EXHIBIT 10.64
[LOGO]
Master Service Agreement
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This iXL Master Agreement (the "Agreement") is entered into this 31st day of
December, 1998 (the "Effective Date"), by and between iXL, Inc., a Delaware
corporation with a principal place of business at 0000 Xxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000 ("iXL") and Delta Air Lines, Inc., a Delaware corporation with a
principal place of business at 0000 Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000
("Delta") Delta. For purposes of this Agreement, "iXL" and "Delta" shall be
deemed to include all "Affiliates" (as defined herein).
RECITALS
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A. iXL is a full service interactive services provider offering various
services and products including but not limited to strategic consulting,
Web development, multimedia development, custom software development,
laptop based presentation products, Web site management applications, Web
site hosting, and Web site marketing (the "iXL Services");
B. Delta is a major carrier providing scheduled air transportation services to
domestic and international destinations,
C. Delta desires to engage iXL on a non-exclusive basis to provide various of
the iXL Services on the terms provided herein.
NOW THEREFORE, in consideration of the mutual promises, covenants and agreements
set forth below and other good and valuable consideration, the sufficiency of
which is hereby admitted, the parties agree as follows:
1. The Agreement and Statement(s) of Work.
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1.1. Delta hereby engages iXL to provide services or products as described
in the attached Statement of Work, which shall be implemented through
additional statements of work, which shall at a minimum include a
description of the services to be provided and the corresponding fees
(collectively, the "Statement of Work"). iXL hereby accepts such
engagement, subject to the terms and conditions of this Agreement, the
Statement of Work, and any terms and conditions attached to the
Statement of Work.
1.2. If there is any difference between the terms and conditions attached
to any Statement of Work and any other portion of this Agreement, the
terms attached to the Statement of Work shall control, with the
exception of Section 17.10 (which confirms that no joint venture,
partnership or other relationship has been created in connection with
this Agreement). In the event of a conflict between Section 17.10 of
this Agreement and any language in a Statement of Work, Section 17.10
of this Agreement shall control.
1.3 If and to the extent that iXL identifies investment opportunities for
travel related products or services, iXL shall engage in best efforts,
including good faith negotiations, to provide Delta with the
opportunity to participate in such opportunities in a manner
equivalent to that of iXL. This option shall apply to both iXL
acquisitions and new business development for travel related products
or services. To the extent any acquisition by iXL involves a payment
by iXL in the form of services, stock or other non-cash consideration,
then Delta shall be entitled to make its contribution to participate
in the business opportunity on an equivalent cash consideration basis.
2. Change Orders; Administration. Any modifications to the specifications in a
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Statement of Work shall require execution of a written change order by both
parties to this Agreement (a "Change Order") which shall substantially
conform with the draft form attached to this Agreement. Each Change Order
complying with this section shall be deemed to be an amendment to the
applicable Statement of Work and will become part of this Agreement.
3. Method of Performing Services and Monthly Allocation of iXL Resources. iXL
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shall determine the method, details, and means of performing the services
hereunder, subject to the standards set forth in the Statement of Work and
the prior written approval of Delta, which approval shall not be
unreasonably withheld. iXL may engage subcontractors (including but not
limited to, any iXL subsidiary, parent or related entity or any employee
thereof) to perform any of the Services provided hereunder, with Delta's
prior written approval, which approval shall not be unreasonably withheld.
At Delta's request, iXL shall engage those subcontractors and third party
entities identified by Delta to perform TPF oriented development, product
or services; provided, the use of such companies is subject to iXL's prior
written approval, which approval shall not be unreasonably withheld. iXL
shall adhere to commercially reasonable standards in using subcontractors
suggested by Delta. During the Term (defined below) and thereafter, iXL
shall retain the right to perform any and all services for other clients;
provided, that iXL shall not, directly or indirectly,
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through Affiliates or otherwise, perform services for other airlines
without Delta's prior written approval. As of the date of this Agreement,
Delta has consented to iXL performing services for Midwest Express, Trans
World Airlines, British Airways (only for the Pitchman(TM) and Pitchman
powered by Iguana(TM) products) and Virgin Atlantic (the "Grandfathered
Carriers"). Delta consents to iXL's subsidiary, Consumer Financial Network,
Inc. ("CFN"), providing services to airline companies; provided, CFN shall
not provide the iXL Services to such companies. Based upon currently
available information derived from Delta and iXL's experience in the
industry, iXL has established an Estimated Monthly Allocation of Resources,
in the Statement of Work attached to this Agreement, pertaining to the
Services to be rendered hereunder. iXL shall allocate resources for Delta
in accordance with the Estimated Monthly Allocation of Resources, to the
extent iXL determines such allocation is appropriate under the Statement(s)
of Work. In the event that the Statement(s) of Work require the allocation
of resources in excess of the amounts set forth in the Estimated Monthly
Allocation of Resources ("Excess Resources"), iXL shall allocate Excess
Resources to the Statement of Work within thirty (30) days of the date in
which iXL determines that Excess Resources are required. The Monthly
Allocation of Resources is an estimate only, and the payment amounts set
forth in Section 5 and the applicable Statement(s) of Work shall govern
payment to iXL hereunder.
4. Term and Termination.
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4.1. Term. This Agreement shall be effective when signed by both parties
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and thereafter shall remain in effect for five (5) years unless
terminated pursuant to the provisions of this Section 4.
4.2. Termination of the Agreement.
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4.2.1 Termination for Nonpayment. In the event that Delta defaults in
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the payment of any amount due to iXL hereunder and does not cure
such default within thirty (30) days of the date of the invoice,
then iXL may, by issuing written notice thereof to Delta,
terminate this Agreement as of a date specified in such notice
of termination; provided, that iXL first provides Delta with
fifteen (15) days advance written notice in order to afford
Delta the opportunity to cure such failure. In the event of a
termination by Delta under this Section 4.2.1 during the initial
twelve (12) month period of this Agreement, Delta shall be
obligated to pay iXL the amount specified as Liquidated Damages
in Section 5 below.
4.2.2 Termination without cause.
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(a) Termination without cause by Delta. Delta may terminate this
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Agreement at any time during the Term without cause upon sixty
(60) days' prior written notice to iXL. In the event of a
termination by Delta under this Section 4.2.2 during the initial
twelve (12) month period of this Agreement, Delta shall be
obligated to pay iXL the amount specified as Liquidated Damages
in Section 5 below.
(b) Termination without cause by iXL. iXL may terminate this
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Agreement at any time following the initial 12-month term without
cause upon one-hundred and twenty (120) days' prior written
notice to Delta. If iXL determines to terminate this Agreement
under Section 4.2.2(b) due to a reduction in services purchased
by Delta below Eight Hundred Thirty Four Thousand Dollars
($834,000) per month, the parties agree that, prior to iXL's
notice of termination under this Section, the parties shall first
meet to determine if they can reach a mutual agreement on an
increase in the level of services purchased by Delta hereunder.
