COMPUTER SERVICES AGREEMENT
BY
AND
BETWEEN
AVIS RENT A CAR SYSTEM, INC.
AND
WIZCOM INTERNATIONAL, LTD.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS...............................................1
1.1 Certain Definitions.........................................1
1.2 Other Definitions...........................................6
ARTICLE 2 TERM......................................................6
ARTICLE 3 SCOPE OF SERVICES.........................................6
3.1 Description of Services.....................................6
3.2 Additional WizCom Services..................................7
ARTICLE 4 CHARGES AND PAYMENT.......................................8
4.1 Invoicing and Payments......................................8
4.2 Taxes .................................................8
4.3 Disputed Charges............................................8
4.4 Pro-ration..................................................8
ARTICLE 5 MANAGEMENT................................................9
5.1 Organization................................................9
5.2 WizCom Management Process..................................10
5.3 Avis Authorized User.......................................11
5.4 Avis Responsibilities......................................12
5.5 Procedures Manual..........................................13
5.6 Use of Subcontractors......................................14
5.7 Reports and Meetings.......................................15
5.8 Avis Audit Rights..........................................16
ARTICLE 6 PERFORMANCE STANDARDS ...................................17
6.1 Performance Standards in General...........................17
6.2 Periodic Review............................................17
6.3 Measurement and Monitoring Tools...........................17
ARTICLE 7 RESPONSIBILITY FOR RESOURCES.............................18
7.1 Software License...........................................18
7.2 International Considerations...............................19
7.3 Hardware...................................................19
7.4 Avis Third Party Software..................................20
7.5 Escrow Agreement...........................................20
ARTICLE 8 APPLICATION MODIFICATIONS................................21
8.1 Modifications..............................................21
8.2 Methodology and Project Management Procedures..............23
8.3 Third Parties..............................................23
8.4 Documentation..............................................24
ARTICLE 9 SAFEGUARDING OF DATA; CONFIDENTIALITY....................24
9.1 Avis Data..................................................24
9.2 Safeguarding of Avis Data..................................25
9.3 Confidentiality............................................25
ARTICLE 10 INDEMNITIES.............................................27
10.1 WizCom Indemnities.........................................27
10.2 Avis Indemnities...........................................28
10.3 Infringement...............................................29
10.4 Additional Indemnities.....................................29
10.5 Indemnification Procedures.................................30
10.6 Exclusive Remedy...........................................30
10.7 Subrogation................................................30
ARTICLE 11 REPRESENTATIONS, WARRANTIES AND COVENANTS...............30
11.1 Software Rights............................................30
11.2 Authorization..............................................31
11.3 Viruses....................................................31
11.4 Disabling Code.............................................31
11.5 Disclaimer.................................................31
ARTICLE 12 LIMITATION ON LIABILITY.................................32
12.1 Limitation on Liability....................................32
12.2 Force Majeure..............................................32
ARTICLE 13 INSURANCE AND RISK OF LOSS..............................33
13.1 WizCom Insurance...........................................33
13.2 Avis Insurance.............................................34
13.3 Risk of Loss...............................................34
ARTICLE 14 TERMINATION.............................................35
14.1 Termination for Cause......................................35
14.2 Termination for Cessation of Business......................36
14.3 Termination for Insolvency.................................37
14.4 Extension of Termination Effective Date....................37
14.5 Termination Assistance.....................................37
14.6 Equitable Remedies.........................................38
14.7 Unrecovered Allowable Costs................................38
ARTICLE 15 DISPUTE RESOLUTION......................................38
15.1 Dispute Resolution.........................................38
15.2 Continued Performance......................................40
15.3 Governing Law; Jurisdiction................................40
ARTICLE 16 GENERAL.................................................40
16.1 Binding Nature; No Assignment..............................40
16.2 Timeliness.................................................40
16.3 Right to Perform Services for Others.......................40
16.4 Entire Agreement; Amendment................................41
16.5 Counterparts...............................................41
16.6 Headings...................................................41
16.7 Relationship of the Parties (Independent Contractor).......41
16.8 Equal Opportunity Employer.................................41
16.9 Non-Hiring.................................................41
16.10 Notices....................................................42
16.11 Severability...............................................43
16.12 Consents and Approvals.....................................43
16.13 No Waiver of Default.......................................43
16.14 Media Releases.............................................43
16.15 Survival...................................................44
16.16 No Third Party Beneficiaries...............................44
16.17 Compliance with Laws and Regulations.......................44
16.18 Covenant of Good Faith.....................................44
SCHEDULES
SCHEDULE A: Services
A1: Data Center And Systems Services
A2: Applications Development Services
A3: Data Communications Services
A4: Help Desk Services
SCHEDULE B: Performance Standards
SCHEDULE C: Charges
SCHEDULE D: WizCom Third Party Software
SCHEDULE E: Avis Third Party Software
SCHEDULE F: Wizard System Functions
SCHEDULE G Other Computer System Functions
SCHEDULE H Intentionally Omitted
SCHEDULE I Termination Assistance
SCHEDULE J Escrow Agreement
SCHEDULE K Exclusive Systems
COMPUTER SERVICES AGREEMENT
This Computer Services Agreement (the "Agreement"), effective as of
July 30, 1997 (the "Effective Date"), is entered into by and between Avis Rent a
Car System, Inc., a Delaware corporation with its principal place of business
located at 000 Xxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 ("Avis"), and
WizCom International, Ltd., a Delaware Corporation with a place of business
located at 000 Xxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 ("WizCom"). As used
in this Agreement, "Party" means either Avis or WizCom and "Parties" means
WizCom and Avis.
W I T N E S S E T H
WHEREAS, Avis rents vehicles under the Avis trade name or xxxx to
customers in the United States and around the world at rental locations that are
owned and operated by Avis and its affiliates, and at other locations owned and
operated by entities that have entered into agency or other similar agreements
with Avis or its affiliates;
WHEREAS, WizCom is an information services company that provides car
rental and reservation processing systems and services and other information
services to companies in the hospitality and transportation industry; and
WHEREAS, Avis desires to obtain from WizCom car rental and reservation
processing systems and services and other information systems and services for
Avis's business operations, and WizCom desires to provide such systems and
services, all in a manner consistent with this Agreement.
NOW, THEREFORE, the Parties hereby agree as follows:
ARTICLE 1 DEFINITIONS.
1.1 Certain Definitions.
"Account Team for Avis" shall have the meaning ascribed to such term in
Section 5.1(b).
"Additional Services" shall have the meaning ascribed to such term in
Section 3.2.
"Affiliate" for either party shall mean, with respect to any entity,
any other entity Controlling, Controlled by or under common Control
with such entity.
"Applications Software" or "Applications" shall mean those computer
programs, including supporting documentation and media, that WizCom
uses to perform the Services other than Systems Software.
"Avis Agency Operator" shall mean an individual or entity which rents
Avis vehicles pursuant to an Agency Operator Agreement with Avis.
"Avis Authorized User" shall mean an Affiliate, an Avis Agency
Operator, and their agents and representatives, which have, with Avis's
consent, access to use the Systems or any part thereof for the conduct
of the Avis vehicle rental business.
"Avis Data" shall mean information entered by or on behalf of Avis or
an Avis Authorized User into the Systems or derived from such
information through use of the Systems.
"Avis Location" shall mean any administrative or rental location from
which vehicle rental business is controlled or conducted by Avis or an
Avis Authorized User.
"Avis Owned Software" shall mean software owned by Avis or an Avis
Affiliate as of the Effective Date during the Term and designated by
Avis for WizCom to support and/or operate for Avis pursuant to the
terms and conditions of this Agreement. Avis Owned Software as of the
Effective Date is listed in Schedule L.
"Avis Software" shall mean, collectively, Avis Owned Software and Avis
Third Party Software.
"Avis Third Party Software" shall mean the software licensed by Avis or
an Avis Affiliate from third party vendors as of the Effective Date and
during the Term and designated by Avis for WizCom to support and/or
operate for Avis pursuant to the terms and conditions of this
Agreement. Avis Third Party Software as of the Effective Date is listed
in Schedule E.
"Backbone" shall mean WizCom-provided communication lines, services and
equipment, when applicable, which connect the WizCom Network Ports to
the Data Center computers. Backbone includes all communications
equipment or portions of such equipment at a Network Node site that is
not considered Port or Network Access.
"Confidential Information" shall have the meaning ascribed to such term
in Section 9.3(a)(2).
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"Control" and its derivatives shall mean, with regard to any entity,
the legal, beneficial, or equitable ownership, directly or indirectly,
of 50% or more of the capital stock (or other ownership interest, if
not a corporation) of such entity ordinarily having voting rights.
"Data Center" shall mean the facility or facilities, including the
related Equipment, Software and personnel, which WizCom uses to provide
the Services, as further described in Schedule A. As of the Effective
Date, the Data Center is primarily located in Garden City, New York.
"Effective Date" the effective date shall be July 30, 1997.
"End User Equipment" shall mean any equipment, workstations, data
terminals, LAN servers (other than LAN servers used to access or
control the Network), communications equipment and associated
peripheral equipment used by Avis and Avis Authorized Users to access
the Systems and/or manage the Avis vehicle rental business.
"End User Equipment Services" shall have the meaning ascribed to such
term in Section 3.1(b).
"Enhancement" shall have the meaning ascribed to such term in Section
8.1(b).
"Equipment" shall mean the computer equipment used by WizCom to provide
the Services, including associated attachments, features, accessories
and peripheral devices. The Equipment shall not include End User
Equipment.
"Escrow Agreement" shall have the meaning ascribed to such term in
Section 7.5.
"Financial Plan" shall have the meaning ascribed to such term in
Section 5.2(a)(1).
"Help Desk" shall have the meaning ascribed to such term in Schedule
A4.
"Maintenance" shall have the meaning ascribed to such term in Section
8.1(a)(1).
"Master License Agreement" shall mean the Master License Agreement
dated July 30, 1997 between Avis and HFS Car Rental, Inc.
"Modification" shall have the meaning ascribed to such term in Section
8.1.
"Network" shall mean the network comprised of communications equipment,
components and services for data communications used to transmit and
receive data signals among Avis Locations, the Data Center and other
locations mutually agreed upon by the Parties in accordance with this
Agreement. For purposes of
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communications between Avis Locations and the Data Center, the Network
shall consist of the communications components from the modem or DSU
attached to Avis's data terminal equipment through, to and including
the front-end processor at the Data Center.
"Network Access" shall mean communication lines, services, and
equipment required to provide and maintain a connection between Avis's
data terminal equipment and WizCom's Network Node site. Network Access
includes the modem or DSU at the Network Node site (called master modem
or DSU).
"Network Node" shall mean the WizCom-provided communications front-end,
router, multiplexor, or similar processor. The Data Center will contain
a Network Node. Multiple processors at any given site are considered
part of the Network Node at that site.
"New Equipment" shall have the meaning ascribed to such term in Section
8.3.
"New Service" shall have the meaning ascribed to such term in Section
8.3.
"New Systems" shall mean any System which is not included in the scope
of this Agreement as of the Effective Date.
"Out-of-Pocket Expenses" shall mean (i) reasonable out-of-pocket costs
and expenses owed by WizCom to third parties that are expenses of the
type that would be incurred on Avis's behalf; and (ii) expenses that
shall be actually paid or otherwise satisfied by WizCom.
"Performance Standards" shall have the meaning ascribed to such term in
Section 6.1.
"Prime Rate" shall mean the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime
rate in effect as its principal office in New York City; each change in
the Prime Rate shall be effective from and including the date such
change is publicly announced as being effective.
"Port" shall mean WizCom-provided equipment which provides the entry
point to the WizCom Network Node for a given Network Access line. Port
includes any equipment or portions thereof which function to connect a
master modem or DSU to the Network Node. Port also includes a portion
of the Network Node input-output hardware.
"Procedures Manual" shall have the meaning ascribed to such term in
Section 5.5.
"Project" shall have the meaning ascribed to such term in Section
8.1(d).
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"Rental Agreement" shall mean a rental agreement processed through the
Systems which results in a new numbered transaction that Avis or Avis
Authorized Users cause to be entered into or generated by the Systems.
Modifications to a Rental Agreement shall not, for billing purposes,
constitute a separate Rental Agreement.
"Reservation" shall mean a reservation processed through the Systems
which results in a new numbered transaction (excluding reservations
created and canceled within the same operating day, as such day is
defined by WizCom) being entered into or generated by the Systems.
Modifications to a Reservation shall not, for billing purposes,
constitute a separate Reservation.
"Services" shall have the meaning ascribed to such term in Section 3.1.
"Software" shall mean Applications Software and Systems Software and
any other Software comprising part of the Systems.
"Systems" shall mean the hardware/software/firmware components required
to provide reservations, data processing and information management
(including data bases, systems and application software) for Avis's
vehicle rental business and any newly developed
hardware/software/firmware developed hereunder and used by WizCom to
provide Services hereunder.
"Systems Software" shall mean those software programs that perform
tasks basic to the functioning of the Equipment and which are required
to operate the Applications Software or otherwise support the provision
of Services by WizCom. Systems Software includes operating systems,
systems utilities, data security software, telecommunications monitors
and database managers.
"Technical Efficiency Projects" shall have the meaning ascribed to such
term in Section 8.1(a)(2)(iii).
"Term" shall have the meaning ascribed to such term in Section 2.1.
"Third Party Development" shall have the meaning ascribed to such term
in Section 5.6(b) and 7.1(b).
"Unrecovered Allowable Costs" shall have the meaning ascribed to such
term in Section 14.2.
"WizCom Managed Network" shall mean that portion of the Network managed
by WizCom at Avis's request, as further described in Section 1(a) of
Schedule A.
"WizCom Software" shall mean the WizCom proprietary software and the
WizCom Third Party Software.
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"WizCom Third Party Software" shall mean the software which is licensed
by WizCom or its Affiliates from third party vendors and which is used
to provide the Services, and shall include any maintenance commitment
contained in the agreement or license governing same. Software owned by
WizCom or its Affiliates, including Wizard Co., Inc., shall not be
deemed WizCom Third Party Software. The WizCom Third Party Software as
of the Effective Date is listed on Schedule D.
1.2 Other Definitions.
Other terms used in this Agreement are defined in the context in which
they are used and shall have the meanings there indicated.
ARTICLE 2 TERM.
The term of this Agreement will begin on the Effective Date and will remain in
effect until the Master License Agreement is terminated ("Term"), unless
terminated earlier in accordance with the provisions of this Agreement.
ARTICLE 3 SCOPE OF SERVICES.
3.1 Description of Services.
(a) Pursuant to the terms and conditions of this Agreement, Avis
shall use WizCom to process through the System, the
Reservations and Rental Agreements generated for Avis's
vehicle rental business worldwide, and shall obtain such other
Services as hereinafter provided (the "Services"):
(i) the Data Center Services described in Schedule A, the
Applications Development Services described in
Schedule A, the Data Communications Services
described in Schedule A and the Help Desk Services
described in Schedule A;
(ii) training of designated Avis personnel in order to
"train the trainer" (i) to support End User
Equipment and/or Software other than Avis Owned
Software or Avis Third Party Software and (ii) in the
use of the Systems;
(iii) access to and use of the Systems in the conduct of
Avis's vehicle rental business; and
(iv) any other services expressly described in this
Agreement such as termination assistance.
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(b) WizCom shall, on behalf of Avis, select, order, purchase, install and
maintain all End User Equipment Avis may require from time to time in
connection with Avis's use of the Systems (the "End User Equipment
Services"). WizCom shall make commercially reasonable efforts to
identify suppliers with favorable terms for End User Equipment. Except
as otherwise agreed in writing by the Parties or as otherwise provided
in this Agreement, all rights in and title to any End User Equipment
acquired by WizCom on behalf of Avis shall belong to WizCom. At Avis's
request, WizCom shall be permitted to enter into agreement(s) with
third party providers of services such as maintenance and equipment
leases. Avis shall be charged for purchase, installation and
maintenance of End User Equipment in accordance with Schedule C.
(c) WizCom will control the time, place and manner of its performance of
the Services, except as otherwise provided in this Agreement. Except
as may be necessary on an emergency basis to maintain the continuity
of the Services WizCom shall not, without Avis's consent, such consent
not to be unreasonably withheld or delayed, modify (i) the composition
or nature of the Services or (ii) the manner in which the Services are
provided or delivered, if such modification or modifications would
have a cost in excess of $50,000.00 per year or a non-cost material
adverse effect on the business of Avis. If WizCom must replace a line,
circuit, equipment or service provided to Avis by WizCom or another
vendor, except in an emergency, WizCom shall not remove, or ask the
other vendor to remove, the old service until the replacement has been
installed and accepted by Avis or WizCom, where appropriate.
3.2 Additional WizCom Services.
In the event Avis wants WizCom to provide additional services which are
not part of the Services ("Additional Services"), the Parties shall
follow the procedures set forth in the Procedures Manual and, if WizCom
is willing to provide such Additional Services, the Parties shall
execute a mutually agreeable addendum to this Agreement (the
"Addendum") with respect to such Additional Services. Additional
Services and the Addendum shall be subject to the terms and conditions
set forth in this Agreement. Additional Services shall be provided and
charged to Avis only upon Avis's prior approval.
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ARTICLE 4 CHARGES AND PAYMENT.
4.1 Invoicing and Payments.
Avis shall pay WizCom the charges set forth in Schedule C for the
Services. WizCom shall invoice Avis for all amounts payable by Avis in
respect of any calendar month pursuant to Schedule C no later than the
third business day of such month and Avis shall pay WizCom for
undisputed invoiced amounts within thirty (30) days following receipt
of such invoice.
4.2 Taxes.
Avis will pay, or reimburse WizCom for, all sales, use, transfer,
privilege, excise, value added, Canadian general sales, or other taxes,
whether foreign, national, state or local, however designated, which
are levied or imposed by reason of or are related to the Services
contemplated hereby including withholding taxes, excluding, however,
income and franchise taxes on profits which may be levied by any taxing
jurisdiction in the United States against WizCom.
4.3 Disputed Charges.
Avis shall pay all undisputed charges when such payments are due under
this Article. Avis may withhold payment of a particular charge, or
portion of a charge, where Avis in good faith disputes the entirety of
that charge or that portion. The parties shall be bound by the dispute
resolution provision set forth in Article 16 hereof with regard to all
disputed charges. Such withholding shall not extend to any portion of
the charge not included in said good faith dispute. In the event Avis
withholds payment erroneously, interest at the per annum rate of the
Prime Rate plus three percent (3%) shall be assessed from the date such
withheld amounts were in fact due and payable.
4.4 Pro-ration.
Charges payable periodically hereunder shall be prorated for any period
less than the specified period.
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ARTICLE 5 MANAGEMENT.
5.1 Organization.
(a) Retention and Replacement of Personnel.
(1) The Parties agree that it is in their mutual best
interests to keep the turnover rate of the personnel
performing the Services (by departure from WizCom,
removal from performing the Services, or otherwise)
to a reasonably low level. If Avis reasonably
believes the turnover rate to be excessive and so
notifies WizCom, WizCom shall use commercially
reasonable efforts to reduce the turnover rate to a
reasonably acceptable level.
(2) If Avis reasonably and in good faith determines that
an individual performing the Services is not
performing work for Avis in a satisfactory manner,
Avis will so notify WizCom and Avis and WizCom will
work together in good faith to resolve the situation.
If such discussions fail to produce a solution
satisfactory to Avis, WizCom shall promptly remove
such individual from performing the Services, and
provide a suitably qualified replacement as soon as
practicable.
(b) Account Team for Avis.
(1) The "Account Team for Avis" shall consist of a senior
WizCom representative from each major area of
Services, designated as Data Center, Help Desk,
WizCom-Managed Network, and Applications
Modifications. It shall be led by a WizCom Account
Executive who need not be one of the individuals
designated from the major Service areas. The
organizational structure and responsibilities of the
Account Team for Avis shall be subject to change from
time to time upon the mutual agreement of the
Parties. The Account Team for Avis shall have primary
WizCom responsibility for (i) overall management of
the relationship between Avis and WizCom and (ii)
communications between Avis and WizCom.
(2) The responsibilities of the Account Team for Avis
shall be to (i) understand Avis's business
requirements to the extent necessary to perform the
Services, as those requirements have been disclosed
by Avis to WizCom; (ii) discuss with the Avis Project
Executive issues and concerns of Avis regarding the
Services; (iii) take appropriate steps so that the
Services are performed in accordance with the
provisions of this Agreement; (iv) monitor the status
of efforts to resolve problems in delivery of the
Services and report such status to Avis; (v) review
the
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status of previously reported Avis change and service
requests; (vi) respond to Avis requests for
information and meet with Avis representatives at
Avis's request; and (vii) generally work with other
Avis employees during the Term.
5.2 WizCom Management Process.
(a) Annual Financial Plan.
(1) Avis will provide WizCom, no later than September
30th of each year, Avis's projected volume of
transactions and system development budget, together
with preliminary priorities for system development
projects, for the next succeeding calendar year (each
such calendar year, a "Planning Period"), and shall
reply within five (5) days to WizCom's request for
additional information regarding such projections, in
order to assist WizCom in developing an annual
financial plan (the "Financial Plan") reflecting the
projections for costs for the Services for Avis for
such Planning Period. Avis acknowledges that WizCom
will be making decisions regarding required staffing
levels (the "Staffing Plan") based on the information
provided by Avis and the final Financial Plan;
therefore, any required replacements and/or
reductions of personnel from such Staffing Plan which
are requested after the commencement of the Planning
Period must be submitted in writing and approved by
WizCom. In the event Avis's projections for system
development services for a Planning Period result in
a reduction of more than twenty percent (20%) in the
estimated number of person hours of system
development services to be performed on behalf of
Avis by WizCom as compared to the immediately
preceding Planning Period, or if Avis does not, in
fact, utilize in any Planning Period at least eighty
percent (80%) of the person hours for system
development services utilized in the preceding
Planning Period, then WizCom shall be entitled to
charge as a cost hereunder costs incurred in
connection with reductions in staff (including, but
not limited to, severance, benefits and other
termination costs) resulting from such reduction in
system development services commitment usage from
Avis; provided that WizCom shall use reasonable good
faith efforts to limit such costs through utilization
of staff, where possible, to provide services to
other WizCom customers.
(2) Provided Avis supplies the information contemplated
in subparagraph (1) above in a timely manner, WizCom
shall prepare the Financial Plan by November 15th of
each year during the Term, unless the Parties
mutually agree otherwise in writing. WizCom shall
consider such information provided by Avis in
developing each Financial Plan;
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provided, however, that Avis shall have right of
approval over only those portions of the Financial
Plan that represent costs chargeable solely to Avis,
(i.e., costs that are not to be shared among
customers).
(3) As Avis may reasonably request, WizCom shall provide
Avis with information regarding the items contained
in the Financial Plan and will review and discuss
such items with Avis.
(4) Until otherwise notified by Avis, and except as set
forth in the Financial Plan, WizCom shall obtain
Avis's written approval prior to (A) incurring costs
greater than $50,000 (excluding project development)
for a Service to be provided solely to Avis. If Avis
fails to provide written approval within five (5)
business days after WizCom provides notice of such
cost or commitment, WizCom will not be liable for any
costs, lost opportunities and/or deadlines missed.
(b) Management of Technology.
WizCom shall review annually with Avis the short- and
long-term technology and operations plans for providing
information services to Avis, and shall provide Avis with such
other plans and information regarding WizCom's technology
direction as Avis reasonably requests. WizCom shall consider
Avis's reasonable comments with respect to such technology
plans and operations, and shall follow Avis's direction with
respect to technology decisions affecting the Services to the
extent provided solely to Avis.
5.3 Avis Authorized Users.
(a) Designation By Avis.
WizCom shall provide the Services, or portions thereof, to
such Avis Authorized Users as Avis may from time to time
designate by notice to WizCom.
(b) Performance of Avis Obligations.
As Avis may from time to time designate by notice to WizCom,
Avis Authorized Users may perform certain of Avis's
obligations with respect to the Services, other than Avis's
payment obligations described in Article 4 and Schedule C.
Notwithstanding any such designation, Avis shall remain
responsible for the performance of its obligations under this
Agreement, and WizCom shall have direct recourse to Avis if
Avis's designees under this
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Section 7.3(b) fail to perform such obligations. Damages
suffered by Avis Authorized Users as a result of a breach by
WizCom shall be treated as damages of Avis for purposes of
this Agreement.
(c) Use of "Avis".
