Exhibit 10.15
SERVICES AGREEMENT
This Service Agreement ("Agreement") effective as of April
22, 2002 ("Effective Date") is entered into by and between Xxxxxxxxxx
International, Inc., a Pennsylvania corporation, having its principal place
of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000 ("UPSTREAM") and
Orbitz, LLC, a Delaware limited liability company, having its principal place
of business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000
("ORBITZ").
RECITALS
Whereas, UPSTREAM is in the business of providing various
call center services (including inbound and outbound telemarketing services
and outsourced customer service and related services), professional services,
information integration services, including database marketing and management
services, internet-based customer service and related service, fulfillment
services and related services; and
Whereas, ORBITZ wishes to engage UPSTREAM as its outsource
service provider to provide and manage certain call center services on the
terms and conditions set forth in this Agreement;
Now, therefore, in consideration of the foregoing, the
mutual promises and undertakings set forth below and other good and valuable
consideration exchanged by the parties, the receipt and sufficiency of which
are acknowledged by the parties, the parties agree as follows:
1. PURPOSE. ORBITZ wishes to engage UPSTREAM to perform the Services
so as to (i) be reasonably flexible and responsive to the customer
call requirements of ORBITZ and (ii) measure and report the quality
of such Services pursuant to the Service Levels.
2. DEFINITIONS. Defined terms used but not otherwise defined in the
body of this Agreement shall have the following meaning set forth
below:
2.1 "ANNUAL FORECAST" means a twelve (12) month rolling
Forecast provided quarterly on or before the last day of
the quarter, which shall be used for UPSTREAM's planning
purposes only.
2.2 "ACD" means automatic call distributor, which is a specialized
telephone system used in the UPSTREAM call centers. ACD is a
programmable device that automatically answers, queues and
distributes calls to agents, plays delay announcements to
callers and provides real-time and historical reports on
activities.
2.3 "ARC" means Airlines Reporting Corporation.
2.4 "ARC MONTH" means the ARC monthly reporting period, which is
either a 4 or 5 week `month' as determined according to the
table provided by ORBITZ to UPSTREAM at the beginning of each
calendar year of the Term. For 2002, the table shall be as set
forth on Exhibit D.
2.5 "ARC REPORT" means a report of the actual number of Ticket
Transactions reported to ARC.
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2.6 "AVERAGE AFTER-CALL WORK" means work that is necessitated by
and immediately follows an inbound Contact. Often includes
entering data, filling out forms and making outbound Contact
necessary to complete the transaction. The agent is
unavailable to receive another inbound Contact while in this
mode.
2.7 "AVERAGE HANDLE TIME" means the sum of Average Talk Time
and Average After-Call Work for a specified time period, as
measured by UPSTREAM's ACD.
2.8 "AVERAGE TALK TIME" means time an agent spends with a
caller during a Contact. Includes everything from "hello"
to "goodbye."
2.9 "CMS" means call management system used for staffing,
scheduling and real time reports from the call centers.
2.10 "CHANGE IN CONTROL" means the occurrence of any of the
following events with respect to a party:
(i) an acquisition by any individual, entity or group
of beneficial ownership of more than 50% of either
(1) the then outstanding equity interests of the
party (the "Outstanding Interests") or (2) the
combined voting power of the then outstanding
voting interests of the party entitled to vote in
the general election of directors (the "Voting
Interests"); or
(ii) a reorganization, merger, consolidation or sale or
other disposition of all or substantially all of the
assets of the party (a "CIC Event"); excluding,
however, a CIC Event pursuant to which the
individuals and entities who are the beneficial
owners, respectively, of the Outstanding Interests
and the Voting Interests immediately prior to such
CIC Event beneficially own, directly or indirectly,
50% or more, respectively, of the Outstanding
Interests and the Voting Interests of the entity
resulting from such CIC Event.
2.11 "CONTACT" means receipt of an inbound telephone call or
inbound email from an ORBITZ customer or any combination
thereof.
2.12 "CONTACT HANDLED" means a Contact, which is answered by
UPSTREAM and handled through to resolution of the
customer's issue, as measured by UPSTREAM's automatic call
distribution ("ACD") system at the Facilities.
2.13 "CONTACT RATIO" means the ratio of Contacts Handled (minus
Contacts Handled with respect to the Orbitz Rewards Program or
other programs mutually agreed upon by the parties) to Ticket
Transactions. In the event the Contacts Handled with respect
to the Corporate Travel Program are priced separately (as
agreed upon by the parties pursuant to Section 8.6), then such
Contacts Handled shall also be subtracted from Contacts
Handled for purposes of calculating the Contact Ratio.
2.14 "CONTACT ACCURACY" means the measure of the accuracy of the
information provided to a customer in connection with a
Contact Handled.
2.15 "CORPORATE TRAVEL PROGRAM" means the travel products and
services to be offered by ORBITZ to corporate users of the
ORBITZ web site.
