Service Agreement Performed by Atento Puerto Rico

Cuantía: $100,000.00
Núm. de Cuenta: 01-4017-90500-550-382
2017-P00005
Service Agreement
Performed by
Atento Puerto R i c o , Inc.
for
Puerto R i c o E l e c t r i c and P o w e r Authority ( A E E )
TABLE OF CONTENTS
ARTICLE
ARTICLE 1 - SERVICES AND PERFORMANCE
ARTICLE 2 - CONSIDERATION AND PAYMENT
ARTICLE 3 - CONTRACTOR'S EMPLOYEES
ARTICLE 4 - I N D E M N I T Y
ARTICLE 5 - CONFIDENTIALITY
ARTICLE 6 - PERIOD OF AGREEMENT/TERMINATION
ARTICLE 7 - FORCE MAJEURE
ARTICLE 8. - INSURANCE - T O BE EVALUATED BY RISK MANAGEMENT OFFICE
ARTICLE 9 - CONTACT & NOTICES
ARTICLE 10 - CHOICE OF LAW AND FORUM SELECTION
ARTICLE 11 - MISCELLANEOUS
ARTICLE 12 - CERTIFICATIONS
ARTICLE 1 3 - T R A N S F E R OF FUNDS
ARTICLE 14. - ENTIRE CONTRACT
PAGE
1
8
10
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27
30
31
G E N E R A L T E R M S AND CONDITIONS A P P L I C A B L E T O S E R V I C E S
This Service A g r e e m e n t is entered into by and between the Puerto Rico Electric Power
Authority
(hereinafter
referred
to
as
"PREPA"),
a
public
corporation
and
government instrumentality of the C o m m o n w e a l t h of Puerto Rico, created by Act No. 83
of May 2, 1 9 4 1 , as a m e n d e d , represented herein by its Executive Director, Javier A.
Quintana Mendez, of legal age, married and resident of G u a y n a b o , Puerto Rico, a n d ;
A T E N T O Puerto Rico, Inc. (hereinafter referred to as "the Contractor or A T E N T O " ) a
corporation organized and existing under the laws of the C o m m o n w e a l t h of Puerto
Rico, represented in this act by its Resident Agent, Rosa H Maldonado, of legal age,
and resident of C a g u a s , Puerto Rico, by virtue of the Corporate Resolution dated
rd
December 3 , 2012.
Both, P R E P A and A T E N T O will jointly be referred to as "the Parties".
WITNESSETH
W H E R E A S , A T E N T O desires to provide PREPA Contact Center Services as
specified in of this Agreement;
W H E R E A S , P R E P A desires to enter into a Service A g r e e m e n t with A T E N T O for
the performance of such services.
N O W , T H E R E F O R E , P R E P A and A T E N T O enter into this Service Agreement
under the following:
T E R M S AND C O N D I T I O N S
A R T I C L E 1 - S E R V I C E S AND P E R F O R M A N C E
1.1
S c o p e of S e r v i c e s - T h e Services to be provided by A T E N T O will be:
A T E N T O shall provide services for receiving and handling Inbound Calls from
PREPA's customers
performing
payments, requesting service
reconnection,
Atento Puerto Rico / A E E
Page 2
reporting outages, requesting maintenance such as tree trimming, public lighting,
reporting emergencies related to the electric grid, following-up work requests or
for any other customer service request previously coordinated by the shift
supervisor. A T E N T O shall provide such services in a c c o r d a n c e with the following
procedure:
(i)
Inbound Calls will be handled by the IVR or the system employed by
A T E N T O to receive Inbound Calls, and;
(ii)
T h e Inbound Calls shall be received by A T E N T O and routed to the
next available C u s t o m e r Service Representative (CSR).
1.2
A T E N T O ' s services will meet or exceed the following Service Levels:
(a) A b a n d o n e d calls: Equal or less than 7%;
(b)
Average speed of answer: 9 5 % of calls responded in 3 minutes or
less;
(c)
Other Service Levels within the Scope of this A g r e e m e n t may be
added to the above at the request of PREPA, w h o will notify A T E N T O
at least 10 days before the c o m m e n c e m e n t of the Service Level
requested.
1.3
A T E N T O shall also provide such additional related services as set out in the
A g r e e m e n t and including, without limitation, the following:
(a)
A T E N T O shall notify P R E P A on a daily basis of any
required by A E E ' s customers.
information
Atento Puerto Rico / A E E
Page 3
(b)
ATENTO
related
to
systems.
shall provide P R E P A with such information and
Services
performed
by A T E N T O
and
created
reports
by
its
A T E N T O shall provide reports for the Services on a daily
basis, which must include, at a m i n i m u m , the number of Inbound Calls
a n s w e r e d , abandoned and percentage of calls answered, average
speed of answer, number of agents staffed in the A T E N T O Call Center
at any given time interval, or any other information
the A T E N T O
ATENTO's
systems
provided
as P R E P A d e e m s appropriate to
performance.
These
by
evaluate
reports will be broken down
in
(i) 30 minutes increments with a day's total, (ii) a daily basis by
w e e k and month in Puerto Rico local time in respect of the prior
day's Services,(iii) a weekly basis in daily increments until 11:59 p.m.
Puerto Rico local time of each Saturday, and (iv) a monthly basis in
^
daily increments until 11:59 p.m. Puerto Rico local time of the last day
v
of each m o n t h , and prior to the invoice of monthly fees by A T E N T O .
T h e content of each report shall be mutually agreed to the Parties,
(c)
A T E N T O shall allow PREPA, through reasonable mechanisms to be
m a d e available by A T E N T O to PREPA, to monitor A T E N T O ' s service
receiving and handling of calls from clients. A T E N T O shall provide
P R E P A with any and all information, reports, or feedback related to
Service quality, which are created by the monitoring of the receiving
and handling of calls from customers. A T E N T O a s s u m e s all expenses
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Page 4
related to the provision of telecommunication lines and the bearing of
network costs associated with routing Inbound Calls to the A T E N T O ' s
facility.
