EXHIBIT 10.17
AMENDMENT NO. 2
TO THE
SERVICES AGREEMENT
THIS AMENDMENT No. 2 is made this 25th day of July 2003, by
and between Xxxxxxxxxx International, Inc., a Pennsylvania corporation, having
its principle place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000
("UPSTREAM") and ORBITZ, LLC, a Delaware limited liability company, having its
principle place of business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX
00000 ("ORBITZ"). This Amendment No. 2 amends that certain Services Agreement
entered into by and between ORBITZ and UPSTREAM, on April 22, 2002, as amended
by Amendment No. 1 dated January 8, 2003 (collectively, the "Agreement").
WHEREAS, ORBTIZ and UPSTREAM intend to revise or amend certain portions
of the Agreement in accordance with the terms of Section 12.4 therein;
NOW, THEREFORE, in exchange of good and valuable consideration that
will not hereinafter be challenged, the parties hereby agree as follows:
1 PRECEDENCE. To the extent a term or expression used in this Amendment
No. 2 is defined in the Agreement, the term or expression will have the
meaning ascribed to it in the Agreement, unless agreed otherwise in
this Amendment No. 2. To the extent any terms or conditions of this
Amendment No. 2 conflict with the terms of the Agreement, the terms of
this Amendment No. 2 will prevail.
2 CONTRACTOR SERVICES. Pursuant to Section 4.4 of the Agreement, the
parties hereby memorialize UPSTREAM's and ORBITZ's mutual agreement to
outsource an average of ten percent (10%) of the inbound leisure
telephone Contacts to an overseas third-party. The foregoing
notwithstanding, ORBITZ and UPSTREAM agree that the period beginning
October 5, 2003 and ending December 15, 2003 shall be deemed the
"Ramp-Up Period" and ORBITZ shall during the course of the Ramp-up
Period work in good faith to increase the amount of inbound leisure
telephone contacts outsourced to such overseas third-party so that an
average of ten percent (10%) of the inbound leisure telephone contacts
are outsourced to such overseas third-party by the end of the Ramp-Up
Period. The parties hereby agree that the overseas third party will be
the entity currently known as LAWKIM UPSTREAM Contract Management
Private Limited, Chitalsar, Mapada, S.V. Road Thane 400_607,
Maharashtra, India (hereinafter, the "Contractor"). ORBITZ hereby
approves of LAWKIM UPSTREAM Contract Management Private Limited as the
Contractor for inbound telephone Contacts in accordance with this
Paragraph 2. ORBITZ and UPSTREAM may agree to (i) suspend or reduce
such percentage, or (ii) modify the applicable Upcharge Fee, or both,
if it is mutually determined that the quality or customer satisfaction
expectations for such inbound leisure telephone Contacts is at risk as
a result of such outsourcing. The percentage of inbound leisure
telephone Contacts outsourced in accordance with this Amendment No. 2
may be increased by mutual agreement of the Parties.
3 TRIAL PERIOD. UPSTREAM will cause the Contractor to commence processing
the inbound leisure telephone Contacts on October 5, 2003 and shall
continue processing such inbound leisure telephone Contacts for a
period of six (6) months thereafter (the "Trial Period"). The Trial
Period shall automatically renew for the period beginning with the end
of the Trial Period and ending with the termination or expiration of
the Agreement (the "Renewal Period") unless either Party provides to
the other Party written notice by March 5, 2004 of its intention not to
renew.
4 PRICING. During the Trial Period, inbound leisure telephone Contacts
shall be provided by UPSTREAM in accordance with this Amendment No. 2
at the pricing set forth on Exhibit D-1 of the Agreement. At the end of
the Trial Period, the Parties may agree upon different pricing and
telephone upcharge fees applicable to the Renewal Period based on an
increase in the percentage of inbound leisure telephone Contacts that
may be outsourced to the Contractor.
5 UPCHARGES. Sections 8.3(i) and 8.3(ii) of the Agreement, related to
telephone and email upcharge fees, is hereby amended to include the
following provision: During the Trial Period and any Renewal Period (as
defined in Amendment No. 2 of the Agreement), ORBITZ shall have no
obligation to pay UPSTREAM a telephone or email Upcharge Fee for
Contacts handled by UPSTREAM or Contractor. For the avoidance of doubt,
telephone and email Upcharge Fees shall apply upon any termination or
expiration of the Trial Period or the Renewal Period.
