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EXHIBIT 10.1
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.
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[*] The redacted portions indicated by this symbol are the subject of a
confidential treatment request and have been filed separately with the
Securities and Exchange Commission.
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(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 60% (sixty percent) 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):
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(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 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
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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.
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(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 Amounts 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 terms 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
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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.
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(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' 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 fifteen percent (15%) 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
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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 documentations 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
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(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
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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 WTPs
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 of 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.
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(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 toots (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.
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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 airline'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 his exercised its rights 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.
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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 and 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
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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
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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
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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 l(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
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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
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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 Wiggim
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
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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
saved 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.
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(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 attorney's
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 - Corporate & Technology
---------------------------- ------------------------------------
Title Title
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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.
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 travel
suppliers with reservation records.
10. Account for WTP-assigned MS Travel Account for MS Travel reservations booked
commissions 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 60%
of commissions so earned in amounts
deposited daily to the MS bank account.
12. Remit commissions/transaction fees to Deposit daily the commissions/transaction
MS fees earned for MS Travel reservations,
including the MS portion of international
travel reservations, into the MS bank
account.
13. Perform reservation quality control Utilize CoRRe(TM) and/or other quality
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.
15. Provide full accounting Prepare and submit reports to MS pursuant
to Exhibit G.
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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:
(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 e-mail 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 MS will be mutually
agreed upon as necessary to handle volume growth.
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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 [*] or less;
(c) [*]% of customers "very satisfied" with service, based on surveys
using measures to be agreed upon by the parties;
(d) Written report within [*] 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 [*] hours;
(b) Sales volume and revenue amounts available on a [*] 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.
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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/CRS 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 25% 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.
25
(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 cost 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 [*] Events 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.
26
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.
27
ATTACHMENT 1 TO EXHIBIT D - PAYMENTS
A. Event Class Fees and TA/CSR Fees to be used to calculate Retail Event Fees:
TOTAL ANNUAL EVENTS
EVENT 0 [*] [*]
CLASS TO TO AND
[*] [*] HIGHER
Event Class Fee A $[*] $[*] $[*]
Event Class Fee B $[*] $[*] $[*]
Event Class Fee C $[*] $[*] $[*]
Event Class Fee D TBD* TBD* TBD*
Event Class Fee E TBD* TBD* TBD*
Event Class Fee F TBD* TBD* TBD*
Event Class Fee G $[*] $[*] $[*]
Event Class Fee H $[*] $[*] $[*]
TA/CSR Fee per minute $[*] $[*] $[*]
*To be determined promptly after the expiration of six months after the
Effective Date.
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
TOTAL ANNUAL RETAIL EVENTS
EVENT EVENT TA/CSR 0 [*] [*]
CLASS MINUTES TO TO AND
[*] [*] HIGHER
Air Tickets A [*] $[*] $[*] $[*]
PNR Rejected A [*] $[*] $[*] $[*]
Lost Tickets B [*] $[*] $[*] $[*]
Exchange Tickets B [*] $[*] $[*] $[*]
Void Tickets B [*] $[*] $[*] $[*]
Refund Tickets B [*] $[*] $[*] $[*]
Debit Memo B [*] $[*] $[*] $[*]
Hotel Change/Cancel C [*] $[*] $[*] $[*]
with document
Hotel Change/Cancel [*] $[*] $[*] $[*]
without document
Car Change/Cancel C [*] $[*] $[*} $[*]
with document
Car Change/Cancel [*] $[*] $[*] $[*]
without document
Hotel Reservation QC G [*] $[*] $[*] $[*]
Email Inquiries H [*] $[*] $[*] $[*]
28
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 form 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 e-mail account without
permission.
29
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 accessed 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
30
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
representatives, including termination of the vendor representative's services
and/or termination of Microsoft's contract with the vendor.
CONFIDENTIALITY
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.
31
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.
