EXHIBIT 10.4
EXPEDIA, INC./PEOPLESUPPORT, INC.
CUSTOMER SUPPORT SERVICES
AGREEMENT
This Customer Support Services Agreement (the "Agreement") is entered into by
and between Expedia, Inc., a Washington corporation located at 00000 XX Xxxxxxxx
Xxx, Xxxxx 000, Xxxxxxxx, XX 00000 ("EI"), and PeopleSupport, Inc., a Delaware
corporation, located at 0000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, XX 00000
("COMPANY") to be effective as of December 11, 2000 ("Effective Date").
Recitals
WHEREAS, EI has developed a proprietary application for arranging, planning and
reserving air, hotel and car rental transactions on the Internet along with
other electronic commerce applications;
WHEREAS, EI operates a web site known as "Expedia," that provides on-line travel
services, using its proprietary application; and
WHEREAS, EI has requested that COMPANY provide, and COMPANY has agreed to
provide, certain customer support services and other services to the customers
of Expedia.
NOW, THEREFORE, in consideration of the mutual covenants herein, the parties
hereby agree as follows:
Agreement
1. COMPANY Services.
(a) General. COMPANY agrees to provide customer support, en route
assistance, quality control and other services, including without limitation
those identified in Exhibit A (the "Services") to customers of Expedia, on the
terms and conditions provided herein in accordance with (i) EI standard customer
service policies and procedures as detailed in documentation provided by EI to
COMPANY (including, without limitation, EI policies set forth in Exhibit E),
which may be modified by EI from time to time in its sole discretion; and (ii)
the performance requirements set forth in Exhibit C. The parties shall mutually
prepare a procedures manual prior to launch and maintain such manual, setting
forth detailed procedures for providing the Services.
(b) Facilities. COMPANY shall provide, maintain and staff one (1) or
more customer care (phone and email support) facilities, (the "Facilities") to
provide the Services set forth in Exhibit A of the Agreement. EI owns the
toll-free telephone number that will be posted on the Xxxxxxx.xxx Web Site
("Customer Service Number"). COMPANY, at its sole cost, will purchase, install
and maintain all software, hardware and telecommunications equipment at the
Facilities that are necessary to provide the Services under this Agreement.
COMPANY is responsible for maintaining all necessary telecommunications
equipment and services at the Facilities to provide the Services, including all
costs associated therewith. COMPANY shall
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ensure that the Facilities has, and shall maintain, an infrastructure capable of
supporting a variety of communication methods as may be reasonably required by
EI. The technology to be provided by COMPANY for purposes of this Agreement
shall meet the requirements set forth by EI as provided to COMPANY in writing
from time to time. Other facilities may be added as mutually agreed by amendment
of this Agreement. The technology to be provided by COMPANY for purposes of this
Agreement shall meet the requirements set forth by EI as provided from time to
time.
(c) Software, Hardware and Equipment. It is understood that COMPANY
will provide leasehold improvements, telecommunication systems, furniture and
fixtures, computers and proprietary software and, as between the parties, this
software and equipment will be owned by COMPANY.
(d) Problem Resolution. COMPANY agrees to resolve customer complaints
in a manner that meets or exceeds the performance requirements as set forth in
Exhibit C. In the event COMPANY is unable to resolve a problem, COMPANY may
escalate the problem to EI-designated representative(s) in accordance with
applicable procedures.
(e) ACD System. COMPANY will maintain an Automatic Call Distribution
("ACD") system capable of providing the information identified in Exhibits C and
G to EI in a format designated by EI. If COMPANY changes its current ACD system
or adds facilities, COMPANY will ensure that any such new ACD system is capable
of providing the information set forth in Exhibits C and G. COMPANY shall
provide EI with standard specifications and documentation from its ACD system
with respect to the Services provided by COMPANY under this Agreement.
(f) Disaster Recovery. COMPANY must have a documented disaster recovery
plan. Such plan shall set forth the implementation and management of disaster
recovery procedures and shall be submitted to Expedia for reasonable review and
approval within thirty (30) days of the execution of this Agreement. At a
minimum, the disaster recovery plan shall include the following:
Recovery Plan:
- Contact emergency services, as needed.
- Contact TRAVSUP HOTPAGER and notify them of the
nature of the problem, the estimated length of the
problem and the estimated impact on service delivery.
- Contact site and notify them of the same items as in
#1 and #2, immediately above
- Contact Expedia Customer Service management via
e-mail and voicemail and notify them of the same
items as in #1 and #2, above
- Work to estimate length and severity of problem to
determine what level of response is needed."
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(g) Backup-up Power. COMPANY shall supply line-conditioned,
uninterruptible power supply ("UPS") backed-up power to the Facilities in order
to protect against line spikes, power surges, and temporary power outages and
fluctuations.