2.16 "DIRECT CONNECT REPORT" means a report of the actual number of
direct connection Ticket Transactions booked by ORBITZ based
on information derived by ORBITZ from the airlines on which
such Ticket Transactions were booked.
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2.17 "DISASTER RECOVERY PLAN" means a detailed plan for backup
and disaster recovery developed and maintained by UPSTREAM.
2.18 "DOUBLE DOWN EMAIL PRICE" means the price determined by
finding the common point between the Staffing Contact Ratio
(on the "x" axis), less one interval, and the annualized
Minimum Number of Ticket Transactions for a given month (on
the "y" axis) of the matrix set forth on Exhibit D-2 (or
after the Transfer Date, Exhibit D-3).
2.19 "DOUBLE DOWN VOICE PRICE" means the price determined by
finding the common point between the Staffing Contact Ratio
(on the "x" axis), less one interval, and the annualized
Minimum Number of Ticket Transactions for a given month (on
the "y" axis) of the matrix set forth on Exhibit D-l.
2.20 "EMAIL PRICE" means the price determined by finding the common
point between the actual Contact Ratio for a given month (on
the "x" axis) and the annualized Ticket Transactions for a
given month (on the "y" axis) of the matrix set forth on
Exhibit D-2 (or after the Transfer Date, Exhibit D-3).
2.21 "FINAL MONTHLY REPORT" means a final report of the Ticket
Transactions in the previous month, which data shall be based
on the ARC Reports and the Direct Connect Reports.
2.22 "GDS ENVIRONMENTS" means any GDS platform environment,
including, without limitation, Worldspan, Sabre, Apollo and
Shares.
2.23 "FEES" shall mean the Transaction Fees, Transition Fees
and/or Rewards Fees, as applicable.
2.24 "FORECAST" means a forecast of the anticipated number of
Ticket Transactions for a calendar month.
2.25 "LAUNCH DATE" means the date on which the Implementation
(as defined below) and transition of the Services from
ORBITZ's existing vendor to UPSTREAM commences. The Launch
Date shall occur on April 29,2002.
2.26 "MINIMUM FORECAST MONTH" means the last month of each
Monthly Forecast (e.g. Forecast provided August 1 for
August, September and October, the last month is October).
2.27 "MINIMUM NUMBER OF TICKET TRANSACTIONS" means the number of
Ticket Transactions provided by ORBITZ to UPSTREAM in the
Monthly Forecast for the Minimum Forecast Month, multiplied by
[***].
2.28 "MONTHLY FORECAST" means a three-month rolling Forecast,
delivered on the first day of each calendar month, e.g. on
August 1, ORBITZ will deliver a forecast for August,
September and October.
2.29 "PARITY EMAIL PRICE" means the price determined by finding the
common point between the Staffing Contact Ratio (on the "x"
axis), plus one interval, and the annualized Minimum Number of
Ticket Transactions for a given month (on the "y" axis) of the
matrix set forth on Exhibit D-2 (or after the Transfer Date,
Exhibit D-3).
2.30 "PARITY VOICE PRICE" means the price determined by finding the
common point between the Staffing Contact Ratio (on the "x"
axis), plus one interval, and the
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annualized Minimum Number of Ticket Transactions for a
given month (on the "y" axis) of the matrix set forth on
Exhibit D-l.
2.31 "PRELIMINARY MONTHLY REPORT" means a preliminary report of the
Ticket Transactions in the previous month, which data shall be
based on ORBITZ's daily reports received from etravelexperts,
LLC, ORBITZ's provider of ticket fulfillment and handling
services, back office reporting and ARC Settlement and
reporting services ("ETX").
2.32 "REWARDS PROGRAM" means the affinity program to be offered to
ORBITZ customers, whereby customers will have the opportunity
to accrue points in the Rewards Program by using their
ORBITZ-branded credit card or otherwise conducting
transactions on the ORBITZ web site, and to redeem those
points for travel-related rewards available from ORBITZ.
2.33 "SERVICES" means the call center services to be provided by
UPSTREAM to ORBITZ under this Agreement, as more fully
described on Exhibit A hereto, Exhibit B hereto and the
Policies and Procedures Guide. Services shall also include
handling all Contacts related to (i) car and hotel
accommodation reservations, (ii) the Rewards Program (as
defined in Section 2.10), and the Corporate Travel Program (as
defined in Section 2.6). The UPSTREAM personnel who handle
Rewards Program Contacts shall be the same whether such
Contacts are telephone or email-based and Contractor shall not
handle the Rewards Program Contacts.
2.34 "SERVICE LEVEL" means, individually and collectively, the
service levels, performance standards and other
quantitative and qualitative performance standards and
commitments for the Services contained in this Agreement,
as set forth in Exhibit B.