Subject to Sections 5.3(a) and (b), with respect to provisions
of this Agreement in which the term "Avis" appears, should a
question arise as to whether "Avis" applies to Avis Authorized
Users, the provision shall apply to Avis Authorized Users or
to Avis as Avis reasonably designates; provided, however, that
nothing in this Agreement shall give Avis Authorized Users
rights as third party beneficiaries.
(d) Responsibility of Avis for Avis Authorized Users.
Nothing in this Article 5.3 shall relieve Avis of
responsibility for its obligations under this Agreement. Avis
shall be responsible for its relationship with Avis Authorized
Users and for their use of the Systems. All usage of the
Systems by Avis Authorized Users under this Agreement shall,
for the purpose of calculating charges due under this
Agreement, be deemed to be usage by Avis and WizCom will xxxx
Xxxx for all Services provided to Avis Authorized Users. Avis
shall be responsible to pay such charges whether or not it
recovers payment from Avis Authorized Users. Notwithstanding
anything to the contrary in this Agreement, Avis shall be free
to offer to Avis Authorized Users the ability, subject to and
limited by Avis's rights and obligations under this Agreement,
to use part or all of the Systems on such terms (including
payment) in Avis's sole discretion.
5.4 Avis Responsibilities.
In addition to Avis's responsibilities as set forth elsewhere in this
Agreement, whether general or specific, Avis shall be responsible for
performing the following:
(a) Avis shall designate, as of the Effective Date, one individual
to whom all WizCom communications concerning this Agreement
may be addressed (the "Avis Project Executive") and one
alternate when the individual designated as the Avis Project
Executive is not available. Avis shall have the right to
change the designation of the individuals who will act as the
Avis Project Executive and the alternate upon prior written
notice to WizCom.
(b) Avis shall cooperate with WizCom by, among other things,
making available, as reasonably requested by WizCom,
management decisions, information, approvals and acceptances
so that WizCom may accomplish its obligations and
responsibilities under this Agreement.
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(c) Avis may establish and thereafter revise appropriate
priorities for the Services, including Projects, that relate
to Avis only. To the extent it does so, it shall communicate
the same to WizCom. Avis recognizes that changes in such
priorities may result in reordering of other priorities to
provide the Services or an increased cost. WizCom shall advise
Avis if Avis's proposed establishment or revision of
priorities may result in such reordering or increased cost.
(d) With respect to Avis Data, WizCom shall not be responsible to
Avis for inaccuracies entered into the Systems by Avis and/or
any Avis Authorized User.
(e) WizCom may accept as correct, accurate and reliable, without
any further inquiry, all information, data, documents and
other records of Avis delivered, supplied or made available to
WizCom hereunder.
Avis agrees that to the extent its failure to meet its obligations set
forth in this Article 5.4 adversely affects the ability of WizCom to
perform any of WizCom's obligations under this Agreement, WizCom shall
be relieved of the obligations so adversely affected to the extent (i)
WizCom's nonperformance results from Avis's failure to perform its
responsibilities, and (ii) WizCom provides Avis with prompt written
notice of such nonperformance.
5.5 Procedures Manual.
(a) The Procedures Manual describes the procedures to be followed
in connection with the Services, including (i) operation
and management of the Data Center, (ii) administration of
the Help Desk, including problem resolution, and (iii)
procedures for performing Maintenance and administration of
and requests for Projects. WizCom reserves the right to
modify or amend the procedures set forth in the Procedures
Manual.
(b) The Procedures Manual shall include standards for change
control procedures, which shall include the following
requirements:
(1) Prior to using any Software or Equipment to provide
the Services, WizCom shall have taken reasonable
steps to verify that the item has been properly
installed and is operating in accordance with its
specifications;
(2) WizCom shall make no change that WizCom reasonably
expects or should expect would materially and
adversely affect the function or performance of, or
decrease to any significant
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degree the resource efficiency of, the Services,
without obtaining Avis's prior approval. WizCom may
make temporary changes required by an emergency if it
has been unable to obtain such approval after making
reasonable efforts. WizCom shall promptly report such
emergency changes to Avis. If WizCom makes a change
not prohibited by the first sentence of this clause
(b)(2) and Avis subsequently determines that such
change has the effect described in such sentence then
WizCom shall, upon notice from Avis, take
commercially reasonable action to rectify same
promptly; and
(3) WizCom shall move programs from the development and
test environments into the production environment in
a tested, controlled and documented manner.
(c) The Procedures Manual shall include samples of the forms (if
any) with instructions on their completion and use, that Avis
will be requested to submit with respect to any of the
Services.
(d) The Services shall be performed in accordance with the
Procedures Manual. In the event of a conflict between the
provisions of this Agreement and the Procedures Manual, the
provisions of this Agreement shall control.
(e) WizCom, in consultation with Avis, shall periodically update
the Procedures Manual to reflect changes in the operations or
procedures described therein. Material modifications or
updates of the Procedures Manual shall be provided to Avis for
review and comment, which comment shall be given reasonable
consideration.
(f) Except as otherwise provided in this Agreement, nothing in the
Procedures Manual shall be deemed to expand on or affect the
scope of Services herein or the fees payable therefor.
5.6 Use of Subcontractors.
(a) Subject to Article 5.6(e), WizCom shall have the right to
subcontract any portion of the Services hereunder to third
party contractor(s), provided, however, that prior to entering
into a subcontract with a third party for services or products
that are material to a function provided solely to Avis,
WizCom shall give Avis reasonable prior notice, including the
identity of the subcontractor and the scope and nature of the
subcontract. If Avis disapproves of the proposed
subcontractor, WizCom may not subcontract that portion of
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the Services unless, in WizCom's reasonable judgment, there is
no suitable replacement, whether WizCom or another entity, for
the proposed subcontractor.
(b) Avis may not use consultants, subcontractors or other third
parties to provide any portion of the Services; provided,
however, Avis may, subject to Articles 8.3 and 5.6(e), use
such consultants, subcontractors or other third parties to
develop software or systems which do not directly or
indirectly interface with or affect the Systems, except to
accept and utilize Avis Data from the Systems ("Third Party
Development"). Third Party Development shall be either Avis
Owned Software or Avis Third Party Software.
(c) WizCom shall cooperate with Avis consultants, subcontractors
and third party representatives permitted pursuant to this
Agreement as reasonably requested by Avis. Avis shall
cooperate with WizCom's authorized consultants, subcontractors
and third party representatives as reasonably requested by
WizCom.
(d) Each Party shall ensure that its consultants, subcontractors
and third party representatives execute a confidentiality
agreement which requires the subcontractor to comply with the
confidentiality obligations set forth in Article 9.3. Each
Party shall provide the other with copies of each such
confidentiality agreement if requested.
(e) Each Party shall remain responsible and hold the other Party
harmless for performance of obligations subcontracted to its
subcontractors.
5.7 Reports and Meetings.
(a) General.
Subject to Articles 5.7(b) and (c), the Parties shall mutually
agree upon periodic meetings to discuss WizCom's Services, the
operation of the Data Center, and Maintenance and development
activities, as such items relate to the Systems and the
Services, and shall mutually agree on the form of periodic
reports from WizCom relating to such items, with each Party to
assume its own expenses related to such meetings.
(b) Reports.
Reports shall include a monthly performance report delivered
to Avis within 15 days after the end of each month, in a form
mutually established by the Parties, describing WizCom's
performance of the Services in the preceding month, including
performance with respect to Performance Standards, status of
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Projects, status of problem resolution efforts, and status of
changes and planned changes for Equipment and/or Software.
(c) Meetings.
Meetings shall include meetings with the Account Team for Avis
(or specific members thereof) as reasonably requested by Avis
to discuss the Services.
5.8 Avis Audit Rights.
(a) Access.
Upon reasonable prior written notice, WizCom shall provide to
Avis auditors (including internal audit staff) and other
representatives as Avis may from time to time designate in
writing, access at all reasonable times to the part of any
facility at which WizCom is providing the Services, to WizCom
personnel providing the Services, and to data and records
relating to the Services for the purpose of performing audits
and inspections of WizCom, to verify the accuracy of WizCom's
charges to Avis, provided that any such audits may not be
requested more frequently than once a year. Avis shall bear
the expense of any such audit. Notwithstanding the foregoing,
nothing herein contained shall prohibit Avis from conducting
its internal audit activities as conducted by it as of the
Effective Date of this Agreement.
(b) Cooperation.
WizCom shall provide to such auditors such assistance as they
reasonably require, including installing and operating audit
software. The cost of all services rendered by WizCom in
connection with any such audit, and any computer time to
operate such audit software, shall be charged as a cost
herein. Avis's auditors and other representatives shall comply
with applicable security requirements in effect at the Data
Center or any other WizCom facility.
(c) Fees.
If, as a result of such audit, Avis determines that WizCom has
charged Avis amounts in excess of the charges to be remitted
in accordance with Article 4, Avis shall notify WizCom of the
amount of such overcharge and WizCom shall provide a credit to
Avis for the amount of such overcharge. In the event of a
dispute over the result of any such audit, the amount so
disputed shall be deposited by the party to be charged with an
escrow agent acceptable to both parties and pursuant to an
escrow agreement acceptable to both parties and such escrow
agent until such time as the dispute is resolved.
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ARTICLE 6 PERFORMANCE STANDARDS.
6.1 Performance Standards in General.
(a) WizCom shall at a minimum perform the Services in accordance
with the performance standards described in Schedule B (the
"Performance Standards").
(b) WizCom shall use commercially reasonable efforts to remedy any
Performance Standards failure
(1) Such efforts shall include promptly (i) investigating
the causes of the problem and discussing
investigation results with Avis, (ii) undertaking to
correct the problem and its underlying cause and to
begin meeting the Performance Standards, and (iii)
advising Avis of the status of remedial efforts.
(2) In the event Performance Standards relating to the
Data Center are not met over a particular year of the
Term, in addition to the other remedies Avis may have
under this Agreement, Avis may (i) create a plan,
jointly with WizCom, to improve the performance of
the Data Center; or (ii) if the failure to meet the
Performance Standards occurs during two consecutive
years of the Term, have an independent third party
mutually agreeable to the Parties review the
situation and propose solutions, which shall be
implemented as promptly as practicable, provided both
Parties agree to such solutions.
6.2 Periodic Review.
Commencing upon the Effective Date, and at least annually thereafter,
the Parties shall review the Performance Standards and shall make
adjustments and additions to them as mutually agreed upon by the
Parties as appropriate, to reflect changes in technology and service
platforms, changes in the Services or in use, including a material
increase in Avis's use of the Data Center or enhancements,
modifications, additions or replacements in the Services.
6.3 Measurement and Monitoring Tools.
WizCom shall implement for Avis measurement and monitoring tools and
procedures required to measure for each appropriate time period
WizCom's performance of the Services against the applicable
Performance Standards in accordance with Schedule B, and shall provide
Avis with the reports required under Schedule B. To the extent
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that Avis requests any measurement and monitoring tools additional to
those in place as of the Effective Date of this Agreement or
implemented by WizCom for the benefit of its customers generally, the
cost of such tools shall be borne by Avis.
ARTICLE 7 RESPONSIBILITY FOR RESOURCES.
7.1 Software License.
WizCom Software.
(a) All Software is, or shall be, and shall remain, the exclusive property
of WizCom or its third party licensor(s), as applicable, and Avis
shall have no rights or interests in or to the WizCom Software, except
as set forth in this Section 7.1(a). Avis acknowledges that WizCom and
the assigns of WizCom shall have the right to obtain and hold in their
own corporate name any intellectual property rights in and to WizCom
Software. With respect to WizCom Software, WizCom hereby grants to
Avis such usage rights in the WizCom Software on WizCom's hardware in
WizCom's custody solely in connection with the Services as follows:
(i) WizCom hereby grants to Avis a non-exclusive worldwide fully paid
up perpetual license to use the software, including any
modifications and enhancements thereto, set forth in Schedule K
hereto (the "Exclusive Systems"). Notwithstanding anything
contained herein to the contrary, WizCom shall not permit a
competitor of Avis (subject to any existing Agreements or
obligations which WizCom has at the Effective Date of this
Agreement) to use any Systems set forth in Schedule K.
(ii) WizCom hereby grants to Avis for the Term a non-exclusive
worldwide fully paid up license to any New Systems which are
created by WizCom specifically for Avis. WizCom agrees that it
shall not license or permit the use of such New Systems by a
competitor of Avis for a period of two (2) years from the date of
implementation.
(iii)WizCom hereby grants to Avis a non-exclusive worldwide fully
paid up license for the Term to use the Systems, other than New
Systems and the Exclusive Systems.
Avis agrees to execute any documents or to take any other actions
as may be necessary, or as WizCom may request, to acknowledge and
confirm the licenses described above and the rights of WizCom to
any such licensed product.
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(b) If Avis engages a third party to develop a Third Party
Development as permitted hereunder, WizCom shall provide to
such third party information regarding the Systems in order
for such Third Party Development to interface with the
Systems sufficiently to retrieve required Avis Data and
shall grant to such third party a limited, non-exclusive,
non-transferable, temporary right during the Term to use
such information provided by WizCom for the sole benefit of
Avis and for the sole purpose of performing such work during
the term of such third party's engagement by Avis. Such
rights WizCom may grant pursuant to this Article are subject
to compliance with the requirements of Article 5.6(d).
(c) Except as may be approved by WizCom, Avis shall not make, or
cause to be made, any changes or modifications to any Avis
Software if changing such Avis Software would adversely
affect the functionality of the Software, degrade the
performance of the Software or adversely affect the
day-to-day operations of WizCom's business except as may be
necessary on a temporary basis to maintain the continuity of
the Services. In addition, Avis shall be responsible for any
modification or enhancement to or substitution for, the
WizCom Software, whether owned by WizCom or licensed from a
third party licensor(s) and any other equipment used in
connection with the Services necessitated by unauthorized
changes to the WizCom Software, whether owned by WizCom or
licensed from a third party licensor(s) (except as may be
necessary on a temporary basis to maintain the continuity of
the Services).
7.2 International Considerations.
(a) Certain Software and technical data to be provided, and certain
transactions contemplated, under this Agreement may be subject to export
controls under the laws and regulations of the United States and other
countries. No Party shall export or re-export any such items or any direct
product thereof or undertake any transaction in violation of any such laws or
regulations. Avis shall be responsible for obtaining any such export control
authorizations to the extent applicable to Avis and/or Avis Authorized Users.
WizCom shall be responsible for obtaining any such export control authorizations
to the extent applicable to WizCom.
(b) Each Party shall be responsible for its compliance with all laws and
regulations relating to data protection and privacy and/or transferred data flow
as may be applicable to its use of the Systems for its own benefit.
7.3 Hardware.
WizCom shall have control or charge of, and shall be responsible for,
the means, methods, techniques, sequences or procedures of
construction, fabrication,
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procurement, shipment, delivery or installation, in connection with all
Equipment required for the Services. To that end, WizCom shall, in its
sole discretion, from time to time during the Term, upgrade and/or
replace Equipment and End User Equipment used in connection with the
Systems in an effort to address hardware obsolescence or the need for
increased capacity. Avis shall be advised of all Equipment and End User
Equipment upgrades and the costs therefor.
7.4 Avis Third Party Software.
Prior to the Effective Date, the Parties will verify that Avis has
provided WizCom with access to and a copy of all Avis Third Party
Software (including source code, object code, system documentation and
related work product to the extent permitted by the underlying license
and necessary for the Services) for WizCom to operate for Avis's
benefit.
(a) WizCom shall manage and utilize Avis Third Party Software for
the purpose of providing Services to Avis, and shall comply
with all reasonable and customary use restrictions and
obligations of nondisclosure imposed on Avis by any license
for such Avis Third Party Software to the extent made known to
WizCom.
(b) All charges, if any, under the licenses for such Avis Third Party
Software, including, but not limited to royalties, license fees, access fees or
user fees, shall be the sole responsibility of Avis. Upon termination of this
Agreement, Avis shall be solely responsible for all subsequent charges, if any,
under the licenses for Avis Third Party Software. Notwithstanding the foregoing,
any charges incurred in connections with obtaining access for WizCom to any of
the Avis Third Party Software listed on Schedule E as of the Effective Date
shall be shared equally by Avis and WizCom.
(c) Except as otherwise requested or approved by Avis, WizCom
shall cease all use of Avis Third Party Software upon
termination of this Agreement, except as necessary for WizCom
to provide termination assistance.
7.5 Escrow Agreement.
As soon as reasonably practicable after the execution of this
Agreement, WizCom shall deposit in escrow, with an escrow agent in the
United States and under an agreement reasonably acceptable to Avis and
WizCom (the "Escrow Agreement"), as set forth in Schedule J for a term
concurrent with the Term, one (1) copy of the Licensed Software in the
source code form; if the Licensed Software is modified subsequent to
such deposit, WizCom shall replace the unmodified copy of the Licensed
Software then in escrow with a deposit of one (1) copy of the modified
Licensed Software in the source code form.
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ARTICLE 8 APPLICATION MODIFICATION AND DEVELOPMENT.
8.1 Modifications.
As of the Effective Date, WizCom shall be responsible for
modifications, enhancements, supplements and replacements to the
Systems, except as otherwise provided in this Agreement. With respect
to any type of modifications as to which initially WizCom is not
responsible, in whole or in part, then WizCom shall only accept future
responsibility on mutually agreeable terms. Modifications shall consist
of Maintenance and Enhancements as described in this Article 8.1
(collectively, "Modifications").
(a) Maintenance.
(1) "Maintenance" shall mean software maintenance
performed by WizCom on the Systems or any other
computer software, including supporting documentation
and media, used to provide the Services to Avis, so
that the Systems and computer software provide the
agreed upon functionality for Avis. Maintenance shall
include the WizCom activities described in Article
8.1(a)(2) as they are performed by WizCom with
respect to the Systems. A Modification to the Systems
or any other computer software, including supporting
documentation and media, that is not "Maintenance"
under this Article 8.1(a) shall be deemed to be an
"Enhancement" under Article 8.1(b).
(2) WizCom's Maintenance obligations for Avis shall include:
(i) Correction of malfunctions - WizCom shall use commercially
reasonable efforts to correct Applications malfunctions in the Systems,
including abnormal termination and situations which result in incorrect
results. If the incorrect results are a result of a System malfunction
(e.g., performance inconsistent with System documentation), the correction
will be performed as Maintenance. If the incorrect results are not a result
of a System malfunction, Avis will be given an opportunity to change the
performance of the System as an Enhancement. Avis shall provide WizCom with
reasonable assistance in WizCom's efforts to identify, locate and correct
the Applications malfunction.
(ii) System support - WizCom shall perform such Applications testing
and changes to the Systems as it deems necessary or as Avis reasonably
requires to support new Systems Software releases and upgrades and new
hardware installations and changes. Such
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system support shall also include Applications testing deemed
necessary by WizCom or reasonably required by Avis to support the Systems
for disaster recovery tests.
(iii) Technical efficiencies - WizCom may modify the Systems, subject
to the change control requirements set forth in the Procedures Manual (A)
to make an improvement in a current process or program that reduces the
shared costs, such as maintenance, system run time and manpower, or (B) to
improve WizCom's Applications staff productivity, including such items as
pilots for new tools (collectively, "Technical Efficiency Projects").
Technical Efficiency Projects that WizCom reasonably estimates will require
more than six person months of effort shall be considered an Enhancement,
and shall be subject to Avis's prior approval. An example of a Technical
Efficiency Project that would be considered an Enhancement is the expansion
or major rewrite of a database that requires more than six (6) person
months of effort.
(3) Charges for Maintenance shall be as provided in Schedule C.
(b) Enhancements. "Enhancements" shall mean modifications, enhancements,
replacements or supplements that add one or more new functions to the
Systems (e.g., to accommodate new surcharges, mandatory third party changes
(e.g., GDS or credit clubs), or mandatory changes required by law or
regulation), which are thereafter integrated into the Systems and are not
Maintenance. WizCom shall perform Enhancements for the Systems at Avis's
request, for the charges set forth in Schedule C for Projects ("Avis
Enhancements"). WizCom shall perform Avis Enhancements in accordance with the
methodology and Project management procedures described in Article 8.2.
(c) Third Party Supported Functions. Certain of the functions of the
Systems identified in Schedule A require additional hardware, software,
communications licenses, and/or other equipment or services to be provided
by a company other than WizCom or its Affiliates ("Third Party Supported
Functions"). During the Term, if any Enhancements to the Systems involve
additional Third Party Supported Functions, Avis shall bear all costs
associated with procuring the associated hardware, software, vendor
analysis, software development and support, licenses and services from the
third parties identified by WizCom or otherwise selected by Avis. The costs
of the hardware, software, licenses and services obtained from third parties
for Avis's Third Party Supported Functions shall be borne by Avis. As
requested by Avis, WizCom shall assist Avis in its implementation of new
Third Party Supported Functions as a Project.
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(d) New Systems. At the request of Avis, WizCom will submit a proposal to
develop New Systems desired by Avis. If Avis accepts WizCom's proposal, WizCom
will undertake to develop such New Systems.
(e) Projects. "Projects" shall mean all Enhancement or New System projects
requested by Avis or otherwise agreed to between Avis and WizCom.
(f) New Technology. WizCom shall use commercially reasonable efforts in
researching and developing new technologies and Services which are to be
utilized specifically by the car rental industry. Such new technology and/or
Services will be integrated with the existing Systems upon the mutual agreement
of cost by the Parties.
8.2 Methodology and Project Management Procedures.
WizCom shall perform Projects at Avis's request or as agreed by Avis
and WizCom. Proposals for initiating Projects made by WizCom or third
parties shall be subject to Avis's review and approval. Subject to the
provisions of this Article 8.2, detailed procedures for initiation and
approval of Avis Projects shall be set forth in the Procedures Manual.
8.3 Third Parties.
Avis shall have the right to contract with a third party to perform any
service not included in the Services (a "New Service"). Subject to
Article 5.6(b), should Avis contract with a third party to perform a
New Service, WizCom shall cooperate with Avis and such third party to
the extent reasonably required by Avis, at Avis's expense, including
provision of (i) appropriate interfaces between the Services and any
New Service and (ii) reasonable assistance and support services to such
third party at reasonable commercial rates; provided, however, Avis
shall require such third parties to comply with WizCom's reasonable
requirements regarding operations, standards and security, including
confidentiality obligations in Article 5.6(d).
Subject to any restrictions contained herein, the Parties agree that
should any New Service provided by a third party be subsequently
integrated into the System or should additional equipment (the "New
Equipment") requested by Avis be integrated into the Systems, such
integration shall be recognized as an Enhancement pursuant to Article
8.1(b). If integrated into the Systems, the integrated portion shall be
maintained by WizCom unless otherwise agreed by the Parties. If a New
Service or New Equipment is not integrated into the System, and will be
operated by WizCom, then Avis will provide the necessary maintenance
and support unless the Parties agree otherwise in advance. Any services
WizCom performs to correct problems in the
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Systems caused by any New Service and/or New Equipment shall be charged
to Avis as a Project under Schedule C. If, in WizCom's sole judgment,
such correction must be accomplished on an emergency basis, WizCom may
act accordingly to resolve such emergency.
8.4 Documentation.
(a) General.
WizCom shall provide to Avis, at Avis's expense, such
assistance and information on a timely basis as Avis may
reasonably require to understand and use all operations,
features and functions of the Systems for Avis's business. If
there is a disagreement between the Parties regarding whether
WizCom is required to provide certain assistance or
information, the Parties shall promptly attempt to resolve
such disagreement and shall discuss such matters at the
management meetings described in Article 5.7.
(b) Documentation.
(1) Subject to the terms hereof, during the Term,
preparation of documentation shall be provided and
charged as a Project and shall be subject to the
provisions applicable to Projects in this Agreement,
including those in the Procedures Manual.
(2) Upon completion of a Project WizCom will provide Avis
with not less than one (1) complete copy of
documentation required to operate such Project.
(3) All documentation provided by WizCom and portions
thereof incorporated in Avis's documentation shall
remain proprietary to WizCom and shall be deemed
Confidential Information of WizCom and subject to the
terms of Article 9.3.
ARTICLE 9 SAFEGUARDING OF DATA; CONFIDENTIALITY.
9.1 Avis Data.
Avis Data shall be and shall remain the property of Avis. Upon (i)
Avis's request, or (ii) the termination of this Agreement for any
reason and at Avis's expense, such Avis Data or other Avis Confidential
Information shall either be promptly returned to Avis by WizCom in the
form in which maintained by WizCom (or in such other form reasonably
requested by Avis to the extent Avis pays for the expense thereof) or,
if Avis so elects, shall be destroyed. Avis Data shall not be utilized
by WizCom for
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any purpose other than rendering the Services to Avis under this
Agreement, computing charges to Avis, or as required by law,
regulation, or order of a court or regulatory agency or other authority
having jurisdiction therefor. Notwithstanding the foregoing, so long as
the Master License Agreement remains in effect, WizCom and its
affiliates will have the right to use the Avis Data as provided in the
Master License Agreement.