(h) Facilities Access. COMPANY shall take reasonable security measures,
at least as great as the precautions it takes to protect its own confidential
information, but no less than reasonable care, to keep confidential the
Confidential Information of EI. COMPANY shall restrict access to the Facilities
as reasonably necessary to ensure the security of EI's Confidential Information.
(i) Onsite Visit. At EI's discretion, with reasonable advance notice,
EI reserves the right to make onsite visits to the Facilities. In connection
with such visits, COMPANY will provide to EI, as and when required by EI, access
for a reasonable number of EI personnel to office premises at the sites equipped
with standard office equipment as available to personnel of COMPANY in proximate
offices, at no charge.
(j) Training. COMPANY will ensure that all its employees and
EI-permitted contractors and subcontractors performing any Services hereunder
agree to undertake and successfully complete all training programs provided by
EI with respect to the Services as EI in its sole discretion deems necessary to
prepare COMPANY to provide the Services outlined in this Agreement. Training
will be conducted at a mutually agreed upon facility where EI shall provide
"train-the-trainer" training at no charge to COMPANY, except that all travel,
accommodation and related expenses for COMPANY employees and employees of
contractors or subcontractors, shall be the responsibility of COMPANY, or such
contractors or subcontractors, respectively. COMPANY acknowledges and agrees
that as a result of EI providing "train-the-trainer" training, COMPANY shall be
responsible for internal and ongoing training of its personnel after receiving
initial "train-the-trainer" training. COMPANY will designate a primary contact
to work with EI to address ongoing training needs. EI agrees to provide the
necessary training materials, for limited duplication, upon request by COMPANY
and following EI approval, to be used by COMPANY to provide training as required
under the terms of this Agreement. Further, COMPANY agrees that it shall not
charge EI for time that COMPANY employees and employees of contractors or
subcontractors spend in "train-the trainer" training. Notwithstanding the
foregoing, EI shall pay to COMPANY a "Training Fee" for initial training costs
in accordance with the terms set forth in Section 2 below and in Exhibit D.
(k) Implementation Services. Upon execution of this Agreement, COMPANY
shall prepare a implementation plan setting forth detailed procedures for
providing the Services (the "Implementation Plan").
(1) Reporting. For systems under the control of COMPANY, COMPANY shall
comply with all applicable reporting requirements by providing EI with the
reports specified in Exhibits C and G (each a "Report"), including management
reporting and any other information requested from time to time with respect to
the Services performed. All Reports shall be complete and accurate. Each Report,
whether in electronic or paper format, shall meet the standard Report
requirements identified for the Report in Exhibits C and F or as specifically
requested by EI from time to time. COMPANY shall deliver each Report, and all
supporting documentation therefore, within the time and date specified in
Exhibits C or F or as specifically
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requested by EI from time to time. COMPANY shall correct any errors in a Report
within five (5) business days following EI's notice specifying the item in
respect of which an error may have occurred.
(m) Confidentiality of Service Requests/Calls. Nothing contained in
this Agreement shall give COMPANY or its agents or contractors, the right to
use, modify, reproduce, distribute and/or publish any EI customer records,
including without limitation reservations, service records or customer
complaints resolved by COMPANY during the fulfillment of COMPANY obligations
hereunder, all of which shall be considered Confidential Information under
Section 10 of this Agreement.
(n) Change of Service. The parties agree, that from time to time during
the term of this Agreement, EI may request reasonable non-material changes in
the scope or manner of performance of the Services being performed by COMPANY
hereunder, and that COMPANY shall comply with such non-material changes.
Further, the parties agree, that from time to time during the term of this
Agreement, EI may request reasonable material changes in the scope or manner of
performance of the Services being performed by COMPANY ("Material Change
Request"). Upon receipt of each Material Change Request, COMPANY will evaluate
the impact that such Change Request will have on the resources required by
COMPANY to perform the Services and the amounts then payable to COMPANY
hereunder. COMPANY will give written notice to EI as to the results of such
evaluation ("Material Change Proposal") within five (5) business days following
receipt of that Material Change Request, unless otherwise agreed to by EI. If EI
does not receive a Material Change Proposal in response to the
applicable Materia1 Change Request within five (5) business days, the Material
Change Request is deemed accepted. In the event that the Material Change
Proposal establishes that COMPANY'S performance of the Service in compliance
with the applicable Material Change Request would materially, and adversely
impact COMPANY resources and revenues, the parties agree to negotiate in good
faith to reach mutually agreeable terms for the performance of, and payment for
the Services requested under the Material Change Request.
2. Payment.
(a) COMPANY is fully responsible for all costs incurred in providing
the Services under this Agreement and all Exhibits hereto, independent of any
provision for reimbursement set forth herein.
