Exhibit 10.9
Note: Portions of this exhibit indicated by "[*]" are subject to a confidential
treatment request, and have been omitted from this exhibit. Complete, unredacted
copies of this exhibit have been filed with the Securities and Exchange
Commission as part of this company's confidential treatment request.
MICROSOFT CORPORATION/
WORLD TRAVEL PARTNERS
SERVICE AGREEMENT
This Service Agreement (the "Agreement") is entered into by and between
Microsoft Corporation, a Washington corporation ("MS"), and WorldTravel
Partners, L.P., a Georgia Limited Partnership ("WTP") to be effective as of
October 9, 1996 ("Effective Date").
WHEREAS, WTP is a fully-appointed ARC/IATA full service travel agency engaged in
the general business of arranging, planning, reserving, handling en route
changes and ticketing of domestic and international passenger transportation,
lodging, car rentals and other ancillary services;
WHEREAS, MS is a leading consumer, business and operating system software
developer with one of the best brand names in the world;
WHEREAS, MS has developed a proprietary application for arranging, planning and
reserving air, hotel and car rental transactions on the Internet along with
other electronic commerce applications;
WHEREAS, MS intends to establish and operate a web site to be marketed as
"Expedia," (referred to herein as "MS Travel") providing on-line travel
services, using its proprietary application; and
WHEREAS, MS has requested that WTP provide, and WTP has agreed to provide,
certain travel fulfillment services and other services to the customers of MS
Travel.
NOW, THEREFORE, in consideration of the mutual covenants herein, the parties
hereby agree as follows:
1. WTP Services.
------------
(a) WTP agrees to provide travel fulfillment, en route assistance, quality
control and other services, including without limitation those identified in
Exhibit A (the "Services") to customers of MS Travel, on the terms and
conditions provided herein in accordance with (i) MS standard customer service
policies and procedures as detailed in documentation provided by MS to WTP
(including, without limitation, MS policies set forth in Exhibit E), which may
be modified by MS from time to time in its sole discretion; and (ii) the
performance requirements set forth in Exhibit C. WTP shall have sixty (60) days
from the date of its receipt of modifications to any of the foregoing
document(s) to conform to modified requirements, as applicable. The parties
shall mutually prepare a procedures manual prior to launch and maintain such
manual, setting forth detailed procedures to implement the Services.
Microsoft Confidential Page 1
(b) WTP agrees to subcontract with its Global Travel Management member in
Canada, Global Travel Solutions ("GTS") as required for provision of Services in
Canada, pursuant to the provisions of Section 11. WTP may also subcontract with
its majority-owned subsidiary, World Travel Technologies, L.L.C. ("WTT"), and
WTT's division, Online Fulfillment Services ("OFS"), to provide any or all of
the Services hereunder. WTP will not otherwise subcontract any of its
obligations hereunder without the prior written approval of MS.
(c) WTP agrees that it shall assign to MS Travel at least one person at
the Druid Hills Facility who is qualified by ARC to perform management and/or
ticketing functions ("ARC Qualifiers"). Such ARC Qualifiers shall be dedicated
to providing only services for or on behalf of MS Travel, and shall not accept
telephone calls or other communications or provide any services for any third
party product(s) or service(s) without the express written consent of MS.
(d) WTP shall establish and maintain a separate ARC number or numbers
designated as "WTP Doing Business As Microsoft" solely for the provision of
Services under this Agreement, which shall remain the property of MS in the
event of termination or expiration of this Agreement. WTP agrees to use the ARC
and BSP numbers assigned to MS or to WTP (including those numbers assigned to
WTP "Doing Business As Microsoft") when providing the Services under this
Agreement, and to charge the appropriate travel industry supplier the MS
negotiated commission and/or transaction fee when booking reservations, as
detailed in Exhibit A, with the exception of certain international itineraries
as described in the following Section 1(e). WTP agrees to deposit daily to the
MS bank account all transaction fees and/or commissions earned and received on
reservations made using the MS ARC and BSP numbers. If WTP or any of its agents,
contractors or subcontractors utilize an ARC or BSP number assigned to WTP when
booking a reservation for a customer who originally sought a reservation through
MS Travel, all supplier transaction fees and/or commissions resulting therefrom
shall be promptly transferred to the MS bank account.
(e) WTP agrees to provide travel fulfillment for travel involving
international itineraries (other than for Canada as set forth in Section 1(b)
above) as described in Exhibit A. WTP will provide separate accounting for
commissions earned on such transactions, as set forth in Exhibit G, and will
deposit [*] of such commissions earned and received, within forty-eight hours of
receipt, to the MS bank account.
(f) WTP agrees to use its best efforts and most capable technical
expertise to resolve customer complaints, meeting or exceeding the performance
requirements as set forth in Exhibit C. In the event WTP is unable to resolve a
problem, WTP may escalate the problem to MS-designated representative(s) in
accordance with applicable procedures.
(g) WTP will operate at least two travel fulfillment facilities as follows
(other facilities may be added as mutually agreed by amendment of this
Agreement):
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Microsoft Confidential Page 2
(i) WTP shall provide, maintain and staff a travel fulfillment
facility in Atlanta at Druid Hills ("Druid Hills Facility") to provide the
Services set forth in Exhibit A. MS will provide certain software,
hardware, equipment and services as set forth in Exhibit B. MS will own the
MS Travel toll-free number and all software and equipment provided by MS at
the Druid Hills Facility as described in Exhibit B. WTP will install and
maintain all of the software, hardware and telecommunications equipment at
the Druid Hills Facility except for the software, hardware and equipment to
be provided and maintained by MS. It is understood that MS may request WTP
to purchase on MS' behalf software, telecommunications services or
equipment which is the responsibility of MS hereunder to provide. In such
event, WTP shall invoice MS in connection with the monthly statements
provided to MS hereunder and MS shall reimburse WTP for such purchases on
the same timetable as MS' payment of the other amounts owing pursuant to
such monthly statements.
(ii) WTP shall provide, maintain and staff a travel fulfillment
facility in Atlanta at Peachtree City ("Peachtree Facility") to provide the
Services (other than ARC ticketing) set forth in Exhibit A when the Druid
Hills Facility is unable to handle the volume of calls being routed from MS
Travel, due to high volume or loss of function of the Druid Hills Facility
for any reason. MS will provide certain software, hardware, equipment and
services as set forth in Exhibit B, including appropriate
telecommunications equipment to route calls from the MS Travel toll-free
number to WTP. MS will own the MS Travel toll-free number and the software
and equipment provided by MS at the Peachtree Facility as described in
Exhibit B. WTP will ensure that the Peachtree Facility is able to provide
the full level of Services described in Exhibit A when necessary. WTP will
install and maintain all of the software, hardware and telecommunications
equipment at the Peachtree Facility except for the software, hardware and
equipment to be provided and maintained by MS. It is understood that MS may
request WTP to purchase on MS' behalf software, telecommunications services
or equipment which is the responsibility of MS hereunder to provide. In
such event, WTP shall invoice MS in connection with the monthly statements
provided to MS hereunder and MS shall reimburse WTP for such purchases on
the same timetable as MS' payment of the other amounts owing pursuant to
such monthly statements.
(iii) It is understood that WTP will provide leasehold improvements,
telecommunication systems, furniture and fixtures, and proprietary
software (such as CoRRe(TM) and, as between the parties, this software
and equipment will be owned by WTP.
(iv) WTP will maintain an Automatic Call Distribution ("ACD") system
capable of providing the information identified in Exhibit G to MS in a
format designated by MS. If WTP changes its current ACD system or adds
facilities, WTP will ensure that any such new ACD system is capable of
providing the
Microsoft Confidential Page 3
information set forth in Exhibit G. WTP shall provide MS with standard
specifications and documentation from its ACD system with respect to the
Services provided by WTP under this Agreement.
(h) WTP will ensure that adequate backup and disaster recovery procedures,
including but not limited to the Peachtree Facility, exist to enable its
compliance with the terms of this Agreement. If the Druid Hills facility suffers
loss of function for more than 24 hours, WTP shall immediately secure from ARC
permission to perform ARC ticketing at the Peachtree Facility using the ARC and
BSP numbers assigned to MS and to WTP "Doing Business As Microsoft," and shall
comply with all conditions or requirements imposed by ARC necessary to obtain
such permission. WTP acknowledges that time is of the essence in fulfilling the
provisions of this subsection 1(h).
(i) At MS' discretion, with reasonable advance notice, MS reserves the
right to make onsite visits to all sites where WTP provides the Services under
this Agreement. In connection with such visits, WTP will provide to MS, as and
when required by MS, access for a reasonable number of MS personnel to office
premises at the sites equipped with standard office equipment as available to
personnel of WTP in proximate offices, at no charge.
(j) WTP will ensure that all its employees and MS-permitted contractors
and subcontractors performing any Services hereunder agree to undertake and
successfully complete all training programs provided by MS with respect to the
Services as MS in its sole discretion deems necessary to prepare WTP to provide
the Services outlined in this Agreement. Training will be conducted at a
mutually agreed upon facility where MS shall provide "train-the-trainer"
training at no charge to WTP, except that all travel, accommodation and related
expenses for WTP employees and employees of contractors or subcontractors shall
be the responsibility of WTP, or such contractors or subcontractors,
respectively. WTP acknowledges and agrees that as a result of MS providing
"train-the-trainer" training, WTP shall be responsible for internal and ongoing
training of its personnel after receiving initial "train-the-trainer" training.
WTP will designate one (1) ongoing trainer. MS agrees to provide the necessary
training materials, for limited duplication, upon request by WTP and following
MS approval, to be used by WTP to provide training as required under the terms
of this Agreement.
(k) WTP shall physically isolate the Druid Hills Facility local area
network (LAN) used by WTP personnel in the provision of the Services under this
Agreement (the "MS Travel LAN") from other LANs maintained by WTP. WTP shall
restrict use of the MS Travel LAN solely to WTP personnel providing Services
under this Agreement or similar agreements between MS and WTP. WTP agrees to
notify MS promptly upon discovery of any breach of security in the MS Travel
LAN. The Peachtree Facility LAN will not be similarly isolated; however, all
ticketing functions for MS Travel at the Peachtree Facility will be segregated
from ticketing for WTP customers pursuant to ARC requirements. WTP shall cause
GTS to isolate and restrict the use of the LAN used by GTS personnel in the
provision of services in connection with MS Travel.
Microsoft Confidential Page 4
(l) WTP shall provide MS with customized reports on the Services provided
by WTP under this Agreement as specified in Exhibit G, including management
reporting and ARC/IATA accounting.
(m) Nothing contained in this Agreement shall give WTP or its agents or
contractors, including GTS, the right to use, modify, reproduce, distribute
and/or publish any MS Travel customer records, including without limitation
reservations, service records or customer complaints resolved by WTP during
the fulfillment of WTP obligations hereunder, all of which shall be considered
Confidential Information under Section 10 of this Agreement.
2. Payment.
--------
(a) WTP is fully responsible for all costs incurred in providing the
Services under this Agreement and all Exhibits hereto, independent of any
provision for reimbursement set forth herein, except for those items to be
provided by MS as detailed in Exhibit B.
(b) MS will pay WTP the amounts specified in Exhibit D subject to
adjustments, deductions or credits to such amounts as provided for in this
Agreement or any Exhibit hereto. WTP will invoice MS Accounts Payable on a
monthly basis, on or before the 15th day of the month following the month for
which activity is being invoiced, and shall include full documentation
supporting such invoice. Payment terms are net fifteen (15) days after receipt
of invoice. In the event taxes are required by any U.S. (state or federal) or
foreign government to be withheld on payments made hereunder by MS to WTP, MS
may deduct such taxes from the amount owed WTP and pay them to the appropriate
taxing authority. MS shall in turn promptly secure and deliver to WTP an
official receipt for any taxes withheld. MS will use reasonable efforts to
minimize such taxes to the extent permissible under applicable law.
(c) The parties shall undertake a quarterly review of the payment
provisions set forth in Exhibit D and the payment terms set forth in Section
2(b) during the initial six (6) months of the term of this Agreement, to enable
flexibility in responding to marketplace conditions and to validate initial cost
estimates and cash flow requirements. The parties shall negotiate whether any
changes should be made to any provisions of this Agreement or its Exhibits as a
result of such review. In the event that, within forty-five (45) days after the
end of each such quarter, the parties are unable to agree whether any such
changes should be made, then either party, by written notice to the other, may
require that the matter be settled by binding arbitration, in accordance with
the rules of the American Arbitration Association, and subject to the additional
provisions of Exhibit M, which exhibit shall be negotiated and attached hereto
no later than October 31, 1996. Any decision rendered in any such arbitration
proceeding shall be final and binding on each of the parties hereto immediately
following the end of the quarter being reviewed. Nothing herein shall
Microsoft Confidential Page 5
prevent the parties from agreeing to participate in mediation prior to
submitting such matter to binding arbitration.
3 Ownership and License Grants.
----------------------------
(a) Use of Microsoft Name. This Agreement does not constitute a trademark
---------------------
or service xxxx license. As of the Effective Date, MS shall be deemed to have
granted WTP a non-exclusive, personal, non-transferable, non-assignable,
royalty-free license to use the Microsoft(R) name solely in conjunction with
answering incoming calls from, making outbound callbacks to, and providing
travel documents to MS Travel customers as necessary for providing Services
pursuant to the terms of this Agreement. Such license grant shall remain in
effect while this Agreement is in good standing, but shall expire at the
expiration or earlier termination of this Agreement. Specific additional terms
and conditions pertaining to this license grant are set forth in Exhibit H,
which is incorporated herein by this reference. WTP shall at no time in any
forum identify itself as being an outsource provider for MS, except as approved
in writing by MS.
(b) Customer Information. Except as otherwise provided herein, WTP
--------------------
acknowledges and agrees that the information acquired by WTP in connection with
the provision of Services pursuant to this Agreement, including without
limitation customer and prospect information, sales information, back office and
general ledger data, customer travel reservation and itinerary information, and
MS customer lists and updates (including customer names, addresses and telephone
numbers) (collectively, "Customer Information") shall be considered proprietary
information of MS, including all Customer Information stored using WTP's travel
management database reporting application ("TravelMan"), and all right, title
and interest in the Customer Information is owned by MS. WTP shall use such
Customer Information only as necessary to perform the Services in accordance
with this Agreement and shall maintain such Customer Information in strict
confidence in accordance with the provisions of Section 10 hereof. Upon request
from MS, WTP shall provide MS with any or all Customer Information in WTP's
possession. Upon termination or expiration of this Agreement, WTP shall within
ten (10) days thereafter provide MS with all documents and materials containing
Customer Information (including data stored or maintained in electronic format,
whether or not created or stored using TravelMan), together with all other
materials and property of MS, which are in its possession or under its control.
(c) Custom Tools. At the sole discretion of MS, MS may grant WTP a non-
------------
exclusive, personal, non-transferable, non-assignable, royalty-free license to
access and use certain software tools ("Expedia User Management Tools")
developed or to be developed by MS and to be identified from time to time during
the term of this Agreement solely for the purpose of assisting WTP in providing
the Services to MS customers under this Agreement. Upon the expiration or
termination of this Agreement, WTP's license to use the Expedia User Management
Tools will automatically terminate.
Microsoft Confidential Page 6
(d) MS Intellectual Property Rights. MS owns all right, title and interest
-------------------------------
in and to any software or other intellectual property it provides to WTP during
the term of this Agreement, including without limitation the items listed on
Exhibit B. any and all Expedia User Management Tools and training materials.
