service agreement performed by atento puert ricoo inc ... · 1.13 atento shall be responsible to...

Service Agreement

Performed by

Atento Puerto Rico , Inc.

for

Puerto R ico Electr ic and Power Authority ( A E E )

msantiago22910

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Cuantía: $100,000.00

msantiago22910

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msantiago22910

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msantiago22910

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Núm. de Cuenta: 01-4017-90500-550-382

msantiago22910

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2017-P00005

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msantiago22910

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T A B L E O F C O N T E N T S

A R T I C L E P A G E ARTICLE 1 - SERVICES AND PERFORMANCE 1 ARTICLE 2 - CONSIDERATION AND PAYMENT 8 ARTICLE 3 - CONTRACTOR'S EMPLOYEES 10 ARTICLE 4- INDEMNITY 13 ARTICLE 5 - CONFIDENTIALITY 15 ARTICLE 6 - PERIOD OF AGREEMENT/TERMINATION 17 ARTICLE 7 - FORCE MAJEURE 20 ARTICLE 8. - INSURANCE - T O BE EVALUATED BY RISK MANAGEMENT OFFICE 21 ARTICLE 9 - CONTACT & NOTICES 22 ARTICLE 10 - CHOICE OF LAW AND FORUM SELECTION 23 ARTICLE 11 - MISCELLANEOUS 24 ARTICLE 12 - CERTIFICATIONS 27 ARTICLE 13-TRANSFER OF FUNDS 30 ARTICLE 14. - ENTIRE CONTRACT 31

GENERAL TERMS AND CONDITIONS A P P L I C A B L E TO S E R V I C E S

This Service Agreement 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 Commonweal th of Puerto Rico, created by Act No. 83

of May 2, 1941, as amended, represented herein by its Executive Director, Javier A.

Quintana Mendez, of legal age, married and resident of Guaynabo, Puerto Rico, and;

ATENTO Puerto Rico, Inc. (hereinafter referred to as "the Contractor or ATENTO") a

corporation organized and existing under the laws of the Commonweal th of Puerto

Rico, represented in this act by its Resident Agent, Rosa H Maldonado, of legal age,

and resident of Caguas, Puerto Rico, by virtue of the Corporate Resolution dated

December 3 r d , 2012.

Both, PREPA and A T E N T O will jointly be referred to as "the Parties".

W I T N E S S E T H

WHEREAS, ATENTO desires to provide PREPA Contact Center Services as

specified in of this Agreement;

WHEREAS, PREPA desires to enter into a Service Agreement with ATENTO for

the performance of such services.

NOW, THEREFORE, PREPA and ATENTO enter into this Service Agreement

under the following:

T E R M S AND CONDITIONS

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 - The Services to be provided by A T E N T O will be:

ATENTO shall provide services for receiving and handling Inbound Calls f rom

PREPA's customers performing payments, requesting service reconnection,

Atento Puerto Rico / AEE Page 2

reporting outages, requesting maintenance such as tree tr imming, public lighting,

reporting emergencies related to the electric grid, fol lowing-up work requests or

for any other customer service request previously coordinated by the shift

supervisor. ATENTO shall provide such services in accordance with the following

procedure:

(i) Inbound Calls will be handled by the IVR or the system employed by

ATENTO to receive Inbound Calls, and;

(ii) The Inbound Calls shall be received by ATENTO and routed to the

next available Customer Service Representative (CSR).

1.2 ATENTO's services will meet or exceed the following Service Levels:

(a) Abandoned calls: Equal or less than 7%;

(b) Average speed of answer: 95% of calls responded in 3 minutes or

less;

(c) Other Service Levels within the Scope of this Agreement may be

added to the above at the request of PREPA, who will notify ATENTO

at least 10 days before the commencement of the Service Level

requested.

1.3 ATENTO shall also provide such additional related services as set out in the

Agreement and including, without limitation, the fol lowing:

(a) ATENTO shall notify PREPA on a daily basis of any information

required by AEE's customers.