ATENTO
is
responsible
for
the
properly
equipping
of
A T E N T O ' s facility with the necessary hardware to receive and handle
Inbound Calls as required by this Agreement.
1.4
A T E N T O shall consult with P R E P A the use of project m a n a g e m e n t
tools,
including productivity aids and project m a n a g e m e n t systems. A T E N T O shall use
mutually acceptable project m a n a g e m e n t tools and employ a regular reporting
m e c h a n i s m to identify project tasks, present current status reports and identify
potential problems.
1.5
Except as otherwise established in the A g r e e m e n t , A T E N T O shall utilize its
facility at Parque Industrial El T r o c h e , # 189 Street, K m . 2, Caguas, Puerto Rico
(the "facility") for the performance of Services. T h e facility will be equipped with
telephone systems, computer systems, and various A T E N T O ' s support and call
monitoring tools to be used in the delivery services. A T E N T O shall bear all
expenses of operating the Facility, including all expenses for e q u i p m e n t and
systems necessary to connect to any telecommunications circuits or facilities
utilized by A T E N T O to bring calls to the Facility.
1.6
T h e connection from A T E N T O to P R E P A computer systems shall be through
A E E ' s server.
Atento Puerto Rico / A E E
Page 5
1.7
A E E shall have the right to implement an extensive monitoring program.
may perform remote and on-site CSR monitoring.
PREPA
A T E N T O shall monitor at
least 4 calls per C S R per month.
1.8
T h e following shall be considered "Deliverables" for purposes of the A g r e e m e n t
(i) any and all reports prepared and/or delivered pursuant to the A g r e e m e n t ,
(ii) the Training and Script Manual, (iii) the Disaster Recovery Plan, and (iv) the
Transition Plan.
1.9
A T E N T O shall provide adequate training to the C S R s regarding the operation of
the applicable equipment and technology, assuring that such training does not
interfere with A T E N T O ' s performance of the Services. In addition, A T E N T O shall
provide to the C S R s the training required by P R E P A from time to time (including,
without limitation, training regarding A E E ' s scripted call flows that CSRs will
follow).
All C S R s
utilized for the services will be fully trained
in
AEE's
procedures and call handling scripts.
1.10
In the event of the expiration or termination of all or of part of the Services being
provided
under the Agreement,
ATENTO
shall cooperate with
PREPA
to
facilitate the transfer of the affected Services to P R E P A or a third party service
provider,
as
applicable,
or
PREA's
designee.
Prior
to
the
expiration
or
termination date, A T E N T O shall assist P R E P A in developing a plan which must
specify the tasks to be performed by the parties in connection with the transfer of
the affected Services for the performance of such tasks.
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Page 6
1.11
Voice Calls Volume Forecasts:
P R E P A shall provide A T E N T O with a forecast
of the voice calls v o l u m e expected to be received during a month period.
Ten
(10) days before the end of month, P R E P A shall also provide A T E N T O a voice
call v o l u m e forecast, for the next three (3) months.
T h e forecast submitted by
PREPA, for the following month, will be considered as final.
A T E N T O will
provide, within seven (7) days before the end of month, the "measurement"
staffing of said forecast, which will be considered as the final staffing, after the
approval from P R E P A .
1.12
During the current month, a call v o l u m e forecast must be submitted for the
remaining full w e e k s of the month.
P R E P A and A T E N T O shall conduct weekly
meetings with the purpose of coordinating the necessary adjustments, if any, in
order to comply with the service level and quality required in the A g r e e m e n t .
1.13
A T E N T O shall be responsible to maintain, and not e x c e e d , the hours included in
the Final Staffing, as approved by the parties.
If any extension of hours is
required, A T E N T O shall request in writing an authorization from P R E P A before
the performance of any adjustment.
Final Staffing is the official document,
approved by the parties, were the hours (staff time) are established for the
following m o n t h . T h e approval of the Final Staffing must be submitted via email,
by the authorized representatives of the parties.
the parties can a m e n d the Final Staffing, in writing.
During the weekly meetings,
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1.14
Performance - A T E N T O will perform hereunder with the care, skill, prudence and
diligence that a prudent person acting in a like capacity and familiar with the
subject matter would use.
1.15
Warranty of L i c e n s i n g , C o m p l i a n c e with L a w , Qualification, C o m p l i a n c e
with R u l e s , Nondiscrimination - A T E N T O shall obtain and maintain during the
performance of the services hereunder all permits, licenses and authorizations
required by all applicable authorities to perform such services.
Furthermore,
ATENTO
performance
hereby
represents,
warrants,
and
agrees
that
its
hereunder will c o n f o r m to all applicable laws and regulations. A T E N T O warrants
that all e m p l o y e e s utilized by A T E N T O pursuant to this A g r e e m e n t will be fully
trained, equipped
courteous
manner
and
competent
and
will
work
and will perform their duties in a safe,
harmoniously
with
PREPA's
personnel.
A T E N T O will also c o m p l y with all applicable Laws pertaining to nondiscrimination
in employment and facilities.
1.16
E q u i p m e n t - A T E N T O will be responsible for t h e acquisition, maintenance,
inventory, storage, and control of all equipment, materials, supplies, and any
special equipment required to perform the Services.
1.17
S e r v i c e P r o v i d e d to O t h e r s - P R E P A acknowledges and agrees that Services
may be provided to P R E P A in conjunction with Services that A T E N T O may
provide to third parties.
Notwithstanding
anything
contained
in any
other
agreement to the contrary, A T E N T O agrees that Services provided for PREPA,
Atento Puerto Rico / A E E
Page 8
its employees and agents, will be provided pursuant to and in accordance with
the provisions of this A g r e e m e n t .
A R T I C L E 2 - C O N S I D E R A T I O N AND P A Y M E N T
2.1
Limit on F e e s - In full consideration of the performance of the Services, P R E P A
will pay A T E N T O in accordance with the T e r m s and Conditions set forth herein
and at the rates specified in Item 3.2 of this Article, which total amount to be paid
under
this
($100,000).