All software so provided shall be used by WTP in accordance with the terms of
the End User License Agreement ("XXXX") accompanying the software, however, that
notwithstanding any provision in a XXXX to the contrary, WTP may not transfer
any such software so provided.
(e) WTP Tools. Notwithstanding the foregoing, the parties hereby
---------
acknowledge and agree that, as between the parties, WTP shall be the owner of
all software tools developed by WTP (or licensed by WTP in the case of CoRRe(TM)
and TravelMan), as well as methods and techniques of doing business, including
patents, trade secrets and other proprietary rights associated therewith
(collectively, "WTP Tools'), during the term of this Agreement for use in
providing the Services provided that WTP notifies MS of the existence of the
same and also that MS agrees with WTP's assertion in respect thereof (which
agreement will not be unreasonably withheld or delayed). WTP Tools include, but
are not limited to, WTP's mid-office quality control software (CoRRe(TM)). WTP
will customize, or have customized, CoRRe(TM) on a non-exclusive basis for
utilization by both Druid Hills Facility and Peachtree Facility for quality
control and other electronic travel distribution needs. This proprietary
software is being paid for, and licensed by, OFS, from WTP's related entity,
Travel Technologies Group, L.P. ("TTG"). Upon termination or expiration of this
Agreement, at MS' option and upon, and in full consideration of, payment by MS
to WTP of the total amount paid by OFS to TTG pursuant to the End User Software
License Agreement between OFS and TTG attached hereto as Exhibit L (exclusive of
monthly usage fees and in no event exceeding [*] ) (in the event MS exercises
option (i)(A) following) or agreement by MS to pay TTG the license fee and
maintenance fee (in the event MS exercises option (i)(B) following), WTP agrees
to (i) either, at MS's option, (A) cause OFS to assign to MS for the sole use of
MS Travel such End User Software License Agreement with regard to CoRRe, and its
enhancements, modifications, improvements and customizations for no additional
payment by MS to either OFS or TTG except for the complete assumption of all on-
going obligations to TTG, including without limitation on-going payment
obligations, under such License Agreement (it being understood that such on-
going payment obligations to be assumed shall not exceed the current payment
structure as set forth on Exhibit L attached hereto, and that the [*] per
reservation monthly usage fees shall be subject to renegotiation at the time of
such assignment) or (B) cause TTG to issue to MS for the sole use of MS Travel a
worldwide license to the object code of CoRRe and its enhancements,
modifications, improvements and customizations with a fair market value license
fee and with a fixed monthly maintenance fee which on an annualized basis shall
not exceed [*] of the license fee; (ii) assign to MS WTP's license agreement for
TravelMan for no additional payment by MS to TravelMan's licensor except for the
complete assumption of all on-going obligations under the existing license
agreement; and (iii) license to MS on a non-exclusive basis all of the other WTP
Tools, all in order to permit MS to provide uninterrupted service to its
customers. WTP agrees that it will ensure that OFS does not amend Section 2.2b
of the End User Software License Agreement in any way that will lessen MS'
rights to assignment of such agreements or increase the fees that will be owed
as a result thereby; however WTP agrees to cause OFS
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Microsoft Confidential Page 7
to review the monthly usage fees in the End User Software License Agreement with
TTG at the time of any assignment and to assist MS in the negotiation of lower
fees if commercially reasonable at that time given the experience in using CoRRe
during the term of this Agreement. WTP also agrees that it will, for the
duration of this Agreement, continue to own or control, directly or indirectly,
TTG and OFS; provided, however, that in the event that WTP decides to divest TTG
and/or OFS, it shall require the purchaser of any of such entities to assume the
obligations imposed on WTP hereunder with respect to the maintenance and
assignment of the End User Software License Agreement and/or the license of the
CoRRe technology.
(f) MS Products. MS will provide WTP at no charge with copies of the MS
-----------
software products as described in Exhibit B ("MS Products"). Effective upon the
delivery of the MS Products to WTP, MS shall be deemed to have granted to WTP a
non-exclusive, personal, non-transferable, non-assignable, royalty-free license
to use the MS Products at the Druid Hills and Peachtree Facilities under the
terms of the XXXX accompanying each of the Products for the sole purpose of
providing Services exclusively to MS customers as provided for under the terms
of this Agreement. Notwithstanding the terms of the EULAs accompanying the MS
Products, WTP shall be entitled to reproduce a number of copies of the MS
Products (including all related documentation) as set forth in Exhibit B. Upon
the expiration or termination of this Agreement, WTP's license to use and
reproduce such MS Products will automatically terminate, and WTP shall within
ten (10) days thereafter either (i) return all copies of the MS Products
(including all related documentation) licensed to WTP pursuant to this Agreement
in its possession to MS, (ii) provide written certification to MS signed by an
authorized representative of WTP that WTP has destroyed all copies of the
Products (including all related documentation) licensed to WTP pursuant to this
Agreement in its possession, or (iii) if MS has offered to continue the license
of such MS Products to WTP, license such MS Products at their then-current fair
market value.
4. Warranties.
----------
(a) WTP warrants that:
(i) It possesses all necessary authority to enter into this
Agreement, and that by so doing it does not violate any other agreements to
which it is a party; and
(ii) The Services will be performed in a professional manner and shall
conform in all material respects with the service requirements set forth in
this Agreement including, without limitation, those set forth in Exhibits A
and C. WTP shall not knowingly or negligently engage in hidden city
ticketing, beyond point ticketing, cross-border ticketing and speculative
or abusive bookings or other violations of any airlines' Conditions of
Carriage, tariffs and other rules and regulations; and
Microsoft Confidential Page 8
(iii) The Services will be performed by (i) employees of WTP acting
within the scope of their employment who have signed confidentiality
agreements with WTP (with appropriate acknowledgments of confidentiality)
substantially in the form attached as Exhibit K, or (ii) by GTS under
written contractual obligations to WTP pursuant to Section 11 below,
through employees of GTS acting within the scope of their employment who
have signed confidentiality agreements with GTS (with appropriate
acknowledgments of confidentiality) substantially in the form attached as
Exhibit K; and
(iv) In providing Services to MS Travel customers and any other
persons or entities, WTP shall make no representations nor undertake any
obligations on behalf of MS concerning the Services and/or any other MS
products or services beyond those expressly made or undertaken by MS Travel
and communicated to MS Travel customers on the MS Travel web site. WTP,
including all of WTP's employees, temporary employees and contractor GTS
pursuant to Section 11 below, shall conform to all applicable laws and
government rules and regulations. WTP assumes all responsibility for
providing any training that may be required to ensure compliance with such
legal requirements. WTP shall offer to MS Travel customers only those
Services authorized by this Agreement, advising customers requesting other
services that MS Travel does not provide such services, and then
documenting and advising MS of all such requests; and
(v) Any and all software and materials WTP publishes or uses in
providing the Services under this Agreement do not and will not infringe
any intellectual property rights owned by MS or any other person or entity
including, but not limited to, any copyright, patent, trademark or trade
secret; and
(vi) Except as otherwise provided in this Agreement, WTP will not
reproduce, sell, publish, or in any manner commercially exploit the
Microsoft(R) name or any information or derivatives of information acquired
in connection with its provision of Services or allow such reproduction,
sale, publication or exploitation by any employee or person retained for
the purpose of providing such services except as agreed to in writing by
MS; and
(vii) Prior to the commencement of the work to be performed hereunder
and throughout the entire performance by WTP, WTP shall procure and
maintain insurance adequate to cover any and all liability which WTP may
incur as a result of the performance of work included in this Agreement.
Such insurance shall be in a form and with insurers acceptable to MS, and
shall comply with the following minimum requirements:
(A) Commercial General Liability insurance of the
Occurrence Form, with policy limits of not less than Five
Million Dollars ($5,000,000.00) combined single limit each
occurrence for
Microsoft Confidential Page 9
Bodily Injury and Property Damage combined, and Five
Million Dollars ($5,000,000) Personal and Advertising
Injury Limit.
(B) Professional Liability And Errors & Omissions
Liability Insurance with policy limits of not less than
Five Million Dollars ($5,000,000.00) each claim with a
deductible of not more than $25,000.00. Such insurance
shall include coverage for infringement of proprietary
rights of any third party, including without limitation
copyright, trade secret and trademark infringement as
related to WTP's performance under this Agreement.
Throughout the term of this Agreement, the Professional
Liability And Errors & Omissions Liability Insurance
retroactive coverage date will be no later than the
Effective Date of this Agreement. Upon expiration or
termination of this Agreement, WTP will maintain an
extended reporting period providing that claims first
made and reported to the insurance company within one
year after the end of this Agreement will deemed to have
been made during the policy period.
A copy of the certificate of insurance shall be included as
Exhibit J. Failure by WTP to furnish certificates of insurance or
failure by MS to request same shall not constitute a waiver by MS
of any of the insurance requirements set forth herein. WTP shall
notify MS in writing at least thirty (30) days advance if WTP's
insurance coverage is to be canceled or materially altered so as
not to comply with the requirements of this section.
In the event of such failure on the part of WTP to provide the
certificates as requested herein, and in the event of liability or
expense incurred by MS as a result of such failure by WTP, WTP
hereby agrees to indemnify MS for all liability and expense
(including reasonable attorneys' fees and expenses associated with
establishing the right to indemnity) incurred by MS as a result of
such failure by WTP; and
(viii) Individuals it places in contact with MS Travel
Customer Information or MS Confidential Information shall not have
been convicted af a felony as an adult or released from prison
within the last seven (7) years.
(ix) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
WTP AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS,
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE
PRODUCTS AND SERVICES PROVIDED PURSUANT TO THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND (EXCEPT AS SET FORTH IN SECTION 7(c)) NON-INFRINGEMENT.
Microsoft Confidential Page 10
(b) MS warrants that:
(i) Any MS Products supplied, including but not limited to those
described in Exhibit B, and any services performed by MS pursuant to this
Agreement will, respectively, conform substantially to the relevant product
documentation and be performed in a professional manner.
(ii) The Expedia User Management Tools do not and will not so
infringe any intellectual property rights owned by any other person or
entity including, but not limited to, any copyright, patent, trademark or
trade secret to the extent that WTP will be required to refrain from using
such tools (and MS will not be able to provide substitute technology which
reasonably provides the same or similar functionality) with the overall
result that WTP will not be able to reasonably perform the Services as
intended herein; and
(iii) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MS AND ITS
SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED
PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND (EXCEPT AS SET FORTH IN SECTION 7(d)) NON-INFRINGEMENT.
5. Personnel.
---------
(a) WTP personnel assigned to MS Travel shall be employees of WTP and not
employees of MS and shall remain under the direction and control of WTP, subject
to ARC or other regulatory requirements. These WTP personnel shall receive such
salaries, compensation and benefits as WTP shall determine. WTP agrees to be
responsible for all of its federal and state taxes, withholding, social
security, insurance and other benefits, and all salaries, benefits and other
costs of such WTP personnel.
(b) Notwithstanding the foregoing, WTP personnel assigned to MS Travel
shall adhere to MS quality control standards as set forth in Exhibit C and be
qualified to run an ARC-approved travel agency office. An ARC Qualifier must be
present at the Druid Hills Facility to provide Services for MS Travel.
(c) MS shall have the option to participate in any decisions regarding any
assignment of WTP personnel to MS Travel. WTP acknowledges MS' right to require
immediate removal and prompt replacement of any WTP or GTS employee, or agent
performing WTP's obligations under this Agreement who engages in any conduct
prohibited by law or inconsistent with MS policy as set forth in Exhibit E.
Microsoft Confidential Page 11
6. Non-Competition and Non-Solicitation.
------------------------------------
(a) WTP personnel shall not target or solicit MS Travel customers for
additional travel business beyond provision of the Services governed by this
Agreement, nor shall WTP use information gained in the provision of the Services
to compete with MS Travel in providing travel services.
(b) Notwithstanding the preceding section 6(a), WTP shall not be
prohibited from providing services to MS Travel customers who contact WTP
independently (other than in conjunction with MS Travel), or whose names appear
on mailing lists developed independently of MS Travel or who were customers of
WTP prior to the Effective Date.
(c) MS shall not solicit WTP personnel assigned to MS Travel to work for
MS without prior notice to senior management of WTP.
7. Indemnification.
---------------
(a) WTP General Indemnification. WTP agrees to indemnify, defend,
---------------------------
and hold MS harmless from and against any and all claims, actions, demands, and
costs, including reasonable attorneys' fees and expenses arising out of or in
connection with third party claims as a result of the performance of the
Services provided under this Agreement by WTP or its employees, independent
contractors or subcontractors and agents, including without limitation GTS ("WTP
Indemnified Claims"). Acts for which WTP shall indemnify MS include, but shall
not be limited to, representations or obligations undertaken on behalf of MS
concerning the Services to customers which exceed the scope of the Services as
set forth in this Agreement; any act or omission in violation of any applicable
government statutes, laws, rules and regulations or industry rules and
regulations; or violation of any air1ine's Conditions of Carriage, tariffs, or
other rules. Omissions for which WTP shall indemnify MS include, but shall not
be limited to, failure to report reservation information accurately and promptly
to ARC. MS reserves the right to control the defense of any WTP Indemnified
Claim and to conduct all proceedings or negotiations in connection therewith,
and if it so undertakes, all other proceedings or negotiations to settle or
defend any such WTP Indemnified Claim shall be at MS' expense, provided that
(i) WTP shall have the right to approve of any settlement of any such WTP
Indemnified Claim; such approval shall not be unreasonably withheld, and (ii) MS
shall be responsible for payment of all attorneys' fees incurred by MS after it
has exercised its right to control the defense. WTP shall pay any and all
expenses and other reasonable costs incurred by MS arising in connection with
its obligations under this Section 7(a) promptly upon demand.
(b) MS General Indemnification. MS agrees to indemnify, defend
--------------------------
and hold WTP harmless from and against any and all claims, actions, demands,
liabilities, and costs, including reasonable attorneys' fees and expenses,
arising out of or in connection with third party claims as a result of (i) the
business of MS Travel unless arising out of or in connection with circumstances
for which WTP is indemnifying MS pursuant to Section
Microsoft Confidential Page 12
7(a) above; and (ii) any injuries to the person or property of any MS Travel
customer while traveling on an MS Travel itinerary unless arising out of or in
connection with the negligence of WTP ("MS Indemnified Claim"). WTP reserves the
right to control the defense of any MS Indemnified Claim and to conduct all
proceedings or negotiations in connection therewith, and, if it so undertakes,
all other proceedings or negotiations to settle or defend any such MS
Indemnified Claim shall be at WTP's expense, provided that (i) MS shall have the
right to approve of any settlement of any such MS Indemnified Claim, such
approval shall not be unreasonably withheld, and (ii) WTP shall be responsible
for payment of all attorneys' fees incurred by WTP after it has exercised its
right to control the defense. MS shall pay any and all expenses and other costs
incurred by WTP arising in connection with its obligations under this Section
7(b) promptly upon demand.
(c) WTP Intellectual Property Indemnification.
-----------------------------------------
(i) Indemnified Claims. WTP agrees to defend MS against, and pay the
------------------
amount of any adverse final judgment or settlement to which WTP consents
resulting from, any third party claim(s) ("Indemnified IP Claims") that any
WTP Tools or any portion thereof, or WTP's provision of any services
pursuant to this Agreement, infringes any third party patent, copyright,
trademark or trade secret enforceable under the laws of the United States;
provided that WTP is notified promptly in writing of the Indemnified IP
Claim and has sole control over its defense and settlement, and MS provides
reasonable assistance in the defense and/or settlement of such claim.
