing plan for dedicated agents based on the projections
for the Forecast Period. The staffing plan will specify the percentage
of dedicated agents (a dedicated agent equals one Full-Time Equivalent
or "FTE") to be assigned to Smart Bargains' account. Market Central
will plan to direct the remaining portion of the expected volume to
the pooled team. The staffing plan will also include the staffing
hours and the number of agents to be staffed each day and each hour
(30 minute increments). Customer will pay for the actual number of
dedicated agents and pooled minutes agreed to by the parties at the
rates set forth in Exhibit A attached to this SOW.
9.2 A weekly forecast conference call will be conducted. The Customer will
provide MC with any forecast updates or adjustments for the current
forecast period and review the forecast and the staffing plan for the
forecast period. Should staffing corrections or adjustments be
required for the remainder of the current forecast period, the parties
will agree to a revised staffing plan and any remedial actions
required to maintain an optimum level of customer service for the
period.
9.3 Within one week after each week end, Market Central will supply
forecast vs. actual results for calls, e-mails, chats, by hour for the
just ended billing cycle. (These are also reported daily half hour by
half hour.)
Page 15
<PAGE>
10. METRICS
The following Key Performance Indicators (KPI's) apply up to [**]% over the
Forecast, except for 10.1.4 (Talk Times) and 10.1.6, which apply at all
times regardless of the Forecast. Additional metrics will be added as
agreed. The Metrics will be used to determine incentives or penalties as
defined below. The cure periods set forth in the Agreement shall not apply
to any breach of this Section 10, and the Customer will have the right to
terminate the Agreement if MC fails to meet any of the metrics in this
Section 10 for [**] (regardless if it is the same metric or different
metrics for such [**] period). The parties will meet quarterly to review
the prior period KPI trends and reach mutual agreement prior to changing
the KPI requirements, incentives, and penalties. Any changes to the metrics
in this Section 10 will be evidenced by a letter agreement signed by both
parties.
10.1 The "incentive" amount is based on approved dedicated agent regular
hours and pooled minute charges [**] (collectively, the "[**]"). The
incentive will be paid when MC achieves the Incentive Level noted for each
Key Performance Indicators (KPI's) listed below. The amount to be paid will
not exceed [**]% of total [**]. Upon payment of the incentive amount, MC
will "payout" [**]% of the incentive directly to floor personnel and [**]%
to Market Central.
10.2 The "penalty" credit is also based on the [**]. A penalty credit will
be issued to SB for each instance that MC fails to meet each of the Key
Performance Incentives set forth in the Penalty Fees section for each of
the following: 1) [**]; 2) [**]; and 3) [**]. The credit will be deducted
[**] for each metric that MC fails to meet. In no event shall the penalty
amount exceed more than [**]% [**].
10.3 SB and MC will meet weekly to determine incentives or penalties, if
any, based on exceeding the weekly forecast by [**]% for determining payout
or credit amounts. SB will evaluate payment of incentives, if any, against
KPI results based on MC's performance in leveraging resources and
responsiveness in meeting KPI's when the forecast is exceeded by [**]%.
10.1.1. [**] CALLS [**]
>> DEFINITION: [**] by MC [**].
>> REQUIREMENT: The Requirement is for MC to achieve [**].
>> INCENTIVE LEVEL: This level is where MC [**]. Customer will
[**].
>> MEASUREMENT: The metric is calculated as follows: {[**] for
the period}[**]. This metric will be calculated [**].
>> PENALTY FEES: If MC [**], MC will [**] the Penalty Fee [**].
10.1.2 [**] E-MAILS (E-MAIL [**])
>> DEFINITION: The [**] of e-mail [**] until an MC
agent properly [**]. This time is based on [**].
>> REQUIREMENT: The Requirement is for MC [**] [**] of the days
in the week.
>> INCENTIVE LEVEL: This level is where MC's [**] of the days
in the week. Customer will [**].
>> MEASUREMENT: This metric is calculated as follows: [**].
This metric will be calculated [**].
Page 16
<PAGE>
10.1.3 [**] RATE ([**] RATE)
>> DEFINITION: The [**].
>> REQUIREMENT: The Requirement is for MC to achieve [**].
>> MEASUREMENT: This metric is calculated as follows: [**].
This metric will be calculated [**].
>> INCENTIVE LEVEL: This level is where MC's [**]. Customer
will [**].
10.1.4 [**] TIME
>> DEFINITION: The average [**].
>> REQUIREMENT: The Requirement is for MC to [**].
>> MEASUREMENT: This metric is calculated as follows: [**].
This metric [**]. This metric will be calculated [**].
>> INCENTIVE LEVEL: This level is where MC's [**]. Customer
will [**].