(b) EI will pay COMPANY the amounts specified in Exhibit D subject to
adjustments, deductions or credits to such amounts as provided for in this
Agreement or any Exhibit hereto. COMPANY will invoice EI Accounts Payable on a
monthly basis, on or before the fifth-tenth (15th) day of the month following
the month for which activity is being invoiced, and shall include full
documentation supporting such invoice. Payment terms are net thirty (30) days
after receipt of invoice.
3. Ownership and License Grants.
(a) Use of EI's Name. This Agreement does not constitute a trademark or
service xxxx license. As of the Effective Date, EI shall be deemed to have
granted COMPANY a non-
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exclusive, personal, non-transferable, non-assignable, royalty-free license to
use the Expedia(R) name solely in conjunction with answering and responding to
email inquiries, and incoming Calls from, making outbound callbacks to
Expedia customers as necessary for providing Services pursuant to the terms of
this Agreement. Such license grant shall remain in effect while this Agreement
is in good standing, but shall expire at the expiration or earlier termination
of this Agreement. Specific additional terms and conditions pertaining to this
license grant are set forth in Exhibit H, which is incorporated herein by this
reference. COMPANY may list EI in its customer listing. Notwithstanding the
foregoing, COMPANY shall not use EI's name, except as set forth in this
Agreement, or as otherwise approved in writing by EI.
(b) Customer Information. Except as otherwise provided herein, COMPANY
acknowledges and agrees that the information acquired by COMPANY in connection
with the provision of Services pursuant to this Agreement, including without
limitation customer and prospect information, sales information, back office and
general ledger data, customer travel reservation and itinerary information, and
EI customer lists and updates (including customer names, addresses and telephone
numbers) (collectively, "Customer Data") shall be considered proprietary
information of EI, including all Customer Data stored using any COMPANY
database, and all right, title and interest in the Customer Data is owned by EI.
COMPANY shall use such Customer Data only as necessary to perform the Services
in accordance with this Agreement and shall maintain such Customer Data in
strict confidence in accordance with the provisions of Section 10 hereof. Upon
request from EI, COMPANY shall provide EI with any or all Customer Data in
COMPANY'S possession. Upon termination or expiration of this Agreement, COMPANY
shall within ten (10) days thereafter, or within such other timeframe as EI may
reasonably agree to, provide EI with all documents and materials containing
Customer Data (including data stored or maintained in electronic format, whether
or not created or stored using a COMPANY database), together with all other
materials and property of EI, which are in its possession or under its control.
(c) Custom Tools. At the sole discretion of EI, EI may grant COMPANY a
non-exclusive, personal, non-transferable, non-assignable, royalty-free license
to access and use certain software tools ("Expedia User Management Tools")
developed or to be developed by EI and to be identified from time to time during
the term of this Agreement solely for the purpose of assisting COMPANY in
providing the Services to Expedia customers under this Agreement. Upon the
expiration or termination of this Agreement, COMPANY'S license to use the
Expedia User Management Tools will automatically terminate.
(d) EI Intellectual Property Rights. EI owns all right, title and
interest in and to any software or other intellectual property it provides to
COMPANY during the term of this Agreement, including without limitation the
items listed on Exhibit B, any and all Expedia User Management Tools, and
training materials. All software so provided shall he used by COMPANY in
accordance with the terms of the End User License Agreement ("XXXX")
accompanying the software, however, that notwithstanding any provision in a XXXX
to the contrary, COMPANY may not transfer any such software so provided.
(e) COMPANY Software License. COMPANY shall xxxxx XX a non-exclusive,
personal, non-transferable, non-assignable, royalty-free license to access and
use certain intellectual property consisting of all computer programming and/or
formatting code or
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operating instructions that is owned or licensed by COMPANY and employed in the
delivery of the Services (collectively "COMPANY Intellectual Property"), and to
be identified from time to time during the term of this Agreement solely for the
purpose of assisting COMPANY in providing the Services to Expedia customers
under this Agreement. Upon the expiration or termination of this Agreement, EI's
license to use the COMPANY Intellectual Property will automatically terminate.
(f) COMPANY owns all right, title and interest in and to any COMPANY
Intellectual Property that it provides to EI during the term of this Agreement.
All COMPANY Intellectual Property so provided shall be used by EI in accordance
with the terms of the End User License Agreement ("XXXX") accompanying the
COMPANY Intellectual Property, if any, however, that notwithstanding any
provision in a XXXX to the contrary, EI may not transfer any such COMPANY
Intellectual Property so provided.
