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EXHIBIT 10.2
SHARED SERVICES AGREEMENT
This Agreement, including all Addenda hereto (collectively, the "Agreement"),
dated as of November 1, 1999, is by and between WorldTravel Technologies, L.L.C.
(the "WTT") and WorldTravel Partners I, L.L.C. ("WTP").
1. The Services. WTP's employees will provide various services to WTT as
described in greater detail in the SCOPE ADDENDUM, attached hereto as
Exhibit A (collectively, the "Services"). The individuals who provide
the services will be referred to as "WTP Personnel". WTP is acting as
an independent contractor in providing any and all services hereunder.
Additional Services. WTT may desire that WTP perform additional
services that are different from or in addition to, the Services ("Additional
Services"). WTP will provide such Additional Services as WTT may reasonably
request, upon such terms and conditions (including compensation terms) as are
mutually agreed between the parties. Such terms shall be documented in the form
attached hereto as the CHANGE ORDER REQUEST ADDENDUM, attached hereto as Exhibit
B. No charges or other compensation in respect of any Additional Services is
provided for in the Monthly Charge. In no event shall WTP be obligated to
perform any Additional Services that would cause it to be in conflict with any
law, rule or regulation, or any internal WTP policy.
Changes. The occurrence of (i) any event or transaction which
significantly increases or decreases the size or nature of the operations of WTT
that affects the scope, manner, nature or quantity of the Services or Additional
Services or (ii) any change in any laws, rules or regulations that affects the
scope, manner, nature or quantity of the Services or Additional Services shall
be considered a change in the scope of services, and WTP and WTT shall promptly
meet to negotiate an equitable adjustment in the fees payable to WTP. WTP shall
have no obligation to commence work in connection with any change of the type
described in either clause (i) or (ii) above until the fee impact of such change
is agreed upon by the parties in writing. Each such change shall be documented
in the form attached hereto as the CHANGE ORDER REQUEST ADDENDUM. If the parties
are unable to agree upon a mutually acceptable adjustment, the matter shall be
handled in accordance with the Section 8 (Dispute Resolution).
Prior Approval by WTT of WTT-Related Commitments. If in the performance
of its obligations hereunder, it is necessary for WTP to incur costs over and
above those related to WTP's standard practices and procedures and such costs
will exceed $50,000, which amount shall include any and all amounts contained in
any contract commitments or obligations in excess of twelve (12) months, then
WTP shall notify WTT in writing of the necessity of such expense and shall
secure WTT's written approval prior to incurring such costs.
2. Personnel.
WTP Personnel. WTT and WTP are not joint employers for any purpose
under this Agreement. WTP will determine how to staff its Services and
Additional Services under this Agreement. WTP reserves the right to assign the
personnel to perform the Services and Additional Services and to replace or
reassign such employees. WTP Personnel may rotate between this engagement and
other engagements of WTP.
Employment of WTP Personnel. During the term of this Agreement and for
any individual employee for six months following termination or resignation of
such employee during the term of this Agreement, neither party shall employ,
solicit or make any offers to employ any employees of the other in the
performance of the Services or Additional Services, without the prior written
consent of the original employing party. The original employing party shall be
entitled, in addition to any other remedies it may have at law or in equity, to
a payment from the hiring party in an amount equal to one year's salary of any
employee that the hiring party employs, solicits or offers to employ in
violation of this Section.
3. WTT Responsibilities. WTP's performance is dependent upon WTT's timely
and effective performance of WTT"s responsibilities under this Agreement and
WTT' s timely decisions and approvals. The responsibilities and obligations of
WTT under and pursuant to this Agreement include, but are not limited to, the
following:
(a) Providing WTP with complete and accurate informatio
required by WTP to perform its
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Services and Additional Services in a timely manner and ensuring that
all such information provided by WTT to WTP contains no material
omissions, and is updated on a prompt and continuous basis;
(b) Making available, promptly after requested by WTP,
management decisions, approvals, acceptances and such other information
and assistance desired or required by WTP to perform its obligations
under this Agreement;
(c) Establishing and maintaining WTTs policies (including
finance, accounting and management information system policies) and an
effective overall system of internal controls;
(d) Making WTTs employees available to and causing them
to communicate with WTP and WTP Personnel during business hours as WTP
may reasonably request; and
(e) Providing WTP with access to WTT's personnel who are
ultimately responsible for supervising the Services (the
"Supervisor(s)") at such times as WTP may reasonably request. WTP shall
report to WTT's Supervisor(s) with respect to the performance of its
obligations under this Agreement.