9.2 Safeguarding of Avis Data.
WizCom shall maintain reasonable safeguards against the destruction,
loss, or alteration of Avis Data in the possession of WizCom which are
no less rigorous than those maintained by WizCom for other customers
for information of a similar nature. Avis at its sole cost and expense,
shall have the right to establish additional backup security for data,
and to keep in its possession backup Avis Data and files thereof;
provided, however, that WizCom shall have access to such backup data
and data files as reasonably required by WizCom for the provision of
Services hereunder.
9.3 Confidentiality.
(a) Confidential Information.
(1) WizCom and Avis each acknowledge to the other that it
possesses and will continue to possess information
that has been developed or received by it and that
has commercial value in its business or that of its
customers and is not in the public domain.
(2) Except as otherwise specifically agreed herein or
elsewhere in writing by the Parties, "Confidential
Information" shall mean all information of a Party
acquired by the other Party, that is marked
confidential, restricted, proprietary, or with a
similar designation.
(3) In the case of WizCom, Confidential Information also
shall include, subject to the provisions of this
Article and whether or not marked as described above
and except to the extent such information is owned by
Avis or constitutes Avis Confidential Information
under this Agreement, the Systems, any other Software
provided to Avis by or through WizCom to the extent
treated as confidential by WizCom, all user and
system documentation developed by or for WizCom that
is related to any of the foregoing.
(4) In the case of Avis, Confidential Information also
shall include, subject to the provisions of this
Article and whether or not marked as described above
and except to the extent such information is owned by
WizCom or constitutes WizCom Confidential Information
under this
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Agreement, Avis Owned Software and business
information of Avis and Avis Authorized Users
regarding planning, pricing, results and operations.
(b) Obligations.
(1) To prevent disclosing to any other entity the
Confidential Information of the other party, Avis and
WizCom shall each use at least the same degree of
care as it employs to avoid unauthorized disclosure,
publication or dissemination of its own information
of a similar nature.
(2) Neither WizCom nor Avis shall (i) make any use of the
Confidential Information of the other except as
contemplated by this Agreement, (ii) acquire any
right in or assert any lien against the Confidential
Information of the other except as expressly provided
hereunder, or (iii) refuse for any reason (including
a default or material breach of this Agreement by the
other Party) to return the other Party's Confidential
Information (including all copies thereof) promptly
to it if requested to do so.
(3) Upon termination of this Agreement, each Party shall
(except as otherwise provided in this Agreement)
return or destroy and certify to the destruction of,
as the owner may direct, all materials in whatever
medium that embody the owner's Confidential
Information or any information derived therefrom,
including all copies thereof.
(4) The Parties shall take reasonable steps to ensure
that their employees and employees of third parties
providing services, equipment and/or software comply
with these confidentiality provisions.
(c) Exclusions.
(1) This Article 9.3 shall not apply to any information
which the recipient demonstrates (i) at the time of
disclosure to it was in the public domain; (ii) after
disclosure to it became part of the public domain
through no fault of the receiving Party; (iii) was in
the possession of the receiving Party at the time of
disclosure to it, without confidentiality
restriction; (iv) after disclosure to it, was
received from a third party who had a right to
disclose such information to it free of any
confidentiality obligation; or (v) was independently
developed by the receiving Party, without reference
to Confidential Information of the furnishing Party.
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(2) A Party shall not be considered to have breached its
obligations under this Article for disclosing
Confidential Information to the extent such
disclosure is required to satisfy any legal
requirement of a competent government body provided
that, immediately upon receiving any such request or
demand and to the extent it may legally do so, such
Party advises the other Party promptly and prior to
making such disclosure, so that the other Party may
interpose an objection to such disclosure or take
such other action as it deems appropriate to protect
the Confidential Information.
(3) WizCom's receipt of Confidential Information from
Avis under this Agreement, shall not limit or
restrict assignment or reassignment of WizCom
employees within WizCom or between WizCom and its
Affiliates, subject to the following: (i) such
employees shall remain bound by the confidentiality
provisions of this Agreement; and (ii) WizCom shall
use good faith efforts to implement Avis's reasonable
recommendations on policies for maintaining the
confidentiality of Avis's Confidential Information.
(d) No Implied Rights.
Nothing contained in this Article shall be construed as
obligating a Party to disclose its Confidential Information to
the other Party, or as granting to or conferring on a Party,
expressly or by implication, any right or license to the
Confidential Information of the other Party, except as
expressly provided herein.
(e) Party's Own Information.
Nothing in this Article shall be deemed to restrict the
disclosure or use that a Party may make of its own
information, except as expressly provided herein.
ARTICLE 10 INDEMNITIES.
10.1 WizCom Indemnities.
WizCom shall indemnify, defend and hold harmless Avis, its Affiliates,
and their officers, directors, employees, agents, successors, and
assigns, in accordance with the indemnification procedures herein, from
any losses, liabilities and damages and related costs and expenses
(including reasonable attorneys' fees) arising from or in connection
with any of the following:
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(a) WizCom's failure to observe or perform any duties or
obligations to be observed or performed by WizCom under (i)
WizCom Third Party Software license agreements or service
contracts or (ii) any Avis Third Party Software license
agreement a copy of which was transmitted to WizCom prior to
the first alleged failure, except in each case failures
consented to by Avis in writing;
(b) Any claims of infringement of any U.S. patent, trade secret,
copyright or other proprietary rights, alleged to have
occurred (i) because of use of the Systems by Avis or Avis
Authorized Users (excluding any claims based on Avis
Software), or (ii) as a result of WizCom's activities under
this Agreement, except for (x) such activities for which Avis
indemnifies WizCom under Article 10.2;
(c) WizCom's breach of its obligations with respect to Avis's
Confidential Information; and
(d) WizCom's breach of its obligations under Article 9.2.
10.2 Avis Indemnities.
Avis shall indemnify, defend and hold harmless WizCom, its Affiliates,
and their officers, directors, employees, agents, successors, and
assigns, in accordance with the indemnification procedures herein, from
any losses, liabilities and damages and related costs and expenses
(including reasonable attorneys' fees) arising from or in connection
with any of the following;
(a) Avis's failure to observe or perform any duties or obligations
to be observed or performed (i) prior to the Effective Date by
Avis under the Avis Third Party Software license agreements,
and (ii) after the Effective Date by Avis or WizCom under any
Avis Third Party Software license agreement not disclosed to
WizCom prior to such failure;
(b) Any claims of infringement of any U.S. patent, trade secret,
copyright or other proprietary rights, alleged to have
occurred as a result of (i) Software provided to WizCom by
Avis, or (ii) Avis's activities under this Agreement,
including Modifications made to the Systems by Avis and/or its
Affiliates;
(c) Any claims made directly by Avis Authorized Users against
WizCom relating to their use of the Systems (without
limitation to Avis's rights to make such claims), and any
claims by third parties arising out of or relating to misuse
of the Systems or Avis Third Party Software by Avis Authorized
Users;
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(d) Avis's breach of its obligations with respect to WizCom's
Confidential Information;
(e) Violations by Avis Authorized Users of any of the obligations of Avis
under this Agreement to the extent Avis would be liable under this Agreement;
(f) Any claims made by an employee or consultant of Avis against
WizCom arising out of or related to WizCom's monitoring,
surveilling, investigating, testing or accessing such employee
or consultant's computer activity through use of an
identification number, code or password, at Avis's request
provided such activity is conducted in accordance with Avis's
procedures and guidelines which have been provided to WizCom
by Avis; and
10.3 Infringement.
Except to the extent that Avis has expressly agreed to the use of such
item notwithstanding such risk, if any item used by WizCom to provide
the Services, including any portion of the Systems or of Projects
developed for Avis, but not including any item provided by Avis or Avis
Third Party Software, becomes, or in WizCom's reasonable opinion is
likely to become, a basis for an injunction precluding WizCom from
providing Services for Avis, then in addition to indemnifying Avis as
provided in this Article 10, at WizCom's sole cost, expense and option,
WizCom shall forthwith: (i) secure the right to continue using the
item; or (ii) replace or modify the item to make it non-infringing,
provided that any such replacement or modification will not degrade the
performance or quality of the Services. If an infringing item is so
provided by Avis then all indemnifying costs shall be borne by Avis.
10.4 Additional Indemnities.
The Parties shall indemnify, defend and hold harmless one another, and
their Affiliates, officers, directors, employees, agents, successors,
and assigns, in accordance with the procedures described in this
Agreement, from any and all losses and threatened losses arising from
or in connection with any of the following:
(a) the death or bodily injury of any agent, employee, customer,
business invitee, or business visitor or other person to the extent that it
is caused by the tortious conduct of the indemnifying Party;
(b) the damage, loss or destruction of any real or tangible personal
property to the extent that it is caused by the tortious conduct of the
indemnifying Party; and
(c) any claim, demand, charge, action, cause of action, or other
proceeding asserted against the indemnitee but to the extent that it
results from an act or
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omission of the indemnifying Party in its capacity as an employer of
the person asserting the claim.
10.5 Indemnification Procedures.
With respect to third-party claims subject to the indemnities in this
Article 12, the following procedures shall apply:
(a) The indemnitee shall promptly after acquiring knowledge thereof notify
the indemnifying Party. The indemnitee shall give the indemnifying Party full
opportunity to control the response thereto and the defense thereof including
settlement, provided that the indemnitee shall have the right to approve any
settlement or any decision not to defend. The indemnitee's failure to promptly
give notice shall affect the indemnifying Party's obligation to indemnify the
indemnitee only to the extent the indemnifying Party's rights are materially
prejudiced thereby. The indemnitee may participate, at its own expense, in any
defense and any settlement directly or through counsel of its choice.
(b) If the indemnifying Party elects not to defend, the indemnitee shall
have the right to defend or settle the claim as it may deem appropriate, at the
cost and expense of the indemnifying Party, which shall promptly reimburse the
indemnitee for all such costs, expenses and settlement amounts.
10.6 Exclusive Remedy.
The indemnification rights of each indemnified Party pursuant to
Articles 10.1, 10.2 and/or 10.4 shall be the exclusive remedy of such
indemnified Party against the indemnifying Party with respect to the
claims to which such indemnification relates.
10.7 Subrogation.
In the event that an indemnifying Party shall be obligated to indemnify
an indemnitee pursuant to foregoing indemnities, the indemnifying
Party, shall, upon payment of such indemnity in full, be subrogated to
all rights of the indemnitee with respect to the claims to which such
indemnification relates.
ARTICLE 11 REPRESENTATIONS, WARRANTIES AND COVENANTS.
11.1 Software Rights.
WizCom represents and warrants that it is authorized to use,
distribute, and/or make available to Avis the Systems, and that the
Systems do not infringe, or constitute a misappropriation of the rights
of any third party.
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11.2 Authorization.
Each Party represents and warrants to the other that:
(a) It has the requisite corporate power and authority to enter into this
Agreement and to carry out the transactions contemplated by this Agreement; and
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement have been duly
authorized by the Board of Directors of each Party, and will not constitute (i)
a violation of any judgment, order, or decree, (ii) a default under any contract
by which it or any of its assets are bound (except to the extent excluded or
otherwise contemplated hereby), or (iii) an event that would, with notice or
lapse of time, or both, constitute such a default. Each Party shall provide the
other with a certification evidencing the Board of Directors approval.
11.3 Viruses.
Each Party shall use its best efforts to ensure that no viruses or
similar items ("Viruses") are introduced into any element of the
Software and/or Systems. If a Virus is introduced into any such element
by other than Avis, its employees, agents or contractors, WizCom shall
use its best efforts to assist Avis in reducing the effect of the Virus
and, if the Virus causes a loss of operational efficiency or data, to
assist Avis to the same extent to mitigate and restore such losses as
quickly as feasible. If a Virus is introduced into any such element by
Avis, its employees, agents or contractors, Avis, at Avis's expense,
shall use its best efforts to assist WizCom in reducing the effect of
the Virus and, if the Virus causes a loss of operational efficiency or
data, to assist WizCom to the same extent to mitigate and restore such
losses as quickly as feasible.
11.4 Disabling Code.
Without the prior written consent of the other Party, neither Party
shall insert into the Systems any code that would disable or otherwise
shut down all or any portion of the Services. Neither Party shall
invoke any disabling code embodied in the Systems or the Avis Software
at any time, including upon expiration or termination of this
Agreement, for any reason, without the other's prior written consent.
11.5 Disclaimer.
OTHER THAN THE WARRANTIES SET FORTH IN THIS ARTICLE 11, THE
PARTIES MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT
TO THEIR SERVICES OR WORK PRODUCT HEREUNDER, INCLUDING, BUT
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NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 12 LIMITATION ON LIABILITY.
12.1 Limitation on Liability.
(a) IN NO EVENT SHALL A PARTY BE LIABLE FOR ANY LOSS OF BUSINESS,
COST SAVINGS (ACTUAL OR PROJECTED, IT BEING UNDERSTOOD THAT A
CLAIM FOR ACTUAL EXPENDITURES WILL NOT BE EXCLUDED AS A CLAIM
FOR COST SAVINGS), PROFITS, OR OTHER INDIRECT DAMAGES, SPECIAL
DAMAGES, CONSEQUENTIAL DAMAGES OR PUNITIVE DAMAGES, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
(b) IN NO EVENT SHALL WIZCOM OR ANY OTHER ENTITY BE LIABLE
FOR ANY LOSS, DAMAGE OR EXPENSE RESULTING FROM OR
ARISING OUT OF (i) ANY DELAY, FAILURE OR INADEQUACY OF
THE SYSTEMS OR ANY MODIFIED VERSION THEREOF, OR OF THE
DATA CENTER OR ANY PART THEREOF INCLUDING THE
EQUIPMENT, (ii) ANY FAILURE OF OR DELAY IN DEVELOPMENT,
DELIVERY, INSTALLATION, OR MAINTENANCE BY WIZCOM OR
ANY OTHER ENTITY, OR (iii) ANY FAILURE OF THE SYSTEMS OR
ANY MODIFIED VERSION THEREOF, TO FUNCTION OR PERFORM
AS CONTEMPLATED HEREUNDER, ALL FOR ANY REASON
WHATSOEVER, EXCEPT TO THE EXTENT ARISING FROM THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF WIZCOM.
(c) NO CAUSE OR CLAIM MAY BE ASSERTED AGAINST EITHER PARTY
MORE THAN TWO YEARS AFTER IT HAS ACCRUED.
12.2 Force Majeure.
(a) Neither Party shall be liable for any failure or delay in the
performance of its obligations under this Agreement if and to the extent such
failure or delay is caused, directly or indirectly, by fire, flood, earthquake,
elements of nature or acts of God, acts of war, terrorism, riots, civil
disorders, rebellions or revolutions in any country, strikes, lockouts, or labor
difficulties (legal or illegal) or any other cause beyond the reasonable control
of such Party, including failures or fluctuations in electrical power, heat,
light, air conditioning or telecommunications equipment, and such failure shall
not be deemed a default under this Agreement, or, subject to Article 13.2(c)
below, a ground for termination hereof.
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(b) In such event the non-performing Party will be excused from further
performance or observance of the obligation(s) so affected for as long as such
circumstances prevail and such Party continues to use its best efforts to
recommence performance or observance whenever and to whatever extent possible
without delay. A Party so delayed in performance shall immediately notify the
other Party to whom performance is due by telephone (to be confirmed in writing
within two days of the inception of such delay) and describe at a reasonable
level of detail the circumstances causing such delay.
(c) If any of the above-enumerated circumstances substantially delay
performance of the Services, then at Avis's option:
(1) if such delay extends for more than three consecutive
days, Avis may procure such Services from an
alternate source for so long as the delay in
performance shall continue;
(2) if such delay extends for more than seven consecutive
days, Avis may terminate any portion of this
Agreement so affected on 10 days' written notice to
WizCom, and the charges payable under this Agreement
shall be equitably adjusted to reflect those
terminated Services;
(3) if such delay extends more than 21 consecutive days,
Avis may terminate this Agreement on thirty (30) days
written notice to WizCom.
ARTICLE 13 INSURANCE AND RISK OF LOSS.
13.1 WizCom Insurance.
WizCom shall provide and maintain during the Term at least the
insurance described in this Article 13.1.
(a) Commercial general liability coverage with a combined single
limit of $3,000,000 per occurrence, the first $1,000,000 of
which may be self retained by WizCom. Coverage shall be broad
form, and shall include coverage for personal injury, and
completed operations. Avis shall be endorsed as an additional
insured with respect to WizCom's operations under this
Agreement.
(b) All-risk property coverage, in an amount equal to the
replacement cost of all real and personal property (including
all equipment, and media) of Avis under WizCom's care, custody
and control, including flood and earthquake coverage when
available, boiler and machinery coverage, and extra expense
coverage. Avis shall be named as a loss payee as its interests
appear.
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(c) All insurance shall be obtained from a carrier maintaining an A.M. Best
rating
of "A" or higher.
(1) A certificate of insurance evidencing each of the
coverages under this Article 13.1 shall be delivered
to Avis as soon as possible after the Effective Date.
(2) Such certificate shall:
(i) name Avis as an additional insured or loss payee where
provided above; and
(ii) contain an agreement by the insurance company(ies) issuing
the policy(ies) that such insurance shall respond as primary insurance
to any insurance carried by Avis, and that such insurance will not be
canceled, terminated or modified without at least thirty (30) days
prior written notice to Avis.
(3) Upon the renewal of any policy or policies required
by this Article 13.1, a new certificate of the
renewal of such insurance conforming to the above
requirements shall be delivered to Avis.
13.2 Avis Insurance.
Avis shall provide and maintain during the Term commercial general
liability coverage with a combined single limit of not less than
$3,000,000 per occurrence, the first $1,000,000 of which may be self
retained by Avis. Coverage shall be applicable to Avis's operations
under this Agreement.
13.3 Risk of Loss.
Except as otherwise provided under this Agreement, each Party shall be
responsible for risk of loss of, and damage to, any Equipment or
Software in its possession or under its control.
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ARTICLE 14 TERMINATION.
14.1 Termination for Cause.
(a) By Avis.
Avis may, by giving written notice to WizCom, terminate this
Agreement for cause as of a date specified in the notice of
termination, in the event that:
(1) Subject to Article 14.1(a)(2), WizCom breaches any of
its material duties or obligations under this
Agreement, and such breach is not substantially cured
within ninety (90) days of notice of breach by Avis
to WizCom;
(2) With respect to a breach (other than a payment
default) that WizCom demonstrates to Avis's
reasonable satisfaction cannot with due diligence be
cured within ninety (90) days of notice thereof, but
can be cured within 180 days, WizCom fails to (A)
proceed promptly and diligently to correct the
breach, (B) develop within thirty (30) days of notice
of breach a complete plan for curing the breach, or
(C) cure the breach within 180 days of notice of
breach to WizCom; or
(3) WizCom breaches any of its material duties or
obligations under this Agreement, and such breach
cannot be cured within 180 days of notice of breach
to WizCom.
(b) By WizCom.
WizCom may, by giving written notice to Avis, terminate this
Agreement for cause as of a date specified in the notice of
termination, in the event that:
(1) Avis fails to pay any undisputed amount when due, or disputed amount
within ten (10) days after the resolution of the dispute, to WizCom hereunder
and (i) such failure has not been cured within ten (10) business days following
notice of such failure from WizCom, and (ii) a similar default has occurred
within the six months prior to such default;
(2) Avis breaches its obligations under Article 4 and such breach is not
substantially cured within thirty (30) days of notice of breach to Avis; and
(3) Avis willfully discloses any material component or element of the
source or object code of the Systems in breach of its obligations of
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confidentiality set forth in this Agreement, and such breach is not
substantially cured within thirty (30) days of notice of breach to Avis;
14.2 Avis Termination of End User Equipment Services.
(a) Avis may terminate its obligation to receive, and WizCom's
obligation to provide, the End User Equipment Services without
cause at any time on or after the second anniversary of the
Effective Date, by giving WizCom at least ninety (90) days'
prior written notice designating the termination date, and as
further provided below:
(1) Within thirty (30) days after termination, Avis shall pay WizCom any
undisputed charges due and owing as of the effective date of termination, with
Avis to pay any amounts in dispute at such time promptly upon such amounts
becoming undisputed.
(2) Avis shall pay WizCom its costs for providing the termination
assistance associated with the termination of End User Equipment Services.
(3) Unless otherwise agreed by the Parties, Avis will pay to WizCom, within
thirty (30) days after the effective date of termination of the End User
Equipment Services, the unamortized portions of the purchase price of all End
User Equipment of which Avis wishes to retain possession and, upon receipt of
such payment, WizCom shall transfer title to such End User Equipment to Avis. To
the extent any such End User Equipment is leased by WizCom, Avis shall assume
all remaining obligations under such lease and such lease shall be assigned by
WizCom to Avis and assumed by Avis. Avis shall, at its expense, take all steps
necessary to obtain WizCom's release from such lease, unless WizCom agrees
otherwise in writing. Any End User Equipment not transferred to Avis as
described above, shall remain the property of WizCom and Avis shall, at its
expense and at the direction of WizCom, deliver such End User Equipment to
WizCom or WizCom's designee.
(4) Avis shall pay WizCom those costs WizCom has incurred and will incur to
provide the terminated End User Equipment Services that will not be recovered by
WizCom through the charges to Avis under this Agreement prior to the effective
date of termination ("Unrecovered Allowable Cost"). To be payable under this
Section 14.2(a)(4), Unrecovered Allowable Costs must be costs that (i) would not
have been incurred by WizCom but for WizCom's reasonable expectation that Avis
would continue to receive the End User Equipment Services during the Term, (ii)
cannot be reduced or eliminated by commercially
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reasonable efforts, including termination of leases and service contracts
and using resources to provide services for other WizCom customers, and (iii)
all other remaining costs, penalties and/or fees associated with the termination
of the End User Equipment and/or End User Equipment Services. Unrecovered
Allowable Costs shall be subject to audit by Avis prior to payment.
(b) WizCom Termination for Cessation of Business.
WizCom shall have the right, in the event WizCom determines to
cease providing Services to all customers, to terminate this
Agreement at any time upon at least five (5) years prior
written notice to Avis.
14.3 Termination for Insolvency.
In the event that either Party hereto becomes or is declared insolvent
or bankrupt, is the subject of any proceedings relating to its
liquidation, insolvency or for the appointment of a receiver or similar
officer for it, makes an assignment for the benefit of all or
substantially all of its creditors, or enters into an agreement for the
composition, extension, or readjustment of all or substantially all of
its obligations, then the other Party hereto may, by giving written
notice thereof to such Party, terminate this Agreement as of a date
specified in such notice of termination.
14.4 Extension of Termination Effective Date.
Avis may extend at any time the effective date of a termination it has
exercised one or more times by giving notice of same, provided that the
total of all such extensions shall not exceed 180 days following the
original effective date of termination.
14.5 Termination Assistance.
(a) Commencing upon any notice of termination (including notice
based upon breach or default by Avis), and continuing through
the effective date of termination (as such date may be
extended pursuant to Article 14.4), WizCom shall provide to
Avis, or at Avis's request to Avis's designee, the termination
assistance set forth in Schedule I. All termination assistance
provided by WizCom shall be charged to Avis at WizCom's costs
therefor.
(b) This Article 14.5(b) shall survive termination of this
Agreement. Subject to Article 14.6(c), for a period of twelve
(12) months following the effective date of termination under
this Agreement, WizCom shall provide at Avis's request, to
Avis or Avis's designee, any or all of the Services being
performed by WizCom prior to such effective date, including
any of the Services under Schedule I. To the extent WizCom is
to perform Services under this Article
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15.5(b), the provisions of this Agreement shall be applicable
as such provisions would have been applicable to such Services
prior to the effective date of such termination, except that
the compensation to be paid by Avis to WizCom therefor shall
be as set forth in Schedule C.
(c) If this Agreement is terminated by WizCom for breach by, or insolvency
of, Avis, then as a condition to WizCom's obligation to provide termination
assistance before and/or after termination, Avis shall first pay to WizCom all
undisputed amounts then outstanding to WizCom and shall thereafter, on the first
day of each month, pay to WizCom an amount equal to WizCom's reasonable estimate
of the total amount payable to WizCom for termination assistance for that month,
which amount shall be communicated in writing by WizCom to Avis not later than
ten (10) days prior to the first day of the month. At the end of each month, the
amounts paid under such estimate shall be compared with the amounts due and
owing under this Agreement, and Avis shall be credited or invoiced for the
difference as appropriate.