4.2.3 Termination for Cause. Either party may terminate this
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Agreement for "cause" (as defined below) immediately upon written
notice to the other party; provided that for purposes of this
Section 4.2.3, "cause" shall mean (i) the other party files a
voluntary petition in bankruptcy, makes an assignment for the
benefit of creditors of all or substantially all of its assets,
fails to secure dismissal of any involuntary petition in
bankruptcy within sixty (60) days after the filing thereof, or
petitions for reorganization, liquidation, or dissolution under
any federal or state bankruptcy law or similar law; (ii) the
other party violates, or fails to perform or observe, any
material term or condition of this Agreement for more than thirty
(30) days after receipt of written notice that it is so violating
or failing. In addition, Delta may terminate this Agreement "for
cause" in the event of a change of control by iXL, which for the
purpose of this Agreement shall mean (x) the acquisition by any
other person or group (within the meaning of Section 13(d)(3) of
the Securities Exchange Act (except an employee group of such
party, any of its subsidiaries or a holding company of such
party)), of the beneficial ownership of securities representing
20% or more of the combined voting power of the securities
entitled to vote generally in the election of the board of
directors of iXL, but only where the acquiring party is, or is an
Affiliate of, (a) an airline, (b) a computer reservation system
vendor, or (c) a company that owns a web site that (a) collects,
stores, processes, displays or distributes through communication
networks information concerning industry alternatives for
transportation, lodging and/or other travel-related products and
services or (b) enables consumers, businesses, travel agents or
other persons or users to (i) reserve or otherwise confirm the
use of such products or services; (ii) report or receive payment
for or otherwise clear transactions regarding such products or
services; or (iii) issue tickets for the acquisition or use of
such products or services.
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4.2.4 Effect of Termination. Upon any termination of this Agreement,
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Delta shall be obligated to pay iXL for all services rendered
pursuant to any outstanding Statements of Work through the
effective date of such termination. During the initial twelve
(12) month period of this Agreement, in the event of any
termination or cancellation by Delta of the Agreement, except for
a Termination for Cause by Delta under Section 4.2.3, Delta shall
pay iXL the amount specified as Liquidated Damages in Section 5
below.
4.2.5 Survival. Termination of this Agreement by either party
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pursuant to the provisions of this Section 4 shall terminate each
party's obligations under this Agreement except for the
provisions of Section 5 (Guaranteed Payment and Liquidated
Damages), Section 6 (Payments to iXL), Section 7
(Confidentiality), Section 9 (Delta Representations and
Warranties) Section 9 (Intellectual Property), Section 11 (iXL
Warranties), Section 12 (Exclusion of Warranties), Section 13
(Limits of Liability), Section 14 (Non-Solicitation), Section 15
(Indemnification), Section 17.4 (Governing Law), and Section
17.10 (Non-Agency), all of which shall survive termination of
this Agreement.
4.2.6 Termination for failure to Allocate Excess Resources. In the
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event that Delta intends at any time to terminate the Agreement
for iXL's failure to allocate Excess Resources, Delta shall
provide iXL with thirty (30) days written notice of such
intention in order to provide iXL with the opportunity to cure
such failure.
4.2.7 Termination of an Individual Statement of Work. In the event
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that either party hereto materially defaults in the performance
of any of its duties or obligations under a Statement of Work
(except for a default in payment to iXL) and does not
substantially cure such default, or commence a cure, within
forty-five (45) days after being given written notice specifying
the default, then the non-defaulting party may, by given written
notice thereof to the defaulting party, terminate the Statement
of Work as of a date specified in such notice of termination.
Upon termination of a Statement of Work, Delta shall be obligated
to pay iXL for all services rendered pursuant to the Statement of
Work through the effective date of such termination, except to
the extent that such termination was due to iXL's default in the
performance of any of its duties or obligations under such
Statement of Work. Upon payment by Delta, iXL shall deliver the
deliverables for the applicable Statement(s) of Work, including
any work in progress. Termination of a Statement of Work shall
have no effect upon the Agreement or any other Statements of Work
that may be in effect under this Agreement.
4.2.8 Effect of Termination. Termination of this Agreement for any
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reason shall not relieve either party of rights or obligations
incurred prior to the effective date of termination. The rights
of termination in this Section 4 are in addition to any other
rights or remedies the parties may have in this Agreement or
otherwise.
4.3 Renewal. Unless terminated by the parties as set forth herein, the
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Agreement shall be automatically renewed five (5) years from the date
of execution, for an additional term of five (5) years.
5. Guaranteed Payment and Liquidated Damages. For a period of one (1) year
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from the date of execution of this Agreement, Delta shall pay iXL on a
monthly basis an amount equal to either (i) the actual time, materials, and
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customary and reasonable expenses incurred by iXL (under the Statement(s)
of Work (collectively "Actual Fees") minus any Credit (defined below) owed
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from the previous month(s); or (ii) the monthly payment amount specified in
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Exhibit 5, attached hereto (the "Estimated Fees"), whichever amount as
between the preceding items (i) and (ii)) is greater (for purposes of this
Section 5, such amount shall be inclusive of all amounts paid to
subcontractors engaged by iXL to perform services for Delta hereunder). In
any month where the Actual Fees are less than Estimated Fees, the amount
constituting the difference between the Actual Fees and the Estimated Fees
is defined as the "Credit". During the initial twelve (12) month period of
this Agreement, in the event of any termination or cancellation by Delta of
the Agreement, except for a Termination for Cause by Delta under Section
4.2.3, Delta shall pay iXL as Liquidated damages hereunder, but not as a
penalty, ten million dollars ($10,000,000), less the aggregate amount paid
by Delta to iXL under the Agreement as of the date of termination and/or
cancellation. The parties agree that (x) the injury caused by any breach by
Delta of its obligation concerning the Guaranteed Payment hereunder would
be difficult or impossible to estimate; (y) they intend to provide for
damages for such breach rather than a penalty pursuant to this Section 5;
and (z) the sum stipulated in this Section 5 for such Liquidated Damages is
a reasonable pre-estimate of the probable loss to iXL. If, at the time of
termination of this Agreement by Delta under Section 4.2.2, the fees billed
to Delta by iXL for services rendered hereunder in the aggregate exceed ten
million dollars ($10,000,000), then Delta shall not pay the Liquidated
Damages set forth in this Section 5, but instead shall pay iXL such Actual
Fees unpaid at such time in the amount and manner set forth in the
applicable Statement of Work. At the end of eighteen (18) months from the
date of execution of this Agreement, Delta shall forfeit any remaining
Credit and iXL shall have no obligation for return of all or part of any
remaining Credit. Liquidated Damages in this Section 5 shall not apply to
services rendered by iXL to Delta after the one (1) year period immediately
following the date of execution of this Agreement.
6. Payments to iXL.
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6.1 Charges. For the services provided hereunder, Delta shall pay to iXL
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fees in accordance with iXL's standard hourly rates in effect at the
time of performance of such services, and in the amount and manner set
forth in the Statement of Work and herein. iXL's current hourly rates
(as of the effective date of the execution of this Agreement), by
category, are presented in
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the table set forth in Exhibit 6.1, attached hereto and incorporated
by reference herein. Following the initial twelve month term of this
Agreement, such hourly rates may be subject to change in the ordinary
course of business on an annual or semi-annual basis; any other
changes in such rates shall be implemented as against Delta only upon
mutual agreement of the parties. All fees and expenses incurred by iXL
in the performance of the services will be billed to Delta on a
monthly basis.