(ii) Exclusions. Notwithstanding Section 7(c)(i) above, WTP shall
----------
have no liability for any intellectual property infringement claim
(including an Indemnified IP Claim) that arises as a result of (i) MS' use
of the WTP Tools after a reasonable time from WTP's written notice that MS
should cease use of the WTP Tools due to such a claim, provided WTP has
delivered a non-infringing substitute that complies with applicable
specifications and is capable of being deployed by MS; or (ii) MS'
combination of the WTP Tools with a non-WTP product, program or data; or
(iii) MS' adaptation or modification of any WTP Tool. For all claims
described in clauses (i)-(iii) above of this Section 7(c)(ii), MS agrees to
defend WTP against, and pay the amount of any adverse final judgment or
settlement to which MS consents resulting from, such claims, provided that
MS is notified promptly in writing of such a claim and MS has sole control
over its defense or settlement, and WTP provides reasonable assistance in
the defense and/or settlement of such claim.
(iii) WTP' Rights in the Event of Intellectual Property Infringement
--------------------------------------------------------------
Claim. In the event WTP receives information concerning an intellectual
-----
property infringement claim (including an Indemnified IP Claim) related to
the WTP Tools, WTP may at its expense, without obligation to do so, either
(i) procure for MS the right to continue to use the alleged infringing
release of the WTP Tools, or (ii) replace or modify the release of the WTP
Tools to make it non-infringing, and in
Microsoft Confidential Page 13
which case, MS shall thereupon cease use of the alleged infringing release
of the WTP Tools.
(d) MS Intellectual Property Indemnification.
----------------------------------------
(i) Indemnified Claims. MS agrees to defend WTP against, and pay the
------------------
amount of any adverse final judgment or settlement to which MS consents
resulting from, any third party claim(s) ("Indemnified IP Claims") that the
MS Tools or any portion thereof, or MS' provision of any services pursuant
to this Agreement, infringe any third party patent, copyright, trademark or
trade secret enforceable under the laws of the United States; provided that
MS is notified promptly in writing of the Indemnified IP Claim and has
sole control over its defense and settlement, and WTP provides reasonable
assistance in the defense and/or settlement of such claim.
(ii) Exclusions. Notwithstanding Section 7(d)(i) above, MS shall have
----------
no liability for any intellectual property infringement claim (including an
Indemnified IP Claim) that arises as a result of (i) WTP's use of the MS
Products or Expedia User Management Tools (the "MS Tools") after a
reasonable time from MS' written notice that WTP should cease use of the MS
Tools due to such a claim, provided MS has delivered a non-infringing
substitute that complies with applicable specifications and is capable of
being deployed by WTP; or (ii) WTP's combination of an MS Tool with a non-
MS product, program or data; or (iii) WTP's adaptation or modification of
any of the MS Tools. For all claims described in clauses (i)-(iii) of this
Section 7(d)(ii), WTP agrees to defend MS against, and pay the amount of
any adverse final judgment or settlement to which WTP consents resulting
from, such claims, provided that WTP is notified promptly in writing of
such a claim and WTP has sole control over its defense or settlement, and
MS provides reasonable assistance in the defense and/or settlement of such
claim.
(iii) MS' Rights in the Event of Intellectual Property Infringement
-------------------------------------------------------------
Claim. In the event MS receives information concerning an intellectual
-----
property infringement claim (including an Indemnified IP Claim) related to
the MS Tools, MS may at its expense, without obligation to do so, either
(i) procure for WTP the right to continue to use the alleged infringing
release of the MS Tools, or (ii) replace or modify the MS Tools to make
them non-infringing, and in which case, WTP shall thereupon cease use of
the alleged infringing release of the MS Tools.
8. Term and Default.
----------------
(a) This Agreement shall commence as of the Effective Date, and shall
continue in force for a period of three (3) years thereafter unless earlier
terminated by either party as provided in this Agreement or Exhibits hereto.
This Agreement
Microsoft Confidential Page 14
automatically shall be renewed for a further period of one (1) year, unless
either party has notified the other party in writing at least 180 days prior to
the third anniversary of the Effective Date of its intent not to renew, such
renewal to be subject to earlier termination as provided in this Agreement or
Exhibits hereto. Any renewal pursuant to this Section shall be on the same terms
and conditions as are contained in this Agreement.
(b) MS may, in its sole discretion, terminate this Agreement without cause
with 180 days' notice to WTP. In the event of such termination solely for the
convenience of MS, WTP shall be entitled to compensation in accordance with
Section 5 of Exhibit D with any reconciling payments to be completed no later
than sixty (60) days following such termination. The parties agree that this
amount is a fair and reasonable estimate of liquidated damages, and is not
intended as a penalty for termination.
(c) This Agreement may be terminated by either party in the event the
other party (the "Other Party" for the purposes of this subsection) materially
fails to perform or comply with any material provision of this Agreement and
fails to cure such non-performance or non-compliance within thirty (30) days
after receipt of notice thereof, assigns its rights or interest in the Agreement
in contravention of Section 14(f) or suspends performance of its obligations as
described in Section 14(i) or becomes insolvent or admits in writing its
inability to pay its debts as they become due or makes an assignment for the
benefit of creditors or if a petition under any bankruptcy act, receivership
statute or the like, as they now exist or as they may be amended, is filed by
the Other Party or by any third party or an application for a receiver is made
by anyone and such application is not resolved favorably to the Other Party
within sixty (60) days.
(d) This Agreement may be terminated by MS pursuant to the provisions of
Section 9.
(e) Sections 2, 3(b), 3(c), 3(d), 3(f), 4, 5, 6, 7, 8(e), 8(f), 8(g), 10,
11, 12, 13, and 14 of this Agreement shall survive termination for any reason.
(f) Upon the expiration or earlier termination of this Agreement, (i) WTP
shall cooperate with MS to assist in the orderly transition of Services to MS,
or to any third party as MS may direct, in a professional manner, with no
disruption to customer service; and (ii) WTP shall remove all software and
equipment provided by MS and shall deliver all such software and equipment to
MS, including but not limited to those items detailed in Exhibit B, subject
to WTP's possible option to purchase set forth in Section 8(g)(i). Upon MS'
request, WTP shall provide "train the trainer" training to MS or a third party
or parties, with the cost of the WTP personnel providing the training to be paid
by MS.
(g) In the event of termination or expiration of this Agreement:
(i) MS, at its option, may make available to WTP all or substantially
all of the software, hardware and equipment provided by MS at the Druid
Hills Facility and Peachtree Facility as described in Exhibit B for
purchase (in the case
Microsoft confidential Page 15
of hardware and equipment) or license (in the case of software). In the
event MS offers such items for purchase or license, the price(s) therefor
shall be based upon their then-current fair market value.
(ii) WTP will make available to MS the leasehold improvements,
telecommunication systems, furniture and fixtures, and proprietary software
(such as CoRRe(TM) and other WTP Tools) set forth in Section 1(g)(iii) for
purchase (in the case of equipment and other tangible property) or license
(in the case of the software). The purchase price(s) for such items other
than software shall be based upon their then-current fair market value. The
software shall be licensed or assigned on the terms set forth in
Section 3(e).
9. Default in Performance and Remedies. During the term of this Agreement:
-----------------------------------
(a) In the event WTP breaches the provisions of Section 10 or if MS or WTP
receives a notice of complaint from ARC as a result of WTP's acts or omissions,
such breach will justify termination for cause, and MS may terminate this
Agreement immediately with no further obligation to WTP.
(b) In the event WTP fails to meet the performance requirements as
specified in this Agreement and in Exhibit C (the "Service Process
Requirements"), MS shall give WTP notice of such non-compliance and WTP shall
have 24 hours after receipt of such notice to correct such non-compliance.
(c) In the event there is a continued failure by WTP to meet the Service
Process Requirements, and MS has not terminated WTP for its first failure to
meet these requirements, WTP shall, at MS' request, provide a corrective action
plan within forty-eight (48) hours, including training and staffing plans, to MS
for approval. MS shall review and approve such corrective action plan or provide
required changes to WTP within five (5) business days from its receipt of such
plan.
(d) In the event the Service Process Requirements are not met by WTP
within the time period set forth in any corrective action plan, as approved or
changed by MS, MS shall have the option to require WTP to pay MS an amount
equaling 15% of average daily gross revenues earned by WTP pursuant to this
Agreement (such average to be based upon the period commencing on the later to
occur of the launch of MS Travel or the Effective Date and ending as of the date
of MS' exercise of its option to collect liquidated damages pursuant to this
Section 9(d)), as liquidated damages and not as penalty, for each additional day
WTP fails to meet such Service Process Requirements. Such accrual of liquidated
damages shall terminate upon the termination or expiration of this Agreement;
however, the obligation to pay such accrued liquidated damages shall continue
until paid.
(e) In the event the Service Process Requirements are not met by WTP
within the time period set forth in any corrective action plan, as approved or
changed by MS, MS
Microsoft Confidential Page 16
shall have the right to terminate this Agreement for cause, with no further
obligation to WTP under this Agreement.
(f) Any liquidated damages described in this section shall be deducted
from amounts due to WTP under Section 2 and Exhibit D. WTP shall pay directly to
MS any liquidated damages in excess of such amounts due.
(g) The Service Process Requirements set forth in Exhibit C will be
reviewed at the end of the first three months after the launch of MS Travel and
the parties shall consider appropriate revisions thereto.
(h) All remedies set forth in this section shall be in addition to and not
in lieu of any other remedies available to MS under this Agreement at law or in
equity.
10. Confidentiality and Publicity.
-----------------------------
(a) MS and WTP agree that the terms of the Non-Disclosure Agreement
executed by the parties, dated and attached hereto as Exhibit I shall be deemed
incorporated herein, and further, that all terms and conditions of this
Agreement shall be deemed Confidential Information as defined in such Non-
Disclosure Agreement.
(b) The parties acknowledge that monetary damages may not be a sufficient
remedy for unauthorized disclosure or use of Confidential Information and that
the parties may seek, without waiving any other rights or remedies, such
injunctive or equitable relief as may be deemed proper by a court of competent
jurisdiction.
(c) WTP shall not issue any press release or advertising concerning WTP's
relationship with MS and the Services hereunder, without MS' written pre-
approval.
11. Services in Canada. WTP will subcontract with GTS to provide Services in
------------------
Canada.
(a) The contract between WTP and GTS will require GTS to perform a subset
of the Services described in Exhibit A sufficient to enable WTP to offer all
Services described in Exhibit A, including without limitation the provision to
WTP of sufficient reports to support WTP's reporting obligations under Section
1(1) of this Agreement.
(b) MS will compensate WTP for the Services provided in Canada using the
event-based fee schedule in Exhibit D. WTP will be solely responsible for any
payments or other compensation provided to GTS for the Services provided by GTS
to support MS Travel in Canada.
(c) The contract between WTP and GTS shall require GTS to comply with
obligations substantially similar to those imposed on WTP by Section 10 above;
further, any such agreement shall expressly provide that MS is a third party
beneficiary of such
Microsoft Confidential Page 17
agreement with rights to enforce such agreement. Finally, WTP warrants and
represents that it will ensure that GTS will perform any services in accordance
with the service and performance requirements set forth this in this Agreement
including, without limitation, those set forth in all Exhibits attached hereto,
and abide by all other terms and conditions of this Agreement.
12. Notices and Requests. All notices, authorizations, and requests in
--------------------
connection with this Agreement shall be deemed given on the day they are (i)
deposited in the mail, postage prepaid, certified or registered, return receipt
requested; or (ii) sent by air courier, charges prepaid, with a confirming
telefax; or (iii) transmitted, if transmitted by facsimile, and addressed as
follows:
Notices to WTP:
--------------
WORLDTRAVEL PARTNERS
0000 Xxxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000
ATTN: Xxxxx Xxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy to: Xxxxx Xxxxxxx
Notices to MS:
-------------
MICROSOFT CORPORATION
Xxx Xxxxxxxxx Xxx
Xxxxxxx, XX 00000-0000
ATTN: Travel Product Unit Manager
Phone:. (000) 000-0000
Fax: (000) 000-0000
With a copy to: Travel Operations Manager
With a copy to: Law & Corporate Affairs
or to such other address as the party to receive the notice or request so
designates by written notice to the other.
13. Audit. WTP shall keep all usual and proper records relating to its
-----
compliance with the terms of this Agreement. MS reserves the right to, through
the use of a mutually agreed to independent auditor, audit WTP's systems and
records specifically related to this Agreement during the term of this Agreement
and for a period of three years
Microsoft confidential Page 18
thereafter, provided that such audit(s) shall be conducted during normal
business hours in such a manner as not to interfere unreasonably with the
operations of WTP. Audit expenses shall be paid by MS unless material
discrepancies are disclosed by the audit, in which case audit expenses shall be
paid by WTP. MS' audit rights referred to in this section shall be reasonable in
scope, but will be of an expansive scope if MS' audit reveals material
discrepancies.
14. General.
-------
(a) This Agreement shall be construed and controlled by the laws of the
State of Washington, and WTP consents to jurisdiction and venue in the state and
federal courts sitting in the State of Washington. Process may be served on
either party by US Mail, postage prepaid, certified or registered, return
receipt requested, or by such other method as is authorized by law.
(b) Neither this Agreement, nor any terms or conditions contained herein,
shall be construed as creating a partnership, joint venture, agency
relationship, employer/employee relationship or franchise.
(c) This Agreement, including all Exhibits attached hereto, constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements or communications
with respect to the subject matter hereof, with the exception of the Non-
Disclosure Agreement between the parties referenced herein. This Agreement shall
not be modified except by a written agreement dated subsequent to the date of
this Agreement and signed on behalf of WTP and MS by their respective duly
authorized representatives.
(d) No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent, or subsequent breach of the same
or any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
(e) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid, or unenforceable, the remaining
provisions shall remain in full force and effect.
(f) The rights and obligations hereunder shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto, provided any
rights or obligations hereunder shall not be assigned by either party without
the prior written consent of the other party, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, if WTP is reorganized into
another form of entity with the effect that the new entity owns substantially
all of the current assets and business of WTP and that the new entity is
controlled by the same person(s) as currently control WTP, this Agreement may be
assigned to such new entity without prior written consent of MS.
Microsoft Confidential Page 19
(g) In any suit or action to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the prevailing party
will be entitled to recover its costs, including reasonable attorneys' fees.
(h) The section headings herein are for the convenience of the parties and
shall not be deemed to supersede or modify any provisions.
(i) If either party is unable to perform under this Agreement due to
circumstances or causes beyond its control, and which could not by reasonable
diligence have been avoided, such party shall have the option, without
liability, of suspending performance of its obligations under this Agreement for
the duration of such contingency upon written notice to the other party.
However, either party may terminate this Agreement upon written notice to the
other party in the event that such other party has suspended performance of its
obligations under this Agreement for more than thirty (30) days.
(k) This Agreement does not constitute an offer by MS and shall not be
effective until signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
MICROSOFT CORPORATION WORLDTRAVEL PARTNERS, L.P.
