HAWAIIAN TELCOM FOR THE AMOUNT OF
THE ASSOCIATED REFUND TO WHICH ACCENTURE WOULD BE ENTITLED.
(J)
IF ACCENTURE BELIEVES THAT ANY KEY
ACCENTURE PERSONNEL IS REASONABLY LIKELY TO INCUR "LONG TERM ASSIGNMENT TAXES"
(E.G., STATE OR LOCAL PAYROLL TAXES, INCOME TAXES, UNEMPLOYMENT TAXES, EARNING
TAXES, ETC.) WHERE HAWAIIAN TELCOM HAS REQUESTED SUCH INDIVIDUAL TO BE ON SITE
AT A HAWAIIAN TELCOM FACILITY AWAY FROM THEIR BASE OFFICE ON A LONG TERM BASIS,
ACCENTURE SHALL NOTIFY HAWAIIAN TELCOM IN ADVANCE OF SUCH BELIEF.
THE PARTIES
SHALL ENDEAVOR TO AVOID SUCH TAXES BY ROTATING SUCH KEY ACCENTURE PERSONNEL OUT
OF SUCH LOCATION PRIOR TO INCURRING LONG TERM ASSIGNMENT TAXES WHILE MAINTAINING
THE AVAILABILITY, TO EXTENT POSSIBLE, OF SUCH INDIVIDUAL AT SUCH LOCATION.
NOTWITHSTANDING SECTIONS 7.1 AND 8.4, IF HAWAIIAN TELCOM DOES NOT AGREE IN ITS
SOLE DISCRETION TO REIMBURSE ACCENTURE ON AN OUT-OF-POCKET EXPENSE BASIS FOR THE
INCREMENTAL AMOUNT OF SUCH TAXES, ACCENTURE MAY RELOCATE SUCH EMPLOYEE AS
NECESSARY TO AVOID SUCH TAXES (BUT NOT UNTIL IT IS NECESSARY TO DO SO).
IN ANY
EVENT, NOTHING IN THIS SECTION 9.8(J) SHALL EXCUSE ACCENTURE FROM ANY OF ITS
OTHER OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING MEETING MILESTONE DATES FOR
DELIVERABLES AND THE SERVICE LEVELS).
28
(K)
HAWAIIAN TELCOM AGREES TO REIMBURSE AND
HOLD ACCENTURE HARMLESS FROM ANY DEFICIENCY (INCLUDING PENALTIES AND INTEREST)
RELATING TO TAXES THAT ARE THE RESPONSIBILITY OF HAWAIIAN TELCOM UNDER SECTION
9.8(A), 9.8(B), 9.8(D), 9.8(E) AND 9.8(F).
ACCENTURE AGREES TO REIMBURSE AND
HOLD HAWAIIAN TELCOM HARMLESS FROM ANY DEFICIENCY (INCLUDING PENALTIES AND
INTEREST) RELATING TO TAXES THAT ARE THE RESPONSIBILITY OF ACCENTURE UNDER
SECTION 9.8(A) AND 9.8(C).
ARTICLE X
REPRESENTATIONS, WARRANTIES AND COVENANTS
10.1
Representations and Warranties.
(A)
WORK STANDARDS.
ACCENTURE WARRANTS THAT IT
SHALL PROVIDE THE ACTUAL SERVICES WITH PROMPTNESS AND DILIGENCE AS DESCRIBED IN
AN SOW, AND IN A WORKMANLIKE MANNER, IN ACCORDANCE WITH THE PRACTICES AND
PROFESSIONAL STANDARDS USED IN WELL-MANAGED OPERATIONS FOR PERFORMING SERVICES
SIMILAR TO SUCH SERVICES.
WITH RESPECT TO SERVICES IDENTIFIED IN ONE OR MORE
STATEMENTS OF WORK OR WORK ORDERS AND PERFORMED ON A FIRM FIXED PRICE BASIS,
ACCENTURE ALSO REPRESENTS AND WARRANTS THAT IT SHALL USE ADEQUATE NUMBERS OF
QUALIFIED INDIVIDUALS WITH SUITABLE TRAINING, EDUCATION, EXPERIENCE AND SKILL TO
PERFORM SUCH SERVICES.
WITH RESPECT TO THE AM DISCRETIONARY SERVICES,
CAPACITY-BASED SERVICES, AND TIME-AND-MATERIALS BASED SERVICES, ACCENTURE
REPRESENTS AND WARRANTS THAT IT SHALL USE QUALIFIED INDIVIDUALS WITH TRAINING,
EDUCATION, EXPERIENCE AND SKILL CONSISTENT WITH THE SERVICE CLASSIFICATION
DESCRIPTION APPLICABLE TO SUCH INDIVIDUAL, AS SET FORTH IN THE APPLICABLE SOW.
ACCENTURE SHALL RE-PERFORM, AT NO ADDITIONAL COST TO HAWAIIAN TELCOM, THE
SERVICES THAT FAIL TO COMPLY IN ALL MATERIAL RESPECTS WITH THIS WARRANTY;
PROVIDED THAT HAWAIIAN TELCOM NOTIFIES ACCENTURE OF SUCH NON-COMPLIANCE WITHIN
ONE-HUNDRED-EIGHTY (180) DAYS AFTER HAWAIIAN TELCOM FIRST KNEW OR REASONABLY
SHOULD HAVE KNOWN OF THE UNDERLYING FACTS GIVING RISE TO SUCH CLAIM, PROVIDED
FURTHER THAT THE FOREGOING WILL NOT EXTEND THE STATUTE OF LIMITATIONS PROVIDED
FOR IN SECTION 15.3.
SUBJECT TO THE OTHER REMEDIES FOR BREACHES OF OTHER
WARRANTIES PROVIDED FOR