EXHIBIT 10.16
AMENDMENT NO. 1
TO THE
SERVICES AGREEMENT
THIS AMENDMENT is made this 8th day of January 2003, by and between
Xxxxxxxxxx International, Inc., a Pennsylvania corporation, having its principle
place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 ("UPSTREAM") and
ORBITZ, LLC, a Delaware limited liability company, having its principal place of
business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000 ("ORBITZ").
This Amendment amends that certain Services Agreement entered into by and
between ORBITZ and UPSTREAM, on April 22, 2002 (the "Agreement").
WHEREAS, ORBITZ and UPSTREAM intend to revise or amend certain portions
of the Agreement in accordance with the terms of Section 12.4 therein;
NOW, THEREFORE, in exchange of good and valuable consideration that
will not hereinafter be challenged, the parties hereby agree as follows:
PRECEDENCE. To the extent a term or expression used in this Amendment
is defined in the Agreement, the term or expression will have the
meaning ascribed to it in the Agreement, unless agreed otherwise in
this Amendment. To the extent any terms or conditions of this Amendment
conflict with the terms of the Agreement, the terms of this Amendment
will prevail.
2. CONTRACTOR SERVICES. Pursuant to Section 4.4 of the Agreement, the
parties hereby memorialize UPSTREAM's receipt of ORBITZ's notice that
ORBITZ desires UPSTREAM to outsource the processing of corporate and
leisure email Contacts to an overseas third-party, which the parties
hereby agree will be the entity currently known as LAWKIM UPSTREAM
Contract Management Private Limited, Chitalsar, Mapada, X.X. Xxxx Xxxxx
000_,000, Xxxxxxxxxxx, Xxxxx (hereinafter, the "Contractor"). ORBTIZ
hereby approves of LAWKIM UPSTREAM Contract Management Private Limited
as the Contractor. In accordance with Section 4.4 of the Agreement,
UPSTREAM agrees to outsource the processing of corporate and leisure
email Contacts to the Contractor in accordance with the terms of the
Agreement, as amended herein.
3. TRANSITION. UPSTREAM will cause the Contractor to commence processing
corporate and leisure email Contacts on January 8th, 2003. One hundred
percent (100%) of corporate and leisure email Contacts processed by
UPSTREAM must be processed by the Contractor by March 1, 2003. UPSTREAM
may continue to process corporate and leisure email Contacts in the
United States of America throughout the term of the Agreement;
provided, however, that after March 1, 2003, except as expressly stated
in the Agreement, the pricing for processing email Contacts will be
based on the assumption that 100% of all email Contacts are processed
by the Contractor regardless of the actual percentage of email Contacts
that are processed by the Contractor.
4. PRICING. The pricing table attached as Exhibit A-1 hereto supercedes
and replaces Exhibit D-3 of the Agreement (Contractor Email Pricing
Matrices) in its entirety. The parties agree that notwithstanding the
foregoing, from the effective date of this Amendment through February
28, 0000, XXXXXX will pay UPSTREAM $[***] dollars per Ticket
Transaction, regardless which entity actually processes the email
Contact, and regardless of the Ratio associated with processing the
email Contact. Beginning March 1, 2003 through the remainder of the
term of the Agreement, ORBITZ will pay UPSTREAM the applicable amount
as set forth in Exhibit A-1 hereto for processing email Contacts,
assuming an Average Handling Time of [***] minutes or less (see
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Section 8.2(v) of the Agreement in the event the Contact Ratio or the
Ticket Transactions tail above or below the range set forth on
Exhibit A-I).