One Microsoft Way 0000 Xxxxx Xxxx Xxxx., Xxxxx 000
Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000
/s/ Xxxx Xxxxxxx /s/ Xxxxx X. Xxxx
--------------------------- ---------------------------------
By By
XXXX XXXXXXX XXXXX X. XXXX
--------------------------- ---------------------------------
Name (print) Name (print)
Vice President President-Corp. Jul & Technology
--------------------------- ---------------------------------
Title Title
Microsoft Confidential Page 20
CONTRACT NUMBER:___________
AMENDMENT NUMBER 1 TO
MICROSOFT CORPORATION/WORLD TRAVEL PARTNERS
SERVICE AGREEMENT
This AMENDMENT NUMBER 1 is made to that certain MICROSOFT CORPORATION/
WORLDTRAVEL PARTNERS SERVICE AGREEMENT, effective as of October 9, 1996 (the
"Original Agreement"), by and between MICROSOFT CORPORATION, a Washington
corporation ("MS"), and WORLDTRAVEL PARTNERS L.P., a Georgia Limited Partnership
("WTP"). This AMENDMENT NUMBER 1 is effective as of January 1, 1999 ("Effective
Date of AMENDMENT NUMBER 1), and is executed as of the later of the two
signature dates below ("Execution Date of AMENDMENT NUMBER 1"). The Original
Agreement as amended by this AMENDMENT NUMBER 1 is hereby defined as the
"Agreement."
All initially capitalized terms shall have the meanings provided to them in
the Original Agreement unless otherwise defined in this AMENDMENT NUMBER 1. The
parties agree as follows:
1. To reflect the fact that WTP has assigned the Original Agreement to
WorldTravel Technologies, L.L.C., a Georgia Limited Liability Company
("WTT") (which no longer has a direct relationship to WTP), and WTT has
agreed to assume and perform all of the obligations of WTP under the
Original Agreement, the parties therefore agree that this AMENDMENT NUMBER
1, together with a separate Guarantee Agreement between MS and WTP dated
March 18, 1999, is intended to effect a change in the contracting parties
to MS and WTT, and all references in the Original Agreement to "WTP" shall
be construed as references to "WTT."
2. Section 1(b) of the Original Agreement is amended and restated in its
entirety as follows:
"(b) WTT may subcontract collection services to a third party so long as
(i) MS, at its discretion, may elect at any time to assume responsibility
for collection, (ii) WTT obtains MS' prior consent for settlements of bad
debt that results in forgiveness of fifteen percent (15%) or more of the
bad debt; and (iii) in the event the subcontracted collection services are
not effective, WTT and MS shall discuss appropriate corrective steps. WTT
may also select vendors to provide services relating to the Services so
long as such vendors are not directly servicing customers of MS Travel. WTT
shall remain fully responsible and accountable for the performance of its
subcontractors and vendors. Unless otherwise expressly set forth in this
Agreement, WTT will not otherwise subcontract any of its obligations
hereunder without the prior written approval of MS."
3. Section 2(a) of the Original Agreement is amended and restated in its
entirety as follows:
"(a) (i) WTT shall pay and be solely responsible for all costs incurred in
providing the Services under this Agreement indicated in Exhibit D as being
"WTT Costs." MS shall pay and be solely responsible for all costs with
respect to the Services indicated in Exhibit D as being "MS Costs." In the
event that WTT Costs exceed an average of [*] per Ticket (as defined in
Exhibit D) in any one calendar month after the Effective Date of AMENDMENT
NUMBER 1, then MS agrees to pay to WTT the amount of the WTT Costs that
exceed [*] per Ticket for such calendar month. WTT shall include a charge
for the MS Costs and any excess WTT Costs (in the event that WTT incurs WTT
Costs in excess of an average of [*] per Ticket in the calendar month), in
the monthly statement described in Section 2(b)(iii) below and shall
provide sufficient back-up to substantiate the charges.
(ii) Additionally, WTT shall be solely responsible for all Customer
Charge-Backs as described in Exhibit D in an amount up to an average of [*]
per Ticket in any
Microsoft
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Microsoft Confidential
1
calendar year. MS agrees to reimburse WTT for all Customer Charge-Backs
that are in excess of an average of [*] per Ticket incurred in a calendar
year (regardless of when the Customer Charge-Back may have been received by
WTT). However, if a Customer Charge Back is received more than one calendar
year after it was incurred, that Customer Charge Back will be attributed to
the year it was received. In the event that the Customer Charge-Backs in
any calendar year after the Effective Date of the AMENDMENT NUMBER 1 exceed
an average of [*] per Ticket, WTT shall include a charge to MS for such
excess Customer Charge-Backs along with sufficient back-up to substantiate
such excess Customer Charge-Backs in the monthly statements described in
Section 2(b)(iii) below during the subsequent calendar year.
(iii) MS agrees that it will request WorldSpan to make payments with
respect to errors made by WorldSpan's system in connection with Tickets
directly to WTT and will provide reasonable assistance to WTT (to the
extent requested by WTT) to collect such amount directly from WorldSpan. If
WorldSpan acknowledges the errors were made by its system in connection
with Tickets, but in documentation submitted to WTT (and provided to MS)
states that WorldSpan will not reimburse WTT the full amount for such
errors because of separate financial or business arrangements with MS, then
WTT shall invoice MS for such amounts within sixty (60) days after the end
of the calendar year in which the WorldSpan payments were due."
4. Section 2(b) of the Original Agreement is amended and restated in its
entirety as follows:
"(b) MS will pay WTT the following amounts:
(i) Within thirty (30) days after the Execution Date of AMENDMENT
NUMBER 1, MS shall pay to WTT all amounts that are due to WTT, as of the
Effective Date of AMENDMENT NUMBER 1, in connection with the Original
Agreement.
(ii) MS shall pay an initial advance against the fees for the
Services as set forth in Exhibit D (the "Fees"), which amount shall be
equal to [*] multiplied by [*] times the greatest total number of Tickets
(as defined in Exhibit D) sold by WTT in connection with the Services in a
calendar month during the six-month period immediately prior to the
Effective Date of AMENDMENT NUMBER 1 (the "Initial Advance"), MS shall pay
the Initial Advance to WTT within thirty (30) days after the Execution Date
of AMENDMENT NUMBER 1.
(A) The Current Advance Balance (as defined below) shall be applied
against any earned Fees during the last three months immediately
prior to the end of the term of this Agreement, subject to paragraph
8 of this AMENDMENT NUMBER 1. At the end of each calendar month
during the three (3) month period immediately prior to the end of the
term of the Agreement, WTT will provide MS with a statement setting
forth the total number of Tickets sold that calendar month in
connection with the Services and the applicable Fees. The statement
shall include information sufficient to discern how the Fees were
calculated and shall be in a format to be provided by MS. If the
statement indicates that the Fees for that calendar month exceeded
any funds remaining in the Current Advance Balance then MS shall pay,
within thirty (30) days after receipt of the statement, any
additional amount of Fees that may properly be due, and the Current
Advance Balance shall be deemed exhausted.
(B) At the end of each calendar year during the term of the Agreement,
the parties shall agree to adjust the Current Advance Balance in an
amount calculated as follows ("Advance Adjustment"): [*]
In the event that the above
calculation of the Advance Adjustment results in a negative number,
then WTT will refund the amount represented by that negative number
to MS within thirty (30) days, and the Current Advance Balance will
be deemed reduced by the amount of such refund.
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
2
WTT shall invoice MS for the applicable Advance Adjustment, if any,
in the first month's statement in the new calendar year in accordance
with Section 2(b)(iii).
(C) For the purpose of this Section, the sum of the Initial Advance and
any Advance Adjustment then in effect, less any refund to MS pursuant
to Section 2(b)(ii)(B) and less any offsets pursuant to Section
2(b)(ii)(A), is defined as the "Current Advance Balance."
(iii) MS shall pay WTT the Fees as set forth in Exhibit D (except with
respect to the last three months immediately prior to the end of the term
of this Agreement, which period is covered in Section 2(b)(ii) above). WTT
shall invoice MS on a monthly basis, on or before the 15/th/ day of the
month following the month for which the Fees (and any applicable MS Costs
or Customer Charge-Backs) are being invoiced. The invoice shall include a
statement setting forth the total number of Tickets sold that calendar
month by WTT in connection with the Services and the applicable Fees and
any applicable MS Costs or Customer Charge-Backs for which MS is
responsible in accordance with Section 2(a) of the Agreement. The statement
shall include information sufficient to discern how the Fees were
calculated and shall be in a format to be provided by MS. MS shall pay the
amount indicated in the invoice within thirty (30) days after receipt of
the invoice. Late payments shall accrue interest at a rate of [*]
per month unless MS notifies WTT that MS disagrees with the calculation of
the invoiced amount. In the event taxes are required by any U.S. (state or
federal) or foreign government to be withheld on payments made hereunder by
MS to WTT, MS may deduct such taxes from the amount owed WTT and pay them
to the appropriate taxing authority. MS shall in turn promptly secure and
deliver to WTT an official receipt for any taxes withheld. MS will use
reasonable efforts to minimize such taxes to the extent permissible under
applicable law"
5. Section 2(c) of the Original Agreement is deleted in its entirety.
6. Section 8(a) is amended to extend the term of the Agreement for a period of
five (5) years after the Effective Date of AMENDMENT NUMBER 1 unless
earlier terminated by either party as provided in this Agreement.
7. Section 8(b) is amended and restated in its entirety as follows:
"(b) MS may, in its sole discretion, terminate this Agreement without
cause with one hundred and eighty (180) days' prior written notice to WTT.
In the event of such termination solely for the convenience of MS (and in
no other event of termination), MS agrees to pay WTT the amount indicated
below.
Effective date of termination
(in terms of months after the Effective Date
of AMENDMENT NUMBER 1) Amount
-------------------------------------------- ------
0-12 months
13-24 months
25-36 months [*]
37-48 months
48-60 months
An "Average Month's Fees" shall be determined by averaging the actual Fees
paid by MS for the six (6) months immediately prior to the effective date
of termination. The parties agree that this amount is a fair and reasonable
estimate of liquidated damages, and is not intended as a penalty for
termination. Additionally, MS may terminate this Agreement (i) immediately
with written notice to WTT in the event MS ceases to directly and solely
operate and control the MS Travel service for U.S. consumers, or (ii) with
one hundred eighty (180) days' prior written notice to WTT in the event XX
xxxxx a majority or more of the MS Travel assets to a third party,
provided, however, that in either case such termination event shall not be
considered a termination for convenience by MS.
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
3
Any amounts that may be owed by MS pursuant to this Section 8(b) shall be
paid within sixty (60) days after the effective date of termination."
8. The following sentence shall be added at the end of Section 8(g) of the
Original Agreement:
"(g) (iii) In addition, within sixty (60) days after the effective date
of termination or expiration of this Agreement, the parties shall reconcile
all accounts hereunder and WTT shall promptly refund and return to MS any
unearned portion of the Current Advance Balance and MS shall promptly pay
to WTT any amounts that it may properly owe to WTT in accordance with this
Agreement."
9. Section 9 of the Original Agreement is amended and restated in its
entirety as follows:
"Default in Performance and Remedies. During the term of this Agreement:
-----------------------------------
(a) In the event WTT breaches the provisions of Section 10 or if MS
or WTT receives a notice of complaint from ARC as a result of WTT's acts or
omissions, such breach will justify termination for cause, and MS may
terminate this Agreement immediately with no further obligation to WTT.
(b) In the event WTT fails to meet the performance requirements as
specified in this Agreement and Minimum Service Criteria set forth in
Exhibit C (the "Service Process Requirements"), MS shall give WTT notice of
such non-compliance and WTT shall have 24 hours after receipt of such
notice to correct such non-compliance. WTT shall take all reasonable
actions to correct such noncompliance as soon as practicable.
(c) In the event there is a continued failure by WTT to meet the
Service Process Requirements within the time period referred to in Section
9(b), WTT shall, at MS' request, provide a corrective action plan within
forty-eight (48) hours, including training and staffing plans, to MS for
approval, MS shall review and approve such corrective action plan or
provide reasonable required changes to WTT within five (5) business days
from its receipt of such plan.
(d) In the event the Service Process Requirements are not met by WTT
within the time period set forth in any corrective action plan, as approved
or changed by MS, MS shall have the option to require WTT to pay MS an
amount equaling [*] of average daily gross revenues earned by WTT pursuant
to this Agreement (such average to be based upon the period of three (3)
months prior to the date of MS' exercise of its option to collect
liquidated damages pursuant to this Section 9(d)), as liquidated damages
and not as penalty, for each additional day WTT fails to meet such Service
Process Requirements. Such accrual of liquidated damages shall terminate
upon the termination or expiration of this Agreement; however, the
obligation to pay such accrued liquidated damages shall continue until
paid.
(e) In the event the Service Process Requirements are not met by
WTT within the time period set forth in any corrective action plan, as
approved or changed by MS, MS shall have the right to terminate this
Agreement for cause, with no further obligation to WTT under this
Agreement.
(f) Any liquidated damages described in this section shall be
deducted from amounts due to WTT under Section 2 and Exhibit D. WTT shall
pay directly to MS any liquidated damages in excess of such amounts due.
The calculation of payments of liquidated damages shall be made as part of
the regular monthly invoice described in Section 2, and WTT shall have 30
days from the date of such invoice to make any required payments to MS.
(g) All remedies set forth in this section shall be in addition to
and not in lieu of any other remedies available to MS under this Agreement
at law or in equity."
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
4
10. The references to GTS (Global Travel Services) in the Original Agreement
are hereby deleted and shall be replaced with another subcontractor to WTT
(which subcontractor shall be approved in writing by MS, which approval
will not be unreasonably withheld) to perform the Services in Canada in
accordance with Section 11 of the Agreement. The first sentence in Section
11(b) of the Original Agreement is amended to delete the terms "event-
based," and the parties agree that the terms set forth in this AMENDMENT
NUMBER 1 shall apply to the Services with respect to the Canadian version
of MS Travel.
11. Section 14(f) of the Original Agreement is amended and restated in its
entirety as follows:
"(f) The rights and obligations hereunder shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto,
provided any rights or obligations hereunder shall not be assigned by
either party without the prior written consent of the other party, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing
restriction with respect to assignment, (I) MS may assign this Agreement to
an entity that will control a majority of the MS Travel business without
the prior written consent of WTT and (ii) if WTT is reorganized into
another form of entity with the effect that the new entity owns
substantially all of the current assets and business of WTT and that e new
entity is controlled (directly or indirectly) by the same person(s) as
currently control WTT or if WTT effects an initial public offering of
shares of its stock, this Agreement may be assigned to such new entity
without prior written consent of MS."
12. A new Section 14(1) is added as follows:
"(1) In order to reduce costs associated with the provision of the
Services, MS agrees to make certain changes to MS Travel as described in
and on the schedule set forth in Appendix 1 to this AMENDMENT NUMBER 1.
Such changes will be subject to the conditions outlined in Appendix 1. WTT
may also participate in and provide input at appropriate meetings for the
purpose of identifying ways to reasonably reduce the costs of providing the
Services. MS shall control the priortization, timing and method for
considering WTT's suggestions or input. [*]
13. A new Section 12(m) is added as follows:
"(m) The parties will discuss in good faith appropriate opportunities to
feature WTT services in the "tour and cruise" category in the Expedia
Travel Network program. Additionally, MS agrees that it will inform WTT
when MS will need travel fulfillment services for international version of
MS Travel and will provide WTT with reasonable time period (not to exceed
thirty (30) days) to first offer to provide such fulfillment services."