14.6 Equitable Remedies.
WizCom acknowledges that, in the event it actually breaches (or
attempts or threatens to breach) any material obligation to provide
Avis termination assistance as provided in Article 14.5, Avis may be
irreparably harmed. In such a circumstance, Avis may, to the extent
permitted by Article 15.1(d), proceed directly to court upon prior
notice to WizCom without undertaking informal dispute resolution under
Articles 15.1(a) and (b). In any such proceeding, WizCom may challenge
any assertion by Avis (including the amount or extent of damage or
losses).
14.7 Unrecovered Allowable Costs.
Upon any termination of this Agreement by WizCom pursuant to Article
14.1(b), Avis shall be obligated to pay, in addition to all other
amounts otherwise payable by it at such time, all Unrecovered Allowable
Costs existing at the time of termination.
ARTICLE 15 DISPUTE RESOLUTION.
15.1 Dispute Resolution.
Any dispute, claim or controversy arising out of or relating to this
Agreement or the breach, termination or validity hereof ("Dispute")
shall be resolved as provided in this Article 15, with each Party
bearing its own costs.
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(a) Avis or WizCom (each a "Party") may commence proceedings hereunder by
delivering a written notice to the other Party providing a reasonable
description of the Dispute to the other (the "Demand").
(b) within ten (10) days following receipt by a Party of a Demand, the
Dispute shall be referred to representatives of the parties for resolution, each
party no direct operational responsibility for the matters contemplated by this
Agreement (the "Representatives"). The Representatives shall promptly meet in a
good faith effort to resolve the Dispute. If the Representatives do not agree
upon a resolution within thirty (30) calendar days after receipt by a Party of a
Demand, each of Avis and WizCom shall be free to exercise the remedies available
to them under Article 15.1(c).
(c) The Parties hereby agree to submit all Disputes not resolved by
negotiation pursuant to Article 15.1(b) for resolution by arbitration under the
terms hereof, which arbitration shall be final, conclusive and binding upon the
parties, their successors and assigns. Except as expressly provided otherwise
in this Agreement, the arbitration shall be conducted in New York, New York by
three arbitrators (the"Panel") in accordance with the JAMS/Endispute
Comprehensive Arbitration Rules and Procedures then in effect as amended
herein. The arbitration shall be governed by the United States Arbitration Act,
9 U.S.C., Article 1, et seq. Notwithstanding the foregoing (i) each Party shall
have the right to examine the books and records of the other Party that are
reasonably related to the Dispute; (ii) each Party shall provide to the other,
reasonably in advance of any hearing, copies of all documents which a Party
intends to present in such hearing; (iii) each party shall be allowed to
conduct reasonable discovery through written requests for information, document
requests, requests for stipulation of fact, and depositions, the nature and
extent of which discovery needs of the Parties and the desirability of making
discovery expeditious and cost effective. The Panel shall complete all hearings
not later than ninety (90) days after its appointment. The award shall be in
writing and shall specify the facts and law on which it is based. The
arbitrators shall not be empowered to award to any party any consequential
damages, lost profits or punitive damages in connection with any Dispute and
each party hereby irrevocably waives any right to recover such damages.
Judgment upon any award may be entered in any count having jurisdiction
thereof.
(d) In the case of a Dispute, prior drafts of this Agreement shall not be
used to interpret the provisions of this Agreement.
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15.2 Continued Performance.
Each Party agrees to continue performing its obligations under this
Agreement in good faith while any dispute is being resolved, without
prejudice to each Party's right to terminate this Agreement.
15.3 Governing Law; Jurisdiction.
This Agreement and performance under it shall be governed by and
construed in accordance with the laws of the State of New York, without
reference to principles of conflicts of laws.
ARTICLE 16 GENERAL.
16.1 Binding Nature; No Assignment.
This Agreement shall be binding on the Parties hereto and their
respective successors and assigns to the extent assignment is
permitted hereunder. Neither Party may, nor shall it have the
power to, assign this Agreement without the prior consent of the
other. Notwithstanding the foregoing, either Party may assign its
rights and obligations under this Agreement without the approval
of the other Party (i) to any entity which acquires all or
substantially all of the assets of such Party or (ii) to any
successor in a merger or acquisition of a Party which entity
assumes all of such Party's obligations or (iii) to any entity
which is an Affiliate of such Party, provided that such assignment
shall not relieve the Party of any of its obligations under this
Agreement.
16.2 Timeliness.
The Parties shall perform their obligations under this Agreement
in a timely manner, subject to the other provisions of this
Agreement.
16.3 Right to Perform Services for Others.
Avis recognizes that WizCom personnel providing Services to Avis
under this Agreement may perform services similar to the Services
from time to time for other customers; provided, however, that
such personnel shall remain bound by the confidentiality
provisions of this Agreement, and shall not disclose Avis
Confidential Information except as provided in this Agreement.
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16.4 Entire Agreement; Amendment.
This Agreement, including any Schedules referred to herein and
attached hereto, each of which is incorporated herein for all
purposes, constitutes the entire agreement between the Parties
with respect to the subject matter hereof and supersedes all prior
agreements, whether written or oral, with respect to the subject
matter contained in this Agreement. No change, waiver, or
discharge hereof shall be valid unless in writing and signed by an
authorized representative of the Party against which such charge,
waiver, or discharge is sought to be enforced.
16.5 Counterparts.
This Agreement may be executed in several counterparts, all of
which taken together shall constitute one single agreement between
the Parties. This Agreement will have no effect, and shall not be
binding upon either Party, until executed and delivered by both
and in the absence of such execution and delivery it shall not
constitute a preliminary agreement or commitment to agree.
16.6 Headings.
The article and section headings and the table of contents used
herein are for reference and convenience only and shall not enter
into the interpretation hereof.
16.7 Relationship of the Parties (Independent Contractor).
WizCom, in furnishing the Services to Avis, is acting as an
independent contractor, and WizCom has the sole right and
obligation to supervise, manage, contract, direct, procure,
perform or cause to be performed, all work to be performed by
WizCom under this Agreement. Neither Party is an agent of the
other and has no authority to represent the other as to any
matters, except as expressly authorized in this Agreement.
16.8 Equal Opportunity Employer.
Each Party agrees that it will not engage in any unlawful
discrimination as to race, creed, color, national origin, sex,
age, disability, marital status, citizenship status, sexual
orientation or affectional preference in all employment decisions
relating to this Agreement.
16.9 Non-Hiring.
Avis agrees that, during the term of this Agreement and for a
period of one (1) year thereafter, neither Avis nor any of its
affiliates will directly or indirectly
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solicit, encourage or request any employee of WizCom to work or
perform services for Avis or any of such affiliates or any
contractor for any of them (other than pursuant to this Agreement
and solely in such employee's capacity as an employee and on
behalf of WizCom) or to leave the employ of WizCom. Without
limiting any rights or remedies WizCom may have for breach of the
foregoing obligation, WizCom shall be entitled (without the
necessity of posting any bond or establishing the inadequacy of
damages as a remedy) to an injunction prohibiting such breach.
16.10 Notices.
All notices under this Agreement shall be in writing and shall be
deemed duly given (i) when delivered by hand, (ii) one (1) day
after being given to an express overnight courier with a reliable
system for tracking delivery, (iii) when sent by confirmed
facsimile with a copy sent by another means specified in this
Article 16.10, or (iv) six (6) days after the day of mailing, when
mailed by United States mail, registered or certified mail, return
receipt requested, postage prepaid, and addressed as follows:
In the case of WizCom:
WizCom International, Ltd.
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx, 00000
Attn: President
With a copy to:
HFS Incorporated
0 Xxxxxx Xxx
Xxxxxxxxxx, X.X. 00000
Attn: SVP & Corporate Counsel
In the case of Avis:
Avis Rent A Car System, Inc.
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attn: Executive Vice President & General Counsel
A Party may from time to time change its address or designee for
notification purposes by giving the other prior written notice of
the new address or designee and the date upon which it will become
effective, which in any event shall be no sooner than five days
from receipt of notice.
- 42 -
16.11 Severability.
In the event that any provision of this Agreement conflicts with
the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over
the Parties, such provision shall be deemed to be restated to
reflect as nearly as possible the original intentions of the
Parties in accordance with applicable law. The remainder of this
Agreement shall remain in full force and effect.
16.12 Consents and Approvals.
(a) Except where expressly provided as being in the sole discretion
of a Party, where agreement, approval, acceptance, consent, or
similar action by either Party is required under this Agreement,
such action shall not be unreasonably delayed or withheld.
(b) An approval or consent given by a Party under this Agreement shall
not relieve the other Party from responsibility for complying with
the requirements of this Agreement, nor shall it be construed as a
waiver of any rights under this Agreement, except as and to the
extent otherwise expressly provided in such approval or consent.
16.13 No Waiver of Default.
(a) A delay or omission by either Party hereto to exercise any right
or power under this Agreement shall not be construed to be a
waiver thereof. A waiver by either of the Parties of any of the
covenants to be performed by the other or any breach thereof
shall be in writing and shall not be construed to be a waiver of
any succeeding breach thereof or of any other covenant herein
contained.
(b) Except as expressly limited by this Agreement, all remedies
provided for in this Agreement shall be cumulative and in addition
to and not in lieu of any other remedies available to either Party
at law, in equity or otherwise.
16.14 Media Releases.
(a) All media releases and public announcements made by either Party
relating to this Agreement or the subject matter of this
Agreement, but excluding (i) technical or service type
announcements, (ii) system bulletins intended by a Party solely
for internal distribution, (iii) bulletins made solely within and
related to a vehicle rental system's operation and (iv) bulletins
designed to meet legal or regulatory requirements beyond the
reasonable control of the disclosing Party, shall be coordinated
with and approved by the other Party in
- 43 -
writing prior to any release.
(b) Notwithstanding the foregoing, WizCom may list Avis as a customer
and Avis may list WizCom as a service provider, and either Party
may describe in general terms in proposals or other marketing
materials the services provided under this Agreement that are
provided by WizCom to Avis through the Systems.
16.15 Survival.
The Parties agree that the provisions of this Agreement which by their
terms clearly contemplates continued performance after such termination
or expiration shall survive the termination or expiration of this
Agreement for any reason.
16.16 No Third Party Beneficiaries.
This Agreement shall be deemed to create rights solely in Avis and
WizCom. This Agreement shall not be deemed to create any rights in
third parties, including suppliers and customers of a Party, or Avis
Authorized Users, or to create any obligations of a Party hereunder to
any such third parties.
16.17 Compliance with Laws and Regulations.
Each Party shall perform its obligations under this Agreement in a
manner that complies with applicable laws, regulations, ordinances and
codes, including identifying and procuring required permits,
certificates, approvals and inspections. If a charge of non-compliance
by a Party with any such laws, regulations, ordinances or codes occurs,
such Party shall promptly notify the other Party of such charges in
writing.
16.18 Covenant of Good Faith.
Each Party agrees that, in its respective dealings with the other Party
under or in connection with this Agreement, it shall act in good faith.
- 44 -
IN WITNESS WHEREOF, Avis and WizCom have each caused this Agreement to
be signed and delivered by its duly authorized representative, all as of the
date first set forth above.
AVIS RENT A CAR SYSTEM, INC. WIZCOM INTERNATIONAL, LTD.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. XxXxxxxxxx
Name: Name:
Title: Title:
Dated: Dated:
- 45 -
SCHEDULE A1
DATA CENTER AND SYSTEM SERVICES
WizCom shall be responsible for managing, operating and maintaining the
Data Center in accordance with the terms of this Agreement. If in order to meet
Avis's business requirements, WizCom must support Avis Software not currently
supported by WizCom, the Parties will mutually agree upon a plan to transition
the support of Avis Software, including the recruitment and training of
personnel. WizCom shall operate the Data Center 24 hours per day, 7 days per
week, 365 days per year (subject to the other provisions of this Agreement).
WizCom's responsibilities with respect to the Data Center and System Services
shall include:
1. Data Center Facility.
WizCom shall manage, operate and maintain the Data Center facility so that the
Data Center (i) is adequately staffed with trained technicians, operators, and
supervisors including support staff, (ii) has facility-supporting equipment
(including UPS and fire suppression systems) and (iii) is adequately supplied.
As of the Effective Date, the Data Center is located in Garden City, New York.
Subject to Section 8.1 of this Agreement, WizCom may, as it reasonably
determines, change the location of the Data Center. WizCom shall consider Avis's
reasonable comments in preparing its plans for the move. Avis may participate in
the execution of the change in location to the extent reasonably requested by
Avis to safeguard the integrity of the Systems, Avis Software and Avis Data,
including conducting reasonable testing to monitor and verify such integrity.
2. File Service Activities.
WizCom shall manage files to maintain the integrity and availability of Avis
Data. Avis shall be responsible for the accuracy of Avis Data as provided by
Avis to WizCom.
WizCom's responsibilities shall include:
a. Update all files under WizCom's control with new information provided by
Avis or Avis authorized third parties so that it is available during
scheduled availability.
b. Use third party software tools as reasonably necessary to verify the
successful receipt of all incoming files and the successful transmission of
all outgoing files.
c. Develop, document, implement and maintain Avis data and Software file
backup, recovery and retention procedures as necessary to meet Avis's
reasonable business requirements.
d. Provide a recovery procedure for restoring a data image to a previous
level within a mutually agreed amount of time.
e. Provide recommendations to Avis regarding backup and recovery
considerations, such as improved levels of protection, efficiencies and cost
reductions.
f. Conduct daily backups and weekly full backups and recovery procedures so
that systems are available during scheduled hours. Conduct other periodic
backups as mutually agreed.
g. Use commercially reasonable efforts to utilize disk storage resources in
an efficient and cost effective manner.
h. Use commercially reasonable efforts so that adequate file space is
available for processing.
i. Provide information to Avis relating to mainframe utilization as
reasonably requested.
3. Tape Management/Tape Library.
WizCom shall perform tape library management functions both at the Data Center
and off-site and provide tape security and appropriate safeguards to prevent
unauthorized access to Avis Data contained on such tapes. These functions shall
include:
a. Provide logging and tracking of all physical tapes in and out of the
Data Center. Provide tape security as reasonably necessary to prevent
unauthorized access to tapes containing Avis Data, including preventing access
through "bypass label processing."
b. Identify in the Procedures Manual WizCom's standard tape handling
procedures. Modify such procedures as necessary to meet Avis's reasonable tape
handling requirements. Include such procedure in the Disaster Recovery Plan and
applicable directives regarding off-site storage.
c. Maintain tapes on site at the Data Center in a physically and
environmentally protected area.
d. In accordance with the procedures described in Section 2(c) of this
Schedule A1, store backup tapes, Avis Data, documentation (including paper
documentation of the procedures described in Section 2(c), and related materials
at secure offsite storage facilities, as reasonably necessary to restore
a secure Avis production environment in the event of an interruption of
Services at the Data Center. Appropriate arrangements shall be made for Avis to
have direct access to Avis Data maintained at such off-site storage facilities.
e. Establish a tape rotation schedule with the tape storage provider.
Monitor schedule for compliance and notify the tape storage provider when it is
time to return a tape if not received automatically.
f. Maintain an adequate inventory of media and tape supplies.
g. Retrieve archived tapes and restore required files and data sets within
reasonable time frames from the time that such archived tapes are required.
h. Report Avis's tape utilization needs and exceptions as part of a
periodic status report.
i. Obtain all tapes required for Avis processing. Such tape data sets shall
be the property of WizCom until they contain Avis Data. Thereafter all tape data
sets containing Avis Data will be the property of Avis until released back into
the scratch/reuse pool.
4. Information Security.
Avis Data will not be accessed by WizCom personnel without Avis's prior
authorization except for billing and technical support purposes and for approved
Applications development. The Procedures Manual shall describe the extent to
which, if any, WizCom requires access to Avis Data in order to perform the
Services, and shall establish a procedure for WizCom to obtain Avis's
authorization for such access.
5. Capacity Planning and Management.
WizCom shall provide capacity planning and management services, taking into
consideration Avis's reasonable input, for Data Center resources used to provide
the Services, including CPU resources, DASD and other storage requirements,
tapes, and input/output devices.
These functions shall include:
a. Monitor computing capacity availability so that sufficient capacity can
be planned to meet the Performance Standards.
b. Make computing capacity increases (or decreases) based on Avis's
reasonable change requests.
c. Propose capacity planning models and methodologies to the customers, and
consider Avis's capacity planning recommendations regarding WizCom's planning
model.
d. Review capacity requirements of each customer as part of WizCom's normal
business planning cycle.
e. Provide Avis reasonable assistance in forecasting Avis's capacity needs
requirements and in Avis's monitoring and reviewing the capacity forecast vs.
actual utilization.
6. Physical Security at the Data Center.
WizCom shall maintain physical security functions at the Data Center pursuant to
procedures that shall be no less rigorous than those in effect at the Data
Center immediately prior to the Effective Date and as reasonably required to
safeguard Avis Data, the Systems and Avis Software from loss, damage or
unauthorized access. Physical security for the Data Center shall include
protecting against fire, flood, electrical failures and surges, and unauthorized
access. Such procedures shall include monitoring and controlling physical
access, investigating and reporting security violations, and taking appropriate
actions to prevent violations from recurring.
7. Change Management and Control.
WizCom shall perform change management functions as reasonably required to
control changes to Avis's processing environment. Such functions shall include:
a. Control changes to the Avis production environment and implement changes
in accordance with the change control procedures described in the Procedures
Manual so that continuity is maintained when changes are initiated. Perform
changes requiring system outages during scheduled maintenance periods.
b. Review, schedule and communicate proposed Applications and processing
environment changes that may affect Avis.
c. Conduct weekly change management meetings with Avis's participation.
Consider and respond to Avis's comments, and obtain Avis's approval when
required by the change control procedures described in the Procedures Manual.
Provide information to Avis on changes, including data on each attempted change
affecting Avis, such as the cause of any problems and the success of the
attempted change.
d. Obtain Avis approval for changes to Avis's production processing
schedules. In the case of an emergency, WizCom may change production schedules
without first obtaining Avis approval to the extent required to correct the
emergency, provided that WizCom notifies Avis of the need for such changes as
soon as possible and in any event within one hour after identifying the need for
such changes.
8. Service Request Management.
WizCom shall implement a process for Avis to request products and functions
supplied by WizCom within the scope of this Agreement ("Service Requests"). The
Service Request process will be approved by Avis prior to the Effective Date and
include procedures for the following: logging of requests, evaluation,
estimation, required approvals, prioritization, implementation and status
reporting. These functions will be described fully in the Procedures Manual.
9. Business Resumption and Disaster Recovery.
WizCom shall take the steps reasonably required (i) to minimize disruption to
Avis's business related to the Services, (ii) to assist Avis in continuing to
conduct its business during periods in which any Services are unavailable, and
(iii) to resume normal operations as quickly as possible under the
circumstances. WizCom's responsibilities will be described in the disaster
recovery section of the Procedures Manual.
(a) Disaster Recovery Testing.
Once per year WizCom shall conduct a disaster recovery test to
determine compliance with the procedures in the Disaster
Recovery Plan. Avis may monitor and participate in such tests
to the extent reasonably required for Avis to verify the
adequacy of disaster recovery procedures for Avis processing.
WizCom shall provide Avis with a report and/or presentation of
the test results. WizCom shall use commercially reasonable
efforts to resolve identified problems and retest unsuccessful
test components in a timely manner.
(b) Disaster Recovery Contract.
WizCom has provided Avis with a copy of the current disaster
recovery Agreement. At Avis's request, WizCom shall provide
Avis with any changes made after the Effective Date to the
Agreement for Avis's inspection, or with a copy of the
disaster recovery Agreement then in effect. WizCom shall
maintain a disaster recovery Agreement in full force and
effect during the Term, either under the Agreement or a
substantially similar arrangement with another provider of
similar disaster recovery services.
10. Systems Operations.
WizCom shall perform the systems processing operations functions as necessary to
operate the Systems in accordance with the terms and conditions of the
Agreement. Such functions shall include:
a. Provide the availability of, monitor, and process on-line and batch
Applications, including scheduled, unscheduled and on-request Applications
development/maintenance functions as well as Avis end-user initiated processing.
b. Provide support for test and production environments including
Applications program testing submitted by the Applications
development/maintenance personnel of WizCom.
c. Provide a secure computer room operations environment.
d. Provide appropriate information system tools (e.g., report generation)
to assist Avis in accessing Avis Data.
e. Maintain networking software. WizCom shall use such networking software
as is reasonably necessary to meet Avis's business requirements.
f. Operate the Systems and, subject to the other provisions of this
Agreement, Avis Software, as designated from time to time by Avis.
g. Schedule routine systems maintenance (currently approximately two to six
hours monthly) to accomplish such tasks as security table implementation and/or
hardware or software changes.
(1) WizCom shall publish, at least three months in advance, a
schedule of scheduled system outages. Routine systems
maintenance shall be scheduled for and performed on an
alternating basis every two weeks during the following
time periods: (i) commencing at 12:00 a.m. for a period of
two to three hours, or (ii) commencing at 3:00 a.m. for a
period of two to three hours on Sunday (Eastern Standard
Time). WizCom may deviate from this schedule with Avis's
prior approval.
(2) Additionally, WizCom shall give Avis notice as soon as
practicable, and where possible not less than 24 hours in
advance, of system outages that WizCom determines must
occur outside of the time frames described in item (1)
which outages shall, to the extent within WizCom's
reasonable control, be scheduled during hours that
minimize disruption to Avis's business.
(3) No more than twice per year, WizCom may plan a system
outage of 24 hours duration to perform required
maintenance, backup and upgrade activities. WizCom shall
schedule such 24-hour outages at least two months in
advance, which schedule shall be set as mutually agreed by
the Parties. WizCom may deviate from such schedule with
Avis's approval.
h. Complete processing schedules in the appropriate sequence so that jobs
do not run until prior job dependencies have been successfully completed.
i. Subject to the capacity of resources at the Data Center and Avis's
payment of any charges therefore as provided in Schedule C, process all special
request activities consistent with equal treatment of the customers, including
ad hoc reporting, within time frames mutually agreed upon by the Parties.
j. Provide access to, and software compatibility with, external systems
(for example, credit card processing and airline interfaces) necessary for the
Services as such access and compatibility exist in the Systems as of the
Effective Date. All additional functions required by Avis will be Projects,
which will be subject to the provisions of Article 5 and the charges for
Projects set forth in Section IV of Schedule C.
k. Provide on-line access capability to query status of production jobs for
Avis.
l. Use commercially reasonable efforts to enhance the automated processing
capabilities and efficiencies through computer system tuning and other run time
improvements. Perform regular monitoring of utilization needs and efficiencies
of the Systems and Avis Software. Report on tuning initiatives and activities as
reasonably requested by Avis.
m. Subject to the terms and conditions of the Avis Third Party Software
license agreements, WizCom will operate the Software and coordinate maintenance
and support for Avis Third Party Software with the third party vendors thereof.
n. Employ a quality improvement process to identify efficiencies. Analyze
jobs for excessive use of computer resources. Give appropriate consideration to
rewriting code and other performance enhancing activities based upon a
cost-benefit analysis.
o. Subject to the capacity of resources at the Data Center, provide Avis
alternate automated processing capability at the Data Center to minimize the
duration of unscheduled System outages, if feasible and practicle.
11. Production Control.
WizCom shall develop, control and maintain production schedules for the Systems
and Avis Software, and cooperate with Avis in responding to special processing
requests and processing requirements. Such functions shall include:
a. Prioritize and schedule batch jobs and report distribution systems in
accordance with mutually agreed upon schedule parameters.
b. Provide to Avis and obtain Avis's approval of production schedules prior
to implementation.
c. Review, coordinate and modify computer resource allocation schedules to
accommodate Avis special requests and priorities. Promptly notify Avis if
special requests will affect the timely completion of other tasks.
d. Respond promptly to requests from Avis for priority job execution.
e. Execute reruns of jobs as required to correct abnormal terminations and
other data processing errors, and otherwise as requested by Avis and obtain
Avis's approval if rerunning any jobs will impact scheduled on-line or batch
production processing.