5. UPCHARGES. Section 8.3 (ii) of the Agreement, related to email upcharge
fees, is hereby amended to include the following terms: Beginning
January 8, 2003 and ending [***] months thereafter ("Upcharge Grace
Period"), ORBITZ shall have no obligation to pay UPSTREAM an email
Upcharge Fee with respect to the processing of email Contacts by
Contractor. At the end of the Upcharge Grace Period, ORBITZ shall again
be obligated to pay UPSTREAM an email Upcharge Fee in accordance with
the terms of this Section 8.3 (ii). If the Average Handle Time is drive
above [***] minutes based on (i) the occurrence of any of the following
at an airline which is one of the top 10 airlines in booking volume on
the ORBITZ website (A) bankruptcy, (B) major air schedule change
disproportionate to typical semi-annual air schedule changes, (C) major
service disruption due to a strike, slow down or merger: (ii)
bankruptcy of a car or hotel company which is listed within the ORBITZ
booking path; (iii) failure of another ORBITZ vendor, such as ETX or
Worldspan, which affects performance of the ORBITZ web site or delivery
of ORBITZ travel products to customers; (iv) system unavailability of
the ORBITZ website, or (v) any substantial change to the ORBITZ web
site made by ORBITZ which causes an increase in Average Handle Time
(each, a "Upcharge Event"), then the Upcharge Fee shall extend past an
average handle time of [***] minutes at the rate of $[***] dollars for
every [***] seconds beyond [***] minutes, but only if the Average
Handle Time for the month in which the Upcharge Event occurred is
higher than the average of the Average Handle Times for the 3 months
immediately preceding the month in which the Upcharge Event occurred.
6. SERVICE LEVELS. Section 3 (Service Level: Email Response Time) of
Exhibit B (Service Level Requirements) is hereby amended to state that
after February 28th, 2003, on average [***]% of all email-based
Contacts processed during any calendar month must result in a Contact
Handled within [***] hours of the initiation of the Contact (the "Time
Requirement") and that the remaining email based Contacts must result
in a Contact Handled within [***] hours of the initiation of the
Contact; provided, however, that if the Ticket Transactions projected
in the Monthly Forecast for the most immediate month to which such
Forecast applies (e.g. for the Monthly Forecast provided on July 31,
the most immediate month would be August) is exceeded, the Time
Requirement shall be adjusted as follows:
Forecast Exceeded by: Time Requirement
3.1 -5.0% [***]
5.0- 7.0% [***]
7.0- 9.9% [***]
In the event that the Forecast is exceeded by more than [***]%,
UPSTREAM shall use commercially reasonable efforts to respond to all
email-based Contacts within [***], but any failure to do so will not
result in any Service Level Credits or in material breach of this
Agreement.
Service Level Bonus: if within the Time Requirement, the Contact
results in a Contact Handled
(i) [***]% of the time, UPSTREAM will be entitled to bonus of
[***];
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(ii) [***]% of the time, UPSTREAM will be entitled to a bonus of
[***]
(iii) [***]% of the time or more, UPSTREAM will be entitled to a
bonus of [***]
Service Level Credit: if within the Time Requirement, the Contact
results in a Contact Handled less than [***]% of the time, ORBITZ shall
be entitled to a Service Level Credit of [***]
The foregoing notwithstanding, in the event that email-based Contacts
are performed at the Facility due to (i) a Force Majeure Event, (ii)
ORBITZ' election, or (iii) UPSTREAM'S election after determining that
it was necessary to perform such services at the Facility in order to
avoid a Chronic Failure (as defined in Exhibit B, Section 6 of the
Agreement), then this amendment to Section 3 of Exhibit B shall be of
no force and effect with respect to the Contacts processed at the
Facility and the service level shall revert to the original provision
set forth in the Agreement with respect to the Contacts processed at
the Facility. Prior to March 1 2003, the minimum service level set
forth in the Agreement prior to the commencement of this Amendment will
remain in effect with respect to both Contractor and UPSTREAM.
7. UPSTREAM REMITTANCE. For the purposes of Section 8.10 (i.e. the payment
of the $[***] fee to help ORBITZ mitigate costs in transitioning
email-related Services from UPSTREAM to Contractor), "Transfer Date"
shall be deemed to mean February 15, 2003.
8. COSTS. For the avoidance of doubt, UPSTREAM is responsible for costs
(such as training, development, line charges, telecom charges) and
other costs or expenses, related to the outsourcing of email processing
to the Contractor, accordance with the terms of the Agreement. The last
sentence of Section 8.12 of the Agreement shall be deleted in its
entirety and replaced with the following: ORBITZ shall reimburse
UPSTREAM, at UPSTREAM'S actual cost (not to exceed $[***] per minute,
inclusive of taxes), without xxxx-up, for all outbound telephone calls
made by UPSTREAM in connection with Contact Handled.