4. Payments.
Monthly Charge. On the first business day of each month during the term
of this Agreement WTT shall pay WTP a monthly charge applicable to such month
(the "Monthly Charge") for the Services. Fees related to any partial month shall
be prorated. The Monthly Charge will be based on actual cost plus ten percent
(10%). The actual costs for each component of the services provided hereunder
are shown on Exhibit C. The Monthly Charge, which includes the ten percent (10%)
fee, will be a fixed fee per month in the amount shown on Exhibit C. The fee for
the first month shall be due and payable in advance on the date of execution of
this Agreement.
Out-of-Pocket Expenses. WTT shall reimburse WTP for pre-approved,
reasonable actual out-of-pocket expenses, not already included in the monthly
charge, (e.g., travel, lodging, supplies, etc.) incurred by WTP in connection
with rendering the Services and Additional Services. WTP shall send WTT a
monthly invoice for the aggregate amount of the WTP expenses during the
preceding month, which invoice will describe and document such expenses in
reasonable detail. Payment shall be due within ten (10) days following the date
of WTP's invoice to WTT.
Periodic Adjustment. For the first year following the Effective Date,
within forty-five (45) days of the end of each quarter, WTP shall notify WTT of
any difference between the then current Monthly Charge and the actual costs for
the preceding quarter. If actual costs plus ten percent (10%) are greater than
those that were used to calculate the Monthly Charge for the preceding quarter,
WTP shall xxxx WTT for the difference. If the actual costs are less, WTP shall
provide WTT with a credit for the difference. On each annual anniversary of the
Effective Date WTP shall adjust the Monthly Charge to reflect any increase or
decrease in the anticipated costs for the upcoming year. WTP shall notify WTT of
the amount of any such adjustment no later than forty-five (45) days prior to
such annual anniversary date. During the next twelve (12) months after such an
adjustment, within forty-five (45) days of the end of each quarter, WTP shall
notify WTT of any difference between the then current Monthly Charge and the
actual costs for the preceding quarter. If actual costs are greater than those
that were used to calculate the Monthly Charge for the preceding quarter, WTP
shall xxxx WTT for the difference. If the actual costs are less, WTP shall
provide WTT with a credit for the difference.
Late Payment Charges. WTT shall pay a late payment charge, computed on
a daily basis at the monthly rate of 1.5%, for any amounts not paid when due.
Should a dispute arise over an invoice, WTT shall immediately pay the undisputed
portion of the invoice and promptly pay the disputed portion (or applicable part
thereof) if and when the dispute is resolved in WTP's favor.
Taxes. In addition to the other charges payable under this Agreement,
WTT shall be solely responsible for the payment of any taxes and duties based
upon the facilities, assets and Services, any Additional Services and/or
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products provided by WTP, exclusive of any taxes based upon WTP's income. Both
parties shall take all reasonable steps to minimize taxes, which might be
assessed on either party based on the parties' performance hereunder.
5. Term and Termination.
Engagement Term. The term of this Agreement will begin on November 1,
1999 (the "Effective Date"), and will continue until the latter of (a) the fifth
anniversary of the Effective Date, or (b) the date that this Agreement expires
following the extension of its term (unless terminated sooner in accordance with
this Agreement).
Extension and Renewal. Unless terminated earlier, if upon the fourth
anniversary of the Effective Date, the parties have not agreed to a written
Amendment extending this Agreement, this Agreement shall terminate at the end of
the fifth year of its initial five (5) year term.
Termination for Cause.
(a) If WTT breaches any payment obligation under this
Agreement, and such breach is not cured within 15 days of its receipt
of written notice of such breach, WTP may immediately (i) suspend
performance of the Services, (ii) change the payment conditions under
this Agreement so that WTT must pay WTP weekly and in advance, or (iii)
terminate this Agreement. If either party breaches any other material
obligation under this Agreement, and such breach is not cured within 30
days after receiving written notice of the breach, the party not in
default may immediately terminate this Agreement, provided however,
that to the extent the matter has been submitted to the JOC (as defined
in Section 6.1 below), the 30 day period shall be modified to fifteen
days after the JOC has issued its determination. In addition, if WTT or
WTP becomes or is declared insolvent or bankrupt, this Agreement shall
immediately terminate without the requirement of notice to the
insolvent or bankrupt party. Either party may also terminate this
Agreement for the other party's non-compliance with applicable law
relating to this Agreement, if such non-compliance is not cured within
ten (10) days of the non-complying party's receipt of written notice of
such non-compliance. WTP may immediately terminate this Agreement if it
determines that a governmental or regulatory entity or entity having
the force of law has introduced a new, or modified an existing, law,
rule, regulation, interpretation or decision the result of which would
render WTP's performance of any part of the Services illegal or
otherwise unlawful.