4. Warranties.
(a) COMPANY warrants that:
(i) It possesses all necessary authority to enter into this
Agreement, and that by so doing it does not violate any other
agreements to which it is a party; and
(ii) The Services will be performed in a professional manner
and shall conform in all material respects with the service
requirements set forth in this Agreement including, without limitation,
those set forth in Exhibits A and C; and
(iii) The Services will be performed by (i) employees of
COMPANY acting within the scope of their employment who have signed
confidentiality agreements with COMPANY (with appropriate
acknowledgments of confidentiality) substantially in the form attached
as Exhibit K, and
(iv) In providing Services to Expedia customers and any other
persons or entities, COMPANY shall make no representations nor
undertake any obligations on behalf of EI concerning the Services
and/or any other EI products or services beyond those expressly made or
undertaken by Expedia and communicated to Expedia customers on the
Expedia web site. COMPANY, including all of COMPANY'S employees,
temporary employees and contractors shall conform to all applicable
laws and government rules and regulations. COMPANY assumes all
responsibility for providing any training that may be required to
ensure compliance with such legal requirements. COMPANY shall offer to
Expedia customers only those Services authorized by this Agreement,
advising customers requesting other services that Expedia does not
provide such services, and then documenting and advising EI of all such
requests; and
(v) that COMPANY owns, or has valid license to, all worldwide
rights, title and interest in the COMPANY Intellectual Property,
employed in the delivery of the Services, or licensed to EI, and that
such COMPANY Intellectual Property and any and all other software and
materials COMPANY publishes or uses in providing the Services under
this Agreement do not and will not infringe any intellectual property
rights owned
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by EI or any other person or entity including, but not limited to, any
copyright, patent, trademark or trade secret; and
(vi) Except as otherwise provided in this Agreement, COMPANY will not
reproduce, sell, publish, or in any manner commercially exploit the Expedia(R)
name or any information or derivatives of information acquired in connection
with its provision of Services or allow such reproduction, sale, publication or
exploitation by any employee or person retained for the purpose of providing
such services except as agreed to in writing by EI; and
(vii) COMPANY agrees to work cooperatively and professionally in
conjunction with third parties who are providing similar services to EI to
ensure that Expedia customers receive consistent high quality Services under
this Agreement.
(viii) Prior to the commencement of the work to be performed hereunder
and throughout the entire performance by COMPANY, COMPANY shall procure and
maintain insurance adequate to cover any and all liability which COMPANY may
incur as a result of the performance of work included in this Agreement. Such
insurance shall be in a form and with insurers acceptable to EI, and shall
comply with the following minimum requirements:
(A) Commercial General Liability insurance of the
Occurrence Form, with policy limits of not less than Two
Million Dollars (US$2,000,000.00) combined single limit each
occurrence for Bodily Injury and Property Damage combined, and
One Million Dollars (US$1,000,000.00) Personal and Advertising
Injury Limit.
(B) Professional Liability And Errors & Omissions
Liability Insurance with policy limits of not less than Three
Million Dollars (US$3,000,000.00) each claim with a deductible
of not more than Twenty-five Thousand Dollars (US$25,000.00).
Such insurance shall include coverage for infringement of
proprietary rights of any third party, including without
limitation copyright, trade secret and trademark infringement
as related to COMPANY'S performance under this Agreement.
Throughout the term of this Agreement, the Professional
Liability And Errors & Omissions Liability Insurance
retroactive coverage date will be no later than the Effective
Date of this Agreement. Upon expiration or termination of this
Agreement, COMPANY will maintain an extended reporting period
providing that claims first made and reported to the insurance
company within one year after the end of this Agreement will
deemed to have been made during the policy period.
A copy of the certificate of insurance shall be included as
Exhibit J. Failure by COMPANY to furnish certificates of insurance or
failure by EI to request same shall not constitute a waiver by EI of
any of the insurance requirements set forth herein. COMPANY shall
notify EI in writing at least thirty (30) days advance if COMPANY'S
insurance coverage is to be canceled or materially altered so as not to
comply with the requirements of this section.
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In the event of such failure on the part of COMPANY to provide
the certificates as requested herein, and in the event of liability or
expense incurred by EI as a result of such failure by COMPANY, COMPANY
hereby agrees to indemnify EI for all liability and expense (including
reasonable attorneys' fees and expenses associated with establishing
the right to indemnity) incurred by EI as a result of such failure by
COMPANY; and
(ix) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
COMPANY AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS
AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND (EXCEPT AS SET FORTH IN SECTION
7(a)) INDEMNIFICATION.
(b) EI warrants that:
(i) Any services performed by EI pursuant to this Agreement
will, be performed in a professional manner; and
(ii) The Expedia User Management Tools do not and will not
infringe any intellectual property rights owned by any other person or
entity including, but not limited to, any copyright, patent, trademark
or trade secret to the extent that COMPANY will be required to refrain
from using such tools (and EI will not be able to provide substitute
technology which reasonably provides the same or similar functionality)
with the overall result that COMPANY will not be able to reasonably
perform the Services as intended herein; and
(iii) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EI
AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE
AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND (EXCEPT AS SET FORTH IN SECTION
7(d)) INDEMNIFICATION.