2.35 "SERVICE LEVEL CREDITS" means the agreed-upon credits set
forth in Exhibit B to be issued by UPSTREAM to ORBITZ in the
event that the Service Levels are not met. The parties agree
that the Service Level Credits are liquidated damages, not a
penalty, and shall be in addition to any other remedies
available to ORBITZ at law, in equity or under this Agreement.
2.36 "SOFTWARE" means any software, programming or computer code,
including without limitation, the computer telephony
integration ("CTI") software, staffing and scheduling
software, call monitoring software and KANA email management
software, owned by UPSTREAM or that are provided on behalf of
or licensed and used by UPSTREAM in performance of the
Services, along with all related documentation.
2.37 "STAFFING CONTACT RATIO" means the Contact Ratio applicable to
the month immediately preceding the date the Monthly Forecast
is provided, unless otherwise mutually agreed upon by the
parties.
2.38 "TICKET TRANSACTION" means the purchase of an airline
ticket by an Orbitz customer, including all paper,
electronic, ticket less tickets, direct connect tickets,
hand written air charges documents, refunds and exchanges,
but excluding miscellaneous charge orders (MCO's), minus
Ticket Transactions with respect to the Orbitz Rewards
Program. In the event Ticket Transactions with respect to
the Corporate Travel Program are priced separately (as
agreed upon by the parties pursuant to Section 8.6), then
such Ticket Transactions shall also be subtracted
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from Ticket Transactions for purposes of calculating the
Ticket Transactions. For clarity, each airline ticket
purchased by a customer is a Ticket Transaction; therefore,
if a customer purchases three (3) airline tickets as part
of the same Contact, such Contact shall equate to three (3)
Ticket Transactions.
2.39 "TRANSFER DATE" means the date on which Contractor has
begun performing the Contractor Services.
2.40 "VOICE PRICE" means the price determined by finding the common
point between the actual Contact Ratio for a given month (on
the "x" axis) and the annualized Ticket Transactions for a
given month (on the "y" axis) of the matrix set forth on
Exhibit D-l.
3. SERVICES.
3.1 UPSTREAM shall perform the Services in accordance with
Exhibit A, Exhibit B hereto and the Policies and Procedures
Guide. While in communication with ORBITZ's customers or
potential customers, UPSTREAM personnel shall conduct
themselves in a businesslike and friendly manner that
reflects well upon ORBITZ and shall comply with the
additional conduct requirements set forth in the Policies
and Procedures Guide. UPSTREAM personnel performing the
Services shall not receive any personal telephone calls on
any ORBITZ toll free number, nor shall any UPSTREAM
personnel for receipt of incoming calls use the ORBITZ toll
free number. UPSTREAM shall not subcontract any portion of
the Services without the express written consent of ORBITZ,
not to be unreasonably withheld, except as set forth in
Section 4. UPSTREAM shall comply with all laws applicable
to UPSTREAM's business which relate to or affect the
Services.
3.2 In providing the Services, UPSTREAM shall support all GDS
Environments. With respect to Services to be performed by
UPSTREAM in response to Contacts, ORBITZ shall provide to
UPSTREAM with the Annual Forecast and the Monthly Forecast.
The Annual Forecast does not, in any way, represent a
commitment by ORBITZ to provide call volume to UPSTREAM.
3.3 Upon receipt of the Monthly Forecast, UPSTREAM shall establish
staffing plans to be used for successful performance of the
Services, which plans shall include the volume of Contacts
anticipated by telephone and email and will reflect varying
Contact Ratios based on the Monthly Forecast. UPSTREAM will
also use the Monthly Forecast to prepare line requirements for
the coming months. If ORBITZ fails to submit the Monthly
Forecast as required herein, UPSTREAM will use the most recent
Monthly Forecast and/or the previous month's actuals for the
next month.
3.4 UPSTREAM shall obtain, at its expense, all licenses and rights
necessary for UPSTREAM to perform the Services, including,
without limitation, licenses to use the Software.
3.5 ORBITZ may permit third-party vendors, outsourcers and
other service providers to exercise the rights granted to
ORBITZ hereunder on behalf, and for the benefit of ORBITZ,
its affiliates, subsidiaries or other authorized users;
provided, however, that such third parties are subject to
the confidentiality obligations contained herein and are
not direct competitors of UPSTREAM. Without limiting the
foregoing, ORBITZ and ORBITZ's designated service providers
shall be
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permitted, at no extra cost other than the fees set forth
in Section 8, to access and otherwise use information
gathered by ORBITZ during performance of the Services,
including, without limitation, any Customer Information
stored in UPSTREAM's CRM database and/or Centerview
Software. For purposes of the foregoing, UPSTREAM
competitors shall be deemed to be any party who sells or
otherwise provides call center services.
3.6 In the event any third-party who is an ORBITZ customer brings
a claim based on UPSTREAM's negligence, for which UPSTREAM
would have an indemnification obligation pursuant to Section
11.2(a)(ii), ORBITZ shall first use its best efforts to
enforce against such third-party the terms and conditions (and
specifically, the limitations on liability) as they exist on
the ORBITZ web site.