(b) In the event of any breach by WTT, WTP shall have the
right to suspend performance hereunder until such breach is cured or in
reference to a monetary breach its insecurity is satisfied. This
provision shall be in addition to and not in limitation of any other
provision of this Section 5.
(c) If (i) WTT transfers ownership of substantially all
of its assets, (ii) all or a controlling interest in WTT's voting stock
is transferred, (iii) WTT merges with any other entity, or (iv)
management or control of WTT is otherwise transferred to any third
party, and such change(s) in control is to a competitor of WTP and was
not the result of an initial public offering, then WTP may terminate
this Agreement without liability to WTT by giving WTT one hundred and
eighty (180) days written notice. Such termination may be given at any
time within two months following notification to WTP that any such
event has occurred.
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Termination for Convenience. At any time during the term of this
Agreement WTT may terminate this Agreement for its own convenience, provided
written notice of such termination has been delivered at least one hundred and
eighty (180) days prior to the effective date of such termination. Except as
expressly set forth above, neither party shall have any right to terminate this
Agreement for convenience.
Partial Termination. WTT may terminate this Agreement as to one or more
of the covered Services without terminating as to the remainder of the Services.
In the event of such partial termination, the monthly payment shall be adjusted
to reflect the deletion of the terminated Services.
Accrued Fees and Payment for Outstanding Obligations.
(a) In the case of any termination, WTP shall be entitled
to payment for all services provided to WTT prior to such termination.
The foregoing provisions of this Section 5 shall in no way limit WTP's
other remedies, whether at law or in equity.
(b) If this Agreement is terminated for convenience by
WTT, partially terminated by WTT, or terminated for cause by WTP, then
WTT shall pay WTP such amounts as necessary to make WTP whole by
covering all outstanding obligations incurred by WTP, which WTP would
not otherwise have incurred but for this Agreement with WTT.
WTP Obligations Upon Termination. In the event of termination of this
Agreement by WTT, WTP will work together with WTT and, as requested by WTT any
third party identified by WTT, to identify the information, materials and
resources WTT and/or such third party is entitled to receive and to develop an
overall plan for transitioning such items to WTT and/or the third party
designated by WTT in accordance with the following provisions (collectively,
"Termination Assistance"). The terms of this Agreement as they relate to
Termination Assistance shall remain in effect until WTP has completed its
Termination Assistance. WTP will provide the Termination Assistance described
below for a period of up to six months per WTT's written request, except as
provided in this Section. WTP's obligation to provide Termination Assistance
will be conditioned upon WTT paying to WTP all outstanding invoices prior to the
commencement of any Termination Assistance and will be conditioned upon WTT
continuing to pay when due any and all fees due hereunder during the Termination
Assistance period. WTT shall pay WTP standard hourly rates and reasonable
expenses for any Termination Assistance provided by WTP. This fee is in addition
to any other payments required under this Agreement. Notwithstanding the
termination or expiration of this Agreement, the terms and conditions of this
Agreement will apply to all services provided by WTP during such period. If WTT
requests Termination Assistance beyond the available capacity of the WTP staff,
such request will be treated as a request for Additional Services pursuant to
Section 1.1 and WTT will pay the agreed upon charge for such Additional
Services. The provisions of this Section will survive the expiration or
termination of this Agreement for any reason.
WTP and WTT will jointly develop a plan (the "Transition Plan") to effect the
orderly transition and migration to WTT or a third party designated by WTT from
WTP of all services then being performed or managed by WTP under this Agreement
(the "Termination Transition"). The Transition Plan will indicate the schedule
on which WTP will turn over responsibility for each service to WTT or such third
party. The Transition Plan will set forth the tasks to be performed by WTP and
WTT, the time for completing such tasks and the criteria for declaring the
transition "completed". The parties and their employees and agents will
cooperate in good faith to execute the plan and each party agrees to perform
those tasks assigned to it in the Transition Plan. WTP will direct the execution
of the Transition Plan. The Transition Plan will include the following tasks and
such other tasks as may be agreed upon by WTP and WTT:
(i) Providing WTT or its designated third party access to
necessary data files and programs, certain
non-proprietary operational procedures and data and
documentation in WTP's possession related to the
Services.
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(ii) Returning all WTT confidential and proprietary
information in WTP's possession, except for one copy
which WTP may retain, subject to its confidentiality
obligations, for internal recordkeeping purposes and
for compliance with applicable professional
standards.