6.2 Expense. Delta will pay or reimburse iXL for any out-of-pocket
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expenses, including, without limitation, travel and travel-related
expenses, incurred by iXL at the request of or with the approval of
Delta in connection with the performance of this Agreement. Reasonable
and customary expenses incurred by iXL, including without limitation
expenses incurred for travel, including local transportation, lodging,
meals, telephone, shipping and duplicating, will be billed to Delta at
actual cost. Travel expenses incurred by iXL personnel on behalf of
Delta shall be consistent with iXL travel policy as set forth in
Exhibit 6.2 attached hereto and incorporated by reference herein.
6.3 Taxes. Delta will pay all sales, use, transfer, privilege, excise or
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other taxes and all duties, whether international, national, state or
local, however designated, which are levied or imposed by reason of
the transactions contemplated hereby; excluding, however, income taxes
of iXL.
6.4 Time of Payment. Any sum due iXL hereunder will be due and payable
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within thirty (30) days after the due date of an invoice therefor from
iXL. If Delta fails to pay any amount due within forty-five (45) days
from the date of the invoice, late charges of the lesser of 1 1/2% per
month (annual rate of eighteen percent (18%)) or the maximum allowable
under applicable law shall also become payable by Delta to iXL. In
addition, failure of Delta to pay any invoiced amount within sixty
(60) days after the date of the invoice shall be deemed a material
breach of this Agreement, justifying iXL's suspension of the
performance of the Services, and shall be sufficient cause for
termination of this Agreement by iXL, subject to the notice procedure
specified in Section 4.2. 1.. Termination under this Section shall in
no event relieve Delta of its obligations under Section 5, Guaranteed
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Payment and Liquidated Damages.
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7. Confidentiality.
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7.1 During the course of performance of this Agreement, each party may
disclose to the other certain confidential information as defined in
Section 7.2 below. Each party shall hold the other party's
Confidential Information in confidence and shall use its best efforts
to protect it. Each party shall not disclose the other party's
Confidential Information to any third party, and shall use it for the
sole purpose of performing under this Agreement. At the conclusion of
this Agreement, each party shall either return the other's
Confidential Information in its possession (including all copies) or
shall, at the disclosing party's direction, destroy the other party's
Confidential Information (including all copies) and certify its
destruction to the disclosing party.
7.2 "Confidential Information" means any proprietary or trade secret
information provided by either party or prepared by either party
(either oral, written, or digital) upon review of such information,
technical data, or know-how provided to either party by the other
(including any director, officer, employee, agent, or representative
of the other) or obtained by either party from the other (including
any director, officer, employee, agent, or representative of the
other) including but not limited to, that which relates to research,
product plans, products, services, Deltas, markets, software,
developments, inventions, processes, designs, drawings, engineering,
hardware configuration information, marketing or finances of the
disclosing party.
7.3 The term "Confidential Information" shall not include any information
which: (a) is in the public domain at the time of disclosure or enters
the public domain following disclosure through no fault of the
receiving party, (b) Such Confidential Information is known to the
receiving party prior to the date received from the supplying party or
thereafter is developed independently by the receiving party without
violating the terms hereof, or is subsequently disclosed to the
receiving party with no obligation of confidentiality by a third party
having the right to disclose it, (c) is independently developed by the
receiving party without reference to the disclosing party's
Confidential Information (d) such Confidential Information is
furnished by the supplying party to a third party (other than an
Affiliate of the supplying party or its directors, officers,
employees, or attorneys) without restriction except pursuant to a
legal order or legal process where such third party is obligated to
maintain the confidentiality of the data, or (e) the Confidential
Information is received after the termination of this Agreement..
7.4 Neither party will have a duty to avoid the disclosure of the other
party's Confidential Information in the event that the party receiving
the Confidential Information becomes legally compelled to disclose any
of such Confidential Information by any governmental body or court,
provided that the receiving party provides the party supplying such
Confidential Information with prompt notice so that the supplying
party may seek a protective order or other appropriate remedy and/or
waive compliance (in writing) with the provisions hereof. In the event
that such protective order or other remedy is not obtained, or the
supplying party waives (in writing) compliance with the provisions
hereof, the receiving party will furnish only that portion of such
Confidential Material which is legally required and will exercise its
reasonable efforts to obtain appropriate assurance that confidential
treatment will be accorded such Confidential Information.
7.5 Each party agrees that its obligations provided in this Section 7 are
necessary and reasonable in order to protect the disclosing
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party and its business, and each party expressly agrees that monetary
damages would be inadequate to compensate the disclosing party for any
breach by the receiving party of its covenants and agreements set
forth in this Agreement. Accordingly, each party agrees and
acknowledges that any such violation or threatened violation will
cause irreparable injury to the disclosing party and that, in addition
to any other remedies that may be available, in law, in equity or
otherwise, the disclosing party shall be entitled to obtain injunctive
relief against the threatened breach of this Agreement or the
continuation of any such breach by the receiving party, without the
necessity of proving actual damages.
7.6 Each party will take all reasonable steps necessary to ensure that the
conditions of Section 7 are satisfied. Each party agrees to be
responsible for any breach of this Section 7 by its employees or
agents.
7.7 Except as otherwise provided herein, iXL understands and agrees that
it will not at any time (a) reproduce, copy or otherwise make
available to any third party in any way Delta's Confidential
Information; (b) use Delta's Confidential Information in whole or in
part other than in conjunction with this Agreement; or (c) allow
persons to access Delta's Confidential Information except iXL
employees on a need-to-know basis; provided, iXL may make available
Delta's Confidential Information on a need to know basis to iXL
subcontractors who have signed a confidentiality agreement
substantially in the form of this Section 7.
7.8 iXL understands and agrees that Delta will make available the iXL
Confidential Information to Delta's subsidiary, Delta Technology, and
Delta agents and employees on a need-to-know basis. Delta will not
otherwise (i) reproduce, copy or otherwise make available to any third
party in any way the iXL Confidential Information, or (ii) use the iXL
Confidential Information in whole or in part other than in conjunction
with this Agreement.
7.9 Upon termination of this Agreement, and if requested by the other
party (the "Requesting Party"), each party hereto (the "Holding
Party") will immediately return all Confidential Information, any
copies thereof, and all related materials to the Requesting Party, and
will immediately permit and enable representatives of the Requesting
Party to take all reasonable measures to ensure that the Holding Party
no longer uses or is able to use the Requesting Party's Confidential
Information, any copies thereof, and any related materials. At the
Requesting Party's request, the Holding Party shall provide the
Requesting Party with a certification that all of the Requesting
Party's Confidential Information (and all copies thereof) have been
returned.
7.10 iXL agrees that, during the term of this Agreement, it shall not
acquire, maintain, or retain an ownership interest in a web site that
(a) collects, stores, processes, displays or distributes through
communication networks information concerning industry alternatives
for transportation, lodging and/or other travel-related products and
services, and (b) enables consumers, businesses, travel agents or
other persons or users to (i) reserve or otherwise confirm the use of
such products or services; (ii) report or receive payment for or
otherwise clear transactions regarding such products or services; or
(iii) issue tickets for the acquisition or use of such products or
services. Notwithstanding the foregoing, Delta consents to iXL's
current ownership in Last Minute Travel; provided, that iXL agrees
that no iXL Software or Works provided by iXL to Delta (other than iXL
Solutions Set and/or iXL branded offerings, including but not limited
to Siteman(R), Pitchman(TM), and Pitchman powered by Iguana(TM), or
any derivative works thereof) shall be provided by iXL to Last Minute
Travel or its Affiliates.