>> PENALTY FEES: If MC [**], MC will [**].
10.1.5 [**] TIME ([**])
>> DEFINITION: The average [**].
>> REQUIREMENT: The Requirement is for MC to [**].
>> MEASUREMENT: This metric is calculated as follows: [**].
This metric will be calculated [**].
>> INCENTIVE LEVEL: This level is where MC's [**], Customer
will [**].
10.1.6 [**]
>> DEFINITION: The [**] provided by MC agents [**]. In
addition, MC will [**] by the MC [**].
>> REQUIREMENT: The Requirement is for MC to [**] [**] will be
evaluated [**] will be evaluated [**].)
>> MEASUREMENT: This metric is calculated as follows: [**].
This metric will be calculated [**].
>> INCENTIVE LEVEL: This level is where MC's [**], Customer
will [**].
>> PENALTY FEES: If MC [**].
11. REPORTS
11.1.1 MC will provide standard reports and such other reports as mutually
agreed upon. Any manipulation of the data by Customer, and subsequent reporting
discrepancies caused thereby, are the responsibility of Customer. Reporting
periods will be consistent with Customer's fiscal monthly accounting cycle.
11.1.2 Standard reports include, but are not limited to:
Call Profile Detail Report - daily
Application Management Summary Report - daily
[**] Calls Profile Detail - daily
Agent Performance Detail by Agent Group Number - daily
[**] Calls Profile Detail - daily
Performance (Detail) by Group Number - Outgoing - daily
Performance (Detail) by Group Number - Incoming - daily
[**] reports - Agent Summary, [**] Line, [**]
[**] Category, and
System Summary - daily
Page 17
<PAGE>
[**] Calls[**] vs. [**]
[**] - daily
[**] vs. [**] - daily
Contact Category Report - daily
Lost Returns Report - daily
[**] Report or other drop ship vendor RMA reports as required
- daily
[**] Tracers Report - weekly
Vendor Tracers Report - weekly
COP (Correction Order Placed) Tracking - daily
Mailing List Removals - daily
Individual Agent Scores for [**] - monthly
Month End KPI Summary Report (10.1.1-10.1.6)
Should the support systems at MC change, equivalent or better reports
will be provided from the new applications. All metrics should be
reported in a summary view for Customer's use. Specific format will be
established between the parties.
Page 18
<PAGE>
EXHIBIT A - SCHEDULE OF RATES AND CHARGES
Except as noted in B below, these prices remain in effect for the Initial Term
of the Agreement.
A. CONTACT CENTER AND CUSTOMER SERVICE PROGRAM DEVELOPMENT
B. [**]DEDICATED CSRS, ESCALATION, AND RETURNS STAFF:
COST PER HOUR (NORMAL) - $[**]/AGENT [**]
COST PER HOUR (NORMAL) - $[**]/AGENT [**]
COST PER HOUR (OVERTIME) - $[**]/AGENT
All hourly pricing includes [**].
C. POOLED CSRS
ITEM COST
---- ----
[**] $[**]/MINUTE
[**] $[**]
[**] $[**]/MINUTE
All per minute/occurrence pricing includes [**].
D. MISCELLANEOUS CHARGES
ITEM COST
---- ----
[**] $[**]/HOUR
[**] $[**]/HOUR
[**] $[**]/HOUR
[**] $[**]/HOUR*
[**] $[**]
[**] $[**]
[**] $[**]/HOUR
[**] [**]
*Agent training applies when adding staff to the existing pooled and
dedicated teams to accommodate an increase in expected volume. All
training charges must be pre-approved by the Customer.
Page 19
<PAGE>
EXHIBIT B - TRANSITION PLAN
Termination:
o Within [**] of termination notification by either party, a transition
team will be designated by MC and SB to develop a detailed transition
plan to include the following areas:
o Customer service data, history, and cut over schedule.
o Customer data and history will be provided in standard
electronic format without additional fees or payments.
o Detailed contact staffing plan to insure service levels and
transition staffing are maintained through transition.
o Customer scripts, records, samples, voice messaging, and
documentation
o Transfer of Customer's toll free numbers, equipment,
software, or secure access.
o Key management & staff retention plan.
o Access to contact center by Customer vendors for purposes of
cross training, transitioning processes, data, and telephone
processes.
o Transition services will be billed and due based on agreed to plan
above and existing contract rates and payment schedule.
Page 20
<PAGE>
EXHIBIT B TO AGREEMENT
MARKET CENTRAL DISASTER RECOVERY PROCESS
In the event of pending site failure or catastrophic site failure, the Atlanta
center will be notified to activate the business continuity service (bringing
the cold site up and available for immediate use by MC agents)
MC will transport all available support representatives to Atlanta, GA to staff
the Cold Site.