5. Personnel
(a) COMPANY personnel assigned to Expedia shall be employees of COMPANY
and not employees of EI and shall remain under the direction and control of
COMPANY. These COMPANY personnel shall receive such salaries, compensation and
benefits as COMPANY shall determine. COMPANY agrees to be responsible for all of
its federal and state taxes, withholding, social security, insurance and other
benefits, and all salaries, benefits and other costs of such COMPANY personnel.
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(b) Notwithstanding the foregoing, COMPANY personnel assigned to
Expedia shall adhere to EI quality control standards as set forth in Exhibit C.
(c) EI shall have the option to participate in any decisions regarding
any assignment of COMPANY personnel to Expedia. COMPANY acknowledges EI' right
to require immediate removal and prompt replacement from the Expedia team, any
COMPANY employee, or agent performing COMPANY'S obligations under this Agreement
who engages in any conduct prohibited by law or inconsistent with EI policy as
set forth in Exhibit E, so long as such removal and replacement is not
discriminatory or in violation of law.
6. Non-Competition and Non-Solicitation.
(a) COMPANY personnel shall not target or solicit Expedia customers for
any other COMPANY supported business or any additional travel business beyond
provision of the Services governed by this Agreement, nor shall COMPANY use
information gained in the provision of the Services to compete with Expedia in
providing travel services.
(b) Notwithstanding the preceding section 6(a), COMPANY shall not be
prohibited from providing services to Expedia customers who contact COMPANY
independently (other than in conjunction with Expedia), or whose names appear on
mailing lists developed independently of Expedia or who were customers of
COMPANY prior to the Effective Date.
(c) EI shall not solicit COMPANY personnel assigned to Expedia to work
for EI without prior written consent of COMPANY.
7. Indemnification.
(a) COMPANY Indemnification. COMPANY agrees to indemnify, defend, and
hold EI harmless from and against any and all claims, actions, demands, and
costs, including reasonable attorneys' fees and expenses arising out of or in
connection with third party claims related to the COMPANY Intellectual Property,
and/or as a result of the performance of the Services provided under this
Agreement by COMPANY or its employees, independent contractors or subcontractors
and agents ("COMPANY Indemnified Claims"). Acts for which COMPANY shall
indemnify EI include, but shall not be limited to, representations or
obligations undertaken on behalf of EI concerning the Services to customers
which exceed the scope of the Services as set forth in this Agreement; any act
or omission in violation of any applicable government statutes, laws, rules and
regulations or industry rules and regulations. In addition, COMPANY agrees to
defend EI against, and pay the amount of any adverse final judgment or
settlement to which COMPANY consents resulting from, any third party claim(s)
("Indemnified IP Claims") that the COMPANY Intellectual Property and/or
COMPANY'S provision of any services pursuant to this Agreement, infringes any
third party patent, copyright, trademark or trade secret enforceable under the
laws of the United States; provided that COMPANY is notified promptly in writing
of the Indemnified IP Claim and has sole control over its defense and
settlement, and EI provides reasonable assistance in the defense and/or
settlement of such claim. EI reserves the right to control the defense of any
COMPANY Indemnified Claim and to conduct all proceedings or negotiations in
connection therewith, and if it so undertakes, all other proceedings or
negotiations to settle or defend any such COMPANY Indemnified Claim shall be at
EI' expense, provided that (i) COMPANY shall
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have the right to approve of any settlement of any such COMPANY Indemnified
Claim; such approval shall not be unreasonably withheld, and (ii) EI shall he
responsible for payment of all attorneys' fees incurred by EI after it has
exercised its right to control the defense. COMPANY shall pay any and all
expenses and other reasonable costs incurred by EI arising in connection with
its obligations under this Section 7(a) promptly upon demand.
(b) EI General Indemnification. EI agrees to indemnify, defend and hold
COMPANY harmless from and against any and all claims, actions, demands,
liabilities, and costs, including reasonable attorneys' fees and expenses,
arising out of or in connection with third party claims as a result of (i) the
business of Expedia unless arising out of or in connection with circumstances
for which COMPANY is indemnifying EI pursuant to Section 7(a) above; and (ii)
any injuries to the person or property of any Expedia customer while traveling
on an Expedia itinerary unless arising out of or in connection with the
negligence of COMPANY ("EI Indemnified Claim"). COMPANY reserves the right to
control the defense of any EI Indemnified Claim and to conduct all proceedings
or negotiations in connection therewith, and, if it so undertakes, all other
proceedings or negotiations to settle or defend any such EI Indemnified Claim
shall be at COMPANY'S expense, provided that (i) EI shall have the right to
approve of any settlement of any such EI Indemnified Claim, such approval shall
not be unreasonably withheld, and (ii) COMPANY shall be responsible for payment
of all attorneys' fees incurred by COMPANY after it has exercised its right to
control the defense. EI shall pay any and all expenses and other costs incurred
by COMPANY arising in connection with its obligations under this Section 7(b)
promptly upon demand.