8. Advertising.
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8.1 After execution of this Agreement, Delta and iXL shall announce the
strategic alliance created hereby in a mutually acceptable manner. iXL
may list Delta as a client of iXL in iXL marketing materials, and iXL
may display Delta's trademarks ("Marks") in connection with iXL's
rights under this Section; provided all use of Delta trademarks is
subject to Delta's prior written consent. Once a creative concept has
been approved by Delta for use by iXL, such concept, in its exact,
original form, may be used repeatedly without need for further
submission and approval by Delta, unless and until (i) otherwise
specifically provided at the time of the original approval, or (ii)
Delta provides written notice to iXL revoking such prior approval;
provided, if Delta revokes such approval, iXL shall have the right to
use any collateral materials printed prior to Delta's written
revocation of approval unless Delta reimburses iXL for the cost of
such materials. iXL may include either a URL or plain text link to
Delta's Web site on iXL's Web site. iXL is authorized to create screen
shots or otherwise demonstrate to third parties Delta's Web site or
other deliverables provided by iXL to Delta. All use by either party
of the other party's Marks will inure to the benefit of the party
owning the Marks. Upon termination of this Agreement, neither party
shall have any continuing right to use the other party's Marks and
each party shall immediately cease all such use of the other party's
Marks.
8.2 Before printing, publishing, displaying or distributing to third
parties any materials displaying Delta's name or a Delta trademark,
iXL shall submit to Delta, for prior review and approval, production
samples or proofs of all advertising, promotional and other materials.
All Delta trademarks must appear exactly as set forth in
specifications provided by Delta, and iXL shall include disclaimer
language provided by Delta for inclusion in promotional materials if
requested by Delta. At Delta's direction, iXL shall cause the
withholding, discontinuance, recall or cancellation, as appropriate,
of any such advertising or promotional material not approved by Delta,
that differs significantly from that approved by Delta or that is put
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to a use or used in a media not approved by Delta. Delta reserves the
right to refuse to participate in promotions or programs proposed by
iXL.
8.3 In no event shall either party alter, remove, obscure, erase or deface
or hide from view, any copyright, trademark or other proprietary
rights notice of the other party contained on or incorporated into any
deliverable developed hereunder.
9. Intellectual Property
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The following definitions apply to Section 9:
"iXL Software" shall mean all computer programming code (including,
unless otherwise specified, both object code and source-code variation
thereof), documentation (including user manual and other written
material that relate to particular code) and materials useful for
design (for example, logic manuals, flow charts and principles of
operation) provided by iXL and used in connection with or necessary
for the use or operation of the software provided by iXL to Delta
hereunder, including such materials licensed by iXL from third
parties.
"Work" or "Works" means (irrespective of whether any of the following
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are or are not copyrightable or patentable) all materials, data,
programs, products and deliverables, designs, inventions, discoveries
or improvements, works of authorship, programs and devices, software,
computer programming code (including both object code and source code
versions thereof), documentation (including user manuals and other
written materials that relate to particular code), media, materials
useful for design, or any other similar property or rights, including
the foregoing prepared by iXL in connection with this Agreement.
"Work" or "Works" shall also include such code, system documentation,
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statements of principles of operation, schematics and any pertinent
commentary or explanation that may be necessary to render any Work or
Works understandable and usable by a trained computer programmer.
9.1 iXL grants to Delta a non-exclusive, worldwide, royalty-free,
perpetual and irrevocable right and license to use, execute,
reproduce, perform, and prepare derivative works based upon the iXL
Software provided by iXL to Delta in connection with this Agreement,
and to authorize subcontractors (except as otherwise provided
hereunder) who are subject to the confidentiality provisions herein to
do some or all of the foregoing, and Delta hereby accepts such
license. Delta's use of subcontractors to prepare derivative works in
the iXL Software shall be limited to iXL Software created after the
execution of, and pursuant to, this Agreement, and such use of
subcontractors shall not extend to permit Delta to engage
subcontractors to prepare derivative works in iXL Solutions Set and/or
iXL branded offerings, including but not limited to Siteman(R),
Pitchman(TM), and Pitchman powered by Iguana(TM), or any derivative
works thereof. Unless otherwise agreed, this license does not extend
to permit Delta to sub-license the iXL Software or engage in
commercial time-sharing, service bureau usage, or rental of the iXL
Software. The parties acknowledge and agree that, as between them and
subject to the license granted hereby, the iXL Software shall be and
remain the property of iXL.
9.2 At mutually agreeable times responsive to Delta's reasonable
requirements, iXL shall deliver to Delta, a master copy of the iXL
Software, or any relevant documentation or media that evidences or
supports the iXL Software, including both object code and source code
forms of programming, any system or user documentation, and any design
or development specification pertaining thereto, as then existing, or
such portion thereof as Delta may request. It is the intent of this
section that Delta be entitled at all times to obtain and maintain a
complete set of the documentation and media that evidences or supports
the iXL Software, as appropriate to exercise its rights hereunder.
Such documentation and media shall include, to the extent the same
exist, the source code, system documentation, statements of principles
of operation, and schematics for all the iXL Software, as well as any
pertinent commentary or explanation that may be necessary to render
such documentation and media understandable and usable by a trained
computer programmer.
9.3 The parties shall mutually establish and iXL shall conform to
reasonable requirements for technical and functional documentation
with respect to the preparation and retention of any modifications to
the iXL Software for Delta.
9.4 Other than the Work which is part of the iXL Software and licensed to
Delta under Section 9.1, above, all other work performed pursuant
hereto, and all other Work developed or prepared for Delta by iXL
hereunder, shall be the property of Delta and all title and interest
therein shall vest in Delta and shall be deemed work made for hire and
made in the course of the services rendered by iXL to Delta. To the
extent that title to any such Work may not, by operation of law, vest
in Delta or any such item may not be considered works made for hire,
all right, title and interest therein are hereby irrevocably sold,
transferred and assigned to Delta without the necessity of further
compensation. All such Works shall belong exclusively to Delta, with
Delta having the right to obtain and hold in its own name copyrights,
patents, registrations or such other protection as may be appropriate
to the subject matter, and any extensions and renewals thereof.
9.5 All iXL Software obtained by iXL from third parties for use in
connection with this Agreement shall provide Delta with the license
described in Section 9.1(a). In the event that any third party refuses
to grant to Delta the license terms set forth in Section 9.1(a),
Delta, iXL and the third party shall agree in writing on the terms of
Delta's license before such materials are
6
used in connection with this Agreement, and the terms of the software
license for such materials shall be signed by iXL, Delta, and such
third party. For software obtained from third parties, Delta shall
have only those rights in iXL Software obtained from iXL from third
parties as are granted to Delta in the license agreements with such
third parties approved by Delta.