12. Database Administration.
WizCom shall be responsible for database administration, including database
design, application support, tuning, backup and recovery, and standards and
support for databases run by WizCom for the Systems and Avis Software. Such
functions shall include:
a. Provide a test, acceptance testing, and production database subsystems
as reasonably required by Avis.
b. Support and control the data dictionary for the Systems.
c. Perform logical and physical database control functions to support
current systems and approved new systems (test, acceptance test and production).
d. Perform database tuning and reorganization functions as reasonably
required to maintain system performance requirements and in accordance with
Scheduled Uptime (as defined in Schedule B) and the change control procedures
described in the Procedures Manual.
e. Plan for changes in the size of databases due to business growth and
project implementation based on information provided by Avis, and review plans
on a regular basis with Avis.
f. Implement physical database design, create indices and make
recommendations on methods to optimize application performance.
g. Maintain and upgrade the automated monitoring tools as reasonably
required to monitor database performance.
h. Monitor database performance and database space utilization. Review,
comment on, assess potential impacts from, and implement reasonable
modifications requested by Avis subject to equal treatment of the customers.
i. Maintain database definitions for the Systems and make such definitions
available to Avis upon request.
j. Implement database backup procedures as necessary to recover from a
database outage or a corrupt database.
k. Develop, test, document and maintain database standards as necessary to
meet Avis's reasonable business requirements.
l. Identify and suggest product and enhancement opportunities for improved
performance or functionality. Implement such solutions at Avis's reasonable
request. These opportunities will utilize WizCom's standard change control
methodology for investigation and implementation.
13. Technical Support.
WizCom shall be responsible for technical support of Systems Software as
necessary to provide the Services and meet the Performance Standards. Such
functions shall include:
a. Provide technical consulting and other reasonable assistance in support
of Avis's reasonable business requirements at levels no less than those provided
to other customers (e.g., assistance in file resolution, and debugging) unless
the Parties mutually agree otherwise.
b. Perform modifications, enhancements, or changes necessary to correct
errors and operational modifications (including Program Temporary Fixes
(PTF's)), such that each item of WizCom Systems Software operates substantially
in accordance with Avis's requirements and the software specifications.
c. Unless mutually agreed otherwise, install and upgrade System Software as
necessary to maintain vendor support for the installed version and as reasonably
requested by Avis to support its business requirements.
d. Make available as requested all of WizCom's technical documentation
describing the systems and processes used to support the Systems and Avis
Software ("Technical Documentation"), including, to the extent developed by
WizCom: technical specifications, database definitions, system overviews and
flow charts showing relationships between systems, systems integration
documentation (including configurations, interfaces, and network topologies and
architectures), installation/configuration/maintenance information, and systems
software documentation. Update the Technical Documentation to reflect changes
made during the Term.
e. In consultation with Avis, when appropriate, evaluate, recommend,
acquire and install in WizCom's sole discretion, Third Party Systems Software,
and make reasonable changes to the operating environment necessary for
compatibility with existing systems.
f. Provide information to Avis about the functionality, architecture, data,
and other aspects of the Systems Software, as reasonably requested by Avis and
as permitted by the third party vendors thereof.
g. Provide Systems Software support as reasonably required by developers
performing work on the Systems and Avis Software.
h. Notify Avis in the event a third party ceases to support Third Party
Systems Software and work with Avis to develop a reasonable alternative to
continued use of such Systems Software.
i. Cooperate with Avis personnel and third parties performing development
and maintenance work on the Applications and Systems Software as permitted under
the Agreement. Provide such personnel and third parties with reasonable access
to the Services.
j. Develop, implement and maintain interfaces necessary for the Systems to
communicate with Avis Locations and with third party service providers (such as
GDS's).
k. Maintain system support coverage either through on-site coverage during
normal work hours or via "on call" support.
l. Perform regular monitoring of utilization needs and efficiencies and
perform and report on tuning initiatives on a regular basis.
m. Maintain required user exits to Third Party Software.
n. When necessary, participate in development teams as reasonably required
by developers in areas such as systems test and installation support.
14. Equipment Management and Maintenance.
WizCom shall manage and maintain the Equipment as necessary to provide the
Services and meet the Performance Standards, including (i) keeping such
equipment sufficiently current to enable WizCom to perform the Services
supported by the Equipment in accordance with the other provisions of this
Agreement, and (ii) performing, or arranging for third parties to perform,
maintenance as necessary to keep such Equipment in good operating condition in
accordance with manufacturers' specifications.
SCHEDULE A2
APPLICATIONS DEVELOPMENT SERVICES
1. Applications Development Services.
In the event Avis requests WizCom to provide Avis with Applications development
services under this Agreement, the respective responsibilities of the Parties
for Applications development, including the fees therefor, are described in
Article 5 and Schedule C hereof.
SCHEDULE A3
DATA COMMUNICATIONS SERVICES
WizCom shall provide the Network Services to Avis, as described below:
1. WAN Network Services.
a. Network Description.
(1) Network Connections.
"Network Connection" shall mean the Network Access, Port and
Backbone (each a "Network Component") necessary to establish
and maintain data communications between (A) Avis Locations,
the Data Center, and distributed processing locations (e.g.
any WizCom Reservation Center, (B) the Data Center,
distributed processing locations, and third party service
providers (such as credit card processing and airlines
interfaces), (C) one Avis Location and another, and (D) such
other locations as the Parties may agree.
(2) WizCom-Managed Network.
WizCom shall perform the functions described in this Section
with respect to the Network Components managed by WizCom that
affect Avis Locations (the "WizCom-Managed Network"), so that
Avis Locations may receive and transmit data and make use of
the functions of the Systems and the Avis Software operated by
WizCom.
b. Network Access.
"Network Access" shall mean the communication lines, services and
equipment required to provide and maintain a connection between the
data terminal equipment or other end user device at an Avis Location
and a WizCom Network Node. Network Access for any given Avis Location
may be provided either (A) by WizCom, or (B) by Avis. Both Parties may
use third parties to provide the Network Access they are responsible
for.
c. WizCom-Provided Network Access.
(1) WizCom shall provide Backbone, Ports and, if requested by Avis,
Network Access according to the procedures and time frame
guidelines set forth in the Procedures Manual. WizCom shall use
commercially reasonable efforts to comply with Avis's scheduling
requirements. If so requested, WizCom shall design the Network
Access taking Avis's needs for the Network availability and
response time into consideration. WizCom shall provide Avis with
such
information as Avis may reasonably request regarding (i) the
status of efforts to provide Network Access, and (ii) arrangements
made with telecommunications carriers.
(2) As part of WizCom's management of the Network Access, WizCom
shall, according to the procedures and time frame guidelines set
forth in Procedures Manual, remove equipment used for Network
Access and circuits no longer required by Avis at Avis's request.
For equipment required for Network Access owned or leased by Avis,
WizCom shall store, redeploy and dispose of such removed equipment
as Avis may request.
(3) When WizCom provides Network Access for Avis, WizCom shall manage
such Network Access, and the Performance Standards set forth in
Schedule B shall apply.
x. Xxxx-Provided Network Access.
(1) Avis may, at any time and from time to time during the Term,
establish and manage Network Access between any Avis Location and
a WizCom Node that is located at the Data Center, or Avis's
headquarters (currently in Garden City), or any WizCom Reservation
Center. Network Access established by Avis or third parties
selected by Avis shall be compatible with the Systems and the Port
and Backbone components that support such Network Access. All
Network Access must be approved by WizCom for compatibility and
operational support considerations. If there is a problem with
Network Access established and managed by Avis or third parties
selected by Avis, the Parties shall reasonably cooperate with each
other to resolve the problem. WizCom shall provide Avis with
access to Netview or similar mainframe-based network management
tools used by WizCom as necessary for Avis to monitor and manage
such Network Access, with the following understanding: (i) Avis
should consider access to such mainframe-based tools as a
supplement to the primary network management capability provided
by Avis's network equipment vendor; and (ii) WizCom will provide
Avis with access to such mainframe-based tools for control of Avis
resources only, Avis access to that tool will be limited or will
not be permitted.
(2) If Avis provides or uses a third party to provide Network Access,
Avis may request WizCom to manage such Network Access or third
party provided that Avis and/or the third party is using
equipment, circuits and a network design approved by WizCom. Upon
such request by Avis and an approval by WizCom, WizCom will manage
Network Access that has been established by Avis or is provided by
a third party. WizCom's management of the services of such third
party will be subject to agreement by such third party.
(3) Performance of Network Access that is provided by a third party
will be the responsibility of the third party. If WizCom manages
he services of a third
party that is providing Network Access for Avis, WizCom will
report overall network performance to Avis. The Parties shall,
prior to entering into such management arrangements, determine
whether the third party's networking methods prohibit overall
(end-to-end) performance measurement, in which case performance
shall be measured as proposed by WizCom and approved by Avis.
e. Network Reports.
(1) WizCom shall report WizCom-Managed Network performance on a
monthly basis. The content of such reports will depend upon the
Network Access and Backbone configuration, and the use of third
party networks, but WizCom shall provide industry standard
measurements as reasonably requested by Avis.
f. Provision of Equipment.
Data terminal equipment used at Avis Locations to access the Systems
must be on the list of WizCom approved hardware or otherwise certified
as compatible with the Network.
g. Sharing of Network Components.
To the extent the Parties mutually agree, Avis may share with other
WizCom Customers the use of Network components on the WizCom-Managed
Network. Avis recognizes that data terminal equipment will be permitted
to coexist on the same Network Access line and Port with other WizCom
Customers provided that such equipment will not adversely impact Avis
or other customers.
h. Network Access Design.
If WizCom is to provide Network Access, WizCom shall design the Network
Access, subject to Avis's approval, which approval shall not be
unreasonably withheld. If the Network Access is to be shared with other
WizCom customers, WizCom shall consider any Avis comments on the
Network Access design, but WizCom shall have final decision on the
design of the Network Access. To the extent the WizCom-Managed Network
is shared with other WizCom customers, WizCom shall design such Network
based on the traffic patterns of the customer, with no preference for
any single customer.
i. Network Engineering and Management.
WizCom shall provide network engineering functions and support related
to the WizCom-Managed Network. Such functions shall include:
(1) providing network optimization, which shall consist of the same
network optimization services Wizcom provides to other Customers,
including (A)
researching and evaluating means for optimizing the efficiency and
cost-effectiveness of the WizCom-Managed Network, (B) analyzing
rates and packages offered by telecommunications common carriers,
(C) making recommendations to Avis regarding how to make changes
to the WizCom- Managed Network to make it more efficient and
cost-effective for Avis (e.g., changing carriers, adding or
deleting bandwidth), (D) implementing changes to the
WizCom-Managed Network approved by Avis, and (E) programming,
monitoring and tuning the Network for efficiency and problem
prevention;
(2) providing configuration management, including (A) maintaining and
delivering Equipment inventories, circuit documentation, locations
lists, and other documentation and information relating to the
WizCom-Managed Network at such times as Avis may reasonably
request, and (B) managing the configuration of Equipment
supporting or otherwise connected to the WizCom- Managed Network
so that such Equipment can transmit and receive data as
appropriate;
(3) providing and maintaining, as reasonably requested by Avis,
host-to-host and special purpose circuits to meet Avis's remote
host application interface requirements and bulk data transfer
requirements;
(4) upgrading systems and Equipment for the WizCom-Managed Network as
requested by Avis to the extent Avis would be charged solely with
the costs therefore, if any;
(5) developing acceptance procedures for installations and changes to
the WizCom-Managed Network, and for verifying restoration Services
related to the WizCom-Managed Network following problems with
Equipment or circuits;
(6) performing moves, adds and deletes on the WizCom-Managed Network
as needed to provide the Services and in response to Avis's
requests for Services;
(7) managing the WizCom-Managed Network (including sizing new lines,
configuring requirements, and coordinating with vendors).
2. Network Capacity Planning and Management.
WizCom shall provide capacity planning and management for the WizCom-Managed
Network. Such functions shall include:
(1) WizCom shall generally monitor the utilization and performance
trends of Network components that are managed by WizCom. WizCom
shall use commercially reasonable efforts to upgrade network
components before utilization of those components reaches a level
which the Parties mutually
agree to be unacceptable. The Parties recognize that such trends
and corresponding indicated changes may be due to deterioration,
over utilization or under utilization of Network components.
(2) When WizCom determines that a Network Backbone element or WizCom
provided shared Network Access requires an upgrade in capacity,
WizCom will describe the requirement to Avis if Avis Locations are
supported by the elements under consideration. WizCom will also
describe to Avis the specific upgrade actions that have been
planned and the estimated cost of the upgrade. WizCom will
consider and incorporate reasonable Avis recommendations that are
presented at that time. Final decision for such Network upgrades
will be WizCom's, which shall be made without prejudice or favor
to any customer.
(3) For WizCom provided Network access that is used solely by Avis,
WizCom will make recommendations for capacity upgrades to Avis as
required. Avis will determine if the estimated cost of the upgrade
is justified or if an alternative upgrade is preferred. Avis will
have the final decision in such circumstances, provided that
Avis's decision will not adversely impact WizCom's ability to
manage such Network Access.
3. Local Area Network (LAN) Services.
The Parties' responsibilities with respect to providing necessary LAN
facilities, equipment and support for Avis ("Xxxx XXXx") shall be set forth in
the Procedures Manual.
SCHEDULE A4
HELP DESK SERVICES
Avis shall elect a level of Help Desk Services appropriate to the service that
Avis desires, consistent with the Network Services selected. The service pricing
will be as set forth in Schedule C. The levels of Help Desk Services available
to Avis (which levels may be further detailed by mutual agreement in the
Procedures Manual) are:
Level 1: Full Help Desk Services support and management of End-User
Equipment, which level is available if WizCom provides Network Access for Avis
as described in Section 1(c) of Schedule A3 or if WizCom manages the Network
Access provided by Avis or third parties selected by Avis as described in
Section 1(d)(2) of Schedule A3. This level of services consist of first level
Help desk support, Network Management, Network Installation Coordination,
Terminal Installation Coordination and System Parameter Generation Coordination
which are described as follows:
Help Desk
WizCom first level Help Desk support includes: answering
incoming telephone calls on a first line basis form any Avis
source, initiating trouble tickets, performing diagnostic,
dispatching repair personnel for terminal problems, escalating
problems to Applications development or technical support
groups, managing problem resolution, and clearing trouble
tickets.
Network Management
The Network Management functions will include management of
Network Access, Ports and Backbone as follows: diagnosing
Network, circuit and communication problems; coordinating
carrier/vendor meetings to resolve problems, dispatching
carrier/communication equipment vendors; escalating
outstanding carrier/vendor problems to management; managing
problem resolution; maintaining and monitoring Network
performance for WizCom.
Network Installation Coordination
Each site requires a Network connection. The following tasks
are part of the Network Installation process:
o coordinating communications ordering with telephone
companies
o coordinating acquisition of modem equipment
o making certain communication line is installed and
operational as per Procedures Manual prior to
scheduled installation
o having modem installed and performing communication
testing
o coordinating installation of dial backup equipment
o managing any internal wiring between the telephone
company demarcation point and WizCom-Managed Network
Equipment if such internal wiring is supplied and
supported by the telephone company
Terminal Installation Coordination
WizCom coordinates the installation process for each site
prior to sending an installation team to the site. Functions
performed in this process are as follows:
o complete equipment check list prior to delivery
o verify that equipment is on site
System Parameter Generation Coordination
The WizCom system requires the following setup/reconfiguration
for additions, deletions or modifications:
o system GENs
o station authorizations definition o assigning user IDs o
defining printer authorizations o creating "LTERM" and
"PTERM" addresses
Level 2: This level of service consists of Network Management and System
Parameter Generation Coordination as described above the Level 1 and second
level Help Desk support. WizCom second level Help Desk support includes
performing diagnostics, escalating problems to Applications development or
technical support groups, managing problem resolution and clearing trouble
tickets where first line calls have already been handled by Avis's help desk,
which initiated the trouble ticket. The Network Management functions include
management of Network Access, Ports and Backbone. Management of Network Access
is available if Network Access is provided by WizCom or if
Network Access is provided by Avis with WizCom's prior approval as
described in Section 1(d)(2) of Schedule A3. Under Xxxxx 0, if WizCom provides
Network Access, it will also provide Network installation coordination as
described in Level 1.
Level 3: Help Desk administration services. This level of service consists
of Network Management as described above for Xxxxx 0, but only with respect to
Ports and Backbone (not Network Access); this service will provide a
second-level Help Desk. In addition, WizCom provides System Parameter Generation
Coordination and on-going interface support between the Avis-Managed Network
Access and WizCom's Ports as follows:
o Help Desk Services will assist in problem
determination for Avis equipment located on WizCom
premises (i.e.: DSU, multiplexor etc.)
o Help Desk Services will provide support to resolve
Avis equipment problems under the direction of Avis
staff
o Help Desk Services will coordinate with Avis vendors
when present at the Data Center, under Avis's
direction, for the repair of Avis equipment located
at WizCom's facilities
The rules under which these levels of Help Desk Services are
available are as follows:
o Avis must choose level 1, 2 or 3 for any given site.
o Level 1 or 2 is required if WizCom manages Network
Access.
o Level 3 is required for Avis-Managed Network Access.
SCHEDULE B
PERFORMANCE STANDARDS
I. General.
The Performance Standards contained in this Schedule B shall apply in a
production environment to (i) the Systems, and (ii) to the extent mutually
agreed by the Parties, other Applications operated by WizCom for Avis under this
Agreement ("Additional Applications"). If the Parties do not agree to apply the
Performance Standards to an Additional Application, Avis may suggest different
Performance Standards for such Applications for WizCom's review and approval,
which approval will not be unreasonably withheld. Performance Standards for such
Additional Applications shall, to the extent reasonably practicable, be
comparable to the Performance Standards then in existence for the Systems, to
the extent similar in functionality.
II. Failure to Meet the Performance Standards.
If WizCom fails to meet the performance standards contained in this schedule the
following procedure will be followed.
a. Avis will notify WizCom of the failure to meet the performance
standard and request that WizCom identify the cause of the
failure.
b. WizCom will investigate the cause of the failure and report
back to Avis both the cause of the failure and the action
necessary to prevent a repeat of the failure. WizCom will
calculate any cost that will be incurred.
x. Xxxx and WizCom will use this information to mutually agree
what corrective action should be taken. The cost of this
corrective action and any cost of investigation will be borne
by Avis.
III. Performance Standards.
A. Performance Standard for On-Line Availability.
1. Scheduled Uptime.
a. A particular Subsystem shall be scheduled to be available for
use by Avis during periods reasonably designated by Avis after
consultation with, and agreement by, WizCom ("Scheduled
Uptime").
b. As of the Effective Date, the Scheduled Uptime for the
Reservation and Rental Subsystems shall be, upon acceptance of
the Subsystems 24 hours per day, 7 days per week, less periods
of Excused Downtime as defined in Section III.A.3. below. The
Parties may subsequently agree that certain functions of the
Reservation and Rental Subsystems will be scheduled to be
available during shorter periods because of
mutually-established processing schedules.
2. On-Line Availability.
a. "On-Line Availability" shall mean the percentage of Scheduled
Uptime that the Systems are available for use by Avis Locations, as
determined in accordance with Section III.A.4 below.
b. During the first year of this agreement (the "Base Year"), the
Performance Standard for On-Line Availability shall be 97% for each month.
During the Base Year and each year thereafter, On-Line Availability for
each shall be calculated monthly in accordance with Section III.A.4 below
and WizCom shall determine the Systems' average On-Line Availability for
such year (the "Yearly Average "). During the year next following the Base
Year (herein "BY1"), the Performance Standard for On-Line Availability for
each month shall be the Yearly Average for the Base Year. During each year
thereafter, the Performance Standard for On-Line Availability for each
month shall be the Yearly Average for the prior year. However, in no event
shall the Performance Standard for On-Line Availability be less than the
greater of 97% or the Rolling Average for the Systems. "Rolling Average"
shall mean (i) for BY1, the Yearly Average for the Base Year, (ii) for the
year next following BY1 (herein "BY2"), the average of the Yearly Average
for the Base Year and the Yearly Average for BY1 and (iii) for any year
commencing after BY2, the average of the Yearly Averages for each of the
three prior years.
3. Excused Downtime.
Unavailability of the Systems shall be excused in the following
circumstances ("Excused Downtime"):
a. The unavailability results from scheduled outages as described in
Section 10(g) of Schedule A1; provided, however, that in the event of an
outage as described in Section 10(g)(2), unavailability shall be excused
only for the first three hours of such outage, and only to the extent (i)
Avis has received at least 24 hours prior notice, and (ii) the outage
occurs at a time of day designated by Avis to minimize disruption to its
business;
b. The unavailability results from events of force majeure as
described in Section 15.2 of this Agreement.
4. Determining On-Line Availability.
a. On-line Availability for the Systems is determined by calculating
the aggregate minutes that the Systems were unavailable to Avis during the
month and dividing this number by the total minutes for the month. The
result is subtracted from 1 to give On-Line Availability for the month for
the Systems, which is expressed as a percentage and is compared to the
applicable Performance Standard.
b. For the purpose of calculating On-Line Availability, the Systems
shall be deemed to be unavailable for any period in which a majority of the
"Core Business Functions" (as defined in Section III.A.4.c below) of the
Systems in production is unavailable at the Data Center.
c. "Core Business Functions" shall mean the functions described in
Schedule F and G, which are part of the Systems, as such functions may be
modified, enhanced, supplemented or replaced during the Term.
d. Availability shall be measured using the measurement tools and
procedures in use by WizCom as of the Effective Date, as such tools and
procedures may be modified, enhanced, supplemented or replaced during the
Term, including the tracking of availability problems reported by Avis or
otherwise identified by WizCom. Where WizCom does not have as of the
Effective Date a measurement tool or procedure to continuously monitor the
availability of a Core Business Function, any unavailability shall be
measured based on problems reported by Avis or otherwise identified by
WizCom and using a reasonable mechanism for determining the duration of the
period of unavailability.
B. Performance Standards for Host Response Time.
1. Host Response Time.
"Host Response Time" shall mean the response time for a
transaction as measured from the time a transaction is received by
WizCom's computer processor until such transaction is transmitted
from WizCom's computer processor. WizCom is currently using IMS
PARS to measure Host Response Time.
2. Host Response Time for Key Transactions.
a. "Key Transactions" shall mean up to ten (10) transaction groups
reasonably identified by Avis from time to time during the Term as
representing important business functions of Avis.
b. During the first six (6) months that a Subsystem is in production,
WizCom shall establish a reasonable measurement procedure to monitor Host
Response Time for Key Transactions using. Once a measurement is
established WizCom shall, for the month immediately following such six (6)
month period (the "Initial Month") and each month thereafter, measure the
Host Response Time for each applicable Key Transaction once an hour for ten
(10) minutes during the hours of 9 a.m. to 5 p.m. (Eastern Standard Time)
Monday through Friday (the Measurement Period). For each Key Transaction,
WizCom will compute (i) the average Host Response Time for all transactions
of the groups measured during each day in the Measurement Period (the
"Daily Sample") and (ii) the average of all Daily Samples during such month
(the "Monthly Sample").
c. The Performance Standard for Host Response Time for each Key
Transaction in a month shall be as follows: (i) for the first year
following the Initial Month (the "Benchmark Year"), the Monthly Sample
shall be no greater than 110% of the Monthly Sample for the Initial Month,
and (ii) for each year thereafter, the Monthly Sample shall be no greater
than 110% of the Monthly Sample for the same month in the prior year.
However, commencing with the second year following the Benchmark Year, in
no event shall the Performance Standard for Host Response Time for a Key
Transaction in a month be greater than the Host Response Time Rolling
Average for such month. Host Response Time Rolling Average shall mean for
the second year following the Benchmark Year and for any year thereafter,
the average of the Monthly Samples for the same month in each of the three
(3) prior years.
d. If the functionality of a Key Transaction changes due to an
application enhancement, then Avis shall be given the option of either
revising the response time average of the Key Transaction to the current
recognized response time or revising the application change, as a project,
to improve response time.
C. Performance Standard for Scheduled Batch Processing.
WizCom shall ensure that the scheduled batch jobs identified by Avis as
key jobs will be completed 95% of the time within the time frame
reasonably suggested by WizCom. These batch jobs will be measured and
reported monthly to Avis by WizCom and on-time performance statistics
will be compiled and reported to Avis annually commencing in January
1998. In order for this Performance Standard to apply, a key batch job
must have at least twelve (12) runs per year. For batch jobs with less
than twelve (12) runs per year, the parties will agree upon a numeric
standard rather than the percentage standard set forth in this
paragraph.
IV. Subcontractor Service Levels.
In the event that WizCom subcontracts any of its obligations under this
Agreement, WizCom shall remain responsible for compliance with this Schedule B.