9. CUSTOMER INFORMATION. For the avoidance of doubt, UPSTREAM will include
in the Contractor Agreement a provision which requires the Contractor
to comply at all times with ORBITZ's privacy policy as posted on the
ORBITZ website.
10. IP ASSIGNMENT. To the extent that any of the intellectual property
rights, including without limitation any copyrights, in or to the Work
developed or produced by UPSTREAM or the Contractor in the performance
of the Services do not vest in ORBITZ upon creation, UPSTREAM hereby
assigns, agrees to assign and agrees to include in the Contractor
Agreement an obligation on the part of the Contractor to assign, any
and all such rights to ORBITZ for no additional consideration. To the
extent such rights cannot be assigned to ORBITZ, UPSTREAM agrees to
license and to include in the Contractor Agreement an obligation on the
part of the Contractor to license such rights exclusively and
irrevocably to ORBITZ for no additional consideration. To the extent
such rights, including without limitation any moral rights, cannot be
licensed to ORBITZ, then UPSTREAM agrees to waive and to include in the
Contractor Agreement an obligation on the part of the Contractor to
waive such rights against ORBITZ. At ORBITZ's request, UPSTREAM will
execute, and will include in the Contractor Agreement an obligation on
the part of the Contractor to execute any additional documents or take
such additional actions as may be reasonably required to give full
legal effect to this Agreement, for no additional consideration.
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11. ENTIRE AGREEMENT. This Amendment sets forth the complete and entire
agreement between the parties with respect to the subject matter of the
Amendment and supercedes and replaces any prior agreements between the
parties, whether oral or in writing, with respect to its subject
matter. Except as otherwise set forth in this Amendment, the terms and
conditions of the Agreement will remain in full force and effect. This
Amendment will be governed by the laws of the state of
New York.
IN WITNESS WHEREOF, the parties hereby cause this Amendment to be
executed by their duly authorized representatives identified below.
XXXXXXXXXX INTERNATIONAL, INC. ORBITZ LLC
("UPSTREAM") ("ORBITZ")
By: XXXXXX X. XXXXXXX By: XXXXX XXXX
-------------------------- --------------------------
Signature: /S/ XXXXXX X. XXXXXXX Signature: /S/ XXXXX XXXX
-------------------------- --------------------------
Title: COO - UPSTREAM Title: VP CUSTOMER EXPERIENCE
-------------------------- --------------------------
Date: 1-8-03 Date: 1-13-03
-------------------------- --------------------------
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[LOGO]
EXHIBIT A-1
ORBITZ CONTRACTOR EMAIL P/TICKET PRICING GRID
ANNUAL TRANSACTIONS RATIO
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
2.00% - 2.99% [***] [***] [***] [***] [***] [***] [***]
3.00% - 3.99% [***] [***] [***] [***] [***] [***] [***]
4.00% - 5.99% [***] [***] [***] [***] [***] [***] [***]
6.00% - 6.99% [***] [***] [***] [***] [***] [***] [***]
7.00% - 7.99% [***] [***] [***] [***] [***] [***] [***]
8.00% - 9.99% [***] [***] [***] [***] [***] [***] [***]
10.00% - 11.99% [***] [***] [***] [***] [***] [***] [***]
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
2.00% - 2.99% [***] [***] [***] [***] [***] [***] [***]
3.00% - 3.99% [***] [***] [***] [***] [***] [***] [***]
4.00% - 5.99% [***] [***] [***] [***] [***] [***] [***]
6.00% - 6.99% [***] [***] [***] [***] [***] [***] [***]
7.00% - 7.99% [***] [***] [***] [***] [***] [***] [***]
8.00% - 9.99% [***] [***] [***] [***] [***] [***] [***]
10.00% - 11.99% [***] [***] [***] [***] [***] [***] [***]
13,000,000 - 13,000,000 - 13,500,000 - 13,500,000 - 14,000,000 - 14,500,000 - 15,000,000 - 15,000,000 -
13,499,999 13,499,999 13,499,999 13,999,999 14,499,999 14,999,999 15,499,999 15,499,999
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 - 17,500,000 - 18,000,000 - 18,500,000-
15,999,999 16,499,999 16,999,999 17,499,999 17,999,999 18,499,999 18,999,999
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
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to the omitted portions.