8. Term and Default.
(a) This Agreement shall commence as of the Effective Date, and shall
continue in force for a period of three (3) years (the "Term"), unless earlier
terminated by EI as provided in this Agreement or Exhibits hereto.
(b) For Breach. In the event that either party materially breaches any
provision of this Agreement, the non-breaching party will give the party in
default written notice specifying the nature of the breach ("Notice of
Default"). In the event that the defaulting party fails to cure such breach
within thirty (30) days after receipt of the Notice of Default, then the
non-breaching party may terminate this Agreement immediately upon the expiration
of the thirty (30) day notice period.
(c) Uncurable Breach. In the event either party causes a material
breach of the provisions of Sections 1(1), 3(b), 6(a), or 10, such breach will
justify termination for cause, and the non-breaching party may terminate this
Agreement immediately with no further obligations under this Agreement.
(d) For Convenience. After the sixteen (16) months of this Agreement
have elapsed, EI shall have the right to terminate this Agreement for
convenience at any time upon sixty (60) days prior written notice to COMPANY
(the "Notice Period"). In the event of such termination, any amounts unpaid for
Services and/or other amounts relating to the period prior to the expiration of
the Notice Period, remain payable under the terms of this Agreement and
obligations of both parties shall cease to accrue after the expiration of the
Notice Period.
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(e) Other Remedies. All remedies set forth in this Section 8 shall be
in addition to and not in lieu of all other remedies available under this
Agreement, at law or in equity.
(f) Survival. Sections 7, 8(f), 8(g), 10, 11, 14 and 15 of this
Agreement shall survive expiration or termination for any reason.
(g) Transition. Upon the expiration or earlier termination of this
Agreement, COMPANY shall cooperate with EI to assist in the orderly transition
of Services to EI, or as EI may direct, in a professional manner, with no
disruption to the Services.
9. Default in Performance and Remedies. During the term of this Agreement:
(a) COMPANY acknowledges and agrees that if the Monthly SPM drops below
seventy-five (75), the Minimum Commitment Volume (defined in Exhibit D) shall no
longer apply. The parties agree that in the event that the Minimum Commitment
Volume no longer applies due to a drop in the Monthly SPM, the Minimum
Commitment Volume may only be re-establish following the completion of a
subsequent calendar month in which COMPANY has maintained the Monthly SPM at or
above seventy (75).
(b) Additionally, in the event that COMPANY cannot meet the Monthly SPM
set forth in Exhibit C any three (3) months during a rolling twelve (12) month
period, EI shall have the right to terminate this Agreement for cause, with no
further obligation to COMPANY under this Agreement.
(c) All remedies set forth in this section shall be in addition to and
not in lieu of any other remedies available to EI under this Agreement at law or
in equity.
10. Confidentiality and Publicity.
(a) EI and COMPANY agree that the terms of the Non-Disclosure Agreement
executed by the parties, dated and attached hereto as Exhibit I shall be deemed
incorporated herein, and further, that all terms and conditions of this
Agreement shall be deemed Confidential Information as defined in such
Non-Disclosure Agreement.
(b) The parties acknowledge that monetary damages may not be a
sufficient remedy for unauthorized disclosure or use of Confidential Information
and that the parties may seek, without waiving any other rights or remedies,
such injunctive or equitable relief as may be deemed proper by a court of
competent jurisdiction.
(c) COMPANY shall not issue any press release or advertising concerning
COMPANY'S relationship with EI and the Services hereunder, without EI' written
pre-approval.
11. Notices and Requests. All notices, authorizations, and requests in
connection with this Agreement shall be deemed given on the day they are (i)
deposited in the mail, postage prepaid, certified or registered, return receipt
requested; or (ii) sent by air courier, charges prepaid, with a confirming
telefax; or (iii) transmitted, if transmitted by facsimile, and addressed as
follows:
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Notices to COMPANY:
PEOPLESUPPORT, INC. With a copy to:
0000 Xxxxxxx Xxxxxx
14(th) Floor PEOPLESUPPORT, INC.
Xxx Xxxxxxx, XX 00000 000 Xxxxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
ATTN: Corporate Counsel
Phone: (000) 000-0000 ATTN: Xxx Xxxxxxxx
Fax: (000) 000-0000 Vice President of Operations
Phone: (000) 000-0000
Fax: (000) 000-0000
Notices to EI:
EXPEDIA, INC.
00000 XX Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000 U.S.A.
ATTN: Director of Customer Service
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Senior Vice President of Operations
With a copy to: General Counsel
or to such other address as the party to receive the notice or request so
designates by written notice to the other.