Exhibit B1
Key Transactions
Transaction Group Description
Reservations:
RES01POT Create, modify, display and rate shop
reservations from XXXX
RES01PA1 Reservations from American Airlines
RES01PA3 Reservations from United Airlines
RES01P50 Reservations created at Rental Counters
Rental:
PXW01P10 Check-out transaction
PXW01P20 Check-in transaction
SCHEDULE C
Fees for Computer Services
1. Overview.
WizCom will charge Avis the full cost of providing computer services each month.
The method of calculating costs chargeable to Avis will vary depending on the
service being provided. Where costs are fully attributable to Avis in their
entirety they will be passed directly to Avis. Where Avis is one of a number of
companies sharing services then the costs will be allocated to each company on
an equitable basis as determined by WizCom. In determining the method of
allocation WizCom will take due regard of the costs involved in calculating the
allocation.
The method of charging costs is based primarily on the WizCom accounting system
together with supporting information from operational systems as required. Cost
components and allocations of cost are subject to change due to changes in
technology or operating methods. Any changes to these cost categories will be
made in a manner that is consistent with WizCom's current accounting practices.
WizCom is currently providing four types of service to Avis:
Data center services
Applications development
Support services
Network Services
2. Data Center Services
The full cost of providing the services identified in Schedule A1 will be
charged to Avis on a monthly basis by WizCom.
2.1 Data Processing
The data center provides services to a number of different
companies. WizCom shall allocate cost to Avis based on
WizCom's calculation of the share of data center costs
attributable to Avis. In determining the method of allocation
WizCom will take due regard of the costs involved in
calculating the allocation.
The data center services comprise a number of different
functions. These functions include, but are not limited to,
the following:
Capacity and Performance Planning
Data Center Operations
Technical Services
Print Room
Production Support
Data Entry
Database Support
Quality Assurance
Systems Architecture and Technology
Network Development
Distributed Systems Technology
Systems Software
Systems Maintenance and Efficiencies
A breakdown of the costs included in each of the above
functions is attached as exhibit C1.
2.1.a Allocation of cost
Costs that are incurred solely for Avis will be
charged to Avis in their entirety.
Cost will be allocated based on Avis's usage of the
data center. The method of measuring usage will vary
depending on the type of service involved. For
example, use of the CPU will be measured by reference
to the number of MIPS used by Avis at the peak
processing time. The peak processing time will be
defined by WizCom based on analysis of CPU usage. If
Avis uses 25% of the MIPS used at the peak processing
time then Avis will be responsible for 25% of the
cost of the CPU. Costs that are directly related to
the CPU and its operation will be allocated on the
same basis as use of the CPU. Costs that are not
directly related to the CPU and that cannot be
measured by usage, will be allocated by WizCom in an
equitable manner. An example of such a cost is rent.
When calculating data center costs, any one-time
costs incurred by WizCom or an affiliate of WizCom to
re-structure data center operations and provide
savings in future periods will be included in the
total costs.
2.1.b Calculation method
The full costs of each of the above
functions are grouped together to form the
total data center cost (Exhibit C2). The
applicable share of each cost item will be
recorded for Avis and used to calculate
Avis' cost for each item. The total cost for
Avis is calculated by adding the cost
against each item (Exhibit C3). For ease of
billing Data Center charges will be
expressed as a charge per rental agreement.
The charge per rental
agreement will be calculated for each
planning period by dividing Avis's share of
the total data center cost by the estimated
number of rental agreements to be processed
during such planning period, as provided by
Avis in accordance with Section 5.2(a)(1).
An example of the calculation is attached at
Exhibit C4.
As of the Effective Date the charge is
$0.778 per Rental Agreement processed.
2.2 Non-Mainframe Processing
The cost of processing performed on equipment other than the
main computer processing units will be excluded from the data
center and charged on a monthly basis. A breakdown of the
costs of Non-mainframe processing as of the effective date is
attached as Exhibit C1.
Non-mainframe processing is provided to a number of different
companies. WizCom will allocate costs to Avis based on
WizCom's calculation of the share of these costs attributable
to Avis. In determining the method of allocation WizCom will
take due regard of the costs involved in calculating the
allocation.
Costs that are incurred solely for Avis will be charged to
Avis in their entirety.
Cost will be allocated based on Avis's usage of the
non-mainframe resources. The method of measuring usage will
vary depending on the type of asset involved. For example use
of the storage devices will be measured by reference to the
number of volumes assigned to Avis. If Avis uses 25% of the
assigned volumes then Avis will be responsible for 25% of the
cost of storage devices. Costs that are directly related to
the storage devices and their operation will be allocated on
the same basis as the usage of storage devices. Costs that are
not directly related to the storage devices and that cannot be
measured by usage will be allocated by WizCom in an equitable
manner.
2.3 Additional Software
In the event that Avis requests that WizCom obtain and/or
operate software whose function is not related to the
operation of the Systems, and whose use is not shared with any
other company, then Avis will be responsible for the full cost
of acquiring and maintaining such software. If such software
is used by WizCom to service other WizCom customers, such
software shall become WizCom software and the cost of such
software shall be shared by Avis on an equitable basis.
3. Applications Development
WizCom will charge Avis for application development projects, as defined in
Article 5, using an hourly rate intended to fully recover WizCom's costs. Avis
will be charged on a monthly basis for the work completed during that month for
each project. Consultants will be billed at a rate that includes the hourly rate
charged by the consultant and WizCom's applicable overhead costs.
Current hourly rates are as follows:
Xxxxx 0 $91
Level 2 $61
Level 1 $45
Overhead recovery $18
3.1 Hourly Rate Calculation
The Hourly Rate for application development and maintenance
shall be calculated in accordance with the following
methodology. Items of variable expense and overhead expense
are subject to change due to changes in technology or
operating methods. Any changes to these cost items shall be
made in a manner consistent with WizCom's current accounting
practices. Any extraordinary items of expense will be
separately identified and treated in a manner that is
consistent with WizCom's past practice and the other
provisions of this Agreement.
Calculation for Application Development and Maintenance Hourly Rate
Professional staff members are grouped by skill levels so that hourly costs may
appropriately reflect differences in expenses. Currently there are three levels
of cost being used to charge for WizCom staff services. WizCom will review the
skill levels used to charge for Applications Development and in its sole
judgment WizCom may expand or reduce the skill levels used in Applications
Development.
The Hourly Rate is composed of two components:
Variable rate
Overhead rate
3.3 Variable Rate
The estimated total variable costs incurred by WizCom for
application development and maintenance for the next fiscal
year are gathered and totaled by skill level. The variable
costs include salaries, payroll taxes, bonus and benefit
expenses. The number of billable hours at each skill level is
estimated
based on analysis of the prior year billing records and input
from customers for the coming fiscal year. The variable rate
is calculated by dividing the estimated variable cost for each
skill level by the estimated billable hours for all customers
at each skill level. An example of the calculation for WizCom
personnel is given below at 3.5.a. For third party development
personnel the total variable costs shall consist of WizCom's
out-of-pocket expenses for such personnel.
Overhead Rate
The estimated total overhead costs incurred by WizCom for application
development and maintenance, including overhead costs for third party personnel,
for the next fiscal year are gathered and totaled. The overhead costs include
the following expenses:
Cost of providing employees with computer equipment.
(a) Facilities costs which include rent of the space occupied by
systems development staff and utilities.
(b) Training costs of employees.
(c) Telephone and fax costs.
(d) Travel expenses incurred by employees.
(e) Cost of technical and communications support provided to the
programming staff.
(f) Cost of management and administration of the systems develop-
ment department.
(g) Share of WizCom management expenses.
(h) Cost of providing Help Desk Services to the programming staff.
(i) Administration and office expenses.
(j) Recruitment expenses.
The number of billable hours is estimated based on analysis of the prior Fiscal
Year's billing records and the planned headcount for the coming Fiscal Year. The
estimated overhead rate is calculated by dividing the estimated annual overhead
costs by the total estimated billable hours of WizCom staff and third party
personnel. An example of the calculation is given below at 3.5.b.
3.5 Calculation of Hourly Rate:
The hourly rate is calculated by adding the overhead rate to
the applicable variable rate as below:
===================================================================
Level Variable Overhead Hourly
Rate Rate Rate
-------------------------------------------------------------------
3 $73 $18 $91
-------------------------------------------------------------------
2 $43 $18 $61
-------------------------------------------------------------------
1 $27 $18 $45
===================================================================
3.5.a Example of calculation of Variable Rate
------------------------------------------------------------------------
Level Average Benefits Variable Billable Hourly
Salary Cost Hours Rate
------------------------------------------------------------------------
3 $70,000 $15,000 $85,000 1,164 $73
------------------------------------------------------------------------
2 $55,000 $13,000 $68,000 1,581 $43
------------------------------------------------------------------------
1 $42,000 $ 8,000 $50,000 1,852 $27
========================================================================
3.5.b Example of calculation of Overhead Rate
==========================================================================
Overhead Costs Headcount Average Billable Hourly Rate
Hours Per Head
--------------------------------------------------------------------------
All Levels $5,526,468 222 1,383 $18
==========================================================================
Support Services
4.1 Help Desk
Help Desk services, as defined in Schedule A4, will be charged
on the basis of a monthly fee per device connected to the
WizCom network. The charge is reviewed annually and is subject
to the level of service provided to Avis.
A breakdown of the costs of the help desk is attached as Exhibit C1.
Current monthly charges are:
WHQ $15 per device
RAC Field $41 per device
Canada $38 per device
International $13 per device
4.1.a Allocation of cost
Help desk services are provided to a number of
different companies. WizCom shall allocate costs to
Avis based on WizCom's calculation of the share of
these costs attributable to Avis. In determining the
method of allocation WizCom will take due regard of
the costs involved in calculating the allocation.
Costs that are incurred solely for Avis will be
charged to Avis in their entirety.
4.1.b Calculation of monthly cost
When calls are received by the help desk, the caller
and the type of call are recorded. WizCom
periodically measures the length of time required to
handle each type of call.
The total time required to support a group of
customers is calculated by first multiplying the
number of calls of each type by the number of minutes
each type of call requires. The cost is then
calculated by multiplying the total number of minutes
by WizCom's cost per minute for help desk services.
For ease of billing the total charge for each
customer is converted into a monthly charge per
device. The total cost is divided by the number of
devices the customer has. The result is then divided
by twelve to arrive at the monthly charge.
4.2 Desktop Support
A number of different services are provided in support of
desktop computers. A breakdown of the costs of desktop support
is attached as Exhibit C1. In addition, the interest cost
involved in purchasing computer equipment and printers will be
included in the monthly equipment fee.
4.2.a Equipment Fees
A monthly fee will be charged to recover the full cost of computer
equipment provided to Avis. The fee will vary based on the type of
equipment provided. Personal computers have been grouped into 6
categories. Printers have been grouped into 3 categories.
The current monthly charges are:
Basic PC $125
Advanced PC $180
Basic Laptop PC $145
Basic Laptop PC with Docking Station $175
Advanced Laptop PC $190
Advanced Laptop PC with Docking Station $220
Personal Printer $ 35
Group Printer (2-9 users) $ 65
Department Printer (>10 users) $120
4.2.a.(1) Calculation of monthly costs
The monthly cost for each equipment type is
calculated by grouping the full costs of providing
the equipment in each category and dividing the total
by the number of pieces of equipment in that
category. The result is then divided by twelve to
arrive at the monthly charge.
Equipment costs include depreciation, lease charges,
software, maintenance and interest.
4.2.b Support Services
A monthly fee will be charged commensurate with the
level of support provided to Avis.
The current charge for basic support is $90 per month
for each personal computer.
4.2.b.(1) Calculation of monthly costs
The monthly cost is calculated by grouping the full
costs of providing desktop support services and
dividing the total by the number of personal
computers that will be receiving support. The result
is then divided by twelve to arrive at the monthly
charge.
4.2.c Network Access
A monthly fee will be charged for each device
connected to the local area networks.
The current charge is $55 per month.
4.2.c.(1) Calculation of monthly costs
The monthly cost is calculated by grouping the
full costs of establishing, maintaining and
supporting the local area networks and dividing
the total by the number of personal computers that
will be attached to the networks. The result is
then divided by twelve to arrive at the monthly
charge.
4.2.d Installations, moves,LAN connections and reconfigures
A fee will be charged for installing, moving and
reconfiguring computer equipment. A fee will also be
charged for connecting equipment to the WizCom
network.
The current charges are:
Move $110
LAN connection $110
Installation $350
Reconfigure $350
4.2.d.(1) Calculation of cost
The fees for the above services are calculated by
multiplying the estimated time required to perform
the service by WizCom's hourly cost for manpower. The
hourly cost and the time estimates are reviewed by
WizCom periodically.
5. Network Services
The full cost of providing the services identified in Schedule A3 will be
charged to Avis on a monthly basis by WizCom.
Cost incurred by WizCom for facilities of Facility Groups (e.g., backbone)
exclusively used by Avis shall be charged to Avis in their entirety.
Cost incurred by WizCom for facilities or Facility Groups shared by Avis with
other WizCom customers shall be charged to Avis based on its portion of such
facilities. This portion shall be determined solely by WizCom using its best
professional judgment to determine a fair and equitable allocation of cost to be
charged to Avis within the constraints of existing contracts with other WizCom
customers. Methods to determine Avis's portion may consider, alone or in
combination but not limited to, the following:
Measurement or estimation of Avis consumption.
Equal division by total number of customers/customer logical or physical
devices. Allocation of specific segments of facilities to Avis.
Consumption at times of peak overall usage.
Data Center sharing.
Distance that data is transported.
The selection of a method may be influenced by the type of facility, measuring
tools available, cost and labor required to perform related measurements, and
technology limitations.
6. Annual review of computer fees charged.
Within forty-five (45) days after the end of each calendar year of the Term,
WizCom shall provide Avis with notice of the amount, if any, by which the actual
cost to WizCom of providing each type of service to Avis during such preceding
calendar year exceeded the aggregate amount paid by Avis for such service for
the preceding calendar year. Avis shall pay WizCom, within fifteen (15) days
after the date of such notice the amount of such deficiency.
In the event that during any calendar year Avis requests changes to the services
which will, in WizCom's reasonable judgment increase the cost of providing any
of the services by more than 5%, WizCom shall provide notice to Avis of such
determination and the reasons therefore, and effective with the monthly billing
which succeeds such notice by at least fifteen (15) days, WizCom shall xxxx Xxxx
at a rate which is calculated to eliminate such deficit.
SCHEDULE D
WIZCOM THIRD PARTY SOFTWARE
VENDOR PRODUCT
APPLIED NCODE/DCODE
BMC DB2REORG+
BMC LOAD PLUS
XXXXX & BABBAGE CMF
XXXXX & XXXXXXX MAINVIEW BASE
XXXXX & BABBAGE FULFILLMENT FOR MVS
XXXXX & XXXXXXX FULFILLMENT FOR IMS
CA PANVALET
CA PANVALET TSO
CA PANVALET ISPF
CA PHOENIX CBT
CA EZT+
CA EZT + IMS
CA CA-1
CA CA-7
CA CA-11
CANDLE CL/SUPPRESSION
COMPUWARE ABEND-AID MVS
COMPUWARE ABEND-AID IMS
COMPUWARE TRANSRELATE BD2
COMPUWARE XPEDITER TSO
COMPUWARE XPEDITER IMS
FASTTECH T.E.S.S.
GLOBAL XXXXX
IBM VS FORTRAN
(Mainframe)
MAINWARE HOURGLASS
PALACE GUARD ADMIN-AID
SAS INSTITUTE SAS MVS
SAS INSTITUTE SAS OR
SAS INSTITUTE SAS STAT
SAS INSTITUTE SAS CONNECT
STERLING:XXXX COMPRESS
SUN FORTRAN 77
(Client Servers)
SYNCSORT SYNCSORT MVS
SYNCSORT SYNCSORT CMS
TRANS CENTURY CALENDAR ROUTINES
VISUAL NUMERICS FORTRAN 90
SCHEDULE D
VENDOR PRODUCT
MKS MKS TOOLKIT
NETSCAPE ENTERPRISE SERVER
NOVELL, INC. NETWARE
NOVELL, INC. MANAGEWISE
NOVELL, INC. GROUPWISE
NOVELL, INC. NETWARE NFS
NOVELL, INC. NETWARE COMMUNICATION EXECUTIVE
NOVELL, INC. NETWARE HOSTPRINT
NOVELL, INC. NETWARE FOR SAA
NUMEGA BOUNDS CHECKER
ORCA SOFTWARE XI
POWERSOFT POWERBUILDER
POWERSOFT S-DESIGNER
PVCS VERSION MANAGER
SAS SAS
SUN SOLARIS
SUN TRIS
SUN SNAP2P
SUN SPARCWORKS C/C++
SUN SPARCWORKS FORTRAN
SUN SOLSTICE BACKUP
SUN SOLSTICE FIREWALL
SYBASE SQL SERVER
SYBASE OPEN SERVER
SYBASE OPEN CLIENT
SYMANTEC VISUAL CAFE PRO
SYMANTEC CORP. NORTON ANTIVIRUS
SYNERGISTIC APPLICATIONS MACFLOW
VISIO CORP. VISIO FOR WINDOWS V3.0A
XDB XDB
XVT XVT
SCHEDULE D
VENDOR PRODUCT
ALDUS CORP. ALDUS PERSUASION 2L.1 (MACINTOSH)
APPLE ETO
ATTACHMATE CORP. EXTRA
BANNER BLUE, INC. ORGPLUS
BENDATA HEATFOR WINDOWS
BMC/DATATOOLS SQL BACKTRACK
BRIO TECHNOLOGIES BRIOQUERY
BRIXTON BRIXTON GATEWAY MANAGER LU6.2
CA XCOM
CA XXXXX
XXXXXX CORP. FILEMAKER PRO
COREL CORP. WORDPERFECT
CPLEX CPLEX
DANTZ DEVEL. CORP. RETROSPECT
DATAWARE DATAWARE XX0000 XXXXXXX XXXXXXX
DIMENSIONAL INSIGHTS CROSS TARGET DIVER
FARALLON, INC. TIMBUKTU
IBM TIVOLI MANAGEMENT PLATFORM 10
IBM IBM ANTIVIRUS
INTERSOLVE PVCS
KAETRON CORP. TOPDOWN FLOWCHARTER
LANDMARK PERFORMANCE WORKS
LEGATO SYSTEMS NETWORKER
LOTUS DEVEL. CORP. LOTUS 1-2-3
MACONOMY MACONOMY
MCAFEE, INC. NETTOOLS FOR WINDOWS
MCAFEE, INC. VIRUSSCAN FOR WINDOWS
METROWERKS CODE WARRIOR
MICRO FOCUS MICRO FOCUS COBOL
MICROSOFT CORP. VISUAL C++
MICROSOFT CORP. MICROSOFT OFFICE
MICROSOFT CORP. MICROSOFT PROJECT
MICROSOFT CORP. MICROSOFT FOXPRO
MICROSOFT CORP. VISUAL BASIC
SCHEDULE E
AVIS THIRD PARTY SOFTWARE
VENDOR PRODUCT NAME
ADP ELECTRONIC REPAIR ORDER
CA FINANCIAL PLANNER
CA XXXXX
CA XCOM 6.2
CA DBA XPERT
EDS EDS/ELITE
GROUP1 CODE 1
GROUP1 CONSUMER M/P
GROUP1 LIST CONVERSION
GROUP1 BUSINESS M/P
GROUP1 GEOGRAPHIC CODING
GROUP1 CANADIAN CODING
GROUP1 MAILSTREAM PLUS
INNOVATION FDR/CPK/DSF
XXXXXXXX SYSTEMS ELECTRONIC DAMAGE CONTROL
MOBIUS INFOPAC
MSP DATA MANAGER
NISSAN ORDER STATIS SYSTEM
RRI R+
REYOLDS AND REYOLDS WARRANTY SYSTEM
SDT AIRPRICE QUEUE FUNCTIONALITY
SDT AIRPRICE ALERT PROCESSING
SDT AIRPRICE DYNAMIC SCREEN GENERATION
SDT MARKET GROUP CALIBRATION LOGIC
SDT AVERAGE LENGTH OF RENTAL LOGIC
SPC SYSTEMS COBOL REPORT WRITER
STERLING DYL260
STERLING COMMERC TRACS
STERLING:VM DIRECTOR
STORAGE TECH HSC
STORAGE TECH PM2
STORAGE TECH POST
STORAGE TECH EXLM
TOYOTA FAN SYSTEM
SCHEDULE F
WIZARD SYSTEM FUNCTIONS
RESERVATION SYSTEM:
Reservation Bookings
GDS Systems
Location, Rate Customer Rates & Exceptions, and Vehicle Availability Database
Individual, Corporate and Travel Agency Databases
Rate Shopper Database
Tulsa Advanced Functional Terminal (a.k.a. XXXX)
Reservations Delivery
Reservations Reports
Reservations Manifest
OAG Verification
Prepaid Reservations
Reservations Counts
Tour Operators
Internet Car Reservations
Coupon Processing
RENTAL SYSTEM:
Real-Time Check Out Transaction
Card Swipe Transaction
Ready Line
Preprint Rental Agreement Transaction
Delayed Check-Out and Check-In Transactions
Non-Revenue Ticket (NRT) Transaction
Vehicle Transfer Contract (VTC) Transaction
Rapid Movement Transaction
Additional Prepayment
Check-In Real Time and Delayed Transaction
Display and Modify Rental Agreement Transaction
Expedited Check Out Transaction
Vehicle Exchange Transaction
Station Cash/Voucher Display
Cash Deposit Balancing
Miscellaneous Cash Receipt Transaction
Risk Check VOID RA
Currency Exchange
Special Account Display
Message Service
Credit Files
Credit Authorization Link
OAG (Manifest, FAN/Rover)
Availability Transaction (Reservations, Rentals, Vehicles)
Vehicle Display Transaction
License Plate Trace License Plate Inquiry Transaction
Document Logs
Off Airport Locations
Drivers License Verification
Full Vehicle Addition/Change Transaction
Vehicle Status Transaction
Vehicle Reporting System
Hand Held Terminal
Express Service/Prestige Card Processing
Reader Boards
Bus Terminals
RESERVATION SYSTEM:
Reservation Bookings
Provide a facility to book, modify, cancel and receive instant confirmation
of reservation input by a reservation center, location or airline system.
The Reservation System accesses WizCom's databases (e.g. location, rate,
vehicle, customer) to edit information.
GDS Systems
Provide the booking, modification and cancellation of reservations from
airline and travel industry systems. Airline system means the computer
reservation systems (CRS) currently connected to WizCom (e.g. Sabre,
Amadeus, Galileo, Apollo, Pars).
The interface will handle automated Type A (interactive) and Type B
(teletype) reservations. This interface will be offered subject to the
standard and requests of the travel agent or airline system involved.
System includes: Voucher printing, Rate return, Automated reject
processing, Automated availability to the GDS, Automated rate updating, and
Automated transmission of rate availability.
Location, Rate, Customer Rates & Exceptions and Vehicle Availability
Databases Provide a facility for the storage and/or retrieval of
information on location, rates, customer rates & exceptions, and vehicle
availability.
Individual, Corporate and Travel Agency Databases
Provide a facility to identify and return Individual, Corporate or Travel
Agency Customers information through the use of special numbers or
identifiers (e.g. IATA).
Rate Shopper Database
Provide a facility which selects the best rate that is eligible to be sold
to a particular customer inquiry.
Tulsa Advanced Functional Terminal (a.k.a. XXXX)
The XXXX system is a distributive implementation of the Reservation Screen
designed to take advantage of client server technology. It provides
Reservation processing with a graphical user interface (GUI) with the
associated capabilities of a GUI (i.e., Multiple
Windows, Pull-Down Menus, Pop-Up Dialogue Boxes, List Boxes, etc.). The
distributive power will provide for local data bases that can be accessed
locally and enhance the local editing capability.
Reservations Delivery
Provide a facility to transmit reservation booking information to
non-automated locations via telex or fax on an immediate or delayed batch
basis.
Reservations Reports
Provide overnight reporting systems available either in report format or
on-line, of reservation booking activity by various factors (e.g. time,
location, agent, source, rate code).
Reservations Manifest
Provide a facility by which rental locations can display an on-line listing
of reservations for a specified period of time organized by optional
variables (e.g., arrival time, car group, special service requests).
OAG Verification
Provide a facility which electronically verifies the customer's expected
arrival time at an airport rental location against the Official Airlines
Guide flight schedule database.
Prepaid Reservations
Provide a facility by which customers can elect to pay the estimated rental
charge at the time of reservation, via an overnight billing process.
Reservations Counts
Provide an on-line facility for the display of "real-time" reservation
transaction counts (e.g., creates, modifications, cancels) by date broken
down by GDS and voice.