(b) ATENTO shall provide PREPA with such information and reports

related to Services performed by A T E N T O and created by its

systems. ATENTO shall provide reports for the Services on a daily

basis, which must include, at a minimum, the number of Inbound Calls

answered, abandoned and percentage of calls answered, average

speed of answer, number of agents staffed in the ATENTO Call Center

at any given time interval, or any other information provided by

the A T E N T O systems as PREPA deems appropriate to evaluate

ATENTO's performance. These reports will be broken down in

(i) 30 minutes increments with a day's total, (ii) a daily basis by

week and month in Puerto Rico local t ime in respect of the prior

day's Services,(iii) a weekly basis in daily increments until 11:59 p.m.

Puerto Rico local t ime of each Saturday, and (iv) a monthly basis in

^ daily increments until 11:59 p.m. Puerto Rico local t ime of the last day

v of each month, and prior to the invoice of monthly fees by ATENTO.

The content of each report shall be mutually agreed to the Parties,

(c) ATENTO shall allow PREPA, through reasonable mechanisms to be

made available by ATENTO to PREPA, to monitor ATENTO's service

receiving and handling of calls from clients. ATENTO shall provide

PREPA 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 assumes all expenses

Atento Puerto R i c o / A E E Page 4

related to the provision of telecommunicat ion lines and the bearing of

network costs associated with routing Inbound Calls to the ATENTO's

facility. ATENTO is responsible for the properly equipping of

ATENTO's facility with the necessary hardware to receive and handle

Inbound Calls as required by this Agreement.

1.4 ATENTO shall consult with PREPA the use of project management tools,

including productivity aids and project management systems. ATENTO shall use

mutually acceptable project management tools and employ a regular reporting

mechanism to identify project tasks, present current status reports and identify

potential problems.

1.5 Except as otherwise established in the Agreement , A T E N T O shall utilize its

facility at Parque Industrial El Troche, # 189 Street, Km. 2, Caguas, Puerto Rico

(the "faci l i ty") for the performance of Services. The facility will be equipped with

telephone systems, computer systems, and various ATENTO's support and call

monitoring tools to be used in the delivery services. ATENTO shall bear all

expenses of operating the Facility, including all expenses for equipment and

systems necessary to connect to any telecommunicat ions circuits or facilities

utilized by A T E N T O to bring calls to the Facility.

1.6 The connection from ATENTO to PREPA computer systems shall be through

AEE's server.


1.7 AEE shall have the right to implement an extensive monitoring program. PREPA

may perform remote and on-site CSR monitoring. ATENTO shall monitor at

least 4 calls per CSR per month.

1.8 The following shall be considered "Deliverables" for purposes of the Agreement

(i) any and all reports prepared and/or delivered pursuant to the Agreement,

(ii) the Training and Script Manual, (iii) the Disaster Recovery Plan, and (iv) the

Transition Plan.

1.9 ATENTO shall provide adequate training to the CSRs regarding the operation of

the applicable equipment and technology, assuring that such training does not

interfere with ATENTO's performance of the Services. In addit ion, ATENTO shall

provide to the CSRs the training required by PREPA from t ime to t ime (including,

without l imitation, training regarding AEE's scripted call f lows that CSRs will

follow). All CSRs 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 PREPA 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 PREPA 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.


1.11 Voice Ca l ls Volume Forecasts : PREPA shall provide ATENTO with a forecast

of the voice calls volume expected to be received during a month period. Ten

(10) days before the end of month, PREPA shall also provide ATENTO a voice

call volume forecast, for the next three (3) months. The 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 f rom PREPA.

1.12 During the current month, a call volume forecast must be submitted for the

remaining full weeks of the month. PREPA and ATENTO 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 Agreement.

1.13 ATENTO shall be responsible to maintain, and not exceed, the hours included in

the Final Staff ing, as approved by the parties. If any extension of hours is

required, ATENTO shall request in writing an authorization from PREPA before

the performance of any adjustment. Final Staffing is the official document,

approved by the parties, were the hours (staff t ime) are established for the

following month. The approval of the Final Staffing must be submitted via email,

by the authorized representatives of the parties. During the weekly meetings,

the parties can amend the Final Staff ing, in writ ing.

Atento Puerto Rico / A E E Page 7

1.14 Performance - ATENTO 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 , Compl iance with Law, Qualification, Compl iance

with Rules , Nondiscrimination - ATENTO shall obtain and maintain during the

performance of the services hereunder all permits, l icenses and authorizations

required by all applicable authorities to perform such services. Furthermore,

ATENTO hereby represents, warrants, and agrees that its performance

hereunder will conform to all applicable laws and regulations. ATENTO warrants

that all employees utilized by ATENTO pursuant to this Agreement will be fully

trained, equipped and competent and will perform their duties in a safe,

courteous manner and will work harmoniously with PREPA's personnel.