4. IMPLEMENTATION AND OUTSOURCING.
4.1 ORBITZ shall use reasonable commercial efforts to (i)
develop an agent interface from Chicago to the UPSTREAM
call center locations in Xxxxxxxxx and Fargo, North Dakota
(the "Facilities"), (ii) use ORBITZ's desktop interface
tool, and (iii) facilitate telecom connectivity between
ORBITZ vendors and the Facilities required to effectively
manage its call volume (the "Implementation").
Implementation shall commence on the Launch Date and shall
be completed no later than July 31, 2002 (the
"Implementation Period"). In the event ORBITZ does not
completed its obligations as set forth in this Section 4.1
prior to the end of the Implementation Period, then for
whatever period by which such performance is delayed,
UPSTREAM's performance of its Implementation obligations
(as set forth on Exhibit A) shall be delayed by an
equivalent period of time.
4.2 In order to facilitate successful Implementation, UPSTREAM
will undertake the Implementation obligations set forth on
Exhibit A and will utilize the Facilities to perform the
Services. Upon mutual agreement of the parties, additional
sites may be used by UPSTREAM in performance of the Services
based on increases in ORBITZ's call volume or resource needs.
4.3 UPSTREAM shall provide ORBITZ with three full-time
dedicated resources (the "IT Resources") for professional
services, technology development and CTI programming during
the Implementation Period. After the Implementation Period,
the IT Resources shall be available at ORBITZ's request to
perform 200 hours per month of free technical programming
throughout the Term, for purposes of reporting
modifications and CTI integration and related programming.
If performance of additional development services requested
by ORBITZ will exceed 200 hours per month, UPSTREAM shall
provide ORBITZ prior written notice of any such excess
hours, and if ORBITZ authorizes such excess hours, UPSTREAM
shall be paid at a rate of $[***] per hour.
4.4 SERVICES TO BE PERFORMED BY CONTRACTOR. Upon receipt of notice
from ORBITZ at any time after November 30, 2002 ("Transfer
Notice"), which notice shall be
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given if, and only if, ORBITZ desires to give such notice,
UPSTREAM will (within 120 days of receipt of the Transfer
Notice) outsource the processing of email Contacts (the
"Contractor Services") to an overseas third-party selected
by UPSTREAM and approved by ORBITZ (such approval not to be
unreasonably withheld) ("Contractor"), pursuant to an
agreement between UPSTREAM and the Contractor (the
"Contractor Agreement"), and ORBITZ consents to such
subcontracting, provided that:
(i) UPSTREAM shall provide ORBITZ with advance written
notice of the Transfer Date, which date shall occur
no later than 120 days after the date of the Transfer
Notice, and shall report to ORBITZ monthly with such
information as may be requested by ORBITZ from
time-to-time with respect to Contractor's performance
thereof.
(ii) UPSTREAM acknowledges that the Contractor Services
are a portion of the Services to be provided under
this Agreement, and with respect to the
performance of the Contractor Services, UPSTREAM
shall ensure that all obligations of UPSTREAM
pursuant to this Agreement, including, but not
limited to, obligations relating to the Service
Levels, reporting, personnel training and
expertise, Confidential Information, intellectual
property, and ORBITZ's audit rights, shall be
binding on Contractor under the Contractor
Agreement (the "Contractor Obligations") and
UPSTREAM shall aggressively enforce all such
Contractor Obligations. UPSTREAM shall be fully
responsible for any and all actions taken by
Contractor in performance, violation or failure of
the Contractor Obligations ("Contractor Actions"),
as if such Contractor Actions were performed by
UPSTREAM under this Agreement. The Contractor
Agreement shall provide that ORBITZ is an intended
third-party beneficiary of the Contractor
Agreement, with the right to enforce the
Contractor Agreement as though it were a party
thereto.
(iii) UPSTREAM shall ensure, and shall be responsible, at
its sole cost and expense, for all necessary and
advisable training of Contractor prior to and during
any performance by Contractor of the Contractor
Obligations. At ORBITZ's request, (i) UPSTREAM shall
cause Contractor to enter into a separate
non-disclosure agreement with ORBITZ and/or (ii)
UPSTREAM shall execute an estoppel letter in a form
requested by ORBITZ and not more than monthly,
certified by an officer of the UPSTREAM, that
Contractor is in full compliance with all terms of
the Contractor Agreement.
Any dispute arising under, or in connection
with, the Contractor Agreement shall be
submitted to binding arbitration on terms
substantially similar to those set forth on
Exhibit H, and such arbitration shall take
place in the United States, and UPSTREAM
shall obligate Contractor, in the Contractor
Agreement, to be bound by and participate in
such arbitration at the election of ORBITZ.