14. A new Section 12(n) is added as follows:
[*]
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
5
15. A new Section 15 is added to the Agreement as follows:
"MS and WTT agree that in the event that there are (i) significant economic
changes in the travel industry, (ii) material changes in the scope of work
contemplated by this Agreement, or (iii) global political events that
significantly affect the travel industry and such changes or events
significantly and adversely impact the economic terms of this Agreement,
then the parties will agree in good faith to re-negotiate new economic
terms for this Agreement in light of such change or event. If the parties
fail to agree upon new economic terms the parties agree first to try in
good faith to settle the dispute by mediation administered by the American
Arbitration Association under its Commercial Mediation Rules, with each
party bearing its own expenses with respect to the mediation.
Notwithstanding the foregoing paragraph, the parties acknowledge that
nothing herein shall limit in any manner the ability of either party to
terminate the Agreement in accordance with Section 8(b) of the Agreement
and that any such termination shall not be considered a breach of the
mediation provision set forth in this paragraph."
16. Section 14(i) of the Original Agreement is amended and restated as follows.
"(i) If either party is unable to perform under this Agreement due to
circumstances or causes beyond its control that (i) it could not by
reasonable diligence have avoided and (ii) are not the same as the
circumstances or causes described in Section 15, such party shall have the
option, without liability, of suspending performance of its obligations
under this Agreement for the duration of such contingency upon written
notice to the other party. However, either party may terminate this
Agreement upon written notice to the other party in the event that such
other party has suspended performance of its obligations under this
Agreement for more than thirty (30) days, provided however, such
termination, if effected by MS, shall not be considered a termination of
convenience."
17. Section 4 of Exhibit B (MS Deliverables) is deleted in its entirety.
18. Section 10(c) of the Original Agreement is amended and restated in its
entirety as follows:
"(c) WTT shall not issue any press release or advertising concerning WTT's
relationship with MS without MS' prior written consent, except if WTT or a
successor entity becomes a publicly traded company, and publicity is
necessary, in the opinion of counsel, to comply with the requirements of
(i) any stock exchange on which the shares of WTT or such successor entity
may be listed or (ii) any law, governmental regulation or order; and even
then only after making a reasonable effort to consult with MS as to the
contents of any such publicity. The limitations in this Section 10(c) are
not intended to restrict WTT's ability to make any filings with the US
Securities and Exchange Commission or similar state agencies that may be
legally required if WTT or a successor entity becomes publicly traded."
19. Exhibit C (Service Process Requirements) is amended and restated in its
entirety as set forth in the new Exhibit C attached hereto.
20. Exhibit D (Payments) is amended and restated in its entirety as set forth
in the new Exhibit D attached hereto.
6
All other terms not expressly amended herein shall remain in full force and
effect as set forth in the Original Agreement.
MICROSOFT CORPORATION WORLDTRAVEL TECHNOLOGIES, L.L.C.
/s/ Xxxxxxx Xxxxxx /s/ Xxxx X. Xxxxxxxxx
------------------------------- ------------------------------
By By
Xxxxxxx Xxxxxx Xxxx X. Xxxxxxxxx
------------------------------ ------------------------------
Name (Print) Name (Print)
Gen. Mgr. Travel Bus. Unit Chief Executive Officer
------------------------------ ------------------------------
Title Title
4/1/99 3-26-99
------------------------------ ------------------------------
Date Date
7
Exhibit C-- Service Process Requirements
1. Minimum Service Criteria: The Minimum Service Criteria (which are
indicated as averages on a calendar month basis) from the Effective Date
through December 2001 are set forth below. The Minimum Service Criteria
shall apply so long as the phone and email ratios (averaged on a calendar
month basis) are equal to or less than the phone and email ratios set
forth in part 2 of Exhibit D. The parties further agree that Call Backs
shall not exceed [*] of all phone calls in any hour in connection with the
Service. If the average phone ratio for a calendar year is less than the
phone ratio set forth in part 2 of Exhibit D, then the "Percentage of Call
Backs" set forth below shall be decreased on a pro-rata basis for the
following calendar year. The parties agree that none of the liquidated
damages and termination provisions of Section 9 will apply to WTT (xx) if
the Minimum Service Criteria are not in effect because the phone and email
ratios (average for the calendar month) are greater than the phone and
email ratios set forth in part 2 of Exhibit D, or (yy) if the applicable
MS forecast report provided to WTT for the calendar month (as described in
paragraph 2(b) of this Exhibit C) underestimated the actual number of
Tickets to be sold during the month by more than [*] The Minimum Service
Criteria for the last two years of the Agreement shall be determined at
the same time as when the Fees for the last two years of the Agreement are
determined in accordance with part 2 of Exhibit D, provided however, that
at no time during the term of the Agreement shall the new Minimum Service
Criteria Goals be less than the Minimum Service Criteria set forth below.
[*]
* The liquidated damages and termination provisions of Section 9 shall
not apply in the event that WTT fails to satisfy the "Call Backs Customer
Survey" Minimum Service Criteria. However, if WTT fails to satisfy the
"Call Backs Customer Survey" Minimum Service Criteria in any calendar
month, then the parties shall promptly discuss and agree upon an
appropriate corrective action to be implemented by WTT.
2. Service Criteria Goals; Consequences for Exceeding or Failing to Meet the
Service Criteria Goals: The Service Criteria Goals (which are indicated as
averages on a calendar month basis) from the Effective Date through
December 2001 are set forth below. The Service Criteria Goals shall apply
so long as the phone and email ratios (averaged on a calendar month basis)
are equal to or less than the phone and email ratios set forth in part 2
of Exhibit D. The parties agree that the liquidated damages and
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
8
termination provisions set forth in Section 9 shall not apply in the
event WTT fails to satisfy these Service Criteria Goals. The Service
Criteria Goals for the last two years of the Agreement shall be
determined at the same time as when the Fees for the last two years of
the Agreement are determined in accordance with part 2 of Exhibit D,
provided, however, that at no time during the term of the Agreement
shall the new Service Criteria Goals be less than the Minimum Service
Criteria set forth above.
[*]
(a) If WTT in any calendar month exceeds all the Service Criteria Goals
set forth above or other service criteria set from time to time by the
parties, then MS shall pay [*] per Ticket sold during that calendar
month ("Incentive Amount"). The Incentive Amount shall be matched by
WTT and the total sum shall be allocated by WTT for "rewards" or
"incentives" for those WTT employees who directly or indirectly
provide the Services. Within fifteen (15) days after the end of each
calendar month during the term of the Agreement, WTT shall invoice MS
for any Incentive Amount that WTT may have earned during the calendar
month. WTT shall include a statement in sufficient detail to determine
the calculation of the Incentive Amount. MS shall pay the Incentive
Amount within thirty (30) days after receipt of the applicable
invoice. WTT shall additionally provide MS with reports on a calendar
month basis detailing how prior Incentive Amounts were distributed to
WTT employees.
(b) If WTT in any calendar month fails to satisfy the Services Criteria
Goals set forth above or other service criteria set from time-to-time
by the parties, then in addition to any other rights and remedies that
MS may have, WTT shall pay [*] per Ticket sold during that calendar
month ("Penalty Amount"). Within fifteen (15) days after the end of
each calendar month during the term of the Agreement, WTT shall pay MS
any Penalty Amount that WTT may owe to MS during the calendar month
and shall include a statement in sufficient detail to determine the
calculation of the Penalty Amount. Notwithstanding the foregoing,
however, no Penalty Amount for a calendar month shall be owing to MS
if the applicable MS forecast report provided to WTT for that month,
which MS will provide to WTT at two months prior to the commencement
of that month, underestimated the actual number of Tickets to be sold
during the month by more than [*] or the average phone and email
ratios for the calendar month are greater than the phone and email
ratios set forth in part 2 of Exhibit D.
3. WTT shall provide MS with daily reports regarding WTT's performance of
the Service in accordance with the Minimum Service Criteria and the
Service Criteria Goals.
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
9
Exhibit D - Tickets/Fees/Costs
1. Definition of "Ticket": all air tickets sold on MS Travel, less voids,
based upon reports received from ADS (WTT back office accounting system). By
way of example, if during a given month there were 100 Tickets ordered, but 10
Tickets were voided, then the total of Tickets which will appear on the ADS
Report will be 90. The payment of fees shall only apply to these 90 Tickets. By
way of further example, if during a given month there are 100 Tickets issued,
but 5 of the Tickets were refunded, the total of Tickets for the month, against
which fees would be charged would be 100. The ADS Report for that month would
also show 100 Tickets even though commission was only being received on 95
Tickets. As long as refunds do not exceed 1% of Tickets in which case the
parties will discuss how the split of costs above that level.
2. Fees for Services
(a) Fees through September 30, 2001:
November 1, 1998 - June 30, 1999 [*]
July 1, 1999 - June 30, 2000
July 1, 2000 - September 30, 2001
The fees are based upon reasonable contact ratios (phone ratio of [*] (call-
backs not included) and email ratio of [*] contacts per Ticket averaged over
a calender month). Fees for Services above these levels will during the full
term of the Agreement carry a [*] per minute surcharge for the phone time
and [*] per additional email.
(b) Fees for Services after September 30, 2001 and the remaining term of the
Agreement shall not exceed [*] per Ticket and will be calculated as follows:
(i) Determination of Base Cost: "Base Cost" shall be the lesser of
--------------------------
for the period January 1, 2001 through December 31, 2001. By
the end of the first calender quarter of 2002, WTT and MS shall
determine the Base Cost.
In addition to rights under the Original Agreement, starting from
September 30, 2001 and during the remaining term of the Agreement, MS
shall have the right to audit WTT's records relating to WTT Costs and
the determination of Base Cost. The MS finance team may conduct the
audit and MS shall bear the cost of the audit. MS at that time may
determine the appropriate costs basis (e.g., fully allocated or
variable) in its sole discretion for setting the Base Cost. The same
method will be used for both the base and subsequent periods.
(ii) Fee for October 1, 2001 - June 30, 2002; Fee for July 1, 2002 - June
--------------------------------------------------------------------
30, 2003: For the period October 1, 2001 through June 30, 2002, if
--------
the average WTT Cost per Ticket (measured as the average of WTT Costs
for the calendar months March, April and May 2002) is less than the
Base Cost, MS shall determine the difference (the "Difference"), and
the new Fee shall be set as [*] of the Difference. (For example:
[*] Alternatively, if the WTT Cost
per Ticket is equal to or greater than the Base Cost, then there will
be no adjustment to the Fee. [*]
The new Fee shall apply to the Tickets sold between October 1, 2001
through June 30, 2002. A retroactive credit of the Difference times
the number of Tickets sold between
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
10
October 1, 2001 through June 30, 2002 will be paid by WTT to MS on or
before July 31, 2002.
This new Fee shall also apply to Tickets sold during the period
July 1, 2002 through June 30, 2003.
(iii) Fee for July 1, 2003 -- December 31, 2003: To determine the Fee for
-----------------------------------------
the period July 1, 2003 through December 3l, 2003, the parties shall
again perform the calculation described in the preceding paragraph
2(B)(ii) for the new period, using the same figure for Base Cost but
using the average WTT Cost per Ticket for the calendar months March,
April and May, 2003.
(iv) Notwithstanding any language in this paragraph, the parties agree
that at any time after September 30, 2001 and during the remaining
term of the Agreement, if the Fees are above the competitive market
rates, the parties shall renegotiate the Fees so that the new Fees
are competitive with the then-current market rates.
3. Costs
(a) MS shall bear the costs for the following items in connection with
the Services ("MS Costs"):
[*]
(b) WTT shall bear all traditional costs associated with providing the
Services ("WTT Costs"). Traditional costs are all costs that have been borne by
WTT and MS as of the Execution Date of the AMENDMENT NUMBER 1 except for the MS
Costs defined above.
(c) "Customer Charge-Backs" in connection with the Services is defined as
follows:
[*]
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
11
Appendix 1
Changes to MS Travel
Within sixty (60) days after the Execution Date of AMENDMENT NUMBER 1 and
each anniversary after the Effective Date thereafter, WTT shall present its
list of requested product changes to MS. MS will commit up to [*] in MS
Travel changes requested by WTT and agreed to by MS (annually approximately
[*] hours provided, however if a proposed change is strategic to the
business of MS Travel then MS shall determine, in its sole discretion,
whether to make the proposed change. MS will deliver this value through up
to [*] charges on the site and [*] feature changes on the site per year on a
schedule to be reasonably agreed upon by the parties. MS will be solely
responsible for estimating the number of hours associated with building and
implementing the MS Travel product changes and determining the appropriate
manner in which to build and implement such changes.
Microsoft
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Microsoft Confidential
12
Exhibit A-Services
------------------
WTP will provide the following travel services (the "Services"):
Service Description
------- -----------
1. Take call Answer incoming call from MS Travel
customer who has made a reservation
using MS Travel but has not completed
the reservation, or from MS Travel
customer in need of en route travel
assistance.
2. Complete reservation Obtain any additional information
required from MS Travel Customer,
including any necessary billing
information; book travel reservation
using ARC and BSP numbers assigned to MS
or to WTP (including but not limited to
those numbers assigned to WTP "Doing
Business As Microsoft"); validate
reservation and obtain confirmation from
travel supplier.
3. Issue air travel tickets Issue ARC or BSP tickets for airline
travel purchased by MS Travel customer.
4. Distribute travel documents Prepare itinerary for MS Travel customer
showing all travel reservations and
purchases; distribute and deliver to
customer with any tickets issued via
carrier pursuant to Exhibit C, Section
3.
5. Assist traveler Make any necessary changes to
reservation; facilitate exchanges,
refunds, rebookings, and cancellations
in the event of travel interruption
for any reason.
6. Perform ARC/IATA Accounting Report to ARC and/or IATA weekly (or on
a more frequent basis if required or
permitted by ARC/IATA) all ARC/IATA
transactions to enable payment of
commissions to MS; provide copies to MS.
Microsoft Confidential Page 21
7. Invoice deferred payment travel Cooperate with DESIGNATED CRS(S) to
suppliers (non-air) prepare invoices on behalf of MS to car
rental companies, hotels, and any other
travel suppliers who are paid directly
by MS Travel customer at time of travel,
using the MS-negotiated commission/event
fee.
8. Collect payments from deferred Operate a lockbox for receipt of
payment travel suppliers commissions/transaction fees from
deferred payment travel suppliers.
9. Reconcile deferred payment Reconcile commissions/transaction fees
commissions/transaction fees received from deferred payment suppliers
with reservation records.
10. Account for WTP-assigned MS Account for MS Travel reservations
Travel commissions booked using WTP ARC or BSP numbers;
include commissions/transaction fees so
earned in amounts deposited daily to the
MS bank account.
11. Account for international travel Account for international or other
"split ticketing" transactions from MS
Travel customers referred to WTP outside
the U.S. domestic airline GDS systems;
include [*] of commissions so earned in
amounts deposited daily to the MS bank
account.
12. Remit commissions/transaction Deposit daily the
fees to MS commissions/transaction fees earned for
MS Travel reservations, including the
MS portion of international travel
reservations, into the MS bank account.
13. Perform reservation quality Utilize CoRRe(TM) and/or other quality
control control systems to maintain reservation
quality standards pursuant to Exhibit C,
to obtain seat assignments, and to
provide international travel
immunization and visa requirements;
provide manual quality control at time
of ticketing for manual reservations.
14. Provide Services in Canada Contract with GTS to provide travel
services in Canada.
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Microsoft Confidential Page 22
15. Provide full accounting Prepare and submit reports to MS
pursuant to Exhibit G.