ATENTO will also comply with all applicable Laws pertaining to nondiscrimination

in employment and facilities.

1.16 Equipment - A T E N T O will be responsible for the acquisit ion, maintenance,

inventory, storage, and control of all equipment, materials, supplies, and any

special equipment required to perform the Services.

1.17 Serv ice Provided to Others - PREPA acknowledges and agrees that Services

may be provided to PREPA in conjunction with Services that ATENTO may

provide to third parties. Notwithstanding anything contained in any other

agreement to the contrary, ATENTO agrees that Services provided for PREPA,


its employees and agents, will be provided pursuant to and in accordance with

the provisions of this Agreement.

A R T I C L E 2 - C O N S I D E R A T I O N AND PAYMENT

2.1 Limit on F e e s - In full consideration of the performance of the Services, PREPA

will pay ATENTO in accordance with the Terms and Condit ions set forth herein

and at the rates specif ied in Item 3.2 of this Article, which total amount to be paid

under this Agreement shall not exceed One Hundred Thousand Dollars

($100,000). All payments to be made under this Agreement will be charged to

account number 01-4017-90500-550-382.

2.2 Terms of Payment - ATENTO will submit a monthly invoice to PREPA for

Services provided to PREPA during the previous month. 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 documentat ion of the

\

Services performed. PREPA will pay ATENTO within sixty (60) days of receipt of

ATENTO's invoice. In the event of a dispute over the invoice, PREPA will pay the

amount of the invoice not in dispute, and withhold the disputed amount until the

dispute is resolved.

2.3 Currency - All monetary amounts specified in or payable under this Agreement

are specified in United States dollars.

2.4 Address for Invoice - ATENTO will submit all invoices to the address listed

below or to such other addresses as PREPA may specify in writing. It is


acknowledged that invoices may also be submitted via e-mail to the address

listed below or to such other addresses as PREPA 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 affi l iates, will derive or obtain any benefit or profit of any kind from the contractual relationship which is the basis of this invoice. If such benefit or profit exists, the required waiver has been obtained prior to entering into the Agreement. The only considerat ion to be received in exchange for the delivery of goods or for services provided is the agreed-upon price that has been negotiated with an authorized representative of the Puerto Rico Electric Power Authority.

The total amount shown on this invoice is true and correct. The services have been rendered, and no payment has been received.

Authorized Representative's Signature"

2.6 Taxes - PREPA will deduct and withhold at the source to ATENTO the

equivalent of seven percent (7%) from payment for services rendered under this

Agreement in Puerto Rico, in compliance with the New Puerto Rico Internal


Revenue Code, Law 1-2011, Section 1062.03, as amended. Notwithstanding

the aforementioned, the withholding to be done by PREPA as herein stated

could be increased to twenty percent (20%) in the event that ATENTO 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 ATENTO 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 New Puerto Rico Internal

Revenue Code, section 1062.08. PREPA shall provide a certificate stating that

such tax withholding was collected.

If a Release Letter has been issued to ATENTO by the Treasury Department,

ATENTO shall be responsible to submit a copy of said Release Letter to PREPA

for every calendar year; otherwise, payments under the Agreement shall remain

^ subject to withholding at source. All invoices shall be segregated by concepts

(services, materials, equipment, etc.), to identify the amounts subject to

withholding and avoid undue deductions.

A R T I C L E 3 - C O N T R A C T O R ' S E M P L O Y E E S

3.1 ATENTO's status hereunder and the status of any agents, employees and

subcontractors engaged by ATENTO shall be that of an independent contractor

only and not that of an employee, agent, director or officer of PREPA nor shall

they be considered a public servant of neither PREPA nor the Commonweal th of

Puerto Rico. A T E N T O recognizes that its personnel is not entitled to


employment benefits such as vacations, sick leave, retirement benefits and other

benefits from PREPA because of its condition as an independent contractor.

Neither ATENTO nor its personnel shall have any power or right to enter into

contracts on behalf of PREPA. No provision of this Agreement shall be deemed

to create an employment relationship between ATENTO or his employees and

PREPA.