Agreement
shall
not
exceed
One
Hundred
Thousand
Dollars
All payments to be m a d e under this A g r e e m e n t will be charged to
account number 01-4017-90500-550-382.
2.2
T e r m s of P a y m e n t - A T E N T O will submit a monthly invoice to P R E P A for
Services provided to P R E P A during the previous m o n t h . All invoices will specify
the applicable contract and the purchase or work order number(s) applicable to
the Services, if any. Each invoice will also include full documentation of the
\
Services performed. P R E P A will pay A T E N T O within sixty (60) days of receipt of
A T E N T O ' s invoice. In the event of a dispute over the invoice, P R E P A will pay the
amount of the invoice not in dispute, and withhold the disputed amount until the
dispute is resolved.
2.3
C u r r e n c y - All monetary amounts specified in or payable under this A g r e e m e n t
are specified in United States dollars.
2.4
A d d r e s s for Invoice - A T E N T O will submit all invoices to the address listed
below or to such other addresses as P R E P A may specify in writing.
It is
Atento Puerto Rico / A E E
Page 9
acknowledged that invoices may also be submitted via e-mail to the address
listed below or to such other addresses as P R E P A may specify in writing:
Puerto Rico Electric Power Authority
Attn: Dwight Rodriguez
Customer Service Division Head
PO Box 364267
San Juan, Puerto Rico 00936-4267
2.5
Invoices must also include a written and signed certification stating that no officer
or employee
of
PREPA,
and their
respective subsidiaries
or affiliates, will
personally derive or obtain any benefit or profit of any kind from this Agreement,
with the acknowledgment that invoices which do not include this certification will
not be paid. This certification must read as follows:
"We certify under penalty of nullity that no public servant,
officer, agent nor employee of the Puerto Rico Electric Power
Authority, their respective subsidiaries or affiliates, will derive or
obtain any benefit or profit of any kind from the contractual
relationship w h i c h is the basis of this invoice. If such benefit or
profit exists, the required waiver has been obtained prior to
entering into the Agreement. T h e only consideration to be
received in e x c h a n g e for the delivery of g o o d s or for services
provided is the agreed-upon price that has b e e n negotiated
with an authorized representative of the Puerto Rico Electric
Power Authority.
The total a m o u n t shown on this invoice is true and correct.
T h e services have been rendered, and no p a y m e n t has been
received.
Authorized Representative's Signature"
2.6
T a x e s - P R E P A will deduct and withhold
at t h e source to A T E N T O
the
equivalent of seven percent (7%) from payment for services rendered under this
A g r e e m e n t in Puerto Rico, in compliance with the N e w Puerto Rico Internal
Atento Puerto R i c o / A E E
Page 10
Revenue Code, Law 1-2011, Section 1062.03, as a m e n d e d .
Notwithstanding
the aforementioned, the withholding to be done by P R E P A as herein stated
could be increased to twenty percent (20%) in the event that A T E N T O is a
non-resident
individual, which
is a U.S.
citizen, as provided
by the
New
Puerto Rico Internal Revenue Code, section 1062.08; or twenty-nine percent
(29%)
in the event that A T E N T O
is a non-resident
and
non U.S.
citizen
individual; or a foreign corporation or partnership which is not dedicated to
industry or business in Puerto Rico, as provided by the N e w Puerto Rico Internal
Revenue Code, section 1062.08. P R E P A shall provide a certificate stating that
such tax withholding w a s collected.
If a Release Letter has been issued to A T E N T O by the Treasury Department,
A T E N T O shall be responsible to submit a copy of said Release Letter to P R E P A
for every calendar year; otherwise, payments under the A g r e e m e n t shall remain
^
subject to withholding at source.
(services,
materials,
equipment,
All invoices shall be segregated by concepts
etc.),
to
identify the
amounts
subject
to
withholding and avoid undue deductions.
ARTICLE 3 - CONTRACTOR'S EMPLOYEES
3.1
A T E N T O ' s status hereunder and the status of any agents, employees
and
subcontractors e n g a g e d by A T E N T O shall be that of an independent contractor
only and not that of an employee, agent, director or officer of P R E P A nor shall
they be considered a public servant of neither P R E P A nor the C o m m o n w e a l t h of
Puerto
Rico.
ATENTO
recognizes
that
its
personnel
is
not
entitled
to
Atento Puerto Rico / A E E
Page 11
employment benefits such as vacations, sick leave, retirement benefits and other
benefits from P R E P A because of its condition as an independent contractor.
Neither A T E N T O nor its personnel shall have any power or right to enter into
contracts on behalf of P R E P A .
No provision of this A g r e e m e n t shall be d e e m e d
to create an e m p l o y m e n t relationship between A T E N T O or his employees and
PREPA.
3.2
C o n t r a c t o r ' s E m p l o y e e s - T h e employees of A T E N T O e n g a g e d in performing
Services hereunder will be considered employees of A T E N T O for all purposes
and will under no circumstances be d e e m e d to be e m p l o y e e s of
PREPA.
P R E P A will have no supervisory power or control over any such A T E N T O ' s
employees and any complaint or change in procedure will be communicated by
P R E P A to A T E N T O w h o will in turn promptly give any necessary instructions to
its personnel.
3.3
S u p e r v i s i o n of C o n t r a c t o r ' s E m p l o y e e s - A T E N T O will be responsible for the
direct supervision of its e m p l o y e e s through its designated representative and
such representative will in turn, report to and confer with the designated agents
of P R E P A with respect to the Services.
3.4
A s s u m p t i o n of Liability for C o n t r a c t o r ' s E m p l o y e e s - A T E N T O agrees to
a s s u m e full and complete responsibility for any and all liability to its employees
on account of injury, disability, and death resulting f r o m , or sustained by said
employees in the performance of the Services defined herein.
Atento Puerto Rico / A E E
Page 12
3.5
R e m o v a l of C o n t r a c t o r ' s E m p l o y e e s - At P R E P A ' s request, A T E N T O will
immediately remove from service any employee w h o s e acts or omissions will be
a violation of applicable law or constitute a breach of this A g r e e m e n t .