Microsoft Confidential Page 23
Exhibit B-MS Deliverables
-------------------------
1. MS will provide the following equipment to be used by WTP for the sole
purpose of providing the Services under this Agreement:
(a) Thirteen (13) PC workstations to be used at Druid Hills Facility;
(b) Two (2) network servers, one each for Druid Hills Facility and
Peachtree City Facility;
(c) Telecommunications equipment sufficient to provide connectivity to
Xxxxxxx from each Facility for access to Expedia User Management Tools; and
(d) Four (4) GB Server workstations with mirrored drives for TravelMan.
2. MS will provide the following software products to be used by WTP for the
sole purpose of providing the Services under this Agreement:
(a) Two (2) complete CD-format packages of Microsoft Windows `95, one
for each Facility;
(b) Thirty-five (35) licenses for Windows `95, to be distributed between
the two Facilities;
(c) Microsoft Internet Browser for each workstation at each facility;
(d) Microsoft Mail Client for each workstation at each facility;
(e) Access and connection to Xxxxxxx to Expedia User Management
Tools.
3. MS will provide the following services to assist WTP in providing the
Services under this Agreement:
(a) Installation and maintenance of all equipment and software described
in the preceding Sections 1 and 2 of this Exhibit B;
(b) Train-the-trainer training on each software product described in
Section 2 of this Exhibit B, and for Expedia User Management Tools.
4. In addition to the equipment, software and services provided above, MS will
pay for the following items used by WTP for the sole purpose of providing the
Services under this Agreement:
Microsoft Confidential Page 24
(a) Paper consumables and U.S. Postal Service postage (WTP will purchase
directly and back-xxxx MS on the monthly invoice submitted pursuant to Section 2
of this Agreement);
(b) Establishment and per-minute charges for the toll-free telephone
number used by MS Travel customers to reach WTP;
(c) Overnight and expedited delivery of travel documents to MS Travel
customers (MS will provide airbills to be used by WTP);
(d) QuikTix Services or similar services, provided that WTP shall provide
all back-office accounting and phone and email customer support;
(e) Credit card clearing services;
(f) Establishment and maintenance of the lockbox and bank account to be
used by WTP as described in Exhibit A.
Additional equipment and software products to be provided by MS will be mutually
agreed upon as necessary to handle volume growth.
Microsoft Confidential Page 25
Exhibit C - Service Process Requirements
----------------------------------------
WTP will provide sufficient staff to meet the following requirements and
standards:
1. With regard to MS Travel Customers
(a) [*] of calls answered in [*] seconds or less;
(b) Call backs in [*]
(c) [*] of customers "very satisfied" with service, based on surveys using
measures to be agreed upon by the parties;
(d) Written report within 30 days when research is required;
(e) Formalized escalation procedures and call scripts to be agreed upon by
the parties.
2. With regard to MS
(a) Response to requests from MS Operations Manager within [*];
(b) Sales volume and revenue amounts available on a daily basis.
3. With regard to travel document delivery
(a) Same day as flight: ETDN or E-Ticket (where applicable)
(b) 1 day before flight: ETDN or E-Ticket (where applicable)
(c) 2 days before flight: ETDN, E-Ticket, overnight service (priority
or 2 day if applicable)
(d) 3 days before flight: E-Ticket, overnight service/2 day
(e) 4-10 days before flight: E-Ticket, overnight service/2 day
(f) 10+ days before flight: E-Ticket, US Mail
These delivery schedules are subject to change pursuant to the procedures
manual to be prepared and maintained as set forth in Section 1(a) of the
Agreement.
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Microsoft Confidential Page 26
EXHIBIT D - PAYMENTS
----------------------
1. Components of WTP Compensation: MS will compensate WTP for providing the
Services, including those set forth in Exhibit A based on the following
components: (a) Retail Event Fees; (b) One Time Implementation Fee; and (c)
Fixed Cost Protection Amounts. Each of these components is subject to all
conditions and restrictions as set forth in this Agreement and in this
Exhibit D.
2. Definitions
(a) "TA/CSR" means a WTP travel agent or customer service representative.
(b) "CRS" means a commercial computer reservation service, such as
Worldspan, Sabre, or Apollo/Galileo.
(c) "NP" means a non participating CRS airline, hotel, or car rental
company.
(d) "Event" means any activity where WTP receives compensation from MS due
to back office processing and/or TA/CSR time.
(e) "Event Class" means a group of one or more Events that incur similar
back office processing costs.
(f) "Event Cost" means a back office processing cost for an Event.
(g) "TA/CSR Cost" means a back office cost for the number of minutes of
TA/CSR time necessary for any Event.
(h) "Management Fee" means an additional compensation payable at [*] of the
Event Costs and TA/CSR Costs. This Management Fee is already included
in the amounts listed in the Retail Event Matrix set forth in
Attachment 1.
(i) "Event Class Fee" means the Event Costs plus the applicable Management
Fee for an Event Class.
(j) "TA/CSR Fee" means the TA/CSR Costs plus the applicable Management Fee.
(k) "Retail Event Fee" means the total compensation payable per Event,
which includes the Event Costs, TA/CSR Costs and the Management Fee.
(l) "Event Class A" means Events for Air Tickets, PNR rejected, and
Traditional TA events (manual bookings made with CRS participating
suppliers).
(m) "Event Class B" means Events for airline: lost tickets, exchange
tickets, void tickets, refund tickets, and debit memos.
(n) "Event Class C" means Events for hotel and/or car reservations that
require documentation.
(o) "Event Class D" means an Event for a manual booking made for a NP
travel agent airline ticket.
(p) "Event Class E" means an Event for a manual booking made for a NP hotel
or car company, a NP Etix air ticket, or a NP ticket-less air booking.
(q) "Event Class F" means an Event for travel supplier commission
collection.
(r) "Event Class G" means an Event for quality control of a hotel or car
reservation.
(s) "Event Class H" means an Event for the handling and responding of
customer service email inquiries through email.
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Microsoft Confidential Page 27
(t) "Air Tickets" means an Event for bookings for air travel process
electronically through the MS automated reservation system without
intervention of a TA/CSR. Costs cover printing, ticket packaging,
accounting and reporting ("back office functions").
(u) "PNR Rejected" means an Event for a rejection by the CRS after the
electronic booking has been made, due to airline schedule change(s).
The TA/CSR will correct the booking and communicate the correction to
the traveler via phone. Costs cover TA/CSR minutes and all back office
functions.
(v) "Lost Tickets" means an Event for processing a lost airline ticket
application, including TA/CSR minutes and all back office functions.
(w) "Exchange Tickets" means an Event for processing a new air ticket in
exchange for a previously issued ticket. Costs cover TA/CSR minutes and
all back office functions.
(x) "Void Tickets" means an Event for voiding an air ticket which was
issued but not delivered. Costs cover TA/CSR minutes and all back
office functions.
(y) "Refund Tickets" means an Event for voiding an air ticket which was
issued and delivered. Costs cover TA/CSR minutes and all back office
functions.
(z) "Debit Memo" means an Event for processing an airline debit memo,
resulting from incorrect pricing from either the electronic reservation
system or the CRS. Costs include all back office functions.
(aa) "Hotel Change/Cancel" means an Event for processing changes or
cancellations to hotel reservations. Costs include TA/CSR minutes and
all back office functions.
(bb) "Car Change/Cancel" means an Event for processing changes or
cancellations to car reservations. Costs include TA/CSR minutes and all
back office functions.
3 Retail Event Fees.
WTP will reduce the Retail Event Fees in the event that event
thresholds are reached during the term of this Agreement. For purposes of this
calculation, the first year will begin on the announced launch date for the MS
Travel Service and will include events accumulated during "Alpha" and "Beta"
test periods preceding such launch date. The reduced Retail Event Fees will take
effect at the date the threshold is met. Retail Event Fees are set forth on
Attachment 1.
Events and costs per event shall be added to Attachment 1 as agreed to
by the parties.
4. One-Time Implementation Fee. In addition to the Retail Event Fees payable
pursuant to the preceding sections, MS will pay WTP a one-time
implementation fee of [*] pursuant to Section 2(b) upon execution of this
Agreement. In the event the MS Travel Event count volume reaches [*] during
the first full year following launch of the MS Travel Service (the Event
count to also include the Alpha and Beta test periods prior to such launch),
WTP will reimburse [*] in the first month following the end of the first
full year following launch of the MS Travel Service.
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Microsoft Confidential Page 28
5. Fixed Cost Protection Amounts. In the event the total Retail Event Fees
payable to WTP pursuant to the Retail Event Fee Matrix in Section 3 of this
Exhibit D during each of the following Service Periods do not exceed the
Fixed Cost Protection Amounts corresponding to that Service Period, MS will
relinquish to WTP the difference by which the Fixed Cost Protection Amounts
as listed below exceed such fees payable. Payment and reconciliation shall
work as follows: "Alpha" and "Beta" amounts will be paid by MS to WTP
pursuant to Section 2(b) upon execution of this Agreement. Should total
Retail Event Fees exceed the Fixed Cost Protection Amounts corresponding to
that Service Period, MS will deduct the Fixed Cost Protection Amount from
the monthly compensation payable to WTP after such event occurs pursuant to
Section 2 of this Agreement titled "Payments". In the event that total
Retail Event Fees do not exceed the Fixed Cost Protection Amounts
corresponding to that Service Period, WTP shall retain the portion of the
Fixed Cost Protection Amount which represents the difference between the
Fixed Cost Protection Amount and the total Retail Event Fees for such
Service Period, and shall reimburse MS the remainder of the Fixed Cost
Protection Amount (which remainder should equal the total Retail Event Fees
for such Service Period). Payments under Section 5 of this Exhibit D are
not affected by, nor do they affect, compensation payable to WTP under this
Exhibit D other than Retail Event Fees, or any other payment described in
this Agreement or its Exhibits.
Service Period Fixed Cost Protection Amount
"Alpha" Test as designated by MS [*]
"Beta" Test as designated by MS
6. Credits: Any payments due WTP pursuant to this Exhibit D may be reduced by
the amount of any payment then due MS from WTP as provided in this
Agreement or any Exhibit hereto.
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Microsoft Confidential Page 29
Attachment 1 to Exhibit D - Payments
A. Event Class Fees and TA/CSR Fees to be used to calculate Retail Event Fees:
[*]
B. Agreed-Upon Retail Event Fees for Specified Events. For each such specified
Event, the Retail Event Fees shall be as indicated irrespective of actual back
office processing costs or TA/CSR minutes for any such event.
Retail Event Fees
[*]
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Microsoft Confidential Page 30
Exhibit E - MS Policies
-----------------------
Introduction
The following code of conduct is not a contract. It is intended solely to
provide general guidance to vendors and their representatives to assist them in
functioning smoothly and efficiently while performing work for Microsoft.
Microsoft is committed to promoting a positive work environment. We expect our
vendors and their employees, agents, and subcontractors (collectively,
"representatives") to adhere to the same standards of conduct and behavior that
we expect from our own employees while you and your representatives are on
Microsoft property or doing business with Microsoft.
The information outlined below is important and should be read carefully. All
third party vendors will be required to educate and, when appropriate, train
their representatives to ensure they are aware of Microsoft's expectations
regarding their behavior and the consequences of any breaches of Microsoft
policies.
The policies summarized below are non-exhaustive, and there may be other conduct
not specifically listed that would be unacceptable. Microsoft expects that
vendors and their representatives will conduct themselves in a professional
manner at all times while on Microsoft property or while doing business with
Microsoft. Microsoft may require the immediate removal of any vendor
representative who behaves in a manner that is unlawful or inconsistent with any
Microsoft policy, or that is otherwise deemed harmful to Microsoft's business.
E-mail
Electronic mail, or e-mail, provides an easy-to-use, efficient means of
communicating. The following guidelines for preparing and sending e-mail are
designed to ensure that each vendor and its representatives use the e-mail
system in an appropriate manner.
E-mail may not be used as a forum for political, religious, or other debates, or
as a form of entertainment (for example, chain letters). Use of e-mail must be
limited to Microsoft business. All e-mail group aliases (a pre-defined group of
users) must be for Microsoft business.
To informally exchange information over the computer on a variety of topics, use
the Microsoft Bulletin Board system.
Microsoft e-mail names are confidential. Do not give e-mail names to anyone
outside of Microsoft. Do not share your password with anyone, attempt to gain
access to anyone else's e-mail account, or use another's email account without
permission.
Microsoft Confidential Page 31
Microsoft prohibits obscene, profane, or otherwise offensive material from being
broadcast across the Microsoft network.
Non-solicitation Policy
Microsoft wants to provide a work environment that allows all employees, and all
vendors and their representatives to complete their tasks with the least amount
of disruption. Accordingly, vendors, their representatives, and any other non-
Microsoft employees are not allowed (while on Microsoft property or while using
Microsoft owned equipment) to engage in solicitation or distribution of
literature. This policy prohibits soliciting or handing out materials for any
purpose.
WTP Access to Information and Property
E-mail and its contents, as well as any other data stored on or transmitted by
Microsoft-owned equipment, is the property of Microsoft and may be accessed by
Microsoft at any time. Accordingly, the content of e-mail, voice mail, and
similar data should not be regarded as protected by any personal right of
privacy.
Additionally, in order to evaluate and improve customer service, Microsoft may
monitor, as necessary, the telephone calls of vendors and their representatives
who work in customer service positions.
Any facilities or equipment, including but not limited to offices, desks,
computers, electronic media, motor vehicles, or lockers used by vendors and
their representatives while on Microsoft property or while conducting Microsoft
related business, may be assessed by Microsoft as needed. Accordingly, you
should not consider protected by any personal right of privacy anything brought
onto or stored on Microsoft property stored on Microsoft equipment, or used
while working on Microsoft related business. Any Microsoft property used by
vendors and their representatives while performing Microsoft related business
remains the property of Microsoft.
Gifts
Microsoft employees cannot accept payments of any amount or gifts or favors
valued in excess of $100 from persons or firms with which we have business
dealings, unless prior approval is obtained from a vice president or more senior
company official. Accordingly, you and your representatives should refrain from
giving to Microsoft employees gifts with a value of more than $100.
Xxxxxxx Xxxxxxx
All Microsoft employees, agency temporaries, independent contractors, and vendor
representatives are considered "insiders" for the purposes of state or federal
securities
Microsoft Confidential Page 32
laws that prohibit xxxxxxx xxxxxxx. As an insider, no vendor nor vendor
representative may buy or sell Microsoft's or another company's stock when in
possession of information about Microsoft or another company that is not
available to the investing public and that could influence an investor's
decision to buy stock.
New insider-trading laws carry stiff penalties, and the Securities and Exchange
Commission (SEC) has a mandate to enforce these laws aggressively. Because of
Microsoft's visibility and the volatility of our stock, Microsoft is carefully
watched by the SEC. The company can be negatively affected by xxxxxxx xxxxxxx
and may terminate the services of, or refuse to do further business with, anyone
found to have engaged in illegal xxxxxxx xxxxxxx.
Proper Use of Software
The unauthorized duplication and use of software and/or documentation by
Microsoft vendors or contractors is a violation of the copyright laws of the
United States and all the other countries in which Microsoft Corporation and its
subsidiaries maintain offices. This applies equally to Microsoft software,
whether a Beta or a final version, and to non-Microsoft software. Violation of
copyright laws can subject vendors and Microsoft to liability for significant
civil and criminal penalties. In addition, Microsoft devotes considerable
resources around the world to educate software users about their obligation to
use and manage software properly. In order for this effort to be effective and
benefit the software industry, Microsoft must lead by example.
The following practices, unless granted by a specific license, are among those
prohibited by this policy:
Making additional copies of third-party software products for your use on
other computers.
Making copies of software (third-party or Microsoft) for friends or
associates.