3.2 Contractor 's Employees - The employees of ATENTO engaged in performing

Services hereunder will be considered employees of A T E N T O for all purposes

and will under no circumstances be deemed to be employees of PREPA.

PREPA will have no supervisory power or control over any such ATENTO's

employees and any complaint or change in procedure will be communicated by

PREPA to ATENTO who will in turn promptly give any necessary instructions to

its personnel.

3.3 Supervis ion of Contractor 's Employees - ATENTO will be responsible for the

direct supervision of its employees through its designated representative and

such representative will in turn, report to and confer with the designated agents

of PREPA with respect to the Services.

3.4 Assumpt ion of Liability for Contractor 's Employees - ATENTO agrees to

assume full and complete responsibility for any and all liability to its employees

on account of injury, disability, and death resulting f rom, or sustained by said

employees in the performance of the Services defined herein.


3.5 Removal of Contractor 's Employees - At PREPA's request, A T E N T O will

immediately remove from service any employee whose acts or omissions will be

a violation of applicable law or constitute a breach of this Agreement.

3.6 Parties Responsibi l i ty for Its Employees - Both parties agree to accept full

and exclusive liability for the payment of any and all taxes, contributions, and

other payments for unemployment compensat ion and/or pension benefits,

Worker 's Compensat ion, employers liability insurance or annuities now or

hereafter imposed upon employers as applicable to them 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 Employees a s P R E P A ' Employees -

ATENTO agrees to hold PREPA harmless and to indemnify and defend PREPA

in full for any and all damages, claims, assessments, penalties, liabilities,

charges, attorney's fees or other losses incurred during or following the term of

this Agreement, which result from any assertion, claim, determination or

adjudication that ATENTO or any of its employees are employees of PREPA,

including, but not limited to, any claim, determination or adjudication made

pursuant to the Internal Revenue Code, any of Puerto Rico Unemployment laws

and regulations, compensat ion Law, or any other federal, state or local wage,

employment, insurance, labor and other laws, statutes, regulations and

ordinances.


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 Employment - In the performance of this Agreement,

ATENTO will comply with all applicable statutes, regulations, ordinances

pertaining to nondiscrimination in employment and facilities.

A R T I C L E 4 - INDEMNITY

4.1 Indemnification by P R E P A - PREPA agrees and hereby undertakes to

release, indemnify, defend, and hold harmless ATENTO, its directors, officers,

employees, agents and successors from and against any and all direct liability,

damages, 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, off icers, employees,

agents, successors, and assigns in connection with PREPA's performance under

this Agreement, except to the extent caused by (a) the gross negligence,

recklessness or willful misconduct of ATENTO, its directors, officers, employees,

agents, successors and/or assigns or (b) arising from or in connection with a

violation of applicable law by ATENTO, its directors, off icers, employees, agents,

successors or assigns.


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,

damages, claims, civil penalties, suits, theft, penalties or actions of every name

and descript ion, including claims of infr ingement 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 ATENTO, its directors, officers, employees,

agents, successors, and assigns in connection with ATENTO's performance

under this Agreement, except to the extent caused by (a) the gross negligence,

recklessness or willful misconduct of PREPA, its directors, officers, employees,

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 Except ion for Government 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 management and sett lement of such

matter. This does not constitute a waiver of the other Party with respect to any

right it may 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 Agreement or initiate any other

claim, suit or action.


4.4 Conflict in C la ims of Indemnification - In the event of a dispute among 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 among 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 make any admissions on

behalf of the other Party.

4.6 Reasonable A s s i s t a n c e - Notwithstanding the aforement ioned, 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-cl ient privilege applicable to communicat ions between

each Party and its respective legal counsel.