9.6 iXL hereby agrees to perform all things, or execute all documents,
reasonably requested by Delta to effect the rights granted to Delta in
this Section 9.
9.7 Upon payment as provided hereunder and in the applicable Statement(s)
of Work, in the event of (i) any termination of this Agreement, or
(ii) any written notice from Delta, iXL shall within fifteen (15)
business days deliver to Delta a master copy of all Work and iXL
Software developed or prepared for Delta by iXL hereunder, or any
relevant documentation or media that supports or evidences such Work
or iXL Software (including both source and object code forms of
programming, any system documentation and any design of development
specifications pertaining thereto), or such portion thereof as Delta
may reasonably request in each case, for which iXL has been paid. It
is the intent of the parties that Delta obtain and maintain a complete
set of the documentation and media that evidences all Work developed
or prepared for Delta by iXL hereunder. Any payment made by Delta in
order to obtain materials under the terms of this Section shall be (i)
proportionate to the materials delivered by iXL under the applicable
Statement of Work, and (ii) without prejudice to any claims Delta may
have against iXL for any breach of this Agreement or obligations under
the applicable Statement of Work.
9.8 iXL makes no representation, warranties or covenants, and the
Agreement shall have no applicability to, work performed, or Works
developed, by Delta Technology. If Works provided by iXL to Delta are
subsequently modified by Delta Technology, then iXL shall retain
responsibility only for the Works provided by iXL in their unmodified
form.
10. Delta Representations and Warranties.
------------------------------------
10.1 Delta represents and warrants that Delta has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
10.2 This Agreement has been duly and validly executed and delivered by
Delta and constitutes the valid and binding agreement of Delta,
enforceable against Delta in accordance with its terms.
10.3 Delta represents and warrants that Delta owns or has the valid right
to use and provide to iXL any materials provided by Delta to iXL
hereunder ("Client Materials"), and Client Materials do not and will
not infringe upon or violate any patent, copyright, trademark, trade
secret, or other proprietary or intellectual property rights of any
third party.
11. iXL Warranties.
--------------
11.1 iXL represents and warrants that it has full corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby.
11.2 This Agreement has been duly and validly executed and delivered by
iXL and constitutes the valid and binding Agreement of iXL,
enforceable against iXL in accordance with its terms.
11.3 iXL further represent and warrants that it will perform the services
in material conformity to the specifications set forth in a Statement
of Work contemplated hereunder in a professional and workmanlike
manner.
11.4 iXL represents and warrants that it owns or has the valid right to
use and provide to Delta all software, technology, trade secrets, and
other confidential information, know how, property processes,
formulae, algorithms, models, methodology, licenses, agreements and
all other proprietary rights, in connection with the services
provided to Delta hereunder, including the right to provide Delta
with the iXL Software and Works pursuant to the terms of this
Agreement.
12. Exclusion of Warranties. APART FROM THE EXPRESS WARRANTIES SET OUT HEREIN
-----------------------
OR IN A STATEMENT OF WORK ATTACHED HERETO, ALL SERVICES AND PRODUCTS PROVIDED
UNDER THIS AGREEMENT ARE PROVIDED ON AN "AS IS" BASIS. NEITHER iXL NOR ANY OF
ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS OR LICENSORS WARRANTS
THAT THE SERVICES OR PRODUCTS PROVIDED PURSUANT TO THIS AGREEMENT WILL BE
UNINTERRUPTED OR ERROR FREE, NOR DO THEY WARRANT THAT CERTAIN RESULTS MAY BE
OBTAINED BY CLIENT IN CONNECTION WITH iXL'S RENDERING OF SERVICES OR PROVISION
OF PRODUCTS HEREUNDER. iXL AND ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS,
AGENTS AND LICENSORS MAKE NO IMPLIED WARRANTY, GUARANTEE OR REPRESENTATION
EITHER REGARDING THE MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE
OF ANY SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT. iXL DOES NOT MAKE ANY
WARRANTY OR GUARANTEE FOR ANY PRODUCTS OR SERVICES PROVIDED BY VENDORS SUGGESTED
BY iXL.
7
13. Limits of Liability.
-------------------
13.1 NOTWITHSTANDING ANY TERM OR PROVISION CONTAINED IN THIS AGREEMENT
WITH THE EXCEPTION OF SECTION 5 HEREOF, IN NO EVENT WHATSOEVER (EXCEPT
AS DESCRIBED IN SECTION 5 HEREOF) SHALL EITHER PARTY BE LIABLE TO THE
OTHER OR TO ANY OTHER PERSON, FIRM OR CORPORATION, FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR
OTHER SIMILAR TYPE OF DAMAGES, INCLUDING YET NOT LIMITED TO DAMAGES
BASED UPON LOSS OF PROFITS AND/OR LOSS OF BUSINESS ARISING OUT OF OR
IN ANY WAY RELATED TO THIS AGREEMENT, THE PERFORMANCE THEREOF, THE USE
OF THE PRODUCTS PROMISED OR SERVICES DELIVERED PURSUANT TO THIS
AGREEMENT, AND/OR ANY PARTY'S ALLEGED BREACH OF THIS AGREEMENT,
WHETHER OR NOT EITHER PARTY IS INFORMED, KNEW OR SHOULD HAVE KNOWN, OF
THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
13.2 UNDER NO CIRCUMSTANCES WHATSOEVER SHALL EITHER PARTY BE LIABLE TO THE
OTHER OR ANY OTHER PERSON, FIRM OR CORPORATION, FOR DAMAGES OF ANY
KIND ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE
PERFORMANCE THEREOF, THE PRODUCTS OR SERVICES DELIVERED PURSUANT TO
THIS AGREEMENT, AND/OR ANY ALLEGED BREACH OF THIS AGREEMENT, IN ANY
AMOUNT OF MONEY WHICH SHALL EXCEED THE AMOUNT OF THE AGGREGATE FEES
BILLED BY iXL HEREUNDER.
13.3 THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION SHALL APPLY TO
ALL CAUSES OF ACTION, INCLUDING, YET NOT LIMITED TO, BREACH OF
CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, MISREPRESENTATION AND
OTHER TORTS, AND LIABILITY BASED UPON THE PROVISIONS OF ANY PART OF
THIS AGREEMENT AND ANY FEDERAL, STATE AND/OR LOCAL LAW AND/OR
ORDINANCE. THE LIMITATIONS ON LIABILITY REPRESENT A FUNDAMENTAL TERM
OF THIS AGREEMENT AND THE PARTIES WOULD NOT HAVE ENTERED INTO THIS
AGREEMENT WITHOUT THEIR INCLUSION.
14. Indemnification
---------------
14.l Delta will indemnify, defend, and hold harmless iXL, its directors,
officers, employees, and agents, from and against all claims,
liabilities, obligations, losses, damages, penalties, claims, actions,
suits, expenses and disbursements of whatsoever kind and nature,
including attorneys' fees and expenses (collectively, "Losses")
connected with (i) the furnishing of any services, data, Client
Materials, or software by Delta or Delta Technology pursuant to this
Agreement in connection with the Web Site (including but not limited
to actual or alleged infringement or misappropriation of any trade
name, patent, copyright, trade secret or other property right based on
any software, program, service and/or other materials furnished to iXL
by Delta), (ii) any failure by Delta to abide fully by the terms and
conditions in this Agreement; or (iii) any failure by any third party
selected or contracted with by Delta or Delta Technology on behalf of
Delta to meet any commitments to the benefit (directly or indirectly)
of Delta in connection with this Agreement; provided, the foregoing
shall not apply to claims or liabilities resulting from the gross
negligence or willful misconduct of iXL, its directors, officers,
employees or agents.