Distributing software over a network.
Providing copies of software to bulletin board services
Helpdesk maintains a list of software products that have been licensed to
Microsoft for network use or on a site-license basis. Each department that
acquires third-party software is responsible for retaining proof of proper
licensing of that software, such as end user license agreements, original disks
and manuals, and receipts. If you have questions regarding the terms of any
third-party license agreement, contact Law and Corporate Affairs.
Failure to follow this policy can result in action against the vendor and its
representative, including termination of the vendor representative's services
and/or termination of Microsoft's contract with the vendor.
Confidentiality
Microsoft Confidential Page 33
All information supplied by Microsoft to vendors and their representatives
should be regarded as confidential unless otherwise notified. Vendors and their
representatives are not authorized to speak to the press on Microsoft's behalf,
unless expressly authorized to do so by Microsoft's Public Relations group.
Prior to performing any work for Microsoft, all vendors will be required to sign
a contract that includes a nondisclosure agreement.
Vendor Standards
Microsoft expects its chosen vendors to operate in the best interest of the
company at all times. It is expected that all equipment, manpower & services
will be provided at the highest quality level while maintaining flexibility and
cost effectiveness.
It is the responsibility of the vendor to inform its Microsoft contact (or a
member of Microsoft management) when situations develop that require the vendor
to operate in direct violation of the guidelines set forth in this document.
Additionally, in the event a Microsoft employee has a relationship (spouse or
other family relation, friend, domestic partner, etc.) with a vendor that might
create a conflict of interest or the appearance of a conflict of interest,
Microsoft senior management approval is required prior to contracting for the
services of said vendor.
Microsoft Confidential Page 34
Exhibit F - WTP Deliverables
----------------------------
In addition to the Services to be provided by WTP pursuant to Section 1 and
Exhibit A of this Agreement, WTP shall provide the following:
1. Establishment and maintenance of CRS equipment and connectivity to the
Peachtree Facility;
2. IVR phone prompting and reporting (MS reserves the right to assume this
responsibility), including call overflow capabilities to auxiliary facilities;
3. General ledger/back office accounting system sufficient to provide reports as
set forth in Exhibit G and otherwise to provide the Services as set forth in
this Agreement;
4. A copy of travel agency management reporting software used to provide reports
specified in Exhibit G, to be provided to MS, as well as access to the Travel
Agency Management Reporting Software;
5. Storage of agent coupons, voids, ARC sales reports, agent sales summaries,
settlement authorization forms, and other necessary forms;
6. Risk assessment services for international travel;
7. Development of CoRRe to support email capability per TTG development
specifications.
8. CRS scripts to increase agent productivity.
9. Equipment to dynamically change IVR recording and equipment to play "hold"
advertising.
Microsoft Confidential Page 35
Exhibit G - WTP Reporting Requirements
--------------------------------------
See Attached
Microsoft Confidential
Page 36
Prepared by World Travel Partners 9/10/9? Page 1
11/30/96
Telephone Performance Report
[*]
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
MS Xxxx Xxxx 1
STATEMENT SAMPLE
--------------------------------------------------------------------------------
WORLDTRAVEL PARTNER
Online Fulfillment Services
--------------------------------------------------------------------------------
Microsoft Corporation MS SKU # .....
One Microsoft Way Invoice Date: 9-Nov-96
Xxxxxxx XX 00000-0000 Billing Period Oct-96
Attn: Xxxxxx Xxxxxxxx
[*]
-----------------------------------------------------
Make Check Payable to: WorldTravel Partners
0 Xxxx Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Attn: Accounting
-----------------------------------------------------
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
WORLDTRAVEL PARTNER
Online Fulfillment Services
Transaction Detail Report
November O1- November 30, 1996
Back Office Events
------------------
[*]
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Page 1
WORLDTRAVEL PARTNER
Online Fulfillment Services
Transaction Detail Report
November O1- November 30, 1996
Online Support Services
-----------------------
[*]
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
Page 1
XYZ Company HI-XXXX
PERIOD 1: 10/1/94 TO 12/31/94 PERIOD 2: 1/1/94 TO 12/31/94 Executive Summary TRAVEL SYSTEMS
[*]
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
XYZ Company
Top Five Air/Car/Hotel
[*]
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
XYZ Company
Department Summary
12/1/94 TO 12/31/94
[CHART APPEARS HERE]
=========================================================================================
DEPT FULL FARE LOW FARE FARE PAID FARE AVOID FARE OVER
=========================================================================================
0012 Administration $ 36,568 $ 17,744 $ 18,176 $ 18,392 $ 432
0055 Facilities Management $ 5,903 $ 2,494 $ 2,494 $ 3,409 $ 0
0060 Plan $ 27,166 $ 14,113 $ 17,139 $ 10,027 $ 3,026
0082 Sales $252,903 $126,600 $133,785 $119,118 $ 7,185
0084 Service $ 82,500 $ 30,319 $ 31,355 $ 51,145 $ 1,036
0091 Maintenance $ 23,620 $ 11,237 $ 12,050 $ 11,570 $ 813
0092 Planning & Design $114,141 $ 64,351 $ 67,023 $ 47,118 $ 2,672
0095 Finance $ 34,799 $ 18,106 $ 18,187 $ 16,612 $ 81
=========================================================================================
Company Total $577,599 $284,964 $300,208 $277,390 $15,245
[LOGO OF HI-XXXX TRAVEL SYSTEMS APPEARS HERE]
Produced by Travel Man for Windows - 0-000-000-0000
XYZ Company
Dollars Spent by Month
1/1/94 TO 12/31/94
[CHART APPEARS HERE]
--------------------------------------------------------------------------------------------------
MONTH NAME TICKET PRICE TICKET COUNT AVERAGE TICKET % TO TOTAL # TKTS % TO TOTAL
--------------------------------------------------------------------------------------------------
Jan $42,853.58 77 $556.54 10.5% 9.5%
Feb $19,892.00 53 $375.32 4.9% 6.5%
Mar $41,189.18 89 $462.80 10.1% 10.9%
Apr $37,202.73 83 $448.23 9.1% 10.2%
May $40,440.44 78 $518.47 9.9% 9.6%
Jun $26,311.17 63 $417.64 6.5% 7.7%
Jul $26,336.31 51 $516.40 6.5% 6.3%
Aug $35,414.48 63 $562.13 8.7% 7.7%
Sep $40,007.89 69 $579.82 9.8% 8.5%
Oct $36,071.51 79 $456.60 8.9% 9.7%
Nov $27,953.86 52 $537.57 6.9% 6.4%
Dec $33,809.89 57 $593.16 8.3% 7.0%
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
TOTALS: $407,483.04 814 $500.59 100.0% 100.0%
--------------------------------------------------------------------------------------------------
[LOGO OF HI-XXXX TRAVEL SYSTEMS APPEARS HERE]
Produced by Travel Man for Windows - 0-000-000-0000
ABC COMPANY
HI-XXXX TRAVEL SYSTEMS
TOP 100 CITY PAIRS
01/01/94 TO 09/30/94
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
XXXX XXXXXX XXXXXXXX XX XXXXXXXX XX MKT DL TOTAL TOTAL SEG
CITY SEGMENTS SEGMENTS SHARE DOLLARS VALUE
============================================================================================
1 ATL-RDU 513 431 84.0% 64,288.63 74,223.24
2 CLT-RDU 259 0.0% 18,540.03
3 DFW-RDU 230 62 27.0% $ 4,225.42 37,020.04
4 PHL-RDU 155 0.0% 18,270.12
5 ORD-RDU 97 0.0% 19,946.44
6 CLT-GSP 94 0.0% $ 7,144.50
7 BOS-RDU 89 0.0% 15,677.99
8 PIT-RDU 88 0.0% $ 7,482.75
9 DCA-RDU 76 0.0% $ 6,305.53
10 XXX-XXX 00 00 60.9% $ 3,874.83 $ 7,354.78
11 CVG-RDU 67 67 100.0% $ 8,094.41 $ 8,094.41
00 XXX-XXX 00 0.0% $ 9,737.18
13 CHA-CLT 64 0.0% $ 6,739.16
14 BWI-RDU 59 0.0% $ 6,683.04
15 ATL-CHA 57 53 93.0% $ 5,323.65 $ 5,323.65
00 XXX-XXX 00 0.0% $ 2,948.17
00 XXX-XXX 00 0.0% $ 5,055.40
18 ATL-DHN 44 44 100.0% $ 7,797.28 $ 7,797.28
19 ATL-GSO 43 4 9.3% $ 0.00 $ 2,120.08
20 EYW-MIA 39 0.0% $ 2,038.22
00 XXX-XXX 00 0.0% $ 6,485.45
22 XXX-XXX 00 0 17.6% $ 1,459.08 $ 6,800.85
23 MDT-RDU 31 0.0% $ 5,520.06
24 GSP-RDU 30 0.0% $ 3,870.82
00 XXX-XXX 00 0.0% $ 4,347.54
00 XXX-XXX 00 0.0% $ 5,419.54
27 XXX-XXX 00 00 100.0% $ 5,559.00 $ 5,559.00
28 ATL-GSP 27 27 100.0% $ 4,121.78 $ 4,121.78
29 LHR-PLH 26 0.0% $ 2,476.80
30 XXX-XXX 00 0 23.1% $ 1,890.00 $ 5,559.13
31 BWI-MDT 26 0.0% $ 1,920.00
32 ATL-LAS 26 26 100.0% $ 0.00 $ 0.00
00 XXX-XXX 00 0.0% $ 2,754.51
34 MDT-PHL 22 0.0% $ 242.73
35 XXX-XXX 00 0 9.5% $ 370.92 $ 3,154.54
00 XXX-XXX 00 0.0% $ 2,071.79
37 CVG-TOL 20 20 100.0% $ 1,291.84 $ 1,291.84
38 ORD-SJC 20 0.0% $ 3,192.73
00 XXX-XXX 00 0.0% $ 3,612.70
40 PHL-YYZ 18 0.0% $ 1,679.00
41 CLT-DTW 17 0.0% $ 1,106.36
============================================================================================
HI-XXXX TRAVEL SYSTEMS AIR TRAVEL REPORT 07/01/94 TO 09/30/94
DEPT: 0081 7 of 57
ISSUE DEPART FARE REGULAR LOWEST
INVOICE# DATE A/P DATE ORIGIN DESTINATION FLIGHT BASIS FARE FARE
---------------------------------------------------------------------------------------------------------------------------
SIRUR/PRAKASH
---------------------------------------------------------------------------------------------------------------------------
SIRUR/PRAKASH 3 Transaction(s) Average Advance Purchase Days = 1.33 4,022.46 2,783.46
---------------------------------------------------------------------------------------------------------------------------
XXXXXXXX/XXXXXX G JR
097036 30-Sep 3 03-Oct RALEIGH/DURHAM ORLANDO, FL AA 1049 H265PL 1,124.00 470.00
ORLANDO, FL MELBOURNE, FL 0
04-Oct MELBOURNE, FL ATLANTA, GA DL 970 HSP6
04-Oct ATLANTA, GA XXXXXXX/XXXXXX XX 000 XXX0
000000 19-Aug 9 28-Aug XXXXXXX/XXXXXX XXXXXXXXXX, XX XX 000 X/X0000 3,414.15 1,338.15
28-Aug CINCINNATI, OH FRANKFURT DL 48 C/C6972
03-Sep FRANKFURT CINCINNATI, OH DL 49 C/C6972
03-Sep CINCINNATI, OH RALEIGH/XXXXXX XX 1731 C/C6972
---------------------------------------------------------------------------------------------------------------------------
XXXXXXXX/XXXXXX G JR 2 Transaction(s) Average Advance Purchase Days = 6.00 4,538.15 1,808.15
---------------------------------------------------------------------------------------------------------------------------
XXXXX/WILLY
096632 22-Sep 4 26-Sep XXXXXXX/XXXXXX XXXXXXXXXX, X XX 0000 X00XXX 803.00 218.00
28-Sep GREENVILLE, S RALEIGH/DURHAM AA 3276 V26SPL
---------------------------------------------------------------------------------------------------------------------------
XXXXX/XXXXX 1 Transaction(s) Average Advance Purchase Days = 4.00 803.00 218.00
---------------------------------------------------------------------------------------------------------------------------
0081 12 Transaction(s) Average Advance Purchase Days = 4.00 16,071.61 8,065.61
---------------------------------------------------------------------------------------------------------------------------
ISSUE FARE FARE FARE
INVOICE# DATE A/P PAID AVOIDANCE COVERAGE CD
-----------------------------------------------------------------
SIRUR/PRAKASH
-----------------------------------------------------------------
SIRUR/PRAKASH 2,783.46 1,239.00 0.00
-----------------------------------------------------------------
XXXXXXXX/XXXXXX G JR
097036 30-Sep 3 470.00 654.00 0.00 B
094627 19-Aug 9 3,414.15 0.00 2,076.00 B
-----------------------------------------------------------------
XXXXXXXX/XXXXXX G JR 3,884.15 654.00 2,076.00 B
-----------------------------------------------------------------
XXXXX/WILLY
096632 22-Sep 4 218.00 585.00 0.00 B
-----------------------------------------------------------------
XXXXX/XXXXX 218.00 585.00 0.00
-----------------------------------------------------------------
0081 10,721.61 5,350.00 2,656.00
-----------------------------------------------------------------
Exhibit H - Rules for Use of Microsoft Name
-------------------------------------------
WTP's use of Microsoft's name pursuant to the provisions of Section 3(a) of
the Agreement is further conditioned upon the following restrictions:
(1) Restricted Use of Xxxx. WTP is not entitled to use the name
----------------------
"Microsoft" on, without limitation, signage, letterhead, business cards, in
advertising, telephone directory listings, invoices or on any other materials
connected to WTP's business and business practices, except for those materials
designed and approved by MS. WTP is not entitled either by implication or
otherwise to any title in the MS trademarks, service marks, trade names, logos
or symbols. WTP agrees to comply with guidelines for use of the name "Microsoft"
as may be prescribed by MS from time to time. WTP agrees not to form a company,
commercial organization, firm or legal entity with a name incorporating as part
of its name the word "Microsoft" or any similar word and not to apply for any
registration of or to claim any rights in the word "Microsoft" or any similar
word as a trade name, trademark or service xxxx.
(2) Quality Requirements. WTP agrees that use of Microsoft's name for
--------------------
answering incoming telephone calls from, making outbound callbacks to, and
providing travel documents to MS Travel customers pursuant to providing
Services, as permitted under the Agreement will be at the same level of quality
previously established by and as prescribed from time to time by MS and will be
at least commensurate with industry standards.
(3) Reservation of Rights. All rights not expressly granted are reserved
---------------------
by Microsoft.
(4) No Prejudice of Rights. WTP agrees not to take any action or fail to
----------------------
take action which would prejudice the rights of MS in the name "Microsoft" or
any other trademark, service xxxx, logo, trade name or symbol of Microsoft
Corporation.
(5) Protection of Trademarks, Service Marks, Logos and Trade Names. WTP
--------------------------------------------------------------
agrees to report to MS, as soon as possible after it comes to WTP's notice, any
suspected infringement or disparaging use of the "Microsoft" trade name or any
trade name, trademark, service xxxx, logo, or symbol owned by MS.
(6) Misuse. This Agreement may be terminated immediately if WTP misuses
------
(including, but not limited to, infringement, disparagement and dilution) the
name Microsoft or any other trademark, service xxxx, logo, trade name or symbol
of MS.