32
EXHIBIT G - WTP REPORTING REQUIREMENTS
See Attached
33
TELEPHONE PERFORMANCE REPORT
DAY DATE [ * ] [ * ] [ * ] [ * ]
--- ------ --------- ------------- -------- -------
Friday........................................ 1-Nov 021 81 93 62
Saturday...................................... 2-Nov 113 99 94 68
-------------------------------------------------------------------------------------------------------
Part Week..................................... 215 90 93.5 68
-------------------------------------------------------------------------------------------------------
Sunday........................................ 3-Nov 94 145 91 62
Monday........................................ 4-Nov 87 305 81 94
Tuesday....................................... 5-Nov 146 146 87 69
Wednesday..................................... 6-Nov 413 161 89 71
Thursday...................................... 7-Nov 199 81 98 70
Friday........................................ 8-Nov 154 99 96 62
Saturday...................................... 9-Nov 216 145 93 61
-------------------------------------------------------------------------------------------------------
1309 154.57 90.71 94
-------------------------------------------------------------------------------------------------------
Sunday........................................ 10-Nov 102 305 82 62
Monday........................................ 11-Nov 99 146 89 94
Tuesday....................................... 12-Nov 172 161 88 69
Wednesday..................................... 13-Nov 87 81 99 71
Thursday...................................... 14-Nov 96 99 97 70
Friday........................................ 15-Nov 109 145 89 62
Saturday...................................... 16-Nov 201 305 82 61
-------------------------------------------------------------------------------------------------------
866 177.43 89.43 71
-------------------------------------------------------------------------------------------------------
Sunday........................................ 17-Nov 146 146 89 62
Monday........................................ 18-Nov 149 161 88 77
Tuesday....................................... 19-Nov 102 81 95 69
Wednesday..................................... 20-Nov 99 99 96 71
Thursday...................................... 21-Nov 121 145 89 70
Friday........................................ 22-Nov 201 305 86 62
Saturday...................................... 23-Nov 144 146 91 61
------------------------------------------------------------------------------------------------------
962 154.71 90.57 77
------------------------------------------------------------------------------------------------------
Sunday........................................ 24-Nov 179 161 88 62
Monday........................................ 26-Nov 205 81 99 94
Tuesday....................................... 27-Nov 184 99 98 69
Wednesday..................................... 28-Nov 99 145 89 71
Thursday...................................... 29-Nov 86 305 89 70
Friday........................................ 30-Nov 209 146 89 62
------------------------------------------------------------------------------------------------------
Part Week..................................... 962 156.17 91.80 94
------------------------------------------------------------------------------------------------------
Total Call.................................... 4314 85
34
WORLDTRAVEL PARTNERS
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
BACK OFFICE EVENTS QUANTITY SVC UNIT COST TOTAL
Transactions Ticketed ............................................. 4790 [ * ] [ * ]
Lost Ticket Applications .......................................... 12 [ * ] [ * ]
Exchange Transactions ............................................. 697 [ * ] [ * ]
Voids ............................................................. 190 [ * ] [ * ]
Refunds ........................................................... 210 [ * ] [ * ]
Debit Memos ....................................................... 3 [ * ] [ * ]
Non-Air Invoices .................................................. 1998 [ * ] [ * ]
Total Back Office Events 7900 [ * ]
ONLINE SUPPORT SERVICES OCCURRENCES TOTAL MINUTES SVC. UNIT COST TOTAL
Reservation Changes ............................................... 910 [ * ] [ * ] [ * ]
Void Requests ..................................................... 190 [ * ] [ * ] [ * ]
Lost Ticket Notifications.......................................... 12 [ * ] [ * ] [ * ]
Cancellation Requests ............................................. 210 [ * ] [ * ] [ * ]
Hotel/Car Change Requests.......................................... 61 [ * ] [ * ] [ * ]
New Air Bookings .................................................. 3 [ * ] [ * ] [ * ]
New Hotel/Car Bookings ............................................ 199 [ * ] [ * ] [ * ]
Misc. Support Requests* ........................................... 215 [ * ] [ * ] [ * ]
OSS Totals 1800 [ * ] [ * ]
FULFILLMENT MANAGEMENT FUNCTIONS................................... [ * ]
Worldwide Car/Hotel Xxxxxxxx Fee ..................................