A R T I C L E 5 - CONFIDENTIAL ITY

5.1 Confidentiality - The Parties will presume that any information, including but not

limited to, business plans, customer data, employee data, f inancial information,

or contractual information, whether written, verbal or electronic, provided to or

observed by the receiving party or developed in connection herewith is


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, f i rm, or corporation, or use directly or

indirectly, for its own benefit or the benefit of others, any information which in

good faith and good conscience ought to be treated as confidential information

including, without limitation, information relating to PREPA's customers, or any of

the Parties' operat ions or trade secrets or relating to the business or affairs of

either party may 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


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 - A T E N T O acknowledges and agrees that in connection

herewith, PREPA may provide ATENTO with access to various of PREPA's

computer and communicat ions systems. ATENTO acknowledges and agrees

that under no circumstances will it permit the systems to be used for any purpose

other than those required in connection with its performance under this

Agreement. A T E N T O agrees that it will maintain the confidentiality of codes,

passwords and user names required to access those systems ("Access

Information") and any information accessed via those systems and will promptly

report by te lephone and then in writing any compromise of the Access

Information or accessed information to PREPA. ATENTO will also properly

secure the equipment required to access the systems and will promptly report by

telephone and then in writing any damage or problems therewith.

A R T I C L E 6 - P E R I O D O F A G R E E M E N T / T E R M I N A T I O N

6.1 Term and Termination - The term of this agreement will commence on the date

of its signature by both parties, and will continue in effect for a period of three

months. This Agreement may be extended for one additional term of three (3)


months, if PREPA notifies ATENTO 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 Agreement 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 Breach By A T E N T O - Upon written notice to A T E N T O from PREPA stating that

ATENTO is in breach of the Agreement, ATENTO will immediately remedy such

breach. Where 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, PREPA will have the right to terminate the

Agreement upon five (5) days' notice to ATENTO. ATENTO further agrees that

if it commits a substantial ly similar breach more than twice in any three (3) month

period, regardless of remedy, PREPA will have the right to terminate the

Agreement upon notice to ATENTO.

6.4 Breach By P R E P A - Upon written notice to PREPA from ATENTO stating that

PREPA is in breach of the Agreement, PREPA will immediately remedy such

breach. Where PREPA 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, ATENTO will have the right to terminate

the Agreement upon five (5) day notice to PREPA.

In case of default in the payment obligation of PREPA, ATENTO 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 ATENTO or its respective licensors or

suppliers have any liability for any, indirect or consequential damages, loss of

profits or revenue, loss or corruption of data, toll f raud, 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 Agreement will not exceed an

amount equal to the total amount 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 ATENTO's license

restrictions. The limitations of liability in this section also will apply to any liability

of directors, off icers, employees, agents and suppliers. The limitations of

aggregate liability will not apply to contractual indemnification obligations

provided in this Agreement .

6.6 Notwithstanding the liabilities limits established herein, A T E N T O shall save and

hold harmless and indemnify PREPA for all reasonable expenses and costs of

any nature (including reasonable attorney's fees) incurred by PREPA and arising

out of or f rom its fault, negligence or willful misconduct and thereby results in a

claim made by any third person for physical injuries, including death, or for


property damage, due to the fault or negligence of ATENTO, in the performance

of its obligations under the Agreement.

A R T I C L E 7 - F O R C E M A J E U R E

7.1 The Parties shall be excused from performing their respective responsibilities

and obligations under this Contract and shall not be liable in damages 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 means 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 fol lowing: Acts of God,

industrial disturbances, acts of the public enemy, war, blockages, boycotts, riots,

insurrections, epidemics, earthquakes, storms, f loods, civil disturbances,

lockouts, fires, explosions, interruptions of services due 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. The burden of proof as

to whether a force majeure event has occurred shall be on the party claiming the

force majeure.


7.4 Notice of Failure - ATENTO agrees to consult with and advise PREPA 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,

where applicable, the re-establishment of applicable t imetables.

A R T I C L E 8. - I N S U R A N C E - T o be evaluated by R isk Management Office

ATENTO 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) ATENTO shall provide Workmen's Compensation Insurance as required by

the Workmen's Compensation Act of the Commonwealth of Puerto Rico.

ATENTO shall also be responsible for compliance with said 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 Workmen's Compensation Insurance, in accordance with

this Agreement.

(2) ATENTO shall provide a Commercial General Liability Insurance with limits

of $1,000,000 per occurrence and $1,000,000 aggregate. The 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


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.

ATENTO shall furnish a certificate of insurance in original signed by an authorized

representative of the insurer in Puerto Rico, describing the acquired coverage.