14.2 iXL will indemnify, defend, and hold harmless Delta, its directors,
officers, employees, and agents, from and against all Losses connected
with (i) the furnishing of any services or data by iXL pursuant to
this Agreement (including but not limited to actual or alleged
infringement or misappropriation of any trade name, patent, copyright,
trade secret or other property right based on any software, program,
service and/or other materials furnished to Delta by iXL hereunder,
including the iXL Software and the Works, (ii) any failure by iXL to
abide fully by the terms and conditions in this Agreement, (iii) any
breach by iXL of any representation or warranty herein, or (iv) any
failure or negligence by any third party selected or contracted with
by iXL on behalf of Delta hereunder to meet any commitments to the
benefit (directly or indirectly) of Delta; provided, the foregoing
shall not apply to claims or liabilities resulting from the gross
negligence or willful misconduct of Delta, its directors, officers,
employees or agents.
15. Non-Solicitation. During the term of this Agreement and for two (2) years
----------------
after the termination of this Agreement, a party shall not, directly or
indirectly, induce or attempt to induce any employee of the other party to
leave the employ thereof. For purposes of this Section, a party shall
include that party and any of its Affiliates. Each party acknowledges that
in the event that it breaches this obligation, the other party will suffer
irreparable harm for which no adequate remedy at law exists.
16. Notice. Any notice required or permitted to be given under this Agreement
------
shall be in writing and deemed given and effective upon delivery if sent by
personal delivery or by facsimile transmission or five (5) days after
posting if sent by certified United States mail, return receipt requested,
with postage pre-paid and addressed as follows:
If to iXL: iXL, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
8
Fax: (000) 000-0000
Attn: T. Xxxxxxx Xxxxx, III
If to Delta: Delta Air Lines, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: EVP-Chief Financial Officer
Fax: (000) 000-0000
With a copy to: Law Department
Delta Air Lines, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Senior Vice President - General Counsel
Fax: (000) 000-0000
17. General.
-------
17.1 Force Majeure. Neither party shall be liable to the other for any
-------------
delay or failure to perform any of the services set forth in a
Statement of Work or obligations set forth in this Agreement due to
causes beyond its reasonable control. Performance times shall be
considered extended for a period of time equivalent to the time lost
because of such delay.
17.2 Residual Knowledge. Nothing herein shall be construed to prevent or
------------------
in any way limit either party from using general knowledge, skill, and
expertise acquired in the performance of this Agreement in any current
or subsequent endeavors.
17.3 Assignment. This Agreement may not be assigned by either party to any
----------
other person(s), firm(s), corporation(s) or other entities without the
prior express written approval of the other party.
17.4 Governing Law. This Agreement shall be governed by and construed
-------------
solely and exclusively in accordance with the laws of the State of
Georgia, without reference to its conflicts of law principles. Any and
all disputes between the parties that cannot be settled by mutual
agreement shall be resolved solely and exclusively in the local and
federal courts located within the State of Georgia, and each party
hereby consents to the jurisdiction of such courts and irrevocably
waives any objections thereto, including without limitation, on the
basis of improper venue or forum non conveniens.
17.5 Severability. If any of the provisions of this Agreement is or
------------
becomes illegal, unenforceable, or invalid (in whole or in part for
any reason), the remainder of this Agreement shall remain in full
force and effect without being impaired or invalidated in any way.
17.6 Headings. The titles and headings of the various sections and
--------
paragraphs in this Agreement are intended solely for convenience of
reference and are not intended to explain, modify or place any
construction or limitation upon any of the provisions of this
Agreement.
17.7 Entire Agreement. No representations or statements of any kind made
----------------
by either party that are not expressly stated herein or in any written
amendment hereto shall be binding on such party. The parties agree
this Agreement, its Exhibits, Attachments, and all Statements of Work
and Exhibits thereto, shall constitute the complete and exclusive
statement of the agreement between them, and supersede all prior or
contemporaneous proposals, oral or written, and all other
communications between them relating to the subject matter hereof.
17.8 No Third-Party Beneficiaries. Nothing in this Agreement is intended
----------------------------
to, or shall, create any third-party beneficiaries, whether intended
or incidental, and neither party shall make any representations to the
contrary.
17.9 No Implied Waiver. No term, provision or clause of this Agreement
-----------------
shall be deemed waived and no breach excused unless such waiver or
consent shall be in writing and executed by a duly authorized
representative of each party. Any consent by any party to, or waiver
of, a breach by the other, whether express or implied, shall not
constitute a consent to, waiver of, or excuse for any different or
subsequent breach.
17.10 Non-Agency. Nothing in this Agreement shall be construed to make the
----------
parties partners, joint venturers, representatives or agents of each
other, nor shall either party so represent to any third person. The
parties hereunder are acting in performance of this Agreement as
independent contractors engaged in the operation of their own
respective businesses. A party's employees, agents or representatives
are not employees or agents of the other party and are not entitled to
any of the other party's benefits. Neither party shall be responsible
for payment of the other party's workers' compensation, disability
benefits or unemployment insurance, nor shall it be responsible for
withholding or paying employment related taxes for the
9
other party or its employees.
17.11 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and all
of which taken together shall constitute a single agreement.
17.12 Definitions. The following definitions shall apply for purposes of
-----------
this Agreement:
"Affiliate" and "Affiliated" shall each mean, with respect to any
Person, any other Person that has a relationship with such Person
whereby either of such Persons directly or indirectly Controls or is
Controlled by or is Under Common Control with the other of such
Persons; provided the parties agree Xxxxx Investments Associates V,
L.P., Xxxxx Equity Partners V, L.P., and their respective Affiliates
shall not be considered "Affiliates" of iXL for purposes of this
Agreement.
"Controls", Controlled" and the phrase "Under Common Control" shall
-------- ---------- --------------------
each mean the possession, directly or indirectly, of the power,
whether or not exercised, to direct or cause the direction of the
management or policies of any Person, whether through ownership of
voting Securities, partnership interest, equity, by contract or
otherwise.
"Person" shall mean any individual, corporation, partnership, firm,
------
joint venture, association, joint-stock company, trust, estate,
unincorporated organization, governmental or regulatory body or other
entity.