3.6
Parties R e s p o n s i b i l i t y for Its E m p l o y e e s - Both parties agree to accept full
and exclusive liability for the payment of any and all taxes, contributions, and
other
payments
Worker's
for
unemployment
Compensation,
employers
compensation
liability
and/or
insurance
pension
or annuities
benefits,
now
or
hereafter imposed upon employers as applicable to t h e m with respect to its
employees and each party will make such payments and will make and file any
and all reports and returns and take all other actions necessary to comply with
the laws imposing such taxes, contributions, or other payments.
3.7
Indemnity for Adjudication of A T E N T O E m p l o y e e s a s P R E P A ' E m p l o y e e s A T E N T O agrees to hold P R E P A harmless and to indemnify and defend P R E P A
in full for any and all d a m a g e s , claims, assessments, penalties, liabilities,
charges, attorney's fees or other losses incurred during or following the term of
this A g r e e m e n t ,
which
result from
any
assertion, claim,
determination
or
adjudication that A T E N T O or any of its employees are e m p l o y e e s of P R E P A ,
including, but not limited to, any claim, determination or adjudication
made
pursuant to the Internal Revenue Code, any of Puerto Rico U n e m p l o y m e n t laws
and regulations, compensation Law, or any other federal, state or local w a g e ,
employment,
ordinances.
insurance,
labor
and
other
laws,
statutes,
regulations
and
Atento Puerto Rico / A E E
Page 13
3.8
Warranty
of
Qualification
- ATENTO
represents
and
warrants
that
the
employees used in the performance of the Services hereunder will have the
qualifications, skills and experience necessary to perform the Services and will
have the work records as represented to PREPA.
3.9
Non-Discrimination In E m p l o y m e n t - In the performance of this Agreement,
ATENTO
will
comply
with
all
applicable
statutes,
regulations,
ordinances
pertaining to nondiscrimination in e m p l o y m e n t and facilities.
ARTICLE 4 4.1
INDEMNITY
Indemnification
by P R E P A
- PREPA
agrees and hereby undertakes to
release, indemnify, d e f e n d , and hold harmless A T E N T O , its directors, officers,
employees, agents and successors from and against any and all direct liability,
d a m a g e s , claims, civil penalties, suits, theft, penalties or actions of every name
and description, including claims of infringement of any third party's intellectual
property rights and any and all costs and expenses related thereto, including the
defense thereof, reasonable attorney's fees and court costs arising out of or
resulting from any act or omission of PREPA, its directors, officers, employees,
agents, successors, and assigns in connection with P R E P A ' s performance under
this Agreement, except to the extent caused by (a) the gross
negligence,
recklessness or willful misconduct of A T E N T O , its directors, officers, employees,
agents, successors and/or assigns or (b) arising from or in connection with a
violation of applicable law by A T E N T O , its directors, officers, employees, agents,
successors or assigns.
Atento Puerto R i c o / A E E
Page 14
4.2
Indemnification
by A T E N T O - A T E N T O agrees and hereby undertakes to
release, indemnify, defend, and hold harmless PREPA, its directors, officers,
employees, agents and successors from and against any and all direct liability,
d a m a g e s , claims, civil penalties, suits, theft, penalties or actions of every n a m e
and description, including claims of infringement of any third party's intellectual
property rights and any and all costs and expenses related thereto, including the
defense thereof, reasonable attorney's fees and court costs arising out of or
resulting from the act or omission of A T E N T O , its directors, officers, e m p l o y e e s ,
agents, successors, and assigns in connection with A T E N T O ' s
performance
under this A g r e e m e n t , except to the extent caused by (a) the gross negligence,
recklessness or willful misconduct of P R E P A , its directors, officers, e m p l o y e e s ,
agents, successors or assigns and/or (b) arising from or in connection with a
violation of applicable law by PREPA, its directors, officers, employees, agents,
successors or assigns.
4.3
E x c e p t i o n for G o v e r n m e n t Action - Notwithstanding Articles 5.1 and 5.2, in the
event that a government entity brings a criminal or civil action against a Party,
"\
that Party will have the right to control the m a n a g e m e n t and settlement of such
matter. This does not constitute a waiver of the other Party with respect to any
right it m a y have under the circumstances that gives rise to such criminal or civil
action, including, but not limited to, the right to intervene in any action against a
Party involving the services provided under the A g r e e m e n t or initiate any other
claim, suit or action.
Atento Puerto R i c o / A E E
Page 15
4.4
Conflict in C l a i m s of Indemnification - In the event of a dispute a m o n g the
Parties as to which Party owes the other Party a duty of indemnification under
this Article 5; each Party will have the right to defend and pursue its own interest
and resolve the conflict as agreed a m o n g the Parties or in the course of that
dispute.
4.5
No A d m i s s i o n s - Neither Party will have the right to m a k e any admissions on
behalf of the other Party.
4.6
R e a s o n a b l e A s s i s t a n c e - Notwithstanding the aforementioned, in the course of
any action brought against either Party, each Party, at its own expense, will
provide reasonable assistance to the other Party, including but not limited to
reasonable access to documents and personnel.
Prior to such access, the
Parties shall take those precautionary measures including, but not limited to, the
execution of any document, that may be necessary to protect and preserve as
confidential any information of such nature. Such reasonable assistance will not
require a Party to breach or waive any privilege or legal right, including but not
limited to the attorney-client privilege applicable to communications
between
each Party and its respective legal counsel.
ARTICLE 5 - CONFIDENTIALITY
5.1
Confidentiality - T h e Parties will presume that any information, including but not
limited to, business plans, customer data, e m p l o y e e data, financial information,
or contractual information, whether written, verbal or electronic, provided to or
observed
by
the
receiving
party
or
developed
in
connection
herewith
is
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Page 16
confidential information unless the receiving party is informed to the contrary or,
by its nature, it is public or intended to be shared in the course of the Contract's
performance hereunder.