In the event Contractor breaches the
Contractor Agreement or any of the
Contractor Obligations, ORBITZ shall have
the right to
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cause UPSTREAM (i) to require Contractor
to take all necessary remedial actions at
their sole cost and expense and in a time
frame appropriate to the circumstance or
(ii) to terminate the Contractor
Agreement with respect to the Contractor
Services being performed by Contractor;
and following any such termination,
UPSTREAM shall either (i) replace
Contractor with another subcontractor,
subject to ORBITZ's approval or (ii)
transfer the performance of the
Contractor Services back to the
Facilities, and in either event, the
pricing applicable to the Contractor
Services (as specified in Section 8.1,
Exhibit D-3) shall continue to apply to
any such Contractor Services, whether
such Contractor Services are being
performed by another contractor or
directly by UPSTREAM. The Contractor
Agreement shall require that the
Contractor Services shall be performed in
a secure environment, such that only
those employees of Contractor performing
the Contractor Services shall have access
to ORBITZ confidential information or to
the area within Contractor's facility
where the Contractor Services are being
performed (the "Secure Area"). Further,
Contractor shall (A) not provide similar
services to the Contractor Services any
Competitive Entity (as defined in Section
9.2) within or on the same floor of the
building in which the Secure Area is
located, (B) ensure that Contractor
employees (while employed by Contractor)
who provide the Contractor Services shall
not, during the Term and for a period of
12 months thereafter, provide similar
services to any Competitive Entity.
Upon mutual agreement of the parties to the pricing therefore, the
parties shall include outsourcing of telephone Contacts within the
definition of Contractor Services.
4.5 TRANSFER OF CONTRACTOR SERVICES FOR FORCE MAJEURE. In the
event UPSTREAM transfers the Contractor Services back to the
Facilities due to a force majeure event (as described in
Section 12.7 below), which would excuse Contractor from
providing Contractor Services, then for the period of time
during which the force majeure event continues, and subject to
UPSTREAM's responsibilities pursuant to the Disaster Recovery
Plan, pricing applicable to the Services shall revert to the
United States pricing matrices as set forth in Section 8.1 and
attached as Exhibit D-2.
5. UPSTREAM RESPONSIBILITIES.
5.1 Exclusivity. Provision of the Services shall be exclusive to
UPSTREAM, such that neither a third party nor ORBITZ's own
personnel shall provide the same or similar services as those
provided by UPSTREAM under this Agreement; provided, however,
if UPSTREAM is unable to find a Contractor acceptable to
ORBITZ pursuant to Section 4.4, such that the Transfer Date
can occur within one hundred twenty (120) days following the
Transfer Notice, then the pricing applicable to Contractor
Services (as set forth on Exhibit D-3) shall apply with
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respect to email and UPSTREAM shall continue to provide all of
the Services (including Contractor Services that were to be
provided on ORBITZ's request by the Contractor) at its
Facilities.
5.2 REQUIRED REPORTS. UPSTREAM shall present to ORBITZ, or
ORBITZ's designated project manager, (i) all of the reports
specified on Exhibit A and (ii) a report on a daily basis,
in a form acceptable to ORBITZ, which specifies such
information as may be mutually agreed upon by the parties
hereto. ORBITZ and all ORBITZ agents and contractors will
have real-time access (provided that during the
Implementation Period such access shall be on a near
real-time basis) to all ORBITZ CMS data, and remote access
to the Nice System (as defined in Section 5.10) and other
ORBITZ-related data maintained by UPSTREAM, to develop
reports, analyze trends and otherwise use for internal
business purposes, as needed.
5.3 ACCESS TO ORBITZ'S ELECTRONIC RESOURCES. UPSTREAM shall
strictly follow all ORBITZ security rules and procedures (that
are provided to UPSTREAM in advance and in writing) for use of
ORBITZ electronic resources. All user identification numbers
and passwords disclosed to UPSTREAM and any information
obtained by UPSTREAM as a result of UPSTREAM's access to, and
use of, ORBITZ computer and electronic storage systems shall
be deemed to be and shall be treated as ORBITZ's Confidential
Information, as such term is defined in the NDA, as referenced
and incorporated herein pursuant to Section 7.1.
5.4 COOPERATION. UPSTREAM agrees to reasonably cooperation with
third parties that ORBITZ may engage in connection with the
development, testing, integration, maintenance and operation
of the ORBITZ website and related systems. UPSTREAM shall work
with ORBITZ and its ticketing service partner and other
ORBITZ-designated service providers to optimize the customer
service and fulfillment processes. UPSTREAM shall assist in
the implementation of any telecommunications equipment
required to interface with ORBITZ, Worldspan, L.P. (or any
other GDS providing services to ORBITZ), ORBITZ's ticketing
service partner and other ORBITZ-designated service providers
to accomplish a seamless operation.