SUMMARY: OCTOBER CHARGES .......................................... [ * ]
Previous Amount Due ............................................... [ * ]
Payments Received ................................................. [ * ]
TOTAL AMOUNT DUE .................................................. [ * ]
Make Check Payable to: WorldTravel Partners
0 Xxxx Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Attn: Accounting
35
WORLDTRAVEL PARTNERS
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
BACK OFFICE EVENTS QUANTITY SVC UNIT COST TOTAL
Transactions Ticketed.............................. [ * ] $ [ * ] $ [ * ]
Lost Ticket Applications........................... [ * ] $ [ * ] $ [ * ]
Exchange Transactions.............................. [ * ] $ [ * ] $ [ * ]
Voids.............................................. [ * ] $ [ * ] $ [ * ]
Refunds............................................ [ * ] $ [ * ] $ [ * ]
Debit Memos........................................ [ * ] $ [ * ] $ [ * ]
Non-Air Invoices................................... [ * ] $ [ * ] $ [ * ]
Total Back Office Events........................... [ * ] [ * ]
ONLINE SUPPORT SERVICES OCCURRENCES TOTAL MINUTES SVC UNIT COST TOTAL
Reservation Changes.............. [ * ] [ * ] $ [ * ] $ [ * ]
Void Requests.................... [ * ] [ * ] $ [ * ] $ [ * ]
Lost Ticket Notifications........ [ * ] [ * ] $ [ * ] $ [ * ]
Cancellation Requests............ [ * ] [ * ] $ [ * ] $ [ * ]
Hotel/Car Change Requests........ [ * ] [ * ] $ [ * ] $ [ * ]
New Air Bookings................. [ * ] [ * ] $ [ * ] $ [ * ]
New Hotel/Car Bookings........... [ * ] [ * ] $ [ * ] $ [ * ]
Misc. Support Requests*.......... [ * ] [ * ] $ [ * ] $ [ * ]
OSS Totals....................... [ * ] $ [ * ] $ [ * ]
WORLDWIDE CAR/HOTEL XXXXXXXX FEE........................................................ $ [ * ]
Summary: October Charges................................................................ $ [ * ]
Previous Amount Due..................................................................... $ [ * ]
Payments Received....................................................................... $ [ * ]
TOTAL AMOUNT DUE........................................................................ $ [ * ]
Make Check Payable to: WorldTravel Partners
0 Xxxx Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Attn: Accounting
36
WORLDTRAVEL PARTNERS
ONLINE FULFILLMENT SERVICES
TRANSACTION DETAIL REPORT
NOVEMBER 01 - NOVEMBER 30, 1996
BACK OFFICE EVENTS
TRANSACTIONS TICKETED
USER EMAIL ADDRESS TRAVELER NAME ITINERARY NUMBER TRVL DATE TKT AMT. TAX COMM. AMT
USER ADDRESS ITINERARY NO. TKTS ISS. DATE A/L DELIVERY
CITY STATE ZIP
--------------------- ----- ------------------- ----------------- -------- --------- ------- -----------
xxxxx@xxx.xxx Xxxxxxx/Xxx/Xxxx 1000233888 1/12/97 $ 820.00 $ 62.00 $ 60.00
0000 00xx Xx. XXX-XXX/XXX-XXX 0 00/0/00 XX X0
Xxxxxxx XX 00000 Comments:
xxxxxxx@xx.xxxxxx.xxx McDonald/Ole 1000372915 11/10/96 $ 299.00 $ 28.15 $ 19.50
000 Xxxxx Xxx SNA-SFO-SNA 1 11/4/96 US M
Xxxxxxxxxx XX 00000 Comments:
xxxxxxx@xxx.xxx Cyrus/Xxxxx 1000372909 11/30/96 $ 402.00 $36.00 $ 25.00
0000 Xxxxxxxx Xxx ORD-PDX-ORD 1 11/4/96 UA M
Xxxxxx XX 00000 Comments:
LOST TICKET APPLICATIONS
USER EMAIL ADDRESS TRAVELER NAME ITINERARY NUMBER TRVL DATE TKT AMT LTA FEE REASON
USER ADDRESS ITINERARY NO. LTAS FILE DATE A/L REPLACEMENT TICKET ISSUED?