IN WITNESS WHEREOF, this Agreement was executed by the parties as of the date
first written above.
iXL, Inc. Delta Air Lines, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------------- -----------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxx
------------------------------- -----------------------------
Title: Executive Vice President Title: EVP & Chief Financial Officer
------------------------------- -----------------------------
10
Exhibit 5
---------
Monthly Payment Schedule for Calendar Year 1999
-----------------------------------------------
Month Estimated Fees
----- --------------
January $ 200,000
February $ 300,000
March $ 400,000
April $ 500,000
May $ 600,000
June $ 1,000,000
July $ 1,000,000
August $ 1,100,000
September $ 1,100,000
October $ 1,200,000
November $ 1,200,000
December $ 1,400,000
1999 YEAR- $10,000,000
END TOTAL
11
Exhibit 6.1
-----------
iXL's Hourly Rates
------------------
Category of Work Standard Hourly Rates
---------------- ---------------------
Senior Project Manager $250
Senior Technical Project Manager $250
Project Manager $150
Project Coordinator $125
Technical Lead $225
Quality Assurance $100
Application Developer $160
Engineering/Developer $200
Technical Writer - HTML $120
Graphics Production $100
Art Director $115
Information Architect $200
Creative Lead $230
12
Exhibit 6.2
-----------
iXL's Travel Policy
-------------------
Copy Attached
-------------
13
[LOGO]
TRAVEL POLICY AND PROCEDURES
1. STATEMENT OF PURPOSE
Many iXL employees must incur travel, entertainment, and other business
expenses in the course of performing their responsibilities. This policy
endeavors to consider the safety and comfort of the business traveler, as
well as, travel costs. Travel and entertainment represents a significant
cost of doing business for iXL, and we intend to manage travel and
entertainment costs in a manner that ensures cost-effectiveness and
efficiency.
It is the purpose of this policy to provide employees and managers with a
statement of iXL policies and procedures for the expenditures and
accounting of company funds used for business-related travel and
entertainment.
All business travelers are expected to become acquainted with, and live
within, the spirit of this policy.
2. BUSINESS MISSION
The purpose of the business travel is the accomplishment of a specific
business mission. Before undertaking any travel you should ensure that the
accomplishment of the business mission could not be accomplished
efficiently by use of other communications, such as, telephone calls, mail,
faxes, teleconferencing, or video conferencing.
When travel, entertainment and other business expenses are necessary, it is
the responsibility of each employee to incur those expenses in the most
cost-effective manner consistent with the accomplishment of the business
mission.
3. TRIP PLANNING
Business travel should be arranged as far in advance as possible to take
advantage of discounted airfares and other travel related economies by such
advance purchasing (e.g., 7, 14 or 30 day advance fares are available at a
cost savings). However, please be aware that cancellation or changes in
advanced purchased tickets can result in penalties, although this is almost
always offset by the savings.
4. TRAVEL ARRANGEMENTS
All travel arrangements should be made through the current contracted
Travel Agent.
5. POLICY EXCEPTIONS
Any exceptions to this policy should have the prior written approval by the
senior manager of the iXL local office and should be noted on the
employee's Expense Report.
6. PERSONAL PREFERENCE
Personal preference will be considered only after the criterion of cost
effectiveness has been met.
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iXL Travel Policy
Page 1
14
7. MONITORING OF TRAVEL POLICY
iXL relies on its employees and managers to follow this policy. The
traveler's supervisor will be responsible for monitoring compliance. By
signing the Travel Expense Report, the supervisor certifies that the
traveler is in full compliance with this policy. In addition, the travel
agency will provide reporting of the travel activities, which will be
reviewed by management.
8. DISBURSEMENTS
ALLOWED EXPENSES:
iXL will pay for travel expenses incurred as a result of accomplishing a
business mission in accordance with this policy. Expenses incurred that are
not in accordance with the policies stated herein, and expenses incurred as
a result of not using company designated services would be reimbursed only
at the discretion of the traveler's immediate supervisor or the senior
manager of the local office. All travel expenses must be submitted via the
---------------------------------------------
iXL Expense Statement (Attached).
--------------------------------
iXL will reimburse employees for breakfast and dinner, when traveling
requires an overnight stay. Breakfast will also be reimbursed if travel
requires the associate to take a flight departing their home airport prior
to 7:00 AM. Dinner will also be reimbursed if travel requires a flight
arriving at their home airport after 7:00 PM. Lunches are reimbursable only
when business is conducted during the lunch time.
NON-REIMBURSABLE EXPENSES:
Non-reimbursable expenses fall into one of four categories: (1) unnecessary
to business purpose; (2) a personal purchase; (3) items already provided by
the company and (4) usage of other than company designated services, e.g.
limousine service.
EXAMPLES OF NON-REIMBRUSABLE EXPENSES:
Personal and travel accident insurance
Personal entertainment including movies in hotels
Spousal expenses incurred without prior approval
Personal expenses such as toiletries, cigarettes, etc.
Alcoholic beverages, other than used for business entertainment, as
described in the policy.
Souvenirs, reading materials, shoe shines, etc.
Laundry expense on any business of less than 5 consecutive days.
Traffic and parking violations
9. RECEIPTS
Receipts for any individual expenditure of $25, or more, must be submitted
with the final Expense Report. All hotel bills must be submitted to allow
proper posting of the items incurred.
10. ENTERTAINMENT EXPENSES
To be reimbursable, entertainment expenses must be directly related to the
active conduct of company business. Entertainment expenditures should be
pre-approved by the employee's supervisor.
For Entertainment expenses IRS regulations require the following
information: 1) name of guest, 2) business relationship, 3) business
purpose, 4) amount of expense, and 5) date and place.
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iXL Travel Policy
Page 2
15
11. CASH ADVANCES
Cash advances are available for extended trips (more than 5 consecutive work
days) or with prior approval for international trips. Settlement of cash
advances should be made on the traveler's Expense Report, which should be
submitted within 2 weeks after completion of a trip or other business
expense.
12. AIR FARE PARAMETERS
The travel agent will provide to the traveler a list of flights for
selection. Normally we will purchase the lowest cost flight consistent with
the below listed guidelines.
1) No more than one stop or one connecting flight for each one way portion
of the flight.
2) Stop or connection will not increase travel time by more than one hour
prior to or after the requested departure or arrival time.
3) Provides the maximum cost savings for the round trip air ticket.
4) Some weekend travel expenses may be reimbursed if the cost of the
airfare is reduced for the Saturday night stay. The weekend expenses
will be reimbursed up to the amount saved by extending the flight over
the weekend.
CLASS OF SERVICES
Coach class is the normal class of service to be used. Business class fares
are allowed on International flights of seven (7) or more hours scheduled
duration or on flights from the U.S. to unusual destinations requiring long
periods of travel. Employees flying internationally are permitted to depart
one day early, flying business class and iXL will reimburse for the additional
hotel night.
ALTERNATE AIRLINES
Use of an alternate carrier is permitted only if there is no additional cost
to iXL. Changes, which would incur an additional cost, will be done at the
traveler's expense.
TICKET UPGRADES
Travelers may upgrade their class of service if they pay for the upgrade
themselves using a personal credit card prior to or at the time of issuance of
the ticket.
ELECTRONIC TICKETING
Employees are encouraged to use Electronic Ticketing wherever possible.
Electronic Ticketing is a method of documenting the sale and tracking the
usage of passenger transportation without requiring the issuance of a paper
ticket. Unlike standard airline tickets, with E ticketing you do not receive
flight coupons. Travel arrangements and seat assignments are handled in the
same manner for E Ticketing as for a reservation for a paper ticket. Receipts
for the purchase of the flight and travel itineraries can be issued in
advance.