12. Audits and Onsite Visits. COMPANY agrees to maintain accurate and adequate
books and records related to the Services for the following period of time: (i)
for any applicable statute of limitations; (ii) for any compulsory extension or
tolling of any applicable statute of limitations; and (iii) for any reasonable
voluntary extension by EI of any statute of limitations under circumstances in
which the governmental entity could otherwise compel an extension; provided
however, that in no case will such period be less than five (5) years. EI may
audit the books and records of COMPANY relating directly to the provision of
COMPANY's performance of the Services under this Agreement and may consult with
COMPANY's accountants as is reasonable to verify COMPANY's compliance with the
terms of this Agreement. Any such audit shall be performed by an independent
auditor and shall be paid for by EI unless material discrepancies are disclosed.
"Material" shall mean a discrepancy of one percent (1%) or higher between
amounts billed to EI and COMPANY's records. If material discrepancies are
disclosed, COMPANY agrees to reimburse EI for the reasonable costs associated
with the audit. COMPANY agrees to promptly correct any deficiencies detected in
the audit and shall promptly refund or deduct from amounts payable, not to
exceed total
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payments outstanding at the time of the refund, any overpayments disclosed by
such an audit, except for specific past instances of non-monetary noncompliance
not capable of correction due to the passage of time. In the event that COMPANY
fails to refund any overpayment disclosed by the audit within thirty (30) days
from the date of the audit report, EI may, at its election, set-off any such
overpayment against any money subsequently due by EI to COMPANY. In the event
the discrepancy indicates that EI has been undercharged, COMPANY may add the
additional charges to a subsequent invoice, and EI will pay the invoice in
accordance with the provisions set forth in this Agreement. Any audit will be
conducted during COMPANY's normal business hours in such a manner as not to
unreasonably interfere with COMPANY's normal business activities. At such times,
EI and its agents shall be entitled to enter all locations of COMPANY necessary
to provide or otherwise to support or to account for the Services, to conduct
the foregoing audits, and to examine and make copies of all books and records
regarding any or all information which EI is permitted to audit hereunder.
13. Taxes
(a) The amounts to be paid by EI to COMPANY herein do not include any
foreign, U.S. federal, state, local, municipal or other governmental taxes,
duties, levies, fees, excises or tariffs, arising as a result of or in
connection with the transactions contemplated under this Agreement including,
without limitation, (i) any state or local sales or use taxes or any value added
tax or business transfer tax now or hereafter imposed on the provision of goods
and services to EI by COMPANY under this Agreement, (ii) taxes imposed or based
on or with respect to or measured by any net or gross income or receipts of
COMPANY, (iii) any franchise taxes, taxes on doing business, gross receipts
taxes or capital stock taxes (including any minimum taxes and taxes measured by
any item of tax preference), (iv) any taxes imposed or assessed after the date
upon which this Agreement is terminated, (v) taxes based upon or imposed with
reference to COMPANY'S real and/or personal property ownership and (vi) any
taxes similar to or in the nature of those taxes described in (i), (ii), (iii),
(iv) or (v) above, now or hereafter imposed on COMPANY (all such amounts,
together with any penalties, interest or any additions thereto, collectively
"Taxes"). EI is not liable for any Taxes incurred in connection with or related
to the sale of goods and services under this Agreement, and all such Taxes shall
be the financial responsibility of COMPANY, provided that EI shall pay to
COMPANY Collected Taxes as indicated below. COMPANY agrees to indemnify, defend
and hold EI harmless from any Taxes (other than Collected Taxes) or claims,
causes of action, costs (including, without limitation, reasonable attorneys'
fees) and any other liabilities of any nature whatsoever related to such Taxes.
(b) Any sales or use taxes described above that (i) are owed by EI
solely as a result of entering into this Agreement and the payment of the fees
hereunder, (ii) are required to be collected from EI by COMPANY under applicable
law, and (iii) are based solely upon the amounts payable under this Agreement
(such taxes the "Collected Taxes"), shall be stated separately as applicable on
COMPANY's invoices and shall be remitted by EI to COMPANY, whereupon COMPANY
shall remit to EI official tax receipts indicating that such Collected Taxes
have been collected by COMPANY. EI may provide to COMPANY an exemption
certificate (including without limitation a resale certificate) in which case
COMPANY shall not collect the taxes covered by such certificate. COMPANY agrees
to take such steps as are requested by EI to minimize such Collected Taxes in
accordance with all relevant laws and to cooperate with and assist EI, at EI's
request, in challenging the validity of any Collected Taxes
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or taxes otherwise paid by EI. COMPANY shall indemnify and hold EI harmless from
any Collected Taxes, penalties, interest, or additions to tax arising from
amounts paid by EI to COMPANY under this Agreement, that are asserted or
assessed against EI to the extent such amounts relate to amounts that are paid
to or collected by COMPANY from EI under this section. If any taxing authority
refunds any tax to COMPANY which EI originally paid to COMPANY, or COMPANY
otherwise becomes aware that any tax was incorrectly and/or erroneously
collected from EI, or COMPANY otherwise receives an economic benefit (such as an
audit offset) as the result of incorrectly and/or erroneously receiving
Collected Taxes from EI, then COMPANY shall promptly remit to EI an amount equal
to such refund, incorrect collection or tax benefit as the case may be plus any
interest thereon.