Client will be immediately contacted regarding the redirection of 800 service
for its customers.
All computer-based services including telecommunications will be verified by MC
staff.
WHAT IF...
LOSS OF A DEDICATED ACCESS TRUNK- MC currently has over 25 dedicated access
trunks, 15% of these trunks are unutilized and can be quickly mobilized to
replace dedicated trunks experiencing an out of service condition
LOSS OF CRITICAL LEC (LOCAL EXCHANGE CARRIER) EQUIPMENT -MC maintains on-site
depot-style replacement parts for all mission critical equipment
LOSS OF POINT OF PRESENCE (LEC) -MC's local loop access is through an OC-12 ring
terminated in geographically disparate Sprint facilities.
LOSS OF PBX/ ACD/ ARU/CTI SERVING THE CALL CENTER -MC maintains inherently
redundant systems, but in the case of catastrophic systems failure, traffic can
be handled through MC's secondary switching platform.
LOSS OF POWER TO CALL CENTER -MC maintains a 550Kw Caterpillar generator and
on-site fuel supply to power a fully staffed center 24x7 for 72 hours.
Additionally, MC has made provisions with the local municipality to provide a
tanker truck capable of supplying fuel to last two weeks.
USE OF ALTERNATE FACILITIES OR CARRIERS -MC maintains several carriers for voice
and data traffic, all of which are fully capable of individually supporting MC's
communications requirements. MC frequently switches traffic between these
vendors, without interruption to customers' services. In case of an outage, MC
is capable of switching communication vendor traffic for voice in 2 hours, and
for data that is not already included in MC's hot swappable infrastructure
within 30 minutes.
Page 21
<PAGE>
DISASTER RECOVERY AND CONTINGENCY PLAN
Market Central, Inc. provides a two-pronged business continuity solution to best
service its customers. MC employs fault tolerant solutions and cold-site backup
facilities to mitigate risk for business critical MC center solutions.
FAULT TOLERANCE
First tier business continuity involves the architecting of systems that are
available the maximum amount of time. Toward this end the following call center
systems are fully fault tolerant:
INFRASTRUCTURE:
The DATA NETWORK is inherently redundant via the Office wide fiber ring,
ensuring uninterrupted connectivity for call center stations in the event of
localized power outages or unforeseen equipment failures-
ALL CABLING IS CATEGORY V UTP. The best cable available for general voice/data
wiring. The TELECOM OC-12 RING FROM SPRINT provides uninterrupted voice and data
service to the MC premises in the event of catastrophic network failure on the
part of the service provider (i.e., fiber cut, central office disaster)
MULTIPLE ON-SITE INTERNET PROVIDERS (Sprint, Qwest, and AT&T)
MC maintains a 550Kvw GENERATOR with a 3 second fail-over switch for full self -
sufficiency during power loss situations.
DATABASE SERVERS:
ALL WORKGROUP DATABASE SERVERS ARE MULTIPROCESSOR AND HAVE MODULAR COMPONENTS
for easy replacement in case of failure.
SERVERS ARE REDUNDANT FOR DATA STORAGE with internal or external RAID SYSTEMS.
Cold spares are kept on site in case of massive system failure.
All MISSION CRITICAL DATA ARE BACKED UP DAILY as part of a monthly schedule.
All MISSION CRITICAL SYSTEMS ARE BACKED UP VIA UPS SYSTEMS FOR A MINIMUM OF 30
MINUTES.
WORKSTATIONS
Spare, hot swappable workstations and telephone sets are stored at MC sites in
case of single station failures. In case of failure, agents may be moved to
operational hot seats while the failed system is repaired/replaced.
Page 22
<PAGE>
COLD-SITE BUSINESS RECOVERY
In addition to the deployment of high availability solutions, MC relies on its
cold-site business recovery facility in Atlanta, GA. In partnership with
Warranty Corporation of America (WaCA), a Market Central investment capital
firm, MC is able to immediately deploy 50 inbound customer service seats
utilizing existing infrastructure at WaCA 's headquarter campus in Atlanta. This
cold site offers the following solutions:
WORKSTATIONS
50 PENTIUM-CLASS WORKSTATIONS. Pre-loaded with campaign specific versions of
Bridge, and NetAgent.
50 ACD SETS (5 supervisor positions)
50 HEADSETS
APPLICATION SERVICE
Cold-backup NetAgent server and database server
Cold-backup Bridge server
Cold-backup mail server
INTERNET SERVICE
2x TI internet service from AT&T
DNS-provided fail-over to AT &T network for NetAgent servers
TELECOMMUNICATIONS SERVICE
Pre-defined cold circuit trunk groups available for 800 redirection
Existing call center ACD service with pre-built call control tables.
Page 23