AIR TRAVEL CREDIT
All credits and unused portions of the tickets must be turned back to the
travel administrator within five days of returning from a trip for proper
credit to the company.
LOST OR STOLEN TICKETS
All lost or stolen tickets must be reported to the travel agency and the
accounting department of iXL immediately.
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iXL Travel Policy
Page 3
16
13. LODGING
Lodging arrangements should be made through the Travel Agency. If the
traveler elects not to use a recommended hotel and requests a specific hotel
costing more than the company's guidelines, the traveler will be responsible
for the difference in the rates unless an exception is pre-approved.
If business travel plans change, and a reserved room will not be used, the
traveler is responsible for calling the travel agency to ensure the
reservation is canceled. The cancellation number should be requested and
recorded by the associate for PROOF of cancellation. Direct billing from
hotels is prohibited unless approved by the senior manager of the local iXL
office.
14. GROUND TRANSPORTATION
Travelers are requested to select the most cost effective and efficient
means of ground transportation. Before selecting ground transportation,
travelers should price the alternative for shuttle, taxi, rental car and
public transportation. When visiting iXL companies the traveler should
utilize that company's resources when possible.
Shuttle service, whenever available, is usually the second most economical
form of transportation. Most hotels provide FREE shuttle service to and from
airports.
Taxi's are usually the second most economical means of transportation (all
fares over $25 require a receipt).
----------------
Limousines are to be used only when other transportation is not available or
multiple riders make limousine service a cost-effective alternative.
15. CAR RENTAL
Rental cars should be used when other means of transportation are
unavailable or impractical, or when other means of travel costs are at least
as much as the rental car. A rental car should not be used as a matter of
personal convenience.
In the event of an automobile accident, local law enforcement authorities
and the rental company must be notified immediately. Also, the accident must
be reported in writing to the Human Resources department.
Personal use of the rental car is not reimbursable. Travelers must deduct
from their Expense Statement, any cost of a rental car, e.g., (time, mileage
and gasoline), incurred for personal reasons.
The following procedures are suggestions to follow when renting a car:
1) All car rental arrangements are made through the Travel Agency.
2) The type of car should be mid-size, unless more than three people are
traveling together.
3) Insurance is carried by iXL, which enables the traveler to decline
Personal Accident Insurance and Collision Damage Waiver.
4) If possible, rental cars should be refueled before returning to avoid
excessive fuel charges by the car rental agency.
5) ALWAYS ASK AT CHECK-IN IF THERE IS A BETTER RATE AVAILABLE. THIS CAN
OFTEN BE THE CASE ON THE DAY OF ARRIVAL.
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iXL Travel Policy
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17
16. PERSONAL VEHICLE USE
When an automobile is determined to be the best or most practical form of
transportation, company vehicles should be used whenever possible. When a
company automobile is not available, personal cars may be used. Mileage
incurred while on travel status is reimbursed at the rate that federal tax
regulations allow for deduction. Toll charges are reimbursable.
17. PARKING
Parking fees incurred while on travel are reimbursable. The most economical
parking facilities should be used.
18. TRAFFIC AND PARKING VIOLATIONS
Fines and other expenses incurred as a result of traffic and parking
violations while on company business must be borne by the person who
committed the violation and are not reimbursable.
19. TELEPHONE
Business calls incurred such as telephone, faxes and telexes for business
communication while on travel status are reimbursable.
Traveler will be reimbursed for a REASONABLE number of PERSONAL phone calls
to and from family while traveling on company business (normally one per
day).
In descending order, BEST to WORST, the following should be used for
guidance in making phone calls while on company business.
1) Use of toll free number when calling the iXL offices.
2) Use of company provided phone card.
3) Use of personal telephone card if the associate has not been provided
with a company card.
Try to always avoid making direct calls from hotel rooms as the added
surcharge from the hotel will make this the most expensive way to place a
call. If you are calling from your room, use your telephone card to avoid
this surcharge.
20. PERSONAL TRAVEL
Personal travel, such as, vacations or extended weekends, combined with
business travel must be borne at the traveler's expense. Some weekend travel
expenses may be reimbursed if the traveler has obtained a discounted
airfare, which exceeds the cost of the weekend expenses.
21. PERSONAL PROPERTY LOSSES
Damage, theft and loss of personal belongings while on travel status is non-
reimbursable. In many cases, some coverage is provided by major credit cards
(when travel has been booked using that card by the carrier and by the
travel agency). Check your homeowners, renters and auto policy for coverage
as well.
22. ILLNESS OR INJURY
In the event that an employee is hospitalized while on company business,
follow those procedures as spelled out in your chosen medical plan and
inform Human Resources ASAP. Ordinary medical and/or dental expenses are
non-reimbursable business travel expenses.
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iXL Travel Policy
Page 5
18
23. TIPS AND GRATUITIES
Reasonable tips in relation to services rendered will be reimbursed. Tipping
at the rate of 15% in restaurants, taxi's, limousines, etc., is considered
reasonable. Tipping for bag handling of $1 per bag is considered reasonable.
24. CONVENTIONS AND SEMINARS
All registrations and fees for conventions or training seminars must be pre-
approved by the employee's supervisor.
25. EXPENSE STATEMENTS AND STATEMENTS
Expense Statements should be submitted within two weeks of completion of a
trip or other business activity requiring an Expense Report. The company may
deny reimbursement for expenses submitted later than one month from when
incurred. Expenses on corporate credit card should be submitted on a monthly
basis.
Any advance issued for expenses covered by an Expense Report should be
completely settled at the time of the submission of that report.
Any balance due to iXL is to accompany the report. Reimbursement to the
associate is to be paid by check within 10 working days after approval.
Expense reports must be approved by the employee's direct supervisor.
26. CURRENCY EXCHANGE
When traveling outside the country in which the associate is based is
required, the Expense Report should be submitted in the currency in which
the associate is normally reimbursed. The exchange rate to be used in
converting the currency is to be the actual exchange rate incurred at the
time of currency exchange.
- draft -
iXL Travel Policy
Page 6
19
iXL Master Service Agreement Statement of Work
----------------------------------------------
CHANGE ORDER
------------
Change Order No.____ to Statement of Work No._____
Delta or iXL shall complete Question 1. iXL shall complete the remainder of the
Change Order, except for the approval/rejection portion, which shall be
completed by Delta in its sole discretion. Each section may be as long or short
as the circumstances require. Additional pages may be attached as necessary.
1. Describe changes, modifications, or additions to the services.
These modifications were requested by: ____ Delta ______ iXL
____________________________________ _________________
Signature of Delta Project Manager Date
____________________________________ _________________
Signature of iXL Project Manager Date
2. Modifications, clarifications or supplements by iXL or Delta to
description of desired changes or additions requested in Section 1 above, if
any.
3. Necessity, availability and assignment of requisite iXL personnel
and/or resources to make requested modification or additions.
4. Impact on Costs, delivery schedule, and other requirements.
a. Changes in Costs:
b. Changes in delivery schedule:
c. Changes to any other requirements:
Change Order Is:
_____Approved and Accepted _____Rejected
__________________________________ __________________
Signature of Delta Project Manager Date
__________________________________ __________________
Signature of iXL Project Manager Date
20