CITY STATE ZIP
----------------- ---- -------------- ----- ---------------- --------- --------- ------- --------------------------
xxxxxxx@xxx.xxx Cyrus/Xxxxx 1000372909 11/30/96 $ 402.00 $ 60.00 Never Delivered
0000 Xxxxxxxx Xxx ORD-PDX-ORD 1 11/28/96 UA X
Xxxxxx XX 00000 Comments: 60.00 Fee will be due from MS in 90 days
USER EMAIL ADDRESS TRAVELER NAME ITINERARY NUMBER TRVL DATE TKT AMT. TAX COMM. AMT
USER ADDRESS ITINERARY NO. TKTS ISS. DATE A/L DELIVERY
CITY STATE ZIP
--------------------- ----- ------------------- ----------------- -------- --------- ------- ---------
xxxxx@xxx.xxx Xxxxxxx/Xxx/Xxxx 1000645999 1/19/97 $ 215.00 $ 15.00 $ 60.00
0000 00xx Xx. XXX-XXX/XXX-XXX 0 00/00/00 XX X0
Xxxxxxx XX 00000 Comments:
37
WORLDTRAVEL PARTNERS
ONLINE FULFILLMENT SERVICES
TRANSACTION DETAIL REPORT
NOVEMBER 01-NOVEMBER 30, 1996
ONLINE SUPPORT SERVICES
RESERVATION CHANGES
USER E-MAIL ADDRESS TRAVELER NAME ITINERARY NUMBER TRVL DATE
USER ADDRESS ITINERARY NO. TKTS ISS. DATE A/L DELIVERY
CITY STATE ZIP NEW TKT? MINUTES
----------------------------------------------------------------------------------------------------------------------------------
xxxxx@xxx.xxx Xxxxxxx/Xxx/Xxxx 1000233888 1/12/97 DL X1
0000 00xx Xx. 00000 XXX-XXX/XXX-XXX 2 11/1/96
Madison VA Comments: Y 3.2
xxxxxxx@xx.xxxxxx.xxx McDonald/Ole 1000372915 11/10/96
000 Xxxxx Xxx SNA-SFO-SNA 1 11/4/96 US M
Xxxxxxxxxx XX 00000 Comments:
xxxxxxx@xxx.xxx Cyrus/Xxxxx 1000372909 11/30/96
0000 Xxxxxxxx Xxx ORD-PDX-ORD 1 11/4/96 UA M
Xxxxxx XX 00000 Comments:
MANUAL SCHEDULE CHANGES
USER E-MAIL ADDRESS TRAVELER NAME ITINERARY NUMBER TRVL DATE METHOD TYPE
USER ADDRESS ITINERARY NO. TKTS EVENT DATE A/L DELIVERY
CITY STATE ZIP NEW TKT? MINUTES
----------------------------------------------------------------------------------------------------------------------------------
xxxxx@xxx.xxx Xxxxxxx/Xxx/Xxxx 1000233888 1/12/97 Call UC
0000 00xx Xx. XXX-XXX/XXX-XXX 0 00/00/00 XX X0
Xxxxxxx XX 00000 Comments: Y 1.1
CANCELLATION REQUESTS
USER E-MAIL ADDRESS TRAVELER NAME ITINERARY NUMBER TRVL DATE REFUNDABLE?