6 SERVICE LEVELS. Section 3 (Service Level: Email Response Time of
Exhibit B (Service Level Requirements)) is hereby amended to state that
effective October 5, 2003, on average [***]% of all email-based
Contacts processed during any calendar month must result in a Contact
Handled within [***] hours of the initiation of the Contact (the "Time
Requirement") and that the remaining email based Contacts must result
in a Contact Handled within [***] hours of the initiation of the
Contact; provided however, that if the Ticket Transactions projected in
the Monthly Forecast for the most immediate month to which such
Forecast applies (e.g. for the Monthly Forecast provided on July 31,
the most immediate month would be August) is exceeded, the Time
Requirement shall be adjusted as follows:
Forecast Exceeded by: Time Requirement
[***] % [***]
[***] % [***]
[***] % [***]
In the event the Forecast is exceeded by more than [***]%, UPSTREAM
shall use commercially reasonable efforts to respond to all email-based
Contacts within [***], but any failure to do so will not result in any
Service Level Credits or in material breach of this Agreement.
Service Level Bonus: if within the Time Requirement, the Contact
results in a Contact Handled:
(i) [***]% of the time, UPSTREAM will be entitled to bonus [***];
(ii) [***]% of the time, UPSTREAM will be entitled to a bonus of
[***];
(iii) [***]% of the time or more, UPSTREAM will be entitled to a
bonus of [***];
Service Level Credit: if within the Time Requirement, the Contact
results in a Contact Handled less than [***]% of the time, ORBTIZ shall
be entitled to a Service Level Credit of [***].
7 COSTS. For the avoidance of doubt, UPSTREAM is responsible for costs
(such as training, development, line charges, telecom charges) and
other costs or expenses, related to the outsourcing of inbound leisure
telephone Contacts to the Contractor, in accordance with the terms of
the Agreement. UPSTREAM must verify and ensure that the Contractor
complies with and adheres to the standards set forth in Exhibit A
regarding minimum technology requirements during the Trial Period and
the Renewal Period. As between ORBITZ and UPSTREAM, UPSTREAM is
responsible for any and all costs associated with the Contractor's
compliance with such standards and requirements.
8 TERMINATION FOR CONVENIENCE. Beginning with the Renewal Period, either
party may terminate this Amendment No. 2 with or without cause
("Termination for Convenience") upon ninety (90) days written notice
to the non-terminating party. The terminating party shall pay the
other party a
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termination fee on the effective date of such termination (the
"Amendment No. 2 Termination Fee") as follows:
a. if notice of termination is given between April 6, 2004 and
April 5, 2005, [***] dollars ($[***]);
b. if notice of termination is given between April 6, 2005 and
April 5, 2006, [***] dollars ($[***]);
c. if notice of termination is given between April 6, 2006 and
April 5, 2007, [***] dollars ($[***]);
d. if notice of termination is given after April 5, 2007, $[***].
For the avoidance of doubt, a party terminating the Agreement
(including this Amendment No. 2) pursuant to Section 10.4 of the
Agreement shall not be obligated to pay the fee set forth in this
Section 8 of Amendment No. 2. Also, for the avoidance of doubt, neither
party will have any obligation to pay an Amendment No. 2 Termination
Fee if such party chooses not to renew the Trial Period in accordance
with Section 3 of this Amendment.
9 SECURE AREA. Section 4.4 (ix) of the Agreement shall be deleted in its
entirety and replace with the following: The Contractor Agreement shall
require that the Contractor Services shall be performed in a secure
environment, such that only those employees of Contractor performing
the Contractor Services shall have access to ORBITZ confidential
information or to the area within Contactor's facility where the
Contractor Services are being performed (the "Secure Area"). Further,
Contractor shall ensure that Contractor employees (while employed by
Contractor) who provide the Contractor Services shall not, during the
Term and for a period of 12 months thereafter, provide similar services
to any Competitive Entity.
10 ENTIRE AGREEMENT. This Amendment No. 2 sets forth the complete and
entire agreement between the parties with respect to the subject matter
of the Amendment and supercedes and replaces any prior agreements
between the parties, whether oral or in writing, with respect to its
subject matter. Except as otherwise set forth in this Amendment No. 2,
the terms and conditions of the Agreement will remain in full force and
effect. This Amendment will be governed by the laws of the state of
New
York.
IN WITNESS WHEREOF, the parties hereby cause this Amendment to be
executed by their duly authorized representatives identified below.
XXXXXXXXXX INTERNATIONAL, INC. ORBITZ LLC
("UPSTREAM") ("ORBTIZ")
By: XXXXXX X. XXXXXXX By: XXXXX XXXX
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Signature: /s/ XXXXXX X. XXXXXXX Signature: /s/ XXXXX XXXX
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Title: CHIEF OPERATING OFFICER Title: VP CUSTOMER EXP.
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Date: 7-25-03 Date: 8-3-03
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