The Parties will take reasonable precautions, including
the same precautions they take to protect their own confidential information, to
ensure that no confidential information is disclosed to any third party. The Parties'
obligations under this article will not apply to any of the following: (a) information in
the public domain or available to the public; (b) information available from third
parties without any non-disclosure obligation to the Parties; (c) or any disclosure
of confidential information required by any court, regulatory order or other service
of legal process, in which case the disclosing party will provide the
non-
disclosing party prompt notice of any such order or process and cooperate with
the responding of such request.
5.2
If this Contract terminates for any reason, the Parties shall maintain in strictest
confidence both; during the term of this Contract and subsequent to termination
of this Contract, and shall not during the term of this Contract or thereafter
disclose or divulge to any person, firm, or corporation, or use directly
or
indirectly, for its own benefit or the benefit of others, any information which in
good faith and g o o d conscience ought to be treated as confidential information
including, without limitation, information relating to P R E P A ' s customers, or any of
the Parties' operations or trade secrets or relating to the business or affairs of
either party m a y acquire or develop in connection with or as a result of the
performance of the Services hereunder.
In the event of an actual or threatened
Atento Puerto R i c o / A E E
Page 17
breach
by
any
of
the
Parties
of
the
provisions
of
this
paragraph,
the
non-breaching party shall be entitled to injunctive relief for such breach. Nothing
herein shall be construed as prohibiting the non-breaching party from pursuing
any other legal remedies available, including the recovery of damages from the
breaching party.
5.3
System A c c e s s
- ATENTO
acknowledges
and
agrees that in
connection
herewith, P R E P A may provide A T E N T O with access to various of P R E P A ' s
computer and communications systems.
A T E N T O acknowledges and agrees
that under no circumstances will it permit the systems to be used for any purpose
other than
Agreement.
passwords
those
required
in connection
with
its performance
under
this
A T E N T O agrees that it will maintain the confidentiality of codes,
and
user
names
required
to
access
those
systems
("Access
Information") and any information accessed via t h o s e systems and will promptly
report
by telephone
and
then
in writing
any
Information or accessed information to PREPA.
compromise
of the
Access
A T E N T O will also properly
secure the e q u i p m e n t required to access the systems and will promptly report by
telephone and then in writing any d a m a g e or problems therewith.
ARTICLE 6 - PERIOD OF AGREEMENT/TERMINATION
6.1
Term and Termination - T h e term of this a g r e e m e n t will c o m m e n c e on the date
of its signature by both parties, and will continue in effect for a period of three
months. This A g r e e m e n t may be extended for one additional term of three (3)
Atento Puerto Rico / A E E
Page 18
months, if P R E P A notifies A T E N T O its interest on such extension within thirty
(30) calendar days prior to the expiration of the original term.
6.2
Either Party shall have the right to terminate this A g r e e m e n t by providing the
other Party with a thirty (30) day advance notice by registered mail, return receipt
requested, or overnight express mail.
This Agreement will terminate thirty (30)
days after the receipt of said notice and PREPA shall pay all fees and expenses
incurred up to the day of effective termination, in accordance with the Terms and
Conditions of this Agreement.
6.3
B r e a c h By A T E N T O - Upon written notice to A T E N T O from P R E P A stating that
A T E N T O is in breach of the Agreement, A T E N T O will immediately remedy such
breach. W h e r e A T E N T O fails to remedy such breach within ten (10) days or to
promptly initiate and continue in good faith to remedy a breach that cannot be
reasonably remedied in ten (10) days, P R E P A will have the right to terminate the
A g r e e m e n t upon five (5) days' notice to A T E N T O . A T E N T O further agrees that
if it commits a substantially similar breach more than twice in any three (3) month
period, regardless
of remedy, P R E P A will have the right to terminate
the
A g r e e m e n t upon notice to A T E N T O .
6.4
B r e a c h By P R E P A - Upon written notice to P R E P A from A T E N T O stating that
P R E P A is in breach of the Agreement, P R E P A will immediately remedy such
breach.
W h e r e P R E P A fails to remedy such breach within ten (10) days or to
promptly initiate and continue in good faith to remedy a breach that cannot be
Atento Puerto Rico / A E E
Page 19
reasonably remedied in ten (10) days, A T E N T O will have the right to terminate
the Agreement upon five (5) day notice to PREPA.
In case of default in the payment obligation of P R E P A , A T E N T O
is duly
authorized to early terminate the Agreement with a written notice with thirty (30)
days in advance.
6.5
Limitation of Liability- In no event will A T E N T O or its respective licensors or
suppliers have any liability for any, indirect or consequential d a m a g e s , loss of
profits or revenue, loss or corruption of data, toll f r a u d , cost of cover, or
substitute goods or performance. The total aggregate liability of either party for
all claims arising out of or in connection with this A g r e e m e n t will not exceed an
amount equal to the total a m o u n t of all fees paid or payable
under this
Agreement. However, the limitations of liability in this section will not apply in
cases of willful misconduct, personal injury or breaches of A T E N T O ' s license
restrictions. T h e limitations of liability in this section also will apply to any liability
of directors, officers, e m p l o y e e s ,
agents
aggregate
to
liability
will
not
apply
and
suppliers. T h e
contractual
limitations
indemnification
of
obligations
provided in this A g r e e m e n t .
6.6
Notwithstanding the liabilities limits established herein, A T E N T O shall save and
hold harmless and indemnify P R E P A for all reasonable e x p e n s e s and costs of
any nature (including reasonable attorney's fees) incurred by P R E P A and arising
out of or from its fault, negligence or willful misconduct and thereby results in a
claim made by any third person for physical injuries, including death, or for
Atento Puerto Rico / A E E
Page 20
property d a m a g e , due to the fault or negligence of A T E N T O , in the performance
of its obligations under the Agreement.
ARTICLE 7 - FORCE MAJEURE
7.1
The Parties shall be excused from performing their respective responsibilities
and obligations under this Contract and shall not be liable in d a m a g e s
or
otherwise, if and only to the extent that they are unable to perform, or are
prevented from performing by a force majeure event.