USER ADDRESS ITINERARY NO. TKTS EVENT DATE A/L DELIVERY
CITY STATE ZIP MINUTES
----------------------------------------------------------------------------------------------------------------------------------
xxxxxxx@xxx.xxx Cyrus/Xxxxx 1000372909 11/30/96 N
0000 Xxxxxxxx Xxx ORD-PDX-ORD 1 11/19/96 UA M
Xxxxxx XX 00000 Comments: 0.7
Page 1
38
XYZ Company
PERIOD 1: 10/1/94 TO 12/31/94 PERIOD 2: 1/1/94 TO 12/31/94
AIRFARE ANALYSIS PERIOD 1 PERIOD 2
---------------- ----------- -----------
FARE FULL FARE $203,655.27 $800,424.22
SAVINGS TICKET PRICE $106,375.06 $449,718.26
AMOUNT SAVED $ 95,280.21 $350,705.96
% SAVED 46.79 43.82
FARE LOW FARE $ 97,237.10 $406,240.37
LOST FARE LOST $ 11,137.96 $ 43,477.89
% LOST 5.47 5.43
TOTAL # OF TICKETS 167 737
MILEAGE 268,752 1,047,590
AVERAGE TICKET PRICE 648.95 $ 610.20
FLIGHT DISTANCE 1,609 1,421
COST PER MILE $ 0.40 $ 0.43
REFUNDS # OF REFUNDS 21 77
REFUND AMOUNT $(10,539.80) $(42,235.22)
AVERAGE REFUND $ (501.90) $ (548.51)
SEGMENT ANALYSIS # OF SEGS AMOUNT
---------------- --------- ----------
ATLANTA, GA/RALEIGH/DURHA 37 $6,638.65
RALEIGH/DURHA/ATLANTA, GA 19 $2,353.65
CHARLOTTE, NC/RALEIGH/DURHA 19 $3,149.62
PHILADELPHIA/RALEIGH/DURHA 16 $3,645.27
CINCINNATI, OH/RALEIGH/DURHA 16 $3,243.63
CAR ANALYSIS PERIOD 1 PERIOD 2
------------ ---------- ----------
TOTAL CAR COST $7,475.89 $31,558.96
CARS RENTED 111 479
CAR RENTAL DAYS 187 829
AVERAGE CAR RATE $ 39.98 $ 38.07
RENTAL DAYS 1.68 1.73
TOP FIVE CAR CHAINS # OF DAYS AMOUNT
------------------- --------- ----------
BUDGET CAR 126 $4,864.18
AVIS CAR 31 $1,399.49
HERTZ 18 $ 719.97
DOLLAR CAR 6 $ 188.37
THRIFTY CAR 5 $ 233.90
HOTEL ANALYSIS PERIOD 1 PERIOD 2
-------------- ---------- ----------
TOTAL HOTEL COST $15,604.97 $58,688.21
ROOMS BOOKED 129 532
ROOM NIGHTS 187 748
AVERAGE HOTEL RATE $ 187.00 $ 78.46
LENGTH OF STAY 1.45 1.41
TOP FIVE HOTEL CHAINS $ OF NTS AMOUNT
--------------------- -------- ----------
HOLIDAY INNS 52 $4,427.13
MARRIOTT 15 $1,761.00
INDEPENDENT HTLS 9 $1,079.45
CTYRD BY MARRIOTT 8 $1,288.00
COMFORT INNS 7 $ 522.00
Executive Summary
[AIRFARE PAID GRAPH] [AVERAGE TICKET PRICE GRAPH]
[% SAVED/LOST GRAPH] [AVERAGE COST/MILE GRAPH]
[CAR RENTAL DAYS GRAPH] [CAR EXPENDITURES GRAPH]
[HOTEL ROOM NIGHTS GRAPH] [HOTEL EXPENSES GRAPH]
39
XYZ Company
Department Summary
12/1/94 TO 12/31/94
[DEPARTMENT SUMMARY COMPANY CHART]
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
40
XYZ Company
Dollars Spent by Month
1/1/94 TO 12/31/94
[DOLLARS SPENT COMPANY CHART]
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%
=========== === ======= ===== =====
41
ABC COMPANY
HI-XXXX TRAVEL SYSTEMS
TOP 100 CITY PAIRS
01/01/94 TO 09/30/94