(iii) Returning all WTT software to WTT or its designated
third party with data and documentation. WTP will
deliver to WTT all WTT data in a format applicable
for use by WTT or its designated third party and will
seek to minimize the amount of manual data entry or
re-keying necessary in connection with the transfer
of such data to WTT.
(iv) WTP will provide to WTT or the designated third party
the opportunity to offer employment to any WTP
employees who at the time of the expiration or
termination was spending 75% or more of his/her time
performing services exclusively for WTT. Such
employment offer would provide for employment with
WTT or the designated third party to be effective at
the earlier of (A) the end of the agreed upon
transition period, or (B) the date on which WTP is no
longer responsible under the Transition Plan for any
of the tasks performed by the WTP employee to whom
WTT or the designated third party is making the offer
of employment. With respect to personnel who were
performing services for WTT and other WTP customers
at the time of the expiration or termination, WTT or
its designated third party will have the opportunity
to offer employment to such WTP employees only if WTT
obtains the prior written consent of WTP. For any WTP
employee for whom WTP has given such written consent,
employment with WTT or the designated third party
will be effective at the end of the agreed upon
transition period. WTP will provide appropriate
training for those WTT or third party employees who
will be assuming responsibility following expiration
or termination for training and operation of the
technology used by WTP to provide services to WTT.
(v) WTP will provide WTT or its designated third party
with reasonably detailed specifications for any
hardware which WTT or such third party will require
to perform the services previously performed by WTP
under this Agreement. In addition, WTP will offer to
assign leases (if permitted by the lessor) or to sell
hardware which at the time of the expiration or
termination was dedicated solely to use for WTT. For
any hardware acquired by WTT from WTP, WTP will
provide reasonable assistance to WTT in connection
with the de-installation, shipping (at WTT's
expense), delivery and re-installation of such
hardware. WTP shall sell such hardware to WTT at fair
market value, but in no event shall such price exceed
net book value.
(vi) WTP will assist WTT or its designated third party at
WTT's expense, in acquiring licenses to any third
party software which WTT or such third party will
require to perform the services previously performed
by WTP under this Agreement.
(vii) Subject to entering into a license agreement in form
and substance reasonably satisfactory to WTP and WTT
(and such third party if applicable), WTP will grant
to WTT or its designated third party (as applicable)
a perpetual, nontransferable, nonexclusive license to
use any WTP-owned software which is application
software (but not operating software or utilities)
being used by WTP to provide services to WTT
immediately prior to the termination or expiration of
this Agreement (the "Licensed Programs"), subject to
the following restrictions:
(A) Except to the limited extent required by
natural disaster or similar emergency, the
Licensed Programs will not be operated,
directly or indirectly, by persons other
than bona fide employees of WTT or its
designated third party, or on equipment that
is not leased or owned by WTT or such third
party and is under
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WTT's or such third party's control. Without
limiting the foregoing, the Licensed
Programs will not be utilized or operated by
third-party processors.
(B) Only data of WTT will be processed utilizing
the Licensed Programs.
(C) WTT will not allow the Licensed Programs, or
any of the various components or
modifications thereof, to be disclosed to
third parties, sold, assigned, leased or
commercially exploited or marketed in any
way, with or without charge. Except to the
extent required for normal operation of the
Licensed Programs, WTT will not permit the
Licensed Programs to be copied or
reproduced, in whole or in part.
(D) The Licensed Programs are the valuable
property of WTP and any violation in any
material respect of any provision of the
agreement for the Licensed Programs would
cause WTP irreparable injury for which it
would have no adequate remedy at law, and
WTP will be entitled to preliminary and
other injunctive relief against any such
violation. Such injunctive relief will be in
addition to, and in no way in limitation of,
any and all other remedies or rights that
WTP will have at law or in equity.
Obligation To Minimize Damages. Both parties shall have an obligation
to take such steps as may be reasonably necessary to minimize damages
to the parties on termination, including, but not limited to,
minimizing all contractual obligations that but for the existence of
this Agreement, neither party would have entered into.
6.0. Designees.
6.1 JOC Procedures. The following representatives will comprise a
joint oversight committee (the "JOC") which will meet at least quarterly. The
functions of such committee, among other things, will be to provide product
direction, review and analyze changes in the market, prioritize resources to
effectuate performance of the parties obligations hereunder, review and analyze
the performance of the parties, and to review recommendations and suggestions to
enhance service.
WTT Designee: Xxxxxxx X. Billiard
WTP Designee: Xxxxxxx X. Xxxxxx
If a JOC Member resigns or leaves its employer, the party with a vacancy will
promptly appoint a replacement.