5.5 KEY PERSONNEL. In the event that any of the following Key
Personnel leave the UPSTREAM team servicing ORBITZ, UPSTREAM
shall use commercially reasonable efforts to replace such
personnel within sixty (60) days with personnel acceptable to
ORBITZ: fully dedicated Account Manager, Program Manager, any
dedicated trainers, QA specialists at a ratio of 1:15 for new
hires and 1:30 for experience customer service specialists and
staff, as well as designated support staff as required,
including facilities management, LAN/WAN administration and
human resources.
5.6 SECURITY POLICIES. UPSTREAM agrees that all UPSTREAM
personnel, while visiting the premises of ORBITZ or other
third parties in performance of the Services, shall comply
with all the internal rules and regulations of ORBITZ or the
other party, including security procedures, which shall be
provided to UPSTREAM in advance and in writing.
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5.7 INSURANCE. UPSTREAM shall, at its own expense, obtain and
maintain insurance as set forth in Exhibit C. These insurance
coverages shall be primary and non-contributing with respect
to any other insurance or self-insurance that may be
maintained by UPSTREAM.
5.8 PROBLEM ANALYSIS. If UPSTREAM fails to meet any of the Service
Levels, UPSTREAM shall (i) promptly investigate and report on
the causes of the problem, (ii) use its best efforts to
correct the problem and begin meeting the Service Levels as
soon as practicable and (iii) advise ORBITZ, as and to the
extent reasonably requested by ORBITZ, of the status of
remedial efforts to be undertaken with respect to such problem
and provide ORBITZ reasonable evidence that the causes of such
problem have been or will be corrected.
5.9 CONTINUOUS IMPROVEMENT REVIEWS. Within three (3) months after
the Launch Date, and at least quarterly thereafter, UPSTREAM
shall schedule a meeting with ORBITZ to review the Service
Levels. As part of this review process, the parties shall
mutually determine whether or not increased or additional
Services are required and negotiate in good faith on
additional Service Levels, if applicable, to be added to
Exhibit B.
5.10 MEASUREMENT AND MONITORING. UPSTREAM shall maintain the
measurement and monitoring tools, metrics and reporting
procedures set forth on Exhibits A and B to measure and report
UPSTREAM's performance of the Services against the applicable
Service Levels, including, without limitation, the NICE, Inc.
online monitoring tool whereby the monitoring party may listen
to calls remotely or historically and view actual screen shots
used throughout the handling of a Contact (the "NICE system").
The NICE System shall be installed and functional no later
than the completion of the Implementation Period. UPSTREAM
shall provide ORBITZ with information and access to such tools
and procedures upon request, for purposes of audit
verification. If ORBITZ reasonably requests that UPSTREAM
provide additional tools, metrics and reports, UPSTREAM shall,
in its sole discretion, provide them as part of the Services.
5.11 DISASTER RECOVERY SERVICES. UPSTREAM shall submit a
Disaster Recovery Plan to ORBITZ as soon as reasonably
practicable, and the parties agree to use commercially
reasonable efforts to agree upon a final Disaster Recovery
Plan no later than the end of the Implementation Period.
The Disaster Recovery Plan shall be deemed incorporated
herein by reference and shall be attached hereto as Exhibit
F. UPSTREAM shall implement the Disaster Recovery Plan as
necessary, and such implementation shall be incorporated
into the Services. The Disaster Recovery Plan shall include
procedures for periodic backup of data, procedures for
declaration of a disaster, notification procedures for
UPSTREAM personnel and ORBITZ personnel and procedures for
recovery of processing functions following a disaster. The
cost of additional equipment required for UPSTREAM to
perform the requirements of the Disaster Recovery Plan
shall be agreed upon by the parties and, to the extent such
cost is to be reimbursed by ORBITZ, shall be reimbursed
without markup.
5.12 STATEMENTS OF WORK. In the event ORBITZ requests any
additional services be performed by UPSTREAM not specified in
the Services, such project will be performed by UPSTREAM
pursuant to a statement of work ("SOW") that must
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be signed by both parties. Each SOW will be subject to the
terms of this Agreement and the services to be performed
thereunder shall be deemed "Services" as defined herein. In
the event of any conflict or inconsistency between the
terms of this Agreement and any SOW, this Agreement will
prevail. Each SOW shall include, as applicable, (i) the
start date, location and scheduled completion of the
project, (ii) a description of the project and services to
be performed by UPSTREAM, (iii) project milestones, (iv)
ORBITZ acceptance criteria for the project and any
deliverables thereunder, (v) the hourly rates or project
rate for the project, (vi) the names of all key project
personnel and (vii) such other information as may be agreed
to by the parties.