---------------------------------------------------------------------------
RANK MARKET TICKETED DL TICKETED DL MKT DL TOTALS TOTAL SEG
CITY SEGMENTS SEGMENTS SHARE DOLLARS VALUE
---------------------------------------------------------------------------
1 ATL-RDU 513 431 84.0% 64,288.63 74,233.24
2 CLT-RDU 259 0.0% 18,540.03
3 DFW-RDU 230 62 27.0% $ 4,255.42 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
---------------------------------------------------------------------------
42
HI-M (TRAVEL SYSTEMS) AIR TRAVEL REPORT 07/01/94 TO 09/30/94
DEPT: 0081 7 OF 57
ISSUE DEPART FARE REGULAR LOWEST FARE FARE FARE
INVOICE# DATE A/P DATE ORIGIN DESTINATION FLIGHT BASIS FARE PAID PAID AVOIDANCE OVERAGE CD
SIRUR/XXXXXXX
XXXXX/PRAKASH 3 Transaction(s) Average Advance Purchase Days = 1.33 4,022.46 2,783.46 2,783.46 1,239.00 0.00
XXXXXXXX/XXXXXX G JR
097036 30-Sep 3 03-Oct XXXXXXX/XXXXXX XXXXXXX, XX XX 0000 X00XXX 1,124.00 470.00 470.00 654.00 0.00 B
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 3,414.15 0.00 2,076.00 X
00-Xxx XXXXXXXXXX, XX XXXXXXXXX XX 48 C/C6972
03-Sep FRANKFURT CINCINNATI, OH DL 49 C/C6972
03-Sep CINCINNATI, OH RALEIGH/XXXXXX XX 1731 C/C6972
XXXXXXXX/XXXXXX 2 Transaction(s) Average Advance Purchase Days = 6.00 4,538.15 1,808.15 3,884.15 654.00 0.00
G JR
XXXXX/WILLY
096632 00-Xxx 0 00-Xxx XXXXXXX/XXXXXX XXXXXXXXXX, X XX 0000 X00XXX 803.00 218.00 218.00 585.00 0.00 B
28-Sep GREENVILLE, S RALEIGH/DURHAM AA 3276 V26SPL
XXXXX/XXXXX 1 Transaction(s) Average Advance Purchase Days = 4.00 803.00 218.00 218.00 585.00 0.00
0081 12 Transaction(s) Average Advance Purchase Days = 4.00 16,071.61 8,065.61 10,721.61 5,350.00 2,656.00
43
ADDENDUM NO. 1 TO THE
SERVICE AGREEMENT
BETWEEN MICROSOFT CORPORATION
AND WORLDTRAVEL PARTNERS, L.P.
DATED OCTOBER 9, 1996
This Addendum No. 1 ("Addendum") to the Service Agreement between
Microsoft Corporation ("MS") and WorldTravel Partners, L.P. ("WTP"), dated
October 9, 1996, ("Agreement") is made and entered into as of October 22, 1996
("Addendum Effective Date").
The terms of this Addendum shall amend, modify and supersede to the
extent of any inconsistencies, the provisions of the above-referenced Agreement.
All provisions of the Agreement not so modified remain in full force and effect.
Attachment 1 of Exhibit D of the Agreement is hereby replaced and
superseded in its entirety by the attached.
This Addendum does not constitute an offer by MICROSOFT. All signed
copies of this Addendum shall be deemed originals. This Addendum shall be
effective as of the Addendum Effective Date upon execution on behalf of WTP and
MICROSOFT by the duly authorized representatives.
MICROSOFT CORPORATION WORLDTRAVEL PARTNERS, L.P.