6.2 Management Representatives. Each party hereby appoints the
following individual as its Management Representative for purposes of
this Agreement:
WTT: President or CEO
WTP: W. Xxxxxx Xxxxxx
If a Management Representative resigns or leaves its employer,
the party with a vacancy will promptly appoint a replacement.
7.0 Service Performance.
7.1 Report Contents. WTP will prepare (i) a listing of key service
activities, and (ii) definitions of measurements of qualitative and quantitative
service performance levels for each such key service activity, and will
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submit such listings and definitions to the JOC for approval. Such service
performance levels will be used to measure WTP's and WTT's performance of their
responsibilities under this Agreement.
7.2 Performance Levels. WTP will deliver to the JOC for each
calendar quarter (within thirty (30) days of the end of such quarter),
commencing with the calendar quarter beginning October 1, 1999, service
performance reports ("Service Performance Reports") that identify, for each JOC
approved key service activity, the performance level for that activity. The JOC
will review the parties' performance during the relevant time period (including
but not limited to the information, contained in the Service Performance
Reports), and will provide feedback to both WTT and WTP regarding the
performance of their respective responsibilities under this Agreement. The JOC
will also periodically review the definitions and measurements used in the
Service Performance Reports and revise them as necessary to reflect the most
appropriate measures of WTT and WTP performance. The failure by WTP to meet any
service performance level shall not be considered a breach of this Agreement.
8.0 Dispute Resolution
8.1 Initial Procedures. The parties shall make all reasonable
efforts to resolve all disputes without resorting to litigation. If a dispute
arises between the parties, the JOC Representatives will attempt to reach an
amicable resolution. If either JOC Representative determines that an amicable
resolution cannot be reached, such JOC Representative shall submit such dispute
in writing to the Management Representatives, who shall use their best efforts
to resolve it or to negotiate an appropriate modification or amendment.
8.2 Escalation. Except as otherwise provided in the termination
provisions hereof, neither party shall be permitted to exercise any other
remedies until the later of (i) the date that either Management Representative
concludes in good faith that an amicable resolution of the dispute through
continued negotiation is unlikely, or (ii) sixty (60) days following the date
that both parties have notified a Management Representative pursuant to
Paragraph 8.1. If either party fails to designate a Management Representative at
its own initiative, it shall do so within three business days of a request from
the other party to do so.
8.3 Arbitration. If the parties are unable to reach a resolution
of any matter within the negotiation procedures outlined herein, the parties may
submit such matter to arbitration under the rules of the American Arbitration
Association. If the parties resort to arbitration, no arbitrator shall be
entitled to award punitive damages.
9. Confidentiality.
9.1 Definition. Each party may disclose to the other, orally or in
writing, information that it considers proprietary and confidential, which (i)
relates to its business operations, services and/or technical knowledge, and
(ii) has been designated as such (the "Confidential Information"). Each party
represents that it has the right to disclose all information it makes available
to the other. All Confidential Information communicated to either party
("Recipient ") by the other party ("Discloser ") under this Agreement shall be
(i) received in confidence, (ii) used only for purposes of this Agreement, and
(iii) protected in the same manner as such party protects its own confidential
information of like kind (which shall be at least a reasonable manner). WTP will
at all times comply with applicable professional standards with respect to WTT's
Confidential Information.
9.2 Subpoena. Recipient shall not disclose Disclosee's
Confidential Information to any third party without the prior written consent of
Discloser, except as may be necessary by reason of legal, accounting or
regulatory requirements applicable to such party. If Recipient receives a
subpoena or other valid administrative or judicial demand requiring it to
disclose Disclosee's Confidential Information, Recipient shall provide Discloser
prompt notice of such demand. Unless the demand shall have been timely limited,
quashed or extended, Recipient shall thereafter be entitled to comply with such
demand to the extent permitted by law.
9.3 Exclusions. Confidential Information does not include, and the
parties' confidentiality obligations do not apply to, information that: (i) is
or becomes generally available to the public without breach by Recipient of its
confidentiality obligations, (ii) is received by Recipient from a third party
without restriction against disclosure,
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(iii) was known to Recipient without restriction prior to disclosure, or (iv) is
independently developed by Recipient without use of Disclosee's Confidential
Information.
9.4 Retention. WTP may retain, subject to its confidentiality
obligations, copies of WTTs Confidential Information required for internal
recordkeeping purposes and for compliance with applicable professional
standards.