7.2
For purposes of this Contract, force majeure m e a n s any cause without the fault
or negligence, and beyond the reasonable control of, the party claiming the
occurrence of a force majeure event.
7.3
Force majeure may include, but not be limited to, the following:
Acts of G o d ,
industrial disturbances, acts of the public enemy, war, blockages, boycotts, riots,
insurrections,
epidemics,
earthquakes,
storms,
floods,
civil
disturbances,
lockouts, fires, explosions, interruptions of services d u e to the acts or failure to
act of any governmental authority; provided that these events, or any other
claimed as a force majeure event, and/or its effects, are beyond the reasonable
control and without the fault or negligence of the party claiming the force majeure
event, and that such party, within ten (10) days after the occurrence of the
alleged force majeure, gives the other party written
notice describing
the
particulars of the occurrence and its estimated duration. T h e burden of proof as
to whether a force majeure event has occurred shall be on the party claiming the
force majeure.
Atento Puerto R i c o / A E E
Page 21
7.4
Notice of Failure - A T E N T O agrees to consult with and advise P R E P A
of any
anticipated delay or failure, as soon as it becomes aware of such anticipated
delay or failure or the possibility thereof, whether for force majeure
or not, and,
w h e r e applicable, the re-establishment of applicable timetables.
A R T I C L E 8. - I N S U R A N C E - T o be evaluated by R i s k M a n a g e m e n t Office
A T E N T O shall secure and maintain in full force and effect, during the term of this
Agreement as provided
herein policies of insurance covering all
operations
engaged in under this Agreement as follows:
(1)
A T E N T O shall provide W o r k m e n ' s Compensation Insurance as required by
the
Workmen's
ATENTO
shall
Compensation
also
be
Act
responsible
of the
for
Commonwealth
compliance
with
of
Puerto
said
Rico.
Workmen's
Compensation Act by all its subcontractors, agents and invitees, if any, or shall
certify that such subcontractors, agents and invitees have obtained said policies on
their own behalf.
ATENTO
shall furnish to PREPA
a certificate from
the
Puerto Rico's State Insurance Fund showing that all personnel employed in the
work are covered by the W o r k m e n ' s Compensation Insurance, in accordance with
this Agreement.
(2)
A T E N T O shall provide a Commercial General Liability Insurance with limits
of $1,000,000
per occurrence
and
$1,000,000
aggregate. T h e
Commercial
General Liability Insurance required under this Agreement, shall be endorsed to
include:
(a)
As
additional
Insured:
Puerto
Rico
Electric
Power
Authority,
PO Box 364267, San Juan, Puerto Rico 00936-4267; (b) A thirty (30) day
Atento Puerto Rico / A E E
Page 22
cancellation or nonrenewable notice to be sent to the above address by the
Contractor.
All required policies of insurance shall be in a form acceptable to PREPA and shall
be issued only by insurance companies authorized to do business in Puerto Rico.
A T E N T O shall furnish a certificate of insurance in original signed by an authorized
representative of the insurer in Puerto Rico, describing the acquired coverage.
ARTICLE 9 - CONTACT & NOTICES
9.1
C o n t a c t s - Each party agrees that it will designate a Contact w h o will be
primarily
responsible
for
coordinating
that
party's
performance
A g r e e m e n t and managing the relationship with the other party.
under
Each will have
the right to specify a Backup Contact and change its Contact and
Contact by notice to the other.
this
Each may specify Contacts for
Backup
particular
purposes, but that will not relieve that party from its obligations under the first
sentence hereof.
9.2
Notice - Except w h e r e specified elsewhere in this Agreement, any and all
notices, d o c u m e n t s , records, correspondence, approvals or d e m a n d s required or
permitted to be given by the parties hereto will be sufficient notice if made in
writing and sent by mail, postage prepaid, overnight courier, delivered by hand,
or via e-mail.
W h e r e sent by mail, such notices will also be sent by facsimile.
Notices to P R E P A will be addressed to:
Atento Puerto R i c o / A E E
Page 23
Puerto Rico Electric Power Authority
Attn: Dwight Rodriguez
Customer Service Division Head
P O Box 364267
San Juan, Puerto Rico 00936
E-mail: [email protected]
and to A T E N T O addressed to:
Atento Puerto Rico Inc.
Attn: Rosa H. Maldonado
P O Box 908
Caguas, Puerto Rico 00726-0908
E-mail: rmaldonado(a)atento.com.pr
or to such other addresses in the United States, as either party hereto may
specify for itself by notice in writting to the other as provided herein. Notices will
be d e e m e d served as of actual receipt.
A R T I C L E 10 - C H O I C E O F L A W AND F O R U M S E L E C T I O N
10.1
T h e parties hereto acknowledge and agree that this A g r e e m e n t will be governed
under the laws, of the C o m m o n w e a l t h of Puerto Rico.
10.2
Also, the Parties expressly agree that only the Courts of the C o m m o n w e a l t h of
Puerto Rico will be the courts of competent and exclusive jurisdiction to decide
over the judicial controversies that the appearing Parties may have a m o n g them
regarding the T e r m s and Conditions of this Agreement.
10.3
During T e r m of this A g r e e m e n t , any change in law, including, but not limited to,
changes in applicable tax law, which causes an increase in A T E N T O ' s costs
w h e n providing the Services to be acquired by PREPA, shall be A T E N T O ' s
responsibility, and P R E P A shall not be obliged to increase the Contract Price.
Atento Puerto Rico / A E E
Page 24
A R T I C L E 11 - M I S C E L L A N E O U S
11.1
Advertising - Neither party hereto will use the name, trademarks, or service
marks of the other for any purpose without the prior written consent of the other.