Tour Operators
The Tour Operator System processes reservations which are created, modified
or cancelled by specific tour operators (4) through PCs. These IMF
formatted reservations are released in batches once per day into the Wizard
reservation system. Wizard will then create a new reservation or modify or
cancel an existing one.
Internet Car Reservations
Provides an online reservation, and rate inquiry transaction via the
Internet.
Coupon Processing
The online validations and for coupons at reservation and rental time. It
also provides the maintenance functionality of these coupons.
RENTAL SYSTEM:
Real-Time Check Out Transaction
Enables the rental location to automatically prepare a rental agreement
from a reservation, customer number, credit card or walk-up customer. If
the customer had a
reservation or a customer number stored, the associated information will be
displayed in the applicable fields.
Card Swipe Transaction
On any terminal equipped with a magnetic stripe reader, upon the rental
sales agent swiping the card, the system will attempt to locate the
associated reservation and if present, display the applicable fields
including credit identification and method of payment. If no reservation is
found, the system will auto fill the name, credit identification and method
of payment fields. If a customer number is associated to the charge card
swiped, the system will auto fill the information included in the
customer's file.
Ready Line
Enables the rental location to display and select vehicles in the class
requested during a real-time check-out transaction.
Preprint Rental Agreement Transaction
Enables the rental location to prepare a rental agreement one day in
advance of arrival for customers having a complete reservation and customer
number.
Delayed Check-Out and Check-In Transactions
Enables the rental location to enter information into the system from a
rental agreement that was manually prepared at an earlier time.
Non-Revenue Ticket (NRT) Transaction
Enables the rental location to check-out a vehicle for an authorized
movement which is non-revenue generating.
Vehicle Transfer Contract (VTC) Transaction
Enables the rental location to check-out a vehicle which is being shuttled.
Rapid Movement Transaction
Enables the rental location to perform VTC transactions for up to eight
vehicles at a time.
Additional Prepayment
Enables the rental location to update the rental agreement record when an
additional cash, check or travel voucher prepayment is received.
Check-In Real Time and Delayed Transaction
Enables the rental location to check-in a rental agreement, NRT or VTC
transaction that had previously been entered into the system as a
check-out.
Display and Modify Rental Agreement Transaction
Enables the rental location to extract and modify select information that
relates to a particular rental agreement prior to rental being moved to
history (currently 24-48 hours after check-in).
Expedited Check Out Transaction
Provide a facility whereby the system performs an automated check-out
transaction for a customer with a completed reservation upon entry of the
customer identification number or via credit card swipe by the rental
agent.
Vehicle Exchange Transaction
Enables the rental location to perform a vehicle exchange on a real-time or
delayed basis.
Station Cash/Voucher Display
Enables the rental location to display a daily list of all cash or voucher
transactions at a particular location.
Cash Deposit Balancing
Enables the rental location to balance cash.
Miscellaneous Cash Receipt Transaction
Enables the rental location to enter information about miscellaneous cash
received.
Risk Check
Enables the rental location to verify a customer's credit against the
credit files without creating a rental agreement. A risk check can be
performed by customer name or credit card number.
VOID RA
Provides the facility to void a rental agreement when necessary.
Currency Exchange
Provide a facility to convert most currencies from/to other currencies.
Presently Citibank is contracted as the provider who supplies updated
currency data on a regular basis.
Special Account Display
Enables the rental location to display discount and rate information on a
special account based on the Credit Identification or Customer Discount
Number.
Message Service
Communicate to/from any terminal a free-form message.
Credit Files
Maintain a Credit Risk file (received from credit card issuers e.g. AMEX)
which will indicate which credit cards are not to be honored. Maintain a
Name Risk Database with the appropriate information, for credit risks
deemed unacceptable as defined by the Customer.
Credit Authorization Link
Provides an automated link to the major credit clubs to obtain credit
authorization.
OAG (Manifest, FAN/Rover)
There are two processes utilizing the OAG (Official Airline Guide):
Rover
The handheld unit normally used for checking processing has the capability
to display airline flight information. This includes Terminal, Gate #,
Flight time and Status.
FAN (Flight Arrival Notification)
The online realtime FAN system will print the rental agreements, PSSR and
display information to monitors based on parameters set by each location.
This process is for Preferred and/or Express customers with valid flight
numbers. The system will confirm flights which are on an updated status
through the OAG and utilize a standard flight table for scheduled flights
(non-updated).
Availability Transaction (Reservations, Rentals, Vehicles)
Provides information on the number of cars that will be available at a
location based on cars recorded in the system as on-hand, due-in and
reserved.
Vehicle Display Transaction
Displays information stored in the system about a particular vehicle
including vehicle status.
License Plate Trace
Links rental agreement information for a particular date and time to a
particular license plate number if stored.
License Plate Inquiry Transaction
Provides a listing of vehicles associated to a particular license plate
number.
Document Logs
Provides a listing of all rentals created and all rentals checked in.
Off Airport Locations
Provides a list of locations associated with a specific airport.
Drivers License Verification
Provide a facility to interface with an outside vendor (i.e. TML) which
electronically verifies the status of a driver's license with the
appropriate state motor vehicle agency at the rental counter prior to
check-out. Specific eligibility rules will be defined by the Customer.
Full Vehicle Addition/Change Transaction
Enables the fleet owner to input information about a vehicle into the
system that is necessary for control of the vehicle.
Vehicle Status Transaction
Enables the vehicle owner to place a vehicle in multiple status's (e.g.
out of service).
Vehicle Reporting System
Provides the field location with vehicle reports. Status includes,
inactive, overdue, open movements, mileage discrepancies, due-ins, missing
and Marshaled vehicles.
Hand Held Terminal (a.k.a. Rover)
Provides remote check-in process of customers via a portable unit hooked up
to a PC that communicates with the mainframe.
Express Service/Prestige Card Processing
Provides special recognition (e.g., special manifests) of selected renters
to assist the Customer in providing special services.
Reader Boards
Reader boards (display monitors) display Customer Names, Space Numbers and
Remarks to preferred customers whose contracts are prepared in advance
(future rentals). This allows renters to avoid counter delays and go
directly to their rental car.
Bus Terminals
Rental manifest are produced regularly throughout the day at major airports
and loaded to PC terminals on the bus with Radio Frequency technology
(Spread Spectrum). These new terminals eliminate paper manifests and allow
the bus driver to use "touch screen" technology to look up customer names,
initiate the checkout, and request customer space numbers.
SCHEDULE G
AVIS COMPUTER SYSTEM FUNCTIONS
FLEET SYSTEM:
Fleet Accounting Transaction/System
Vehicle Sales Transaction
Turnback Transaction
Title Tracking System
Purchase of Vehicles
Order System for Cars
Parking Violations Bureau System
Registration Forms
Fleet Distribution Model
Fleet Planning System
Field Fleet Reporting System
Title Tracking Request
Electronic Repair Order
Fleet Receivables
Invoice System (BARS)
Fleet Reporting System
Make Model Database
Pre-Delivery Inspection/Warranty Processing
Vehicle On-Line Transaction System
Purchase Order Database
Vehicle Order Database
Vehicle Order Status
Department of Sanitation System
Fleet Reconciliation System
Group Rate Depreciation System
Xxxxxx County Tax System
Insurance System
Licensee Reporting System
Vehicle Damage Claims
SALES AND MARKETING SYSTEM:
Sales and Marketing Information System
Marketing Promotions
Frequent Traveler Program
Frequent Renter Program
Customer Tracking System
Account Management Reports System
Pricing Model
IRDB
Corporate Accounts Rebate Program
Telesales System
Rental Demographic System
Coupon Reporting
Worldwide Prestige Issuance
Chairman's Tracking System
CEO Tracking System
Automated Fulfillment System
Brochure Request System
Wizard Credit Link
Account Segmentation System
EMP Sales Employee Database
STC Sales STC Database
Share of Market
Corporate Awards Program
FINANCIAL MANAGEMENT SYSTEM:
Revenue Distribution System
Credit Club Processing System
Receivables System
Referral Commission System
Customer Adjustment System
Commission Inquiry System
Licensee Composite
Accounts Payable (AP)
General Ledger (GL)
Money Management System (MMS)
Time and Attendance (TAA)
Rental Agreement Processing
Rental Number System
Balance Forward System
Register Miscellaneous Reporting
Open Item System
Travel Agency System
Cash Application System
Invoicing
Licensee Chargebacks
Country Company Database
Club Red
Preferred Supplier
AIM International Direct Sell
User Rental File
Europe File
Wizard Licensee Billing BIL
Travel Voucher Processing
Roll and Slide Reporting
Currency Data Base
Open Rental System
Bonus System
Direct Billing System
Daily Business Reporting
YIELD MANAGEMENT SYSTEM:
Yield Management
Data Extraction and Conditioning
Product Forecasting
Revenue Optimization
Graphical User Interface
Supply and Demand
Availability by Length of Rental (AVLLOR)
Turndowns and Denials
Reservation and Rental History
Rate Opportunity System
Yield Management Price Elasticity System
Rateshop System
Business Mix
Global Distribution System Rate Maintenance
Rate Availability
MISCELLANEOUS SYSTEMS:
Insurance Claim System
Coupon Tracking System
Worldwide Reporting System
Counter Sales Incentive
Personal Liability and Property Damage Insurance Reserve
Operating Lease Commitment Reporting Facility
Treasury Debt Reporting Facility
Interactive Personnel System
Name Risk System
Credit Club Risk
Standard Interline Passenger Procedure (SIPP)
SYSTEM FUNCTION DESCRIPTIONS
FLEET SYSTEM:
Fleet Accounting Transaction/System
Enables the vehicle owner to establish depreciation/interest rates
based on a group of vehicles. The system includes depreciation,
interest (YTD & MTD), book value (Cap Cost less depreciation and
interest) and vehicle status. This System also includes reports to
support funding reporting.
Vehicle Sales Transaction
Enables the fleet owner to input information on the sale of a vehicle.
Turnback Transaction
Enables the Customer to establish turnback criteria based on minimum
and maximum time periods and/or mileage.
Title Tracking System
Enables the fleet owner to track the status of the vehicle title.
Purchase of Vehicles
Provides a facility to create vehicle purchase orders.
Order System for Cars
Provides automated links to manufacturers supported by WizCom to
process purchase ordering of cars directly. These links are
accomplished using third party software and includes ordering,
modifications, feeds to status, delivery reporting, invoice processing
and MSO handling.
Parking Violations Bureau System
This system takes a feed from the New York Parking Violations Bureau on
parking tickets issued and passes back customer data that allows the
liability to be transferred to the customer.
Registration Forms
Provides a facility to interface with an outside vendor that has the
capability to produce Department of Motor Vehicle forms for vehicle
registration. This system provides an automated upload to reduce the
key entry required to add the vehicle to the Rental system.
Fleet Distribution Model
The Fleet Distribution Model (FDM) is a decision support system
providing management with analytical tools for formulating, evaluating,
and planning vehicle distribution strategies and projecting rental
demand. FDM is a mainframe online interactive system designed to
improve bottom line performance, fleet utilization, and customer
service.
Fleet Planning System
The Fleet Planning System, including Operations Research Models, is a
comprehensive decision aid used by Fleet Operations/ Administration
personnel to develop Fleet Plans and Acquisition Schedules.
Acquisition, age, and cost reports based on the Fleet Plans and
Acquisition Schedules can also be viewed. The system maintains actual,
budget, forecast, and work versions of Fleet Plans and Acquisition
Schedules. These versions are used by Fleet Operations/Administration
personnel to assist in the budget and monthly forecast planning
process.
Field Fleet Reporting System
Reporting System used to track vehicle adds, deletes, and ownership
transfers. Primary usage to forecast operating fleet size.
Title Tracking Request
An automated procedure to request and track titles from Headquarters to
Field Operations through either on-line Wizard, Rover transactions or
operational inputs.
Electronic Repair Order
This is an outside vendor package we interface with which
electronically schedules, dispatches and distributes/processes service
repair work on the fleet in a completely paperless environment. ERO
also provides reporting to track productivity and cash received
associated with warranty work.
Fleet Receivables
A system to administer the collection of various receivables due from
the vehicle manufacturers.
Invoice System (BARS)
This system captures and retains invoices received from vehicle
manufacturers.
Fleet Reporting System
Reports on turnback eligible vehicles, transfers, and various stages of
titling.
Make Model Database
On-line system managing manufacturers' makes and models. It maintains
and supplies vehicle descriptions, car classes and funding methods for
use within Wizard.
Pre-Delivery Inspection
Creates and reports on vehicle pre-delivery inspections claims for
payment interfacing with different vehicle manufacturers via third
party software. System also reports on acknowledgement and credit
notices for warranty claims.
Vehicle On-Line Transaction System:
Purchase Order Database
A subset of VOLTS (Vehicle On-Line Transaction System) using the
Vehicle order database to provide a facility to create purchase orders
for vehicles.
Vehicle Order Database
A subset of VOLTS (Vehicle On-Line Transaction System) interacting with
the purchase order creation providing the selection of different
vehicle makes, models, options and special manufacturer incentives.
Vehicle Order Status
An automated vehicle reporting system providing the status of vehicle
orders.
Department of Sanitation System
Provides adds/sales of all fleet inventory for the Northeast zone to
the Department of Sanitation.
Fleet Reconciliation System
A system used to reconcile any differences between the online inventory
add process and the accounting add process.
Group Rate Depreciation System
A system used to capture the vehicle inventory, purchases, sales and
adjustment information from the MVA and MVS system to produce month
Group Depreciation and Investment Credit Reports for select funding
types.
Xxxxxx County Tax System
A system designed to produce a file of vehicles under the ownership of
Xxxxxx County, Texas for tax purposes.
Insurance System
A system designed to review and evaluate accident reports and
supporting documents to estimate the monetary value of the company's
casualty exposure for each accident based on a determination of
coverage, liability, the jurisdiction in which the accident took place
and the injuries and/or damage incurred.
Licensee Reporting System
Provides our participating licensees a series of reports detailing all
their adds, changes and sales for the month.
Vehicle Damage Claims
A system responsible for tracking and recovery of damage done on
vehicles. This system interfaces with the AIMS system - an image system
built by an outside vendor.
SALES AND MARKETING SYSTEM:
Sales and Marketing Information System
The Sales and Marketing Information System serves as a repository for
data relating to rental activity which contained a Corporate Account
Number and/or ARC/IATA (Travel Agency Number). This data includes
information such as rentals, revenue, insurance's, method of payment,
reservation source, car class utilization, rates and top renting
locations. Furthermore, the system includes reporting on commericial
travel activity, special services and customer activity reports.
Marketing Promotions
Provides a facility to accept, track and report on coupons entered into
the system.
Frequent Traveler Program
Provides a facility to capture frequent traveler club information as
currently supported by WizCom and pass on to the frequent travel
partner (e.g. American Advantage) for mileage awarding.
Frequent Renter Program
Provides daily tracking of select individual's rental history activity.
Enables on-line inquiry and adjustment capability as well as management
reports and activity statements.
Customer Tracking System
Provides a file to identify and track customer rental activity for
direct mailing.
Account Management Reports System
Provides activity reports on Corporate Account and Travel Agency.
It tracks Account and Sales Representative performance.
Pricing Model
The Pricing Model is a strategic tool which assists management in
determining profitability and setting pricing structure for corporate
accounts.
IRDB
An Individual Customer Database detailed by rental transactions that
can be assessed for parameter driven queries. The details are stored
for two years and segregated by country. This data is the source for
Direct Marketing events, studies and analyses.
Corporate Accounts Rebate Program
This is a monthly batch reporting system which calculates and reports
on Corporate Accounts for which rebates are applied. It provides:
rebate statements and check registers (output format needs to be
defined by the Customer); accumulation of revenue and transaction date
for corporate and travel agency accounts and enables on-line inquiry of
rental statistics.
Telesales System
This system maintains information about prospective corporate accounts.
The system provides the ability to: bulk load leads from outside
sources, code leads by source, automatically distributes leads to
agents, and generates fulfillment materials. When the account is sold
the system will automatically update the Customer Database and assign a
customer number.
Rental Demographic System
This provides an interface to an outside vendor PC-based software
package (i.e. Equifax) to geographically identify prospective
customers; conduct site analysis and profile existing customers.
Coupon Reporting
Provides a facility to track and report on coupons entered into the
system.
Worldwide Prestige Issuance
Reissues all Prestige cardholders worldwide.
Chairman's Tracking System
Creates a monthly tracking report for the Chairman's program
CEO Tracking System
Creates a monthly tracking report for the CEO program.
Automated Fulfillment System
Provides a facility to request fulfillment information from outside
vendor for corporate accounts.
Brochure Request System
Provides a facility to request fulfillment information from outside
vendor for travel agents.
Wizard Credit Link
This system takes files provided by American Express, Visa, or Diners
Club and updates or creates those customer's Wizard numbers.
Account Segementation System
Provides activity reports by corporate and leisure business segements.
EMP Sales Employee Database
Serves as a repository for sales employee information to be used for
security and access to XXX and for incentive reporting.
STC Sales STC Database
Serves as a repository for sales territories and responsible sales
representative to be used for security access to XXX and for incentive
reporting.
Share of Market
Serves as a repository of Avis and competitor market share at airport
locations used for management reports.
Corporate Awards Program
Facility to capture activity of corporate accounts on program and
determine monthly awards to be filled by vendor.
FINANCIAL MANAGEMENT SYSTEM:
Revenue Distribution System
Provides ledger with the distribution of revenues, expenses, receivable
and payable due on a rental agreement. It also provides management
reports of these details. The receivable and intercompany data is
interfaced to the Receivable system daily.
Credit Club Processing System
Provides the capability to accumulate rental charges on certain credit
cards and automatically generates billing to the appropriate credit
club organization on a daily basis.
Receivable System
Provides the capability to process receivable details for central
billing, direct billing, licensees and miscellaneous registers such as
unapplied cash, prepaid vouchers, refunds and credit club summary. The
system provides on-line control of billing, adjustments, cash payments
and collection. It also has a management reporting package.
Referral Commission System
Provides the capability to pay a travel agency on referral rentals. The
system provides statements and an accounts payable file bimonthly.
Customer Adjustment System
Provides the capability to adjust the amount of the billing to the
customer or travel agency and automatically issues the credits or
debits. The process recalculates the rental, prints a rental facsimile
and provides files to feed Accounts Payable and Credit Clubs. The
updates to the Accounts Receivable System are done on-line.
Commission Inquiry System
Provides the capability to inquire by reservation or rental number the
status of commission payment due to Travel Agencies on reservations
booked.
Licensee Composite
Provides the ability for the customer to generate a statement for
licensees.
Accounts Payable (AP)
The Accounts Payable system is a package with customization that is
used to pay the company's expenses. Data is processed via a batch
system and payments checks are generated, both via check and wire
transfers (via Treasury). The system provides account distribution to
GL, payment history, and cash requirements reporting. A check
reconciliation process is provided.
General Ledger (GL)
The General Ledger System is a package that has been customize for Avis
and is used for processing and reporting of financial and statistical
data. Input data is from the various corporate systems (AP, AR,
Payroll, etc.), as well as keyedit data from document input. The
financial reporting is done monthly. Edits of the data from the various
systems is accomplished through the month, as the data becomes
available.
Money Management System (MMS)
This system is used to summarize deposits made to local banks, based on
data from the Wizard reservation system. A daily file is created and
electronically transmitted to a concentration bank. This is used as
authorization for transferring the deposits on the local banks to the
concentrator bank. Various reports are generated for audit and control
purposes. Corrections are via a keyedit file, created from document
input.
Time and Attendance (TAA)
This system is for the collection of time and attendance data using a
package and awarding and tracking of benefits, such as vacation and
sick time, for exempt as well as hourly personnel. Start and end time
for hourly personnel is captured via the use of a magnetic card swipe
reader and the employee ID card. A payroll record is created for each
hourly employee and the data is electronically transmitted to a Service
Bureau (ADP) for payroll check generation.
Rental Agreement Processing
Controls the daily processing of the rentals from Wizard daily to the
Financial Systems. Also creates the RA History Database which maintains
a history of all rentals for an average of six months. The currency and
commission calculations are updated in this process.
Rental Number System
Maintains the rental agreements by day, week and monthly for reporting.
The monthly files are kept indefinitely for audit.
Balance Forward System
This is a subsystem of Receivables which creates the reports and
statements for Canada's balance forward accounts.
Register Miscellaneous Reporting
This Receivable subsystem creates the register reports for the WBO
countries' miscellaneous accounts (ie. HDQ Refunds, Deposits, CCB).
Open Item System
Creates the statements for Australia and New Zealand in their required
format.
Travel Agency System
Maintains the database which encompasses the travel agency details for:
(a) information about the travel agency, eg. names, addresses, etc.
(b) information required to process commissions for vouchers and
referrals.
Cash Application System
Controlled application of cash to the Receivable system through
multiple functions. The system supplies management reports on-line.
Invoicing
Produces the invoices daily for the customer and the travel agency. The
system is multi-lingual. It also produces the corrected invoices from
adjustments.
Licensee Chargebacks
Provides reports to rental management for the chargebacks of Frequent
Flyer.
Country Company Database
Country/Company database which contains the parameters for the
processing of the WBO systems. Examples of the types of data are: rules
for accounting utilized by IAJ and RDS, credit club processing fees and
merchant information for both corporate and licensee, country system
participation.
Club Red
Promotional Sales system for bonus payments to the US travel agencies
for selling weekend, weekly, monthly and mini lease packages to their
clients.
Preferred Supplier
Bonus payments to US Travel Agency consortiums for an increase of
revenue over last year.
AIM
Payment to independent marketing for selling packages to Travel
Agencies..
International Direct Sell
Is the system that provide the vouchers for prepaid vouchers. It also
supplies the billing record to Club Billing and the detail to
Receivables.
User Rental File
User file of the checking rental agreements which is created daily and
accumulated monthly for adhoc reporting.
Europe File
Complete download of the Europe rental agreement. This is completed
daily.
Wizard Licensee Billing
Formatted file of rental agreements and cash records provided to the
Licensee for processing through their backoffice systems.
BIL
US central billing system which provides cycle statementing and
reporting to all corporate and voucher accounts.
Travel Voucher Processing
A reporting subsystem of BIL containing the voucher required
information needed to xxxx selected US travel agencies.
Roll and Slide Reporting
Records the roll and slide number of the microfilming of checkout
rental agreements and vouchers. The information is stored on the RA
History database and a cross-reference microfiche copy.
Currency Database
Maintains the history of the currency conversion values for all the
countries. It is updated weekly via a file from Citibank.
Open Rental System
Captures all of the open rentals from Wizard each night. This is mainly
used by Yield management.
Bonus System
Creates the travel agency bonus details for countries.
Direct Billing System
Batch US receivable system which creates the miscellaneous registers
and creates the xxxxxxx for Direct Xxxx. Keypunch supplies the input
data for journal entries which are needed by BIL and Composites. There
is also a feed to General Ledger.
Daily Business Reporting
US system which is used for miscellaneous rental input. It also creates
the US composite reports and balance forward.
YIELD MANAGEMENT SYSTEM:
Yield Management
Yield Management is a decision support tool which provides the facility
to predict and control product demand and availability on a daily
basis. The primary functions of the system are:
Data Extraction and Conditioning
Subsequent to overnight Wizard and back office processing, mainframe
Yield Management processes extract reservation, rental, and fleet data
and prepare it for use by the system.
Product Forecasting
Forecasting for designated Yield Locations is then performed resulting
in both location and product level forecasts.
Revenue Optimization
Following further data conditioning and application of previously
entered user updates, a revenue optimization is performed for each
Yield Unit. A linear programming model is used to calculate and
recommend the optimal mix of products to be sold over the planning
horizon given the current reservation, rental, and fleet information,
and the future forecasted demand.
Graphical User Interface
The system users view the results via a custom Graphical User Interface
(GUI) which provides data presentation and summarization across
multiple screens. The users have the capability via the GUI to modify
fleet availability and product forecasts, and to modify and implement
product suspend and shuttling recommendations. Once these modifications
are supplied to the system, the user can then rerun the model for the
Yield Unit under consideration so that a reoptimization is performed
using the most recent user inputs.
Supply and Demand
This facility prevents reservation failures by providing the real time
reservation system with supply figures generated by the Yield model.
Automated vehicle availability suspends will be generated when supply
has been exhausted. These suspends will also be reflected dynamically
in the Global Distribution Systems.
Availability by Length of Rental (AVLLOR)
AVLLOR is a mechanism which controls vehicle availability for specific
lengths of rental (LORs) by station, date, and car class. The intent is
to maximize vehicle utilization during high demand periods based on
recommendations produced by the Yield model. As described above, these
suspend actions are implemented via the Yield GUI and transmitted to
the Wizard and GDS Systems. A facility also exists to enter them via a
mainframe screen.