9.5 Contractors. Notwithstanding the foregoing, WTP shall have the
right to disclose WTT's confidential information to, and/or allow access to such
by, any of WTP's contractors, subcontractors, agents and/or other third parties
supplying products, services or systems in support of WTP's obligations under
this Agreement, provided that WTP shall require such contractors,
subcontractors, agents and/or other third parties to execute an appropriate
nondisclosure agreement.
10. Proprietary Materials.
10.1 Ownership. WTT shall be the exclusive owner of all data (the
"Data") created in connection with this Agreement; provided that WTP may retain
one copy of any Data for its files.
10.2 Retention. Notwithstanding the foregoing, during the term of
this Agreement and for a period of at least six (6) years thereafter or such
longer period as may be required to meet applicable governmental or professional
standards, WTT (i) will maintain and retain copies of all Data, and (ii) will
afford WTP and its representatives access to the Data whenever it may reasonably
request.
10.3 Auditor Access. Upon WTT' s written request, WTP shall provide
WTT's external auditors with access to WTT Data in WTP's possession as is
necessary for WTT' s external auditor to conduct its audit; provided that the
external auditor may not use or disclose any of WTP's proprietary methodologies
which may be disclosed in the course of providing such access. WTP shall adhere
to WTT' s written internal procedures and guidelines relating to the disclosure
of WTT's data to such external auditors. If requested by WTT as Additional
Services, WTP shall provide to such external auditors any assistance that they
might reasonably require in connection with such audits. Subject to WTT approval
and as part of the Additional Services to be separately agreed to, WTP shall
make all reasonable changes requested by, and take any other reasonable action
necessitated by, any such audit or examination. Access by any third party to
WTP's tools, procedures or methodologies will be subject to the requirements of
WTP's standard policies regarding granting access to its confidential
information.
10.4 Publications. Notwithstanding anything contained herein to the
contrary, if WTT intends to publish or otherwise reproduce any of WTP's work
product or to make reference to WTP in any document that contains other
information, WTT agrees to (i) provide WTP with a draft of the document to
review, and (ii) obtain WTP's written approval for inclusion of WTP's name or
work product in such document before the document is printed and distributed.
11. Representations, Warranties and Disclaimers.
11.1 Capacity, Authorization and Effect of Agreement. Each party
hereby represents and warrants to the other that:
a) Such party has all requisite power and authority to
execute this Agreement and to perform its obligations hereunder. The execution,
delivery and performance of this Agreement and the transactions contemplated
hereby have been duly authorized and approved by such party, and this Agreement
is a valid and binding agreement of such party enforceable in accordance with
its terms;
b) The execution and delivery of this Agreement by such
party, and the consummation by such party of the transactions contemplated
herein, will not breach or violate the organizational documents or any material
contract, agreement, instrument, judgment, law or license which is applicable to
such party, or to which such party is bound; and
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c) No consent, approval or authorization of, or notice
to, any governmental or regulatory authority or agency is required to be
obtained by such party in connection with its execution, delivery and
performance of this Agreement.
11.2 Accuracy of Information. WTT warrants that all information
(whether written or oral) and materials given or made available by WTT to WTP
will be current, complete and accurate and shall not omit to state any material
fact. WTT warrants that it will update such information on a prompt and
continuous basis. WTP's ability to perform acceptably under this Agreement is
expressly conditioned and contingent upon the foregoing warranty. WTP warrants
that it shall use best efforts to meet or exceed the service performance levels
set under this Agreement, including, but not limited to, accuracy and timeliness
of information.
11.3 Third-Party Consents. WTT warrants that it has obtained all
third-party consents and security clearances that are needed to enable WTP to
have access (on-site and remote) to all third-party products and assets to be
utilized by WTP in providing the Services, including, without limitation, all
consents needed for WTP to access and use any applicable WTT systems, hardware
and software.
11.4 Year 2000. WTT acknowledges that the programming assumptions
made in the development of either (i) the computer hardware, software or other
products owned, leased or otherwise used by WTT (the "WTT System") and/or (ii)
the computer hardware, software or other products owned, licensed or otherwise
used by any third party whose systems in any way interact with, exchange data
with or are interdependent with any WTT System (the "Third Party Systems"), may
prevent certain existing and future system functions in either the WTT System or
Third Party Systems from performing as originally intended with respect to data,
calculations and other processing relating to dates of January 1, 2000 and
beyond (collectively, the "Year 2000 Problems "). WTT acknowledges that WTP
shall have no obligation under this Agreement to correct any Year 2000 Problems,
nor does WTP have any obligation to provide any type of Year 2000 advice or
services (whether review, analysis, planning, implementation, remediation,
project management or any other type of Year 2000 advice or services). To the
extent WTT wishes to engage WTP to perform any such services, they must be
mutually agreed to in a separately signed Year 2000 consulting services
agreement or amendment between WTT and WTP. WTT AGREES THAT WTP HAS NO
RESPONSIBILITY FOR ANY OF THE FOLLOWING WHICH RESULT FROM ANY YEAR 2000 PROBLEM:
(I) ANY INACCURACY IN THE PERFORMANCE OF THE SERVICES OR ADDITIONAL SERVICES;
(II) ANY DELAY IN THE PERFORMANCE OF THE SERVICES OR ADDITIONAL SERVICES; OR
(III) ANY INABILITY TO PERFORM THE SERVICES OR ADDITIONAL SERVICES.