(7) No Further Conveyances. WTP shall not assign, transfer or sublicense
----------------------
the rights granted in the Agreement or this Exhibit H (or any right granted
herein) in any manner, except as specifically provided in this Agreement.
Microsoft Confidential Page 37
Exhibit I - Non-Disclosure Agreement Between the Parties
--------------------------------------------------------
See Attached
Microsoft Confidential Page 38
MICROSOFT CORPORATION STANDARD NON-DISCLOSURE AGREEMENT
This AGREEMENT (the "Agreement") is between MICROSOFT CORPORATION, a
Washington corporation ("MS"), and WORLD TRAVEL PARTNERS ("COMPANY") and entered
into this 8/th/ day of Jan 1996
In consideration of the mutual promises and covenants contained in this
Agreement, MS disclosure of confidential information to COMPANY, and any
payments made or to be made by MS or COMPANY, the parties hereto agree as
follows:
1. Confidential Information and Confidential Materials
---------------------------------------------------
(a) "Confidential Information" means nonpublic information that MS
designates as being confidential or which, under the circumstances surrounding
disclosure, ought to be treated as confidential "Confidential Information"
includes, without limitation, information relating to released or unreleased MS
software or hardware products, the marketing or promotion of any MS product, MS
business policies or practices, and information received from others that MS is
obligated to treat as confidential. Confidential Information disclosed to
COMPANY by any MS Subsidiary and/or agents is covered by this Agreement.
(b) Confidential Information shall not include any information that: (i)
is or subsequently becomes publicly available without COMPANY's breach of any
obligation owed MS: (ii) became known to COMPANY prior to MS disclosure of such
information to COMPANY: (iii) became known to COMPANY from a source other than
MS other than by the breach of an obligation of confidentiality owed to MS: or
(iv) is independently developed by COMPANY.
(c) "Confidential Materials" shall mean all tangible materials containing
Confidential Information, including without limitation written or printed
documents and computer disks or tapes, whether machine or user readable.
2. Restrictions
------------
(a) COMPANY shall not disclose any Confidential Information to third
parties for five (5) years following the date of its disclosure by MS to
COMPANY, except to COMPANY's consultants as provided below. However, COMPANY may
disclose Confidential Information in accordance with judicial or other
governmental order, provided COMPANY shall give MS reasonable notice prior to
such disclosure and shall comply with any applicable protective order or
equivalent.
(b) COMPANY shall take reasonable security precautions, at least as great
as the precautions it takes to protect its own confidential information, to
keep confidential the Confidential Information, COMPANY may disclose
confidential information or Confidential Materials only to COMPANY's employees
or consultants on a need-to-know basis. COMPANY shall execute appropriate
written agreements with its employees and consultants sufficient to enable it to
comply with all the provisions of this Agreement.
(c) Confidential Information and Confidential Materials may be disclosed,
reproduced, summarized or distributed only in pursuance of COMPANY's business
relationship with MS, and only as otherwise provided hereunder, COMPANY agrees
to segregate all such Confidential Materials form the confidential materials of
others in order to prevent commingling.
(d) COMPANY may not reverse engineer, decompile or disassemble any
software disclosed to COMPANY.
3. Rights and Remedies
-------------------
(a) COMPANY shall notify MS immediately upon discovery of any unauthorized
use or disclosure of Confidential Information and/or Confidential Materials, or
any other breach of this Agreement by COMPANY, and will cooperate with MS in
every reasonable way to help MS regain possession of the Confidential
Information and/or Confidential Materials and prevent its further unauthorized
use.
(b) COMPANY shall return all originals, copies, reproductions and
summaries of Confidential Information and Confidential Materials at MS request
or, at MS option, certify destruction of the same.
(c) COMPANY acknowledges that monetary damages may not be a sufficient
remedy for unauthorized disclosure of Confidential Information and that MS shall
be entitled, without waiving any other rights or remedies, to such injunctive or
equitable relief as may be deemed proper by a court of competent jurisdiction.
(d) MS may visit COMPANY's premises, with reasonable prior notice and
during normal business hours, to review COMPANY's compliance with the terms of
this Agreement.
4. Miscellaneous
-------------
(a) All Confidential Information and Confidential Materials are and shall
remain the property of MS. By disclosing information to COMPANY, MS does not
grant any express or implied right to COMPANY to or under MS patents,
copyrights, trademarks, or trade secret information.
(b) If MS provides pre-release software as Confidential Information or
Confidential Materials under this Agreement, such pre-release software is
provided "as is" without warranty of any kind. COMPANY agrees that neither MS
nor its suppliers shall be liable for any damages whatsoever relating to
COMPANY's use of such pre-release software.
(c) Any software and documentation provided under this Agreement is
provided to COMPANY with RESTRICTED RIGHTS. Use, duplication, or disclosure by
the Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS
252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software
- Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is
Micrsoft Corporation, Xxx Xxxxxxxxx Xxx, Xxxxxxx, XX 00000-0000.
(d) COMPANY agrees that it does not intend nor will it, directly or
indirectly, export or re-export (i) any Confidential Information or Materials or
(ii) any product (or any part thereof), process, or service that is the direct
product of the Confidential Information or Materials (A) to any country that is
subject to U.S. export restrictions (currently including, but not necessarily
limited to, Cuba, the Federal Republic of Yugoslavia (Serbia and Montenegro),
Iran, Iraq, Libya; North Korea, and Syria), or to any national of any such
country, wherever located, who intends to transmit or transport the products
back to such country; (B) to any end-user who COMPANY knows or has reason to
know will utilize them in the design, development or production of nuclear,
chemical or biological weapons; or (C) to any end-user who has been prohibited
form participating in U.S. export transactions by any federal agency of the U.S.
government.
(e) This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof and merges all prior discussions
between them as Confidential Information. It shall not be modified except by a
written agreement dated subsequent to the date of this Agreement and signed by
both parties. None of the previous of this Agreement shall be deemed to have
been waived by any act or sequiesence on the part of MS, its agents, or
employees, but only by an instrument in writing signed by an authorized officer
of MS. No waiver of any provision of this Agreement shall constitute a waiver of
any other provision(s) or of the same provision on another occasion.
(f) If either MS or COMPANY employs attorneys to enforce any rights
arising out of or relating to this Agreement, the prevailing party shall be
entitled to recover reasonable attorney's fees. This Agreement shall be
construed and controlled by the laws of the State of Washington, and COMPANY
further consents to jurisdiction by the state and federal courts sitting in the
State of Washington. Process may be served on either party by U.S. Mail, postage
prepaid, certified or registered, return receipt requested, or by such other
method as is authorized by the Washington Long Arm Statute.
(g) Subject to the limitations set forth in this Agreement, this Agreement
will inure to the benefit of and be binding upon the parties, their successors
and assigns.
(h) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the remaining
provisions shall remain in full force and effect.
(i) All obligations created by this Agreement shall survive change or
termination of the parties' business relationship.
5. Suggestions and Feedback
------------------------
MS may from time to time request suggestions, feedback or other information form
COMPANY concerning Confidential Information or on released or unreleased MS
software or hardware. Any suggestions, feedback or other disclosurer made by
COMPANY are and shall be entirely voluntary on COMPANY's part and shall not
create any obligations on the part of MS or a confidential relationship between
COMPANY and MS. MS shall be free to disclose and use COMPANY's suggestions,
feedback, or other information as MS sees fit, entirely without obligations of
any kind to COMPANY.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
COMPANY: WORLD TRAVEL
---------------------
Address: 1055 L5 Nox Park 8
---------------------
ATLANTA GA
---------------------
By: /s/ Xxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxxxxx
------------------------
Title: SR.VP
-----------------------
Date: 1/8/96
------------------------
MICROSOFT CORPORATION
By: /s/ Xxxxxx Xxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxx
------------------------
Title: Operations Manager
-----------------------
Date: 1/8/96
------------------------
MS Contact:__________________
Exhibit J - Certificate of Insurance
------------------------------------
See Attached
Microsoft Confidential Page 39
--------------------------------------------------------------------------------
XXXXX (TM) CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YY)
9/06/96
------------------------------------------------------
PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Xxxxxxxx Xxxxx of Ga., Inc. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
Suite 500, South Tower HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
0000 Xxxxxxxxx Xx. XX ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW
Xxxxxxx, Xxxxxxx 00000-0000 ------------------------------------------------------
000-000-0000 COMPANIES AFFORDING COVERAGE
COMPANY
A Connecticut Indemnity Company
INSURED
WorldTravel Partners, L.P. COMPANY
Att: Xxxxxx Xxxxxxx B
0000 Xxxxx Xxxx Xxxx Xxx 000
Xxxxxxx XX 00000 COMPANY
C
COMPANY
D
--------------------------------------------------------------------------------
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN
ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED.
NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER
DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY
PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT
TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN
MAY HAVE BEEN REDUCED BY PAID CLAIMS.
CO TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION LIMITS
LTR DATE (MM/DD/YY) DATE (MM/DD/YY)
-----------------------------------------------------------------------------------------------------------------------------
GENERAL LIABILITY GENERAL AGGREGATE S
COMMERCIAL GENERAL LIABILITY PRODUCTS - COMP/OP AGG S
CLAIMS MADE OCCUR PERSONAL & ADV INJURY S
OWNER'S & CONTRACTORS PROT EACH OCCURRENCE S
FIRE DAMAGE (Any one fire) S
MED EXP (Any one person) S
------------------------------------------------------------------------------------------------------------------------------
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT S
ANY AUTO
ALL OWNED AUTOS BODILY INJURY S
SCHEDULED AUTOS (Per person)
HIRED AUTOS BODILY INJURY S
(Per accident)
NON-OWNED AUTOS
PROPERTY DAMAGE S
------------------------------------------------------------------------------------------------------------------------------
GARAGE LIABILITY AUTO ONLY-EA ACCIDENT S
ANY AUTO OTHER THAN AUTO ONLY:
EACH ACCIDENT S
AGGREGATE S
------------------------------------------------------------------------------------------------------------------------------
EXCESS LIABILITY EACH OCCURRENCE S
UMBRELLA FORM AGGREGATE S
OTHER THAN UMBRELLA FORM
------------------------------------------------------------------------------------------------------------------------------
WORKERS COMPENSATION AND WC STATU- OTH-
EMPLOYERS' LIABILITY TORY LIMITS ER
EL EACH ACCIDENT S
THE PROPRIETOR/ INCL EL DISEASE POLICY LIMIT S
PARTNERS/EXECUTIVE
OFFICERS ARE: EXCL EL DISEASE -EA EMPLOYEE S
------------------------------------------------------------------------------------------------------------------------------
OTHER TA107051 5/01/96 5/01/97
TRAVEL AGENTS $5,000,000 PER
ERROR & OMISSIONS OCCURRENCE
------------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS
------------------------------------------------------------------------------------------------------------------------------
CERTIFICATE HOLDER CANCELLATION
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
MICROSOFT CORPORATION THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR
0 XXXXXXXXX XXX TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED
XXXXXXX, XX 00000-0000 TO THE LEFT, BUT FAILURE TO MALL SUCH NOTICE SHALL IMPOSE NO
OBLIGATION OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS
AGENTS OR REPRESENTATIVES.
AUTHORIZED REPRESENTATIVE
/s/ XXXXXXX X. XXXXXX
XXXXX 25-5 (1/95) (c) XXXXX CORPORATION 1988
Exhibit K - Employee Non-Disclosure Agreement Form
--------------------------------------------------
See Attached
Microsoft Confidential Page 40
EXHIBIT K
AGREEMENT
This agreement is made as of the ____________ day of _______________ 1996, by
and between World Travel Partners, L.P. ("WTP, L.P.") a Georgia Limited
Partnership, and ____________________ ("Employee").
Employee hereby acknowledges that during the term of employment, employee will
have access to trade secrets and Confidential Information distinctive to their
Subject Business and their customers or prospective customers with whom WTP,
L.P. or any affiliated partnership currently does business or has directly
contacted within the last twelve (12) months (collectively "Customers").
Employee recognizes that the services performed by Employee are special, unique,
and extraordinary and that, by reason of employment with WTP, L.P. or an
affiliated partnership, Employee will receive, develop, or otherwise acquire
Confidential Information and training specific to our Subject Business.
Further, Employee recognizes WTP, L.P.'s need to protect its legitimate business
interest, and that any attempt to solicit either the Customers or employees of
WTP, L.P. in the case of Employee's termination would adversely affect WTP,
L.P.'s ability to do so.
Therefore, in consideration of continuing employment and other good and valuable
consideration, Employee agrees:
a) Employee will not disclose or use, directly or indirectly, any
Confidential Information Employee obtains during the course of Employee's
employment related the Subject Business or Customers of WTP, L.P.
b) during the Employee's employment and for a period of eighteen (18)
months after the termination of employment for whatever reason, Employee will
not directly or indirectly call on, solicit, or take away or attempt to call on
solicit or take away any Customer or employee of WTP, L.P. for the purpose of
providing goods, services, or information that are competitive with those
offered by the Subject Business.
The term "Confidential Information" shall mean and include any information, data
and know-how relating to the business of WTP that is disclosed to Employee by
WTP, L.P. or known to Employee as a result of Employee's relationship with WTP,
L.P. and not generally within public domain (whether constituting a trade secret
or not), including without limitation, all administrative procedures, product
development and technical data, sales and/or marketing information, customer
account records, payment plans, training and operations material, memoranda and
manuals, personnel records, pricing information, and financial information
concerning or relating to the Subject Business and/or the Customers, employees
and affairs of WTP, L.P.
The term "Subject Business" shall mean and include WTP, L.P.'s travel agency
business and/or its travel related and technology businesses which engage in the
sale of transportation, accommodation, related services, products, software, and
travel advisory services and any related information associated with the
aforementioned businesses.
This Agreement shall be interpreted by the laws of the State of Georgia. If it
is determined that any part of this agreement is unenforceable, then only such
parts will be deemed unenforceable and all other parts will be enforceable to
the extent possible.
Agreed:
World Travel Partners, L.P. Employee ________________________
By:_________________________ Print Name:______________________
Acknowledgment
As a condition to having the opportunity to perform services in connection with
the Microsoft Expedia service,__________ [Fill in Employee's name] ___________
("Employee") hereby acknowledges and agrees that all nonpublic information
------------
Employee learns about Microsoft Corporation ("Microsoft") and its business,
Expedia, in the course of Employee's employment with World Travel Partners, L.P.
("WTP") is considered to be "Confidential Information" under the Agreement
between Employee and WTP and Employee shall keep such information confidential
pursuant to the terms of such Agreement and for five (5) years after Employee
acquires or learns such Confidential Information.
Such Confidential Information shall include, without limitation, information
relating to released or unreleased Microsoft software or hardware products or
services, the marketing or promotion of any Microsoft product or service,
Microsoft's business policies or practices, and information Microsoft receives
from others that Microsoft is required to keep confidential. Confidential
Information shall not include any information that (i) is or subsequently
becomes publicly available without Employee's breach of any obligation owed to
WTP or Microsoft, (ii) became known to Employee prior to WTP's or Microsoft's
disclosure of such information to Employee, (iii) became known to Employee from
a source other than WTP or Microsoft other than by a breach of an obligation of
confidentiality owed to WTP or Microsoft, or (iv) is independently developed by
Employee.
DATED:________________
______________________
(Signature)
______________________
(Print Name)
Microsoft Confidential Page 41
EXHIBIT L
END USER SOFTWARE LICENSE AGREEMENT
BETWEEN TTG AND OFS
See Attached
Microsoft Confidential Page 42