A R T I C L E 9 - C O N T A C T & N O T I C E S

9.1 Contacts - Each party agrees that it will designate a Contact who will be

primarily responsible for coordinating that party's performance under this

Agreement and managing the relationship with the other party. Each will have

the right to specify a Backup Contact and change its Contact and Backup

Contact by notice to the other. Each may specify Contacts for particular

purposes, but that will not relieve that party f rom its obligations under the first

sentence hereof.

9.2 Notice - Except where specified elsewhere in this Agreement, any and all

notices, documents, records, correspondence, approvals or demands 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. Where sent by mail, such notices will also be sent by facsimile.

Notices to PREPA will be addressed to:


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 ATENTO 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 deemed served as of actual receipt.

A R T I C L E 10 - C H O I C E O F LAW AND F O R U M S E L E C T I O N

10.1 The parties hereto acknowledge and agree that this Agreement will be governed

under the laws, of the Commonweal th of Puerto Rico.

10.2 Also, the Parties expressly agree that only the Courts of the Commonweal th of

Puerto Rico will be the courts of competent and exclusive jurisdiction to decide

over the judicial controversies that the appearing Parties may have among them

regarding the Terms and Condit ions of this Agreement.

10.3 During Term of this Agreement, any change in law, including, but not limited to,

changes in applicable tax law, which causes an increase in ATENTO's costs

when providing the Services to be acquired by PREPA, shall be ATENTO's

responsibility, and PREPA shall not be obliged to increase the Contract Price.


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 Ass ignment - ATENTO shall not assign nor subcontract its rights and

obligations under this Contract, except in the event PREPA give written

authorization for such actions. Provided, that no subcontract shall be considered

for PREPA's approval, except when the fol lowing requirements are met: (1)

ATENTO delivers to PREPA 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 PREPA has the right to substitute, subrogate or assume ATENTO's

rights under the subcontract, in the event that PREPA declares ATENTO 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 ATENTO's

obligations under the Contract (mirror image clause), except for such obligations,

terms and condit ions 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. These services shall be paid

as part of the maximum total amount to be paid under this Contract, as stated in

Article 3 .1 .


11.3 Headings - The captions and headings constructed in this Agreement 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 Documents - 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 Amendments - This Agreement or the Services rendered under it will be modified,

altered or amended, only by mutual agreement evidenced by an instrument in

writing executed by both parties and their respective successors in interest.

11.8 Survival - The representations, warranties, indemnities, limitation of liability, and

confidentiality provisions contained herein will survive the termination or expiration

of the Agreement.

11.9 Sworn Statement - Prior to the execution of this Agreement, ATENTO shall

submit a sworn statement to certify and guarantee that at the signing of this

Agreement, neither ATENTO, nor its officers, directors, member of its board of

directors or board of officials, or any person which perform similar functions for


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 them 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 amended. It is expressly acknowledged that this certification

is an essential condit ion of this Agreement. If the certification is not correct in its

entirety or in any of its parts, it shall constitute suff icient cause for PREPA to

terminate this Agreement immediately, without prior notice, and ATENTO will

have to reimburse PREPA any amount of money received under this Agreement,

as required by Article 3 of Law 458-2000 as amended. If the status of ATENTO

with regards to the charges previously ment ioned should change at any t ime

during the term of the Agreement, ATENTO shall notify PREPA promptly. The

failure to comply with this responsibility constitutes a violation of this section, and

shall result in the remedies mentioned previously.

11.10 Code of E th ics - ATENTO certifies that it shall comply with the

provisions of Act 84-2002, as amended, which establ ishes the Code of Ethics for

Contractors, Suppliers and Applicants for Economic Incentives of the Executive

Agencies of the Government of the Commonweal th of Puerto Rico.

11.11 Employees not to Benefit - The parties hereby declare that, to the best of their

knowledge, no public officer or employee of the Commonweal th of Puerto Rico,

its agencies, instrumentalit ies, public corporations or municipalit ies or employee


of the Legislative or Judicial branches of the Government has any direct or

indirect interest in the present Agreement. ATENTO 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 Comptrol ler 's Office - The demand of the obligations of either

Party under this Agreement will be subject to the filing of the Agreement at the

Office of the Comptrol ler of the Commonweal th of Puerto Rico, in compl iance

with the Act No. 18 of October 30, 1975, as amended. PREPA shall notify

ATENTO as soon as such filings and certifications are made.