11.5 WTP represents that it has a backup plan in place consistent
with industry standards to recover all data and information necessary for the
performance of the Services hereunder in the event of a failure of WTP's
computer systems and/or functionality in such a manner as to adversely impact
WTP's standard operating procedures.
11.6 WTT shall not resale the Services or Additional Services
provided hereunder to any third party without the prior written consent of WTP.
11.7 DISCLAIMERS. THE WARRANTIES SET FORTH IN THIS SECTION ARE THE
PARTIES' ONLY WARRANTIES CONCERNING THE SERVICES, ARE MADE EXPRESSLY IN LIEU OF
ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR
OTHERWISE, AND ARE SUBJECT TO THE LIMITATIONS ON LIABILITY SET FORTH HEREIN.
12. Indemnification.
12.1 Indemnification by WTP. WTP shall indemnify and hold WTT, its
directors, officers, employees and affiliates harmless against, and will
reimburse WTT for, any payment, loss, cost or expense (including reasonable
attorneys' fees) incurred by WTT from any third-party claim or suit asserted
against WTT at any time after the Effective Date in respect of:
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a) the death or bodily injury of any person or damage to
real and/or tangible personal property arising pursuant to the performance of
WTP's obligations under this Agreement to the extent such death, injury or
damage is proximately caused by the negligence or willful misconduct of WTP or
its employees; and
b) the infringement of the intellectual property or
contractual rights of any third party resulting from WTT's use of work products
created by WTP under this Agreement. Notwithstanding the foregoing, WTP will not
indemnify WTT if the claim of infringement is caused by (1) WTT's misuse or
modification of WTP's work products; (2) WTT's failure to use corrections or
enhancements made available by WTP; (3) WTT's use of WTP's work products in
combination with any product or information not owned or developed by WTP; (4)
WTT's distribution, marketing or use for the benefit of third parties of WTP's
work products; or (5) information or materials provided by WTT or any third
party.
12.2 Indemnification by WTT. WTT shall indemnify and hold WTP its
partners, employees and affiliates harmless against, and will reimburse WTP for,
any payment, loss, cost or expense (including reasonable attorneys, fees)
incurred by WTP frorn any third-party claim or suit asserted against WTP at any
time after the Effective Date in respect of:
a) the death or bodily injury of any person or damage to
real and/or tangible personal property at WTT's facilities or arising pursuant
to the performance of WTT's obligations under this Agreernent, to the extent
such death, injury or damage is proximately caused by the negligence or willful
misconduct of WTT, its employees, or agents;
b) the infringement by WTP of the intellectual property
and contractual rights of any person or entity resulting from the use of any of
WTTs information, data or software or third-party software in the performance of
the Services or any Additional Services. Notwithstanding the foregoing, WTT will
not indemnify WTP if the claim of infringement is caused by (1) WTT's failure to
use corrections or enhancements made available by WTT; (2) WTT's use of WTT's
materials and information in combination with any product or information not
owned, developed or provided by WTT; (3) WTT's distribution, marketing or use
for the benefit of third parties of such materials and information, or (4)
information or materials provided by WTP;
c) any claim by any third party relating to the conduct
of WTTs functions and operations occurring prior to the Effective Date;
d) any claim by any of WTT's employees or former
employees;
e) the failure of WTT to obtain any consent relating to
WTP's use of any third-party products in connection with this Agreement;
f) any claim arising out of or relating to any Year 2000
Problem;
g) any claim or suit attributable to knowing
misrepresentations by WTT management; and
h) any claim by any third party (including, without
limitation, any claim by any governmental authority) arising out of or relating
to WTT's Services or any Additional Services or the use by WTT of any
deliverable item unless such claims are finally determined to have resulted
solely from the gross negligence or willful misconduct of WTP or its employees.