(c) If taxes are required to be withheld on any amounts otherwise to be
paid by EI to COMPANY, EI will deduct such taxes from the amount otherwise owed
and pay them to the appropriate taxing authority. At COMPANY'S written request
and expense, EI will use reasonable efforts to cooperate with and assist COMPANY
in obtaining tax certificates or other appropriate documentation evidencing such
payment, provided, however, that the responsibility for such documentation shall
remain with COMPANY.
(d) This tax section shall govern the treatment of all taxes arising as
a result of or in connection with this Agreement notwithstanding any other
section of this Agreement.
14. Limitation Of Liability. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS
UNDER SECTION 7 AND ANY BREACH OF SECTION 10, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THIS
AGREEMENT FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES
WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR
REVENUE, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION,
AND THE LIKE, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR
UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO
EVENT SHALL EI BE LIABLE TO COMPANY FOR AN AMOUNT IN EXCESS OF THE TOTAL DOLLAR
AMOUNT ACTUALLY PAID BY EI TO COMPANY FROM PURSUANT TO SECTION 2 HEREOF.
15. General.
(a) This Agreement shall be construed and controlled by the laws of
the State of Washington. In the event that COMPANY brings a legal action against
EI, EI consents to jurisdiction and venue in the state and federal courts
sitting in the State of California. In the event that EI brings a legal action
against COMPANY, COMPANY consents to jurisdiction and venue in the state and
federal courts sitting in the State of Washington. Process may be served on
either party by US Mail, postage prepaid, certified or registered, return
receipt requested, or by such other method as is authorized by law.
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(b) Neither this Agreement, nor any terms or conditions contained
herein, shall be construed as creating a partnership, joint venture, agency
relationship or franchise. COMPANY is an independent contractor for EI. COMPANY
will employ its own employees in order to perform and satisfy its obligations
under this Agreement. Nothing in this Agreement shall be construed as creating
an employer-employee relationship, as a guarantee of future employment. COMPANY
further agrees to be solely responsible for, and to indemnify and hold EI
harmless against any and all federal and state taxes, tax withholding, social
security, unemployment insurance, and other taxes and benefits resulting from
COMPANY'S relationship with its employees and independent contractors.
(c) This Agreement, including all Exhibits attached hereto, constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements or communications
with respect to the subject matter hereof, with the exception of the
Non-Disclosure Agreement between the parties referenced herein. This Agreement
shall not be modified except by a written agreement dated subsequent to the date
of this Agreement and signed on behalf of COMPANY and EI by their respective
duly authorized representatives.
(d) No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent, or subsequent breach of the same
or any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
(e) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid, or unenforceable, the remaining
provisions shall remain in full force and effect.
(f) The rights and obligations hereunder shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto,
provided any rights or obligations hereunder shall not be assigned by COMPANY
without the prior written consent of EI. Notwithstanding the foregoing, if
COMPANY is reorganized into another form of entity with the effect that the new
entity owns substantially all of the current assets and business of COMPANY and
that the new entity is controlled by the same person(s) as currently control
COMPANY, this Agreement may be assigned to such new entity without prior written
consent of EI.
(g) In any suit or action to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the prevailing party
will be entitled to recover its costs, including reasonable attorneys' fees.
(h) The section headings herein are for the convenience of the parties
and shall not be deemed to supersede or modify any provisions.
(i) If either party is unable to perform under this Agreement due to
circumstances or causes beyond its control, and which could not by reasonable
diligence have been avoided, such party shall have the option, without
liability, of suspending performance of its obligations under this Agreement for
the duration of such contingency upon written notice to the other party.
However, either party may terminate this Agreement upon written notice to the
other party in
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the event that such other party has suspended performance of its obligations
under this Agreement for more than thirty (30) days.
(k) This Agreement does not constitute an offer by EI and shall not be
effective until signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EXPEDIA, INC. PEOPLESUPPORT, INC.
00000 XX Xxxxxxxx Xxx, 0000 Xxxxxxx Xxxxxx,
Xxxxx 000 14(th) Floor
Floor Bellevue, WA 98005 Xxx Xxxxxxx, XX 00000
/s/ XXXXXXX XXXXXXX /s/ XXXXX XXXXXXXXXX
------------------------- -----------------------
By By
Xxxxxxx Xxxxxxx Xxxxx Xxxxxxxxxx
------------------------- -----------------------
Name (print) Name (print)
Sr. Vice President & CFO CEO & Chairman
------------------------- -----------------------
Title Title
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