/s/ Xxxxx X. Xxxx
------------------------------ -------------------------------------
By By
Xxxxx X. Xxxx
------------------------------ -------------------------------------
Name (Print) Name (Print)
President-Travel & Technology
------------------------------ -------------------------------------
Title Title
10/25/96
------------------------------ -------------------------------------
Date Date
44
MICROSOFT FEE SCHEDULE RUN RATE
------------------------------------
TOTAL [*] to
CHARGES [*] [*] [*]
FIXED FEE EVENT CHARGES FEE PER EVENT
------------------------------------
1 Expedia only air ticket......... $[*] $[*] $[*]
2 PNR Rejected.................... $[*] $[*] $[*]
3 Lost Ticket..................... $[*] $[*] $[*]
5 Exchange........................ $[*] $[*] $[*]
6 Void............................ $[*] $[*] $[*]
7 Refund.......................... $[*] $[*] $[*]
8 Debit Memo...................... $[*] $[*] $[*]
9 Hotel Chg w/Doc................. $[*] $[*] $[*]
10 Hotel Chg w/o Doc............... $[*] $[*] $[*]
11 Car Chg w/Doc................... $[*] $[*] $[*]
12 Car Chg w/o Doc................. $[*] $[*] $[*]
13 Hotel Reservation QC............ $[*] $[*] $[*]
00 X Xxxx Xxxxxxxxx................ $[*] $[*] $[*]
====================================
VARIABLE RATE EVENT CHARGES CHARGE PER TA/CSR MINUTE
----------------------------------
1 Manual air booking Note[A] $[*] $[*] $[*]
2 Business and Expedia Support $[*] $[*] $[*]
3 En route support & manual air changes $[*] $[*] $[*]
4 Difficult Email Note[b] $[*] $[*] $[*]
5 Concierge services $[*] $[*] $[*]
6 Promotional Event Support $[*] $[*] $[*]
==================================
[a] Total fee per manual ticket capped at [*]/ticket
[b] Difficult email defined as resolution exceeding [*] minutes. Total time
allotted per difficult Email capped at [*] minutes
45
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 WORLD TRAVEL 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 latter 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 l(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
1
46
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 three 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"): the difference between the applicable Fee at the
end of such calendar year multiplied by three times the
greatest total number of Tickets sold in connection with the
Services in a calendar month during the six-month period
immediately prior to the end of such calendar year minus the
Current Advance Balance. 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.
2
47
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 15th
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 one percent (1%) 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 18 Average Month's Fees
13-24 mouths 12 Average Month's Fees
25-36 months 9 Average Month's Fees
37-48 months 6 Average Month's Fees
48-60 months 3 Average Month's Fees
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.
3
48
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 3(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
property 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 10% 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."
4
49
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 the 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(l) is added as follows:
"(l) 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 prioritization,
timing and method for considering WTT's suggestions or input. MS has
agreed to a policy whereby hard copy receipts for E-Tickets may be
eliminated by December 6, 1998 and replaced with electronic receipts
and MS agrees that it will not take actions on MS Travel that will
materially and negatively impact the number of E-Tickets. However, WTT
will place an appropriate phone number in the email so that customers
may request paper receipts if customers need them."
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:
"(n) In the event that WTT secures additional revenue resulting
from base commissions exceeding the published Internet commission rate
for air tickets, the parties agree that such additional revenue shall
be divided as follows: eighty percent (80%) to MS and twenty percent
(20%) to WTT. In the event that WTT secures other additional revenue
during the term of the Agreement in connection with the Services
provided to MS Travel, the parties agree that MS shall receive one
hundred percent (100%) of such other additional revenue. Both parties
understand that it may be necessary for WTT to use an ARC number
different from the current ARC number owned by MS for purposes of
collecting additional commission. Additionally, in the event of a
material airline industry reduction in base commissions for either
online or offline agencies that
5
50
negatively and significantly impacts either party, both parties shall
agree to re-evaluate the economic terms of this Agreement in accordance
with Section 15 of the Agreement."
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 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.
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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/ /s/ Xxxx X. Xxxxxxxxx
------------------------------- -------------------------------
By By
/s/ Xxxxxxx Xxxxxx /s/ Xxxx X. Xxxxxxxxx
------------------------------- -------------------------------
Xxxxxxx Xxxxxx Xxxx X. Xxxxxxxxx
Name (Print) Name (Print)
General Mgr. Travel Bus. Unit. Chief Executive Officer
------------------------------- -------------------------------
Title:
4/1/99 3-26-99
------------------------------- -------------------------------
Date Date
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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 ten
percent (10%) 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 twenty percent (20%). 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.