11.2
Assignment - ATENTO
obligations
under
this
shall
Contract,
not
assign
except
nor
in the
subcontract
event
its
PREPA
rights
give
and
written
authorization for such actions. Provided, that no subcontract shall be considered
for P R E P A ' s approval, except w h e n the following requirements are met: (1)
A T E N T O delivers to P R E P A a copy of the subcontract, not less than thirty (30)
days prior to the effective date of the proposed subcontract; (2) the subcontract
includes, as a condition for its legal validity and enforceability, a provision
whereby P R E P A has the right to substitute, subrogate or assume A T E N T O ' s
rights under the subcontract, in the event that P R E P A declares A T E N T O in
breach or default of any of the Contract terms and conditions; and (3) the
subcontract includes, as a condition for its validity and enforceability, a provision
establishing for the subcontractor the obligation to comply with all A T E N T O ' s
obligations under the Contract (mirror image clause), except for such obligations,
terms and conditions which exclusively
related with works or services
not
included under the subcontract. A request to subcontract shall specify the issues
or matters that will be referred to the subcontractor. T h e s e services shall be paid
as part of the m a x i m u m total amount to be paid under this Contract, as stated in
Article 3 . 1 .
Atento Puerto Rico / A E E
Page 25
11.3
H e a d i n g s - T h e captions and headings constructed in this A g r e e m e n t have been
inserted solely for convenience and are not to be considered in matters of its
interpretation.
11.4
Severability -
The
invalidity
or
unenforceability
of
any
provisions
of
this
Agreement shall not affect the validity or enforceability of any other provision of
this Agreement, which shall remain in full force and effect.
11.5
Waiver - No waiver of any breach of any portion of this Agreement will constitute a
waiver of any subsequent breach of the same or any other provisions hereof, and
no waiver will be effective unless made in writing.
11.6
Conflicts with Other D o c u m e n t s - In the event of any conflict between any terms
and/or conditions contained on any forms or documents exchanged by the parties
of this Agreement, the terms and conditions of this Agreement will govern.
11.7
A m e n d m e n t s - This Agreement or the Services rendered under it will be modified,
altered or a m e n d e d , only by mutual agreement evidenced by an instrument in
writing executed by both parties and their respective successors in interest.
11.8
Survival - T h e representations, warranties, indemnities, limitation of liability, and
confidentiality provisions contained herein will survive the termination or expiration
of the Agreement.
11.9
S w o r n Statement -
Prior to the execution of this Agreement, A T E N T O shall
submit a sworn statement to certify and guarantee that at the signing of this
Agreement, neither A T E N T O , nor its officers, directors, m e m b e r of its board of
directors or board of officials, or any person which perform similar functions for
Atento Puerto Rico / A E E
Page 26
the juridical person, nor any of its stockholders, partners, subsidiaries or alter
egos have been convicted, and that it has no knowledge that any of t h e m is or
are the subject of any investigation in either a civil or a criminal procedure in a
state or federal court, for charges related to the public treasury, the public trust, a
public function, or a fault that involves public funds or property, as stated in
Law 458-2000, as a m e n d e d .
It is expressly a c k n o w l e d g e d that this certification
is an essential condition of this Agreement. If the certification is not correct in its
entirety or in any of its parts, it shall constitute sufficient cause for P R E P A to
terminate this A g r e e m e n t immediately, without prior notice, and A T E N T O will
have to reimburse P R E P A any amount of m o n e y received under this Agreement,
as required by Article 3 of Law 458-2000 as a m e n d e d . If the status of A T E N T O
with regards to the charges previously mentioned should change at any time
during the term of the Agreement, A T E N T O shall notify P R E P A promptly.
The
failure to comply with this responsibility constitutes a violation of this section, and
shall result in t h e remedies mentioned previously.
11.10 C o d e
of
Ethics
-
ATENTO
certifies
that
it
shall
comply
with
the
provisions of A c t 8 4 - 2 0 0 2 , as a m e n d e d , which establishes the Code of Ethics for
Contractors, Suppliers and Applicants for E c o n o m i c Incentives of the Executive
Agencies of the G o v e r n m e n t of the C o m m o n w e a l t h of Puerto Rico.
11.11 E m p l o y e e s not to Benefit - The parties hereby declare that, to the best of their
knowledge, no public officer or employee of the C o m m o n w e a l t h of Puerto Rico,
its agencies, instrumentalities, public corporations or municipalities or employee
Atento Puerto Rico / A E E
Page 27
of the Legislative or Judicial branches of the G o v e r n m e n t has any direct or
indirect interest in the present Agreement. A T E N T O certifies that neither he nor
any of its partners, directors, executives, officers, and employees receive salary or
any kind of compensation for the delivery of regular services by appointment in any
agency, instrumentality, public corporation, or municipality of the Commonwealth
of Puerto Rico.
11.12 Filing at the C o m p t r o l l e r ' s Office - T h e d e m a n d of the obligations of either
Party under this A g r e e m e n t will be subject to the filing of the A g r e e m e n t at the
Office of the Comptroller of the C o m m o n w e a l t h of Puerto Rico, in compliance
with the Act No. 18 of October 30, 1975, as a m e n d e d .
P R E P A shall notify
A T E N T O as soon as such filings and certifications are m a d e .
11.13 Novation - T h e Parties expressly agree that no a m e n d m e n t or change order,
which could be m a d e to the A g r e e m e n t during its term, shall be understood as a
contractual novation, unless both Parties agree to the contrary, specifically and
in writing. T h e previous provision shall be equally applicable in such other cases
where P R E P A gives A T E N T O a time extension for the compliance of any of its
obligations under this A g r e e m e n t , or w h e r e P R E P A dispenses the claim or
d e m a n d of any of its credits or rights under the A g r e e m e n t .