Turndowns and Denials
The purpose of this function is to extract turndown and denial
transactions from the Reservation Transaction File (RTF). They are then
stored via a tape facility.
Reservation and Rental History
In order to support demand forecasting and other functionality,
reservation history is maintained for up to one year in the future and
historically for as much as two years past. Rental history for open and
closed rentals is also maintained for up to two years.
Rate Opportunity System
The Rate Opportunity System provides the user with the ability to
analyze competitor rates with respect to their own rates and to utilize
an alert mechanism which will notify the user of specific competitor
price changes. Via an interface to Galileo International, a Global
Distribution System (GDS) vendor and a supplier of competitor rate
information, WizCom receives daily rate information, rate rules, rate
availability, and car availability data for the Yield group and its
competitors. AROS includes a custom Graphical User Interface (GUI)
whereby the users can view rate information, organize alert criteria,
and view alert results. These price changes are transmitted to the
Wizard and GDS Systems. Includes a piece of proprietary software from
SDT.
Yield Management Price Elasticity System (YMPES)
The Yield Management Price Elasticity System (YMPES) will assist
management in determining the optimal prices for Leisure and
Association segment rental products on a day to day basis by analyzing
competitor's status and their own supply to demand ratio. These rate
status changes are transmitted to the Wizard and GDS Systems.
Includes a piece of proprietary software from SDT.
Rateshop System
The Rateshop System provides an automated interface to Sabre's Global
Distribution System (GDS). This interface allows volume querying of the
Sabre database for competitor rate information by batching multiple
queries which would otherwise require online entry on an individual
basis.
Business Mix Model
The Business Mix Model is a quantitative based strategic tool which
assists management in planning rental market segment mix as well as
further decision making relative to fleet, pricing, marketing/sales
programs, and financial planning strategies. The optimal rental
business mix over all market segments is determined through a linear
programming optimization which maximizes total marginal revenue.
Global Distribution System Rate Maintenance
WizCom's links with various Global Distribution Systems (GDS) provide
for updating of rates and rate availability within these systems when
internal rates and availability are modified. GDS with which interfaces
are currently maintained are Sabre, Amadeus, Galileo, and Worldspan.
Rate Availability
Rate Availability is a mechanism which controls the availability of
selected products. Inventory limits can be controlled by rate products,
station, car grouping, and by expected rental dates. Inventory limits
are documented with reservation booking and incremented with
reservation cancellations. Reservations will not be taken once limits
are reached.
MISCELLANEOUS SYSTEMS:
Coupon Tracking System
A reporting system which tracks the redemption of coupons based on
completed rental transactions.
Worldwide Reporting System
Provides statistics pertinent to rental activity and revenue generated
Statistics include: Rental Activity, Vehicle Group Analysis, Rate
Analysis, Optional Service Acceptance Rate, and Vehicle Movement
Patterns.
Counter Sales Incentive
Provides automated tracking of rental sales agents productivity and
incentive payments.
Personal Liability and Property Damage Insurance Reserve
The Personal Liability and Property Damage (PL - PD) Insurance Reserve
provides various statistical and actuarial techniques that are used to
analyze the data contained in the Insurance Claims database to predict
the reserve requirements. WizCom coordinates with Insurance Department
management to refine the methods and to support the quarterly reserve
testing process.
Operating Lease Commitment Reporting Facility
The Operating Lease Commitment Reporting Facility is a tool used to
report on various operating leases and expresses all foreign lease
commitments at the current rates of exchange.
Treasury Debt Reporting Facility
The Treasury Debt Reporting Facility is a tool used to report and
manage debt. The system is an application that performs various
interest and principal calculations for various debt vehicles and
reporting structures.
Interactive Personnel System
A system used to capture non-exempt and union raise information, apply
wage increases for field personnel on scheduled raises, and produce PCN
detailing applied raise.
Name Risk System
A system that tracks high risk individuals by name and driver license.
Credit Club Risk
A system that tracks high risk accounts by credit club.
Standard Interline Passenger Procedure (SIPP)
A system that utilizes the airline reservation system standards to
define our vehicles by similar equipment, car class, etc.
SCHEDULE I
TERMINATION ASSISTANCE
1. Introduction.
In the event of termination of this Agreement, WizCom shall provide Avis with
"Termination Assistance," which shall mean such cooperation and assistance as is
necessary to allow the Services to continue without interruption or adverse
effect and to facilitate the orderly transfer of the applicable Services to Avis
or its designee (the "Successor"). Avis shall pay WizCom the charges set forth
in Schedule C for any Termination Assistance provided.
2. Assistance to Successor
The Termination Assistance shall consist primarily of the following:
a. Providing to the Successor the specific Termination Assistance
Services described in Exhibit 1 to this Schedule I.
b. Assisting the Successor in developing a plan for the
Termination of all requested and appropriate operations from
WizCom, which plan shall include performance of the specific
Termination Assistance Services reflected in Exhibit 1 to this
Schedule I.
c. Providing to appropriate personnel of the Successor training
in the performance of the Services that are to be transferred,
as the Successor may reasonably require.
d. Notifying the Successor of third party services obtained by
WizCom that are then dedicated to the performance of the
Services, and cooperating with the Successor in its efforts to
enter into arrangements with the providers of such third party
services (with consent of the provider of such third party
services, the Successor may assume WizCom's rights and
obligations with respect thereto).
e. Providing the Successor with other information regarding the
Services that is required to implement the Termination plan,
and providing such information regarding the Services as
necessary for the Successor to assume responsibility for
continued performance of the Services in an orderly manner, so
as to minimize disruption in the operations of Avis.
f. Providing to the Successor, if the Successor is not Avis,
master file and field descriptions and record layouts, in
respect of the Systems, along with run documentation an job
control listings, and other similar information necessary for
the Successor to provide services to Avis and Avis Authorized
Users, all to the extent maintained by WizCom.
Prior to providing any of the foregoing Termination Assistance, WizCom shall
receive from the Successor (if the Successor is not Avis) written assurances
that the Successor shall
maintain the confidentiality of WizCom's Confidential Information (as provided
in Section 10.3 of this Agreement) disclosed or provided to the Successor in the
course of receiving the Termination Assistance.
3. Access to Resources.
In providing the Termination Assistance, WizCom shall provide the Successor
reasonable access to and use of Equipment, Software, personnel, third parties,
and other resources used by Wizcom to provide the Services (collectively
"Resources"), and provide to the Successor reasonable information concerning
such Resources.
Exhibit I
Certain Termination Assistance Services
Specific Termination Assistance to be provided by WizCom under Schedule I shall
include the following:
1. Pre-Migration Services.
a. Provide to the Successor documentation used by WizCom to provide the
Services, including technical documentation.
b. Review and explain the Procedures Manual to the Successor's operations
staff.
c. Identify and record the release levels for System Software and control
such release levels as reasonably required by the Successor for Termination to
the Successor's processing environment.
d. Freeze all discretionary Software changes unless otherwise requested by
Avis, other than Maintenance necessary to address processing problems.
e. Provide Assistance to the Successor in notifying outside vendors of the
procedures to be followed during the migration.
f. Review test and production Software libraries with the Successor's
operations staff.
g. Assist the Successor in establishing naming conventions.
h. Assist the Successor in its analysis of the space required for Software
libraries.
i. Subject to the provisions of this Agreement relating to Avis's rights
and obligations with respect to Software:
(1) generate and provide a tape and computer listing for
the source code for the Systems, Avis Software (and
any Third Party Software if permitted) in a form
reasonably requested; and
(2) deliver source and object code, related work product
(as such work product has been maintained by WizCom),
technical specifications and materials and user
documentation for the Systems, Avis Software (and
Third Party software if permitted) to Avis.
j. Provide a reasonably number of copies of the Avis's DASD volumes as
requested by Successor.
k. Cooperate with the Successor in the preparation and conduct of migration
testing.
l. Provide reasonably access to WizCom personnel performing the Services.
m. Provide interim tapes of Avis Data, as reasonably requested.
2. Migration Services.
a. Unload all requested Avis Data files and other Confidential Information
from the Systems. Return (or, at Avis's request, destroy) all Avis Data and
other Confidential Information.
b. Deliver all reasonably number of copies of tapes of all requested Avis
Data files and printouts of a content listing of Avis Data files if available
and requested by Avis, and, to the extent requested but not available, provide
such content listing as a Project.
c. Provide reasonably assistance to the Successor in loading the data
files.
d. Provide reasonable assistance to the Successor with the turnover of
operational responsibility, including providing assistance and cooperation in
the execution of parallel operation and testing.
3. Post-Migration Services.
After the migration for the period set forth in Section 16.6(b), wizCom shall
provide additional assistance as reasonably requested by Avis to assure
continuity of operations. WizCom shall return to Avis or destroy, at Avis's
request, any remaining property of Avis in its possession or under its control,
including any remaining reports, Avis Data and other Confidential Information of
Avis.
SCHEDULE J
SOFTWARE ESCROW AGREEMENT
This Software Escrow Agreement dated as of , 199 (hereinafter "Escrow
Agreement") among Avis Rent A Car System, Inc. ("Avis"), a Delaware corporation,
WizCom International, Ltd. ("WizCom"), a Delaware Corporation, and The Dime
Savings Bank of New York FSB (the "Escrow Agent").
W I T N E S S E T H
WHEREAS, WizCom and Avis have entered into a Computer Services
Agreement effective July 30, 1997 (the "Computer Services Agreement") whereby
WizCom will provide computer services to Avis and permit Avis to participate in
the Systems (as defined in the Computer Services Agreement); and
WHEREAS, to the extent that WizCom has licensed or in some other way
has ownership rights to source code of a particular system and/or Software,
WizCom has agreed to place a tape containing the source code corresponding to
the Software for the Systems in escrow to be released to Avis by Escrow Agent
upon the occurrence of certain events; and
WHEREAS, WizCom and Escrow Agent have entered into a lease for storage
of the Source Code corresponding to the Software at Escrow Agent's facility in
Xxxxx Place, New York (the "Lease");
NOW, THEREFORE, the parties agree as follows:
1. Definitions. In this Agreement, unless otherwise defined below, all
terms shall have the meanings set forth in the Computer Services Agreement.
For purposes of this Agreement:
(a) "Depository" shall mean The Dime Savings Bank of New York FSB
under this Escrow Agreement or any other bank which enters into
an agreement with WizCom for storage of the Source Code upon
termination of the Lease.
(b) "Owners" shall mean WizCom, and any third party owners of portions
of the Software who have licensed WizCom to utilize such portions
of the Software.
(c) "Source Code" shall mean human-readable, computer programming
code and associated procedural code corresponding to the
Software.
2. Escrow Materials. WizCom hereby authorizes Escrow Agent to release the
copy of the Source Code and all corrections, improvements, updates or
enhancements of the Source Code
made by the Owners of the Software (the "Escrow Materials") which Escrow Agent
stores for WizCom pursuant to this Escrow Agreement upon compliance with the
provisions of paragraph 7 hereof and as stated, in particular, in paragraphs 7.6
and 8 of this Agreement.
3. Location of Escrow Materials. Until the Escrow Materials are released to Avis
in accordance with the terms of this Agreement, Escrow Agent shall keep the
Escrow Materials in a safety deposit box or other durable container in a secure
place that is suitable for safekeeping. Escrow Agent shall not be responsible
for providing any special atmospheric conditions for the safekeeping of the
Escrow Materials; however, the container used for safekeeping the Escrow
Materials shall be securely locked when not in use, and only available to
authorized individuals who are (i) both employed by Escrow Agent on a full-time
basis and subject to the confidentiality obligations contained herein or (ii)
employed by WizCom and depositing updated Source Code pursuant to paragraph 4 of
this Agreement. Escrow Agent shall not be required to carry any specific
insurance for its facilities or the Escrow Materials.
4. Update and Maintenance of Source Code. During the term of this Agreement,
WizCom shall keep the Source Code stored by Escrow Agent pursuant to this Escrow
Agreement fully current by depositing all supporting documentation, if any, and
related materials for each update, correction or new release of the Software at
the same time as the same are incorporated into the Systems.
5. Verification of Source Code. Avis may appoint, at its expense, an independent
firm of certified public accountants of national reputation to inspect, review
and test the Escrow Materials (under obligations of confidentiality) at any time
during the term of this Agreement to verify that they contain true and accurate
versions of the Source Code. Escrow Agent shall permit such inspections, review
and testing shall be conducted at a location to be approved by WizCom, such
approval not to be unreasonably withheld or delayed.
6. Holding of Escrow Materials. Escrow Agent shall hold the Escrow
Materials in safekeeping and confidence and Escrow Agent agrees not to disclose
the Escrow Materials to any party except as specifically provided herein.
7. Release of Escrow Materials to Licensee.
7.1 The Escrow Materials shall be released to Avis only in accordance
with the terms of this Escrow Agreement. In the event the Escrow
Materials are so released, the receipt and use of the Escrow
Materials by Avis as provided in this Escrow Agreement shall be
non-transferable and non-exclusive, and only for the purpose
specified in the Computer Services Agreement. Escrow Agent and
Avis acknowledge that title to the Escrow Materials remains in the
Owners at all times and that the Escrow materials constitute the
Owners' proprietary trade secrets and confidential information
which are not to be disclosed, released, used or transferred in
any manner other than as specifically and expressly permitted by
this Agreement and the Computer Services Agreement.
Furthermore, Avis acknowledges that the Software may be stored,
and the Escrow Materials duplicated, in a format which contains
libraries of third party software which WizCom does not have the
right to release ("Vendor Software") and which WizCom does not
authorize Avis to use. Therefore, Avis understands and agrees that
promptly after release of the Escrow Materials to Avis it will
isolate the Software from Vendor Software, and either destroy the
Vendor Software in its possession or obtain a license form any
such third party owner of the Vendor Software for use of same.
7.2 Release of the Escrow Materials to Avis shall occur in the event:
(a) A petition is presented against WizCom for its
liquidation and such petition is not dismissed within
one hundred eighty (180) days of receipt of notice of
the presentation of such petition.
(b) That a receiver, trustee, liquidator, or administra-
tor shall have been appointed for the business of
WizCom.
(c) That bankruptcy, reorganization, insolvency or
arrangements or proceedings under any other laws
relating to the relief of debtors shall be commenced
by or against WizCom and shall not be dismissed
within one hundred eighty (180) days of receipt of
notice of commencement of such proceedings.
(d) WizCom refuses to provide Avis with a copy of the
Software as required in the circumstances
specifically described in the Computer Services
Agreement.
7.3 Upon the occurrence of an event in paragraph 7.2, Avis must give a
written notice simultaneously to Escrow Agent and WizCom which
meets the following requirements:
(a) be clearly and conspicuously labeled "Notice to Release Software";
(b) specifically refer to this Agreement;
(c) specify the nature and circumstance of the event giving rise to such
notice;
(d) specifically identify the Escrow Materials; and
(e) demand delivery of the Escrow Materials to Avis as provided in this
Agreement.
7.4 Upon receipt of the Notice to Release, Escrow Agent shall send
immediately by fax transmission, a copy of the Notice to Release
to WizCom immediately by fax transmission.
7.5 If WizCom desires to dispute the contents of the Notice to
Release, WizCom shall deliver to Escrow Agent, within five (5)
business days after receipt of the
Notice of Release as provided in Paragraph 7.4 an affidavit sworn
by the Chief Executive Officer of WizCom (hereinafter called
"Affidavit Challenging Release") stating the date of receipt by
WizCom of its copy of the Notice to Release from Escrow Agent,
that none of the events set forth in Paragraph 7.2 have occurred,
and WizCom's specific reasons of asserting that no such event has
occurred. Upon receipt by Escrow Agent of the Affidavit
Challenging Release within the period referred to above, the
provisions of Paragraph 8 shall apply and Escrow Agent shall
deliver the Affidavit Challenging Release to Avis immediately by
fax transmission.
7.6 If Escrow Agent does not receive from WizCom the Affidavit Challenging
Release within the period referred to in Paragraph 7.5, Escrow Agent shall and
is authorized hereby to deliver to Avis and WizCom a written notice evidencing
delivery of the Escrow Materials, specifying the original location of the Escrow
Materials and the expected date and method of delivery of the Escrow Materials
to Avis. Escrow Agent shall obtain from Avis a receipt for the Escrow Materials
upon their delivery to Avis, and shall promptly give WizCom a copy of that
receipt. Avis's use of the Escrow Materials shall be subject to the restrictions
in Paragraph 7.2 of this Agreement.
7.7 Avis may withdraw a Notice of Release which it has given Escrow Agent
at any time by written notice to such effect.
8. Disputes. In the event that Escrow Agent has received the Affidavit
Challenging Release referred to in Paragraph 7.5, Escrow Agent shall not release
the Escrow Materials. If the Parties are unable to resolve the dispute in a
satisfactory manner within ten (10) days, either WizCom or Avis may seek binding
arbitration of the dispute by notifying Escrow Agent whereupon the dispute
regarding the release of the Escrow Materials shall be submitted to binding
arbitration. The arbitration proceeding shall be conducted according to the then
current rules of the American Arbitration Association, by a single arbitrator
selected by Escrow Agent. The sole issue of arbitration shall be whether an
event under Paragraph 7.2 of this Agreement has occurred. If the arbitrator so
determines that an event under Paragraph 7.2 has occurred, the arbitrator shall
notify the parties and Escrow Agent shall immediately deliver the Escrow
Materials to Avis. The decision of the arbitrator shall be final and binding on
WizCom and Avis and may be entered and enforced in any state court of New York
by either party. Each party shall bear its own expenses of arbitration and all
proceedings related thereto shall be conducted in the City of Mineola, State of
New York.
9. Payment to Escrow Agent.
9.1 Avis shall pay the reasonable fees charged by Escrow Agent for
performance of services under this Agreement as specified on
Exhibit A.
9.2 In the event that Avis is in breach of the payment of fees and
such breach continues for at least thirty (30) days after Avis has
received from Escrow Agent a written notice of arrears addressed
as provided in Paragraph 13.5.2 (c) specifying the amount due and
stating that this Agreement will terminate unless payment is made
within thirty (30) days, then Escrow Agent promptly shall notify
WizCom of
the breach of Avis and, upon receipt by Escrow Agent from WizCom
of payment of all fees due to Escrow Agent, this Agreement shall
be considered null and void.
10. Limitation on Obligation of Escrow Agent.
10.1 Escrow Agent shall not be required to inquire into the truth of
any statements or representations contained in any notices,
certificates or other documents provided under this Agreement, and
it shall be entitled to assume that the signatures on documents
are genuine and that the persons signing such documents are
authorized to execute the documents. Escrow Agent may require
WizCom and Avis to provide additional documents to it that it
deems necessary or desirable to assist it in performing
obligations under this Agreement.
10.2 WizCom and Avis, severally and jointly, hereby do release Escrow Agent
from any and all liability for losses, damages and expenses (including attorney
fees) that may be incurred on account of any action taken or not taken by Escrow
Agent in good faith pursuant to this Agreement, and such parties do hereby
severally and jointly indemnify Escrow Agent and undertake to hold harmless
Escrow Agent from and against any and all claims, demands, or actions arising
out of or resulting from such performance by Escrow Agent under this Agreement.
11. Confidentiality and Use of Escrow Materials.
11.1 The Escrow Materials released to Avis under this Agreement shall
be used by Avis solely for the purposes set forth in the Computer
Services Agreement. Avis shall treat and preserve the Escrow
Materials as a trade secret of the Owners in accordance with the
same practices employed by Avis to safeguard its own trade secrets
and confidential information against unauthorized use and
disclosure.
11.2 The obligations of this Paragraph 11 shall survive the termination
of this Agreement for any reason and shall continue for as long as
the Escrow Materials continue to embody trade secrets of the
Owners.
12. Term of Agreement.
12.1 The term of this Agreement shall commence on the date set forth
above and shall continue until the Escrow Materials shall be
transferred to Avis pursuant to the terms of this Agreement, or,
if such transfer shall not have so occurred, the Agreement shall
terminate at the end of the Computer Services Agreement.
12.2 If the Lease is terminated, the parties agree to execute a new
software escrow agreement on substantially the same terms as this
Agreement with a new Depository as escrow agent.
13. General.
13.1 Amendment. This Agreement can only be amended by a written
amendment signed in advance by authorized representatives of
WizCom, Avis and Escrow Agent.
13.2 Assignment. No party to this agreement may assign its rights or
delegate its obligations under this Agreement without the prior written
consent of all other parties. Any attempt or purported assignment or
delegation in violation hereof shall be null and void. Notwithstanding the
above, any party may assign company with which it merges or consolidates,
or to which it sells all or substantially all of its business assets,
provided that such assignee agrees in writing to be bound by this
Agreement. Furthermore, Avis may assign this Agreement under the
circumstances contemplated in the Computer Services Agreement.
13.3 Entire Agreement. This Agreement, together with the applicable
terms of the Computer Services Agreement, contains the entire
agreement among the parties with respect to its subject matter and
all prior and contemporaneous statements, promises, warranties,
and representations not contained in this Escrow Agreement are
hereby excluded and cancelled.
13.4 Exhibits. The terms and conditions of the Exhibit attached to this
Agreement are incorporated by this reference and made a part of
this Agreement.
13.5 Notices.
13.5.1 All notices required or permitted under this Agreement shall bein in
writing and shall be sent and deemed given: (i) if delivered by hand with
receipt obtained, on the date of delivery, of (ii) if sent by certified or
registered mail, postage pre-paid return receipt requested, on the date of
receipt, or (iii) if sent by facsimile transmission, on the date of receipt,
provided that the sender obtains oral confirmation from the recipient that the
transmission is complete and has been received in legible form.
13.5.2 Notices shall be sent to the following addresses:
a. To WizCom:
HFS Incorporated
0 Xxxxxx Xxx Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx,Esq. Sr. Vice President
Fax: (000) 000-0000
b. To Escrow Agent:
The Dime Savings Bank of New York FSB
000 Xxx Xxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
Attn: Bank Manager
Fax: (000) 000-0000
c. To Avis:
Avis Rent A Car System, Inc.
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attn: Sr. Vice President & General Counsel
Fax: 000-000-0000
13.6 Governing Law. The law governing the interpretation and enforcement of
this Agreement shall be the laws of the State of New York.
13.7 Severability. If any term or condition of this Agreement shall be
held to be invalid or unenforceable, then that term or condition
shall be severed from the other terms and conditions and shall not
affect their validity.
13.8 Waiver. No term or condition of this Agreement shall be waived and
no breach excused unless the waiver or consent is in writing
signed by the party to be charged therewith.
INTENTIONALLY LEFT BLANK BY BOTH PARTIES
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed by their respective duly authorized representatives as
of the date first above written.
THE DIME SAVINGS BANK AVIS RENT A CAR SYSTEM, INC.
OF NEW YORK, FSB
By: By:
Name: Name:
Title: Title:
Date: Date:
WIZCOM INTERNATIONAL, LTD.
By:
Name:
Title:
Date:
EXHIBIT A
TO
SOFTWARE ESCROW AGREEMENT
$135 per year, which fee is subject to change per the Escrow Agent's safe
deposit fee schedule
SCHEDULE K
EXCLUSIVE SYSTEMS
Fleet System:
Fleet Distribution Model
Field Fleet Reporting System
Vehicle On-Line Transaction System
Purchase Order Database
Vehicle Order Database
Insurance System
Vehicle Damage Claims
Sales and Marketing System:
Sales and Marketing System
Marketing Promotions
Frequent Renter Program
Customer Tracking System
Account Management Reports System
Pricing Model
IRDB
Corporate Accounts Rebate Program Telesales System Rental Demographic
System Coupon Reporting Worldwide Prestige Issuance Chairman's Tracking
System CEO Tracking System Automated Fulfillment System Brochure Request
System Wizard Credit Link CAW Corporate Awards System PSI (for Preferred
Supplier Agreements) Sales Incentive System
EMP Sales Employee Database
STC Sales STC Database
Financial Management System:
Travel Agency System (not including that portion which maintains travel
agency details)
Club Red
User Rental File
Bonus System
Yield Management System:
Yield Management
Data Extraction and Conditioning
Product Forecasting
Revenue Optimization
Graphical User Interface
Supply and Demand
Availability by Length of Rental (AVLLOR)
Turndowns and Denials
Reservation and Rental History
Rateshop System
Business Mix
Miscellaneous System:
Insurance Claim System
Coupon Tracking System
Worldwide Reporting System
Personal Liability and Property Damage Insurance Reserve