5.13 RESOURCES. UPSTREAM shall be responsible, at its sole cost and
expense, for UPSTREAM's Implementation obligations and for all
training, account management, facilities costs, equipment and
Software costs, Avaya G3r phone switches, as well as all other
supporting applications necessary in UPSTREAM's performance of
the Services. UPSTREAM shall be responsible, at its sole cost
and expense, for obtaining the technology necessary in
performing the Services, including software licenses and
maintenance for the KANA (or any similar) email management
system, CTI application software for "screen pops" and
reporting, call monitoring software that displays both screen
shots as well as call data, staffing and scheduling software
as necessary to meet ORBITZ specifications as well as remote
monitoring and web-based reporting.
5.14 POLICIES AND PROCEDURES GUIDE. UPSTREAM shall, in conjunction
with ORBITZ, develop and maintain a policies and procedures
guide ("Policies and Procedures Guide") by the end of the
Implementation Period, which shall be updated from
time-to-time as mutually agreed by the parties and shall
include, without limitation, the following:
(i) How UPSTREAM shall perform the Services under this
Agreement, including (a) the equipment and Software
being used, (b) the operations manuals, user guides,
specifications and other documentation which provides
further details of the Services, (c) the activities
that UPSTREAM proposes to undertake in order to
provide the Services, including, where appropriate,
those direction, supervision, monitoring, staffing,
reporting, planning and oversight activities normally
undertaken at facilities that provide services of the
type UPSTREAM shall provide under this Agreement;
(ii) The procedures for UPSTREAM-ORBITZ communication
and interaction, including (a) ARC Report
processes, (b) Contact handling and transferring
policies, (c) back office processes, (d) problem
management and escalation procedures, (e) priority
and project procedures, and (f) quality assurance
procedures; and quality assurance processes and
procedures to ensure the Services are performed in
accordance with the Service Levels, including,
without limitation, (a) a provision that UPSTREAM
personnel handling email-based Contacts shall have
typing proficiency of no less than 50 words per
minute with two (2) or less errors and (b) a
provision that prohibits UPSTREAM personnel from
taking messages in response to Contacts in an
effort to manipulate Average
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Handle Time; credit card error messages and fraud
prevention procedures, as set forth on Exhibit G
hereto; and
(iii) Training manuals and training procedures. Without
limitation on UPSTREAM's obligations, UPSTREAM shall
be responsible for conducting all necessary and
advisable training of its staff, including, but not
limited to, performing recurrent training to ensure
agent proficiency; and the manuals and procedures
shall reflect this obligation.
In the event of a conflict between the Policies and
Procedures Guide and this Agreement, the provisions
of this Agreement shall control unless the parties
expressly agree to otherwise and such agreement is
set forth in writing. UPSTREAM shall periodically
update the Policies and Procedures Guide to reflect
mutually agreed-upon changes in the operations or
procedures described therein, and shall provide the
updated Policies and Procedures Guide to ORBITZ for
review and comment.
The Policies and Procedures Guide shall be ORBITZ
Confidential Information.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Each party represents and warrants to the other that (a) such
party has the organizational power and authority to execute
and deliver this Agreement and to perform its obligations
under this Agreement, (b) the execution, delivery and
performance of this Agreement by such party have been duly
authorized by all necessary organizational action, and this
Agreement has been duly and validly executed on behalf of such
party, (c) such party's entrance into this Agreement shall not
violate such party's agreements with any third party and (d)
such party shall comply in all material respects with any
applicable laws, regulations and rules.
6.2 UPSTREAM represents and warrants that (a) UPSTREAM shall
perform the Services in a competent and business-like
manner using personnel familiar with and possessing at
least an industry-standard level of skill in the
technologies involved and Contractor is, and on an ongoing
basis will be, competent and qualified to perform the
Services, (b) UPSTREAM shall perform the Services in
accordance with the Service Levels set forth in Exhibit B,
(c) UPSTREAM is either the owner of, or authorized to use,
any and all Software and other intellectual property
necessary for UPSTREAM to perform the Services, (d)
UPSTREAM shall perform the Services in a manner that does
not infringe or misappropriate any intellectual property
rights of any third party, (e) UPSTREAM shall take
reasonable steps to prevent the introduction and
proliferation of any virus or similar item in the systems
used to provide the Services and (f) UPSTREAM has obtained
all licenses, authorizations or permits required to perform
its obligations under this Agreement (including those
required by UPSTREAM and/or Contractor in connection with
performance of the Contractor Agreement) under all
applicable federal, state or local laws and under all
applicable rules and regulations of all authorities having
jurisdiction over the
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Services. If a charge of non-compliance by UPSTREAM with
any such laws, regulations, ordinances or codes occurs,
UPSTREAM shall promptly notify ORBITZ of such charges in
writing.