A R T I C L E 12 - C E R T I F I C A T I O N S
12.1
Prior to the execution of this A g r e e m e n t or no later than fifteen (15) days after its
execution, A T E N T O shall submit the following G o v e r n m e n t issued certificates,
as applicable:
Atento Puerto Rico / A E E
Page 28
a. Certification issued by the Treasury Department of Puerto Rico which indicates that
the
ATENTO
does
not
owe
taxes
to
the
Commonwealth
of
Puerto Rico; or is paying such taxes by an installment plan in full compliance with its
terms.
b. A n Income Tax Return Filing Certificate, issued by the Treasury Department of
Puerto Rico assuring that A T E N T O
has filed his Income T a x Return for the last five
(5) tax years.
c. Certification issued by the Treasury Department of Puerto Rico which indicates that
the A T E N T O does not o w e Puerto Rico Sales and Use T a x e s to the C o m m o n w e a l t h
of Puerto Rico; or is paying such taxes by an installment plan and is in full
compliance with its terms.
d. A Puerto
Rico Sales a n d
Use Tax Filing Certificate, issued by the
Department of Puerto Rico assuring that A T E N T O
Treasury
has filed his Puerto Rico Sales
and Use Tax for the last sixty (60) contributory periods.
e. Certification issued by the Municipal Revenues Collection Center (MRCC), assuring
that A T E N T O does not o w e any tax accruing during the last five (5) years to such
governmental agency.
T o request such Certification, the Contractor will use the
form issued by the M R C C .
f.
A Personal Property T a x Filing Certification, issued by the M R C C which indicates
that A T E N T O has filed their Personal Property Tax Return for the last five (5)
contributory terms.
g. Certification, issued by the Child Support Administration, assuring that the A T E N T O
Atento Puerto Rico / A E E
Page 29
is in compliance with the withholdings required by law as an employer.
h. Certificate,
issued
by
the
Department
Puerto Rico, assuring that A T E N T O
of
Labor
and
Human
Resources
of
has paid to the Department of Labor and
H u m a n Resources of Puerto Rico its employees' contributions accruing during the
last five (5) years, in accordance with the Puerto Rico E m p l o y m e n t Security Act
(unemployment,
temporary
disability
or
sickness
or
social
security
for
drivers/chauffeurs); or is paying such contributions by an installment plan in full
compliance with its terms. T o request such Certification, A T E N T O will use the form
issued by the Department of Labor and H u m a n Resources of Puerto Rico.
i.
Good
Standing
Certificate
and
Certificate
of Authorization
to do business
in
Puerto Rico, both issued by the Department of State of Puerto Rico.
j.
Copy of the Merchant's Registration Certificate.
k. If the Merchant's Registration Certificate shows that A T E N T O is a retaining agent of
the Sales and Use Tax (IVU), A T E N T O shall present a Certification issued by the
Treasury Department of Puerto Rico stating that A T E N T O is in compliance of the
Monthly Return filing.
12.2
It is expressly
acknowledged
that the certifications
provided
by A T E N T O ,
pursuant to this clause, are essential conditions of this A g r e e m e n t , and if these
certifications are incorrect, P R E P A shall have sufficient cause to terminate this
A g r e e m e n t immediately. If any of the previously required Certifications shows a
debt, and A T E N T O has requested a review or adjustment of this debt, A T E N T O
will certify that it has m a d e such request at the time of signing the A g r e e m e n t . If
Atento Puerto Rico / A E E
Page 30
the requested review or adjustment is denied and such determination is final,
A T E N T O will provide, immediately, proof of payment of this debt to PREPA;
otherwise, A T E N T O accepts that the owed a m o u n t will be offset by P R E P A and
retained at the origin, deducted from the corresponding payments.
Specifically,
A T E N T O recognizes that submittal of the aforementioned certifications
and
documents is an essential condition of this Agreement; and even in the case that
they are partially incorrect, there will be sufficient cause for P R E P A , at its option,
to terminate, cancel or rescind the A g r e e m e n t and to require A T E N T O to refund
all payments received.
A R T I C L E 13 - T R A N S F E R O F F U N D S
13.1
If A T E N T O decides to assign or transfer an amount, due or payable, to which he
is entitled for services rendered or goods provided during the term of this
Contract, A T E N T O shall notify P R E P A of such transfer of f u n d s , in accordance
to the provisions of A c t 21-2012. Said notice shall clearly indicate the rights
granted, including a copy of the contract under which the assignment or transfer
of funds is m a d e , the exact a m o u n t of funds to be assigned or transferred, and
specific identification information regarding the assignee (full name of the person
or company), address and any other contact information.
13.2
Contractor acknowledges and agrees that P R E P A may d e d u c t any amount, due
or payable under this Contract, that A T E N T O owes; P R E P A m a y retain any said
amount if A T E N T O fails to fulfill its obligations and responsibilities under this
Contract, or a claim arises for warranty or defects
regarding the
services
Atento Puerto R i c o / A E E
Page 31
rendered or goods provided under this Contract.
A T E N T O also acknowledges
and agrees that PREPA's payment obligation under any assignment of funds will
cease upon payment of the outstanding amounts under this Contract. P R E P A
shall not be required to make payments or transfer any funds for an a m o u n t that
exceeds the payment to which A T E N T O is entitled to under this Contract.
13.3
A T E N T O shall include with its notice of assignment of funds a cashier's check or
m o n e y order for two hundred dollars ($200), payable to "Puerto Rico Electric
Power Authority", to cover administrative costs in processing such assignment.
ARTICLE 14. - ENTIRE CONTRACT
14.1
T h e terms and conditions contained herein constitute the entire A g r e e m e n t
between P R E P A
and A T E N T O
with
respect to the subject
matter of the
A g r e e m e n t , and supersede all communications, negotiations, and agreements of
the Parties, whether written or oral, other than these, m a d e prior to the signing of
this A g r e e m e n t .
IN W I T N E S S T H E R E O F , the Parties hereto sign this A g r e e m e n t in S a n J u a n , Puerto
Rico this 12 date of July of 2016.
Atenfo Puerto R i c o , Inc.
PREPA
Pi
By: I R o s a N ^ M a l d o n a d o
Title: * B u s i n e s s Manager
EIN: 6 6 - 0 5 7 0 3 9 9
JaytepA Q u i n t a n a M e n d e z
Executive Director
C£M; 6 6 - 0 4 3 3 7 4 7