METRIC MINIMUM SERVICE CRITERIA
---------------------------------------------------------------------
Service Level - [*]%
% of Calls Answered [*]
---------------------------------------------------------------------
Abandon Rate - [*]%
% of Call Abandon [*]
---------------------------------------------------------------------
Percentage of "Call Backs" - [*]%
% of Calls Answered as CB w/CBs made in
[*]
---------------------------------------------------------------------
Call Backs Customer Survey - [*]%*
% of Respondents "Satisfied" to "Very
Satisfied"
---------------------------------------------------------------------
E-mail Response [*] [*] Hours
---------------------------------------------------------------------
Call Center Customer Survey -
% of Respondents "Satisfied": to "Very
Satisfied":
- Overall Experience [*]%
-
- Agent's Professionalism [*]%
---------------------------------------------------------------------
* 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
"Calls 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
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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.
METRIC 1999 GOALS 2000 GOALS 2001 GOALS
------------------------------------------------------------------------------------------
Call Backs Customer Survey - [*] [*] [*]
% of Respondents "Satisfied" to "Very
Satisfied"
------------------------------------------------------------------------------------------
E-mail Response ([*] SL) [*] Hours [*] Hours [*] Hours
------------------------------------------------------------------------------------------
Call Center Customer Survey -
% of Respondents "Satisfied" to "Very
Satisfied":
- Overall Experience [*]% [*]% [*]%
- Agent's Professionalism [*]% [*]% [*]%
------------------------------------------------------------------------------------------
(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 twenty percent (20%) 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.
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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 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 $[*] per Ticket plus $[*],
due 30, days after the Execution
Date of AMENDMENT NUMBER 1
July 1, 1999 - June 30, 2000 $[*] per Ticket
July 1, 2000 - September 30, 2001 $[*] per Ticket
The Fees are based upon reasonable contact rations (phone ration of 0.5
(call-backs not included) and email ration of 0.4 contacts per Ticket
averaged over a calendar 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 $5.00 per Ticket and will be calculated as
follows:
(i) DETERMINATION OF BASE COSTS: "Base Costs" shall be the lesser of
$[*] or the average WTT Cost per Ticket for the period January 1,
2001 through December 31, 2001. by the end of the first calendar
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 costs 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
Costs, MS shall determine the difference (the "Difference"), and the
new Fee shall be set as [*] minus [*] of the Difference. (For example:
the Fee per Ticket is [*], and if the average WTT Cost per Ticket is
$[*], and the Base Cost $[*], then the new Fee will be [*] per Ticket
([*] - ([*] base - $[*] costs = $[*] cost reduction * 50% savings
share)). Alternatively, if the WTT Cost per Ticket is equal to or
greater than the Base Costs, then there will be no adjustment to the
Fee. (For example: the Fee per Ticket is $[*] and the average WTT Cost
per Ticket is $[*], then the new Fee will remain $[*] per Ticket.)
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
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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 31, 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"):
Costs for recalls of commissions; customer payouts and debit memos each to
the extent associated with application issues; costs generated directly
from MS decisions to ignore vendor demanded terms, like DL requiring
instant ticketing; costs for credit card clearing service; and costs for
establishment and maintenance of the lockbox and bank account to be used by
WTT as described in Exhibit A. Additionally, if WorldSpan charges WTT for
costs directly related to MS Travel (e.g., printers, gateways, fileservers,
hits, line charges, Tas), MS will pay WorldSpan or reimburse WTT for these
expenses accrued after WTT changes the ownership of the WorldSpan SID to MS
and provides MS with written confirmation of such change in ownership.
(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:
customer charge-backs related to (i) credit card charges that are denied or
rejected by the credit card issuer, or (ii) customer fraud. All Customer
Charge-Backs must be documented in either debit memos or letter from credit
card issuers.
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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 10,000 hours in MS Travel
changes requested by WTT and agreed to by MS (annually approximately 2,000
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 10 text changes on the
site and two (2) 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.
12