11.13 Novation - The Parties expressly agree that no amendment or change order,

which could be made to the Agreement during its term, shall be understood as a

contractual novation, unless both Parties agree to the contrary, specifically and

in writing. The previous provision shall be equally applicable in such other cases

where PREPA gives ATENTO a t ime extension for the compliance of any of its

obligations under this Agreement, or where PREPA dispenses the claim or

demand of any of its credits or rights under the Agreement.

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 Agreement or no later than fifteen (15) days after its

execution, A T E N T O shall submit the following Government issued certificates,

as applicable:


a. Certification issued by the Treasury Department of Puerto Rico which indicates that

the ATENTO does not owe taxes to the Commonweal th of

Puerto Rico; or is paying such taxes by an installment plan in full compliance with its

terms.

b. An 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 Tax Return for the last five

(5) tax years.

c. Certification issued by the Treasury Department of Puerto Rico which indicates that

the ATENTO does not owe Puerto Rico Sales and Use Taxes to the Commonweal th

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 and Use Tax Filing Certificate, issued by the Treasury

Department of Puerto Rico assuring that ATENTO 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 ATENTO does not owe any tax accruing during the last five (5) years to such

governmental agency. To request such Certification, the Contractor will use the

form issued by the MRCC.

f. A Personal Property Tax Filing Certification, issued by the MRCC which indicates

that ATENTO has filed their Personal Property Tax Return for the last five (5)

contributory terms.

g. Certification, issued by the Child Support Administrat ion, assuring that the ATENTO


is in compliance with the withholdings required by law as an employer.

h. Certificate, issued by the Department of Labor and Human Resources of

Puerto Rico, assuring that ATENTO has paid to the Department of Labor and

Human Resources of Puerto Rico its employees' contributions accruing during the

last five (5) years, in accordance with the Puerto Rico Employment 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. To request such Certif ication, A T E N T O will use the form

issued by the Department of Labor and Human Resources of Puerto Rico.

i. Good Standing Certif icate 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), ATENTO shall present a Certification issued by the

Treasury Department of Puerto Rico stating that ATENTO is in compliance of the

Monthly Return fil ing.

12.2 It is expressly acknowledged that the certifications provided by ATENTO,

pursuant to this clause, are essential conditions of this Agreement, and if these

certifications are incorrect, PREPA shall have sufficient cause to terminate this

Agreement immediately. If any of the previously required Certifications shows a

debt, and ATENTO has requested a review or adjustment of this debt, ATENTO

will certify that it has made such request at the t ime of signing the Agreement. If


the requested review or adjustment is denied and such determination is final,

ATENTO will provide, immediately, proof of payment of this debt to PREPA;

otherwise, A T E N T O accepts that the owed amount will be offset by PREPA and

retained at the origin, deducted from the corresponding payments. Specifically,

ATENTO recognizes that submittal of the aforement ioned 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 PREPA, at its option,

to terminate, cancel or rescind the Agreement and to require ATENTO 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 ATENTO 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, ATENTO shall notify PREPA of such transfer of funds, in accordance

to the provisions of Act 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 made, the exact amount 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 PREPA may deduct any amount, due

or payable under this Contract, that ATENTO owes; PREPA may retain any said

amount if ATENTO fails to fulfill its obligations and responsibil it ies under this

Contract, or a claim arises for warranty or defects regarding the services


rendered or goods provided under this Contract. ATENTO 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. PREPA

shall not be required to make payments or transfer any funds for an amount that

exceeds the payment to which A T E N T O is entitled to under this Contract.

13.3 ATENTO shall include with its notice of assignment of funds a cashier's check or

money 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 The terms and conditions contained herein constitute the entire Agreement

between PREPA and ATENTO with respect to the subject matter of the

Agreement, and supersede all communicat ions, negotiations, and agreements of

the Parties, whether written or oral, other than these, made prior to the signing of

this Agreement.

IN WITNESS THEREOF, the Parties hereto sign this Agreement in San Juan, Puerto

Rico this 12 date of July of 2016.

Atenfo Puerto Rico , Inc. P R E P A

Pi By: I RosaN^Ma ldonado JaytepA Q u i n t a n a Mendez Title: * Bus iness Manager Execut ive Director EIN: 66-0570399 C£M; 66-0433747

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