time, as having authority to provide the same on behalf of
4
Hawaiian Telcom in such person's area of competency, provided in each case that
such information relates primarily to Hawaiian Telcom's business requirements as
opposed to means of performing the Services, and provided further that in no
event will any such instructions be deemed to modify or supplement any aspect of
this Agreement (which includes all Exhibits) unless the Parties have also
complied with the requirements of Article IV and/or Section 20.11, as
applicable.
3.7
Hawaiian Telcom Service Responsibilities.
In
addition to the obligations specified elsewhere in this Agreement, during the
Term and in connection with Accenture's performance of its obligations
hereunder, Hawaiian Telcom shall, at its own cost and expense, perform the
obligations, and retain the responsibilities, identified as customer
responsibilities in the applicable Statement of Work (collectively, the
"Hawaiian Telcom Service Responsibilities").
3.8
Savings Clause.
(A)
NO TERMINATION.
EXCEPT AS PROVIDED IN
SECTION 16.2, NO FAILURE BY HAWAIIAN TELCOM AND ANY OF ITS AFFILIATES TO PERFORM
ANY OF THEIR OBLIGATIONS UNDER THIS AGREEMENT SHALL BE DEEMED TO BE GROUNDS FOR
ANY TERMINATION OF THE AGREEMENT BY ACCENTURE.
(B)
HAWAIIAN TELCOM KNOWLEDGE AND SKILL.
HAWAIIAN TELCOM ACKNOWLEDGES THAT IT HAS KNOWLEDGE AND SKILL PARTICULAR TO
CERTAIN BUSINESS PRACTICES AND INFORMATION INVOLVED IN THE SERVICES AND
DELIVERABLES AND SHALL PROVIDE ACCENTURE, AT ACCENTURE'S REASONABLE REQUEST,
WITH REASONABLE INPUT FROM SUCH HAWAIIAN TELCOM'S SUBJECT MATTER RESOURCES TO
THE EXTENT NECESSARY FOR ACCENTURE'S PERFORMANCE OF SERVICES AND CREATION OF
DELIVERABLES.
HAWAIIAN TELCOM SHALL BE RESPONSIBLE FOR ENSURING THAT THE SCOPE
OF SERVICES AND DELIVERABLES MEET HAWAIIAN TELCOM'S REQUIREMENTS.
NOTWITHSTANDING THE FOREGOING, THE FACT THAT HAWAIIAN TELCOM HAS SUCH KNOWLEDGE
AND SKILL SHALL NOT OPERATE TO SHIFT TO HAWAIIAN TELCOM ANY RESPONSIBILITIES OF
ACCENTURE THAT WOULD OTHERWISE BY RESPONSIBILITIES OF ACCENTURE UNDER THIS
AGREEMENT UNLESS A WRITTEN AMENDMENT TO THIS AGREEMENT IS EXECUTED BY THE
PARTIES TO EFFECT SUCH A SHIFT.
LIKEWISE, THE FACT THAT ACCENTURE HAS KNOWLEDGE
AND SKILL IN AN AREA THAT IS OUTSIDE OF THE SCOPE OF THE SERVICES SHALL NOT
OPERATE TO SHIFT TO ACCENTURE ANY RESPONSIBILITIES OF HAWAIIAN TELCOM UNDER THIS
AGREEMENT, UNLESS A WRITTEN AMENDMENT TO THIS AGREEMENT IS EXECUTED BY THE
PARTIES TO EFFECT SUCH A SHIFT.
(C)
EXCUSED PERFORMANCE.
ACCENTURE'S FAILURE
OR DELAY IN PERFORMING ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT SHALL BE
EXCUSED IF AND TO THE EXTENT THAT ONE OF THE EVENTS SPECIFIED IN SECTION
3.8(C)(I) (A "POSSIBLE EXCUSE") OCCURS AND THE RELEVANT CONDITIONS SPECIFIED IN
THIS SECTION 3.8(C) ARE SATISFIED:
(I)
SUCH ACCENTURE FAILURE OR DELAY RESULTS
FROM, AND ONLY TO THE EXTENT SUCH ACCENTURE FAILURE OR DELAY WOULD NOT HAVE
OCCURRED BUT FOR, THE FOLLOWING:
(1)
HAWAIIAN TELCOM'S FAILURE TO PERFORM ANY
RESPONSIBILITIES SET FORTH IN THIS AGREEMENT (INCLUDING THE FAILURE TO PERFORM
WITHIN THE SPECIFIED TIME PERIOD, OR IF NO TIME PERIOD IS SPECIFIED, WITHIN A
REASONABLE TIME);
(2)
HAWAIIAN TELCOM'S DIRECTION TO ACCENTURE TO
TAKE OR REFRAIN FROM TAKING CERTAIN ACTIONS, SUBJECT TO SECTION 3.6, OR