6.3 ORBITZ represents and warrants that (a) no portion of any
ORBITZ Data (as defined in Section 7.2 below) does or will
contain any "back door, "time bomb", "Trojan horse,"
"worm," "drop dead device," "virus" or other instructions,
circuitry or other technological means, the effect of which
is to access, modify, disrupt, damage, delay or interfere,
with the use of UPSTREAM's computer or telecommunications
equipment or facilities and (b) ORBITZ has obtained all
licenses, authorizations or permits required to provide
ORBITZ Data and Customer Information (to the extent such
Customer Information is provided by ORBITZ directly to
UPSTREAM) to UPSTREAM under all applicable international,
federal, state or local laws and under all applicable rules
and regulations having jurisdiction over the transfer of
such data. If a charge of non-compliance with any such
laws, regulations, ordinances or codes occurs, the party
receiving such notice shall promptly notify the other party
such charges in writing.
6.4 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN
THIS SECTION 6, NEITHER PARTY MAKES ANY REPRESENTATIONS OR
WARRANTIES TO THE OTHER, WHETHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. CONFIDENTIALITY, DATA AND TITLE TO WORK PRODUCTS.
7.1 GENERAL. The parties shall continue to be bound by the
terms of that certain Mutual Non-Disclosure Agreement
entered into by and between the parties as of March 1, 2002
("NDA"), which is incorporated herein by reference (the
"NDA"). UPSTREAM further agrees that it has or will enter
into and maintain appropriate confidentiality agreements
with any UPSTREAM employees, agents or subcontractors who
perform Services for ORBITZ, which shall require such
individuals, for a period of not less than 12 months
following the date such individual has been involved with
ORBITZ'S account or given access to any ORBITZ Confidential
Information, to treat ORBITZ's Confidential Information in
accordance with the confidentiality and non-disclosure
obligations set forth in this Agreement and the NDA.
7.2 ORBITZ DATA. UPSTREAM understands and acknowledges that ORBITZ
and UPSTREAM may (i) manage, modify and update pre-existing
data and information provided by or through ORBITZ or ORBITZ
customers and (ii) generate, manage, modify, maintain and
update additional data and information in connection with
ORBITZ, ORBITZ customers and the transactions entered into by
and on behalf of ORBITZ's customers (collectively, "ORBITZ
Data"). ORBITZ data will be treated as Confidential
Information under the NDA.
7.3 CUSTOMER INFORMATION. In the course of providing the
Services and sale of products through ORBITZ and ORBITZ
customers, information may be developed that relates to the
quantity, type, destination, preferences, amount and other
information associated with ORBITZ's customers use of
services and
13
purchase of products, together with the development of
transactional, contact history and billing information
(collectively, "Customer Information"). Any such Customer
Information will be treated as Confidential Information
under the NDA. UPSTREAM hereby assigns all right, title and
interest that UPSTREAM may have or obtain in such Customer
Information to ORBITZ. UPSTREAM shall use the Customer
Information only in performance of the Services. Upon
ORBITZ's request, UPSTREAM shall provide all Customer
Information to ORBITZ in the form and manner reasonably
requested by ORBITZ. UPSTREAM shall comply at all times
with ORBITZ's privacy policy as posted on the ORBITZ web
site.
7.4 TITLE TO WORK PRODUCTS. All right, title and interest in
and to all tangible and intangible work and work products,
including the Policies and Procedures Guide,(collectively
"Work") developed or produced by UPSTREAM in performance of
the Services shall be considered a "work-for-hire" within
the meaning of the Copyright Act and all right, title and
interest in and to patents, copyrights, trade secrets,
trademarks and other intellectual property derived from
such Work shall be and remain the property of ORBITZ.
Notwithstanding the foregoing, ORBITZ acknowledges that all
pre-existing items used by UPSTREAM generally in the
performance of services for any of its customers and also
used in the performance of the Services hereunder, whether
in tangible or intangible form, including, without
limitation, ideas, concepts, know-how, methods or
methodologies, reports, algorithms, formulae and techniques
and all copies of the foregoing ("UPSTREAM Proprietary
Tools") shall not be included in the definition of Work,
and all related patent, copyright, trademarks, trade
secret, intellectual property and other ownership rights
shall remain exclusively with UPSTREAM. To the extent any
UPSTREAM Proprietary Tools are provided to ORBITZ in the
performance of the Services, including any creation of the
Policies and Procedures Guide, ORBITZ shall have a
worldwide, royalty-free, non-exclusive, right and license
to use such UPSTREAM Proprietary Tools in order to exercise
its rights under this Agreement.
7.5 TERMS OF THIS AGREEMENT. Each party agrees that the
existence of this Agreement, along with its terms and
conditions are Confidential Information of each party.
8. FINANCIAL TERMS.
8.1 TRANSACTION FEES.
(i) ORBITZ agrees to pay UPSTREAM the per Ticket
Transaction fees:
(A) For all Ticket Transactions generated on or
after August 1, 2002, an amount equal to the
greater of (1) the total actual number of
Ticket Transactions for the applicable month
multiplied by the Voice Price or (2) the
Minimum Number of Ticket Transactions for
the applicable month multiplied by the Voice
Price; plus
(B) For all Ticket Transactions generated on