12.3 Conditions of Indemnification. To receive the foregoing
indemnities, the Party seeking indemnification must promptly notify the other in
writing of a claim or suit and provide reasonable cooperation (at the
indemnifying party's expense) and full authority to defend or settle the claim
or suit Neither party shall have any obligation to indemnify the other under any
settlement made without its written consent.
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13. Remedies.
13.1 Limitation Period. Neither party may assert against the other
any claim in connection with this Agreement unless the asserting party has given
the other party written notice of the claim within one (1) year after the
asserting party first know or should have known of the facts giving rise to such
claim.
13.2 Release. Because of the importance of management's
representations to WTP with respect to WTT's ability to perform its Services and
Additional Services, WTT agrees to release WTP and its personnel from any
liability and costs relating to the Services and/or Additional Services
hereunder which liability and costs are attributable to any misrepresentation
made by WTT management.
14. Miscellaneous.
14.1 Binding Nature and Assignment; Subcontract. This Agreement
shall be binding on and inure to the benefit of the parties and their respective
successors and assigns. Neither party may assign any of its rights or
obligations under this Agreement without the prior written consent of the other,
which shall not be unreasonably withheld.
14.2 Notices. Notices under this Agreement shall be deemed given
when delivered by hand, on the fifth business day after such notice is deposited
in the United States mail, registered or certified, return receipt requested,
postage prepaid, or sent via facsimile and sent to the following address:
WTT: WorldTravel Technologies, L.L.C. WTP: WorldTravel Partners I, L.L.C.
0 X. Xxxxx Xxxxx Xxxx 0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx Attention: Xxxxxxx X. Xxxxxx
General Counsel
Either party may change its address by giving the other written notice of the
new address.
14.3 Relationship of Parties. WTP is acting as an independent
contractor in providing its services. WTP Personnel shall remain WTP's employees
for all purposes including but not limited to determining responsibility for all
payroll-related obligations. WTP shall at all times be responsible for
supervising, directing and coordinating the professional responsibilities and
duties of all WTP Personnel in respect of their performance of all services
under this Agreement. WTP Personnel are not intended to be "leased employees" as
that term is defined under the Internal Revenue Code. Except as otherwise
expressly provided in this Agreement, WTP does not undertake to perform any
obligations of WTT whether regulatory or contractual or to assume any
responsibility for the management of WTT's business.
14.4 Headings. The section headings used herein are for convenience
only and shall not affect the interpretation hereof.
14.5 Force Majeure. Neither party shall be liable for any delays or
failures in performance due to circumstances beyond its control, including
failures of computers, computer related equipment, hardware or software.
14.6 Severability. If any provision of this Agreement is found to
be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
14.7 Waiver. No delay or omission by either party to exercise any
right or power under this Agreement or pursuant to applicable law shall impair
such right or power or be construed as a waiver thereof. A waiver by any party
of any covenant or breach shall not be construed to be a waiver of any other
covenant or succeeding breach.
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14.8 Publicity. All media releases, public announcements and public
disclosures by either party relating to this Agreement, including, without
limitation, promotional or marketing material, but not including any disclosure
required by legal, accounting or regulatory requirements, shall be approved by
the parties prior to such release.
14.9 Entire Agreement. This Agreement constitutes the entire
agreement between the parties regarding the Services and supersedes all prior
agreements and understandings. No amendment, modification, waiver or discharge
of this Agreement shall be valid unless in writing and signed by authorized
representatives of both parties.
14.10 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia.
14.11 WTP-Developed Software. Any software developed by WTP in
providing Services or Additional Services is outside the scope of this Agreement
and therefore, absent written agreement to the contrary, will be the property of
WTP.
14.12 Multiple Counterparts. This Agreement may be executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one Agreement.
14.13 Third-Party Claims. This Agreement has been entered into for
the sole benefit of WTT and WTP, and in no event shall any third-party
beneficiaries be created thereby.
14.14 Survival. The terms of Sections 4 (Payments), 5 (Term and
Termination) 8 (Dispute Resolution), 9 (Confidentiality), 10 (Proprietary
Materials), 11 (Representations, Warranties, and Disclaimers) 12
(Indemnification) 13 (Remedies) and 14 (Miscellaneous) of this Agreement shall
survive the termination of this Agreement.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
WorldTravel Partners I, L.L.C. WorldTravel Technologies, LLC
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxxxxx
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Title: President Title: President
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Xxxxx Xxxx Xxxxx Xxxxxxx
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EXHIBIT A: SCOPE ADDENDUM
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EXHIBIT B: CHANGE ORDER REQUEST ADDENDUM
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EXHIBIT C: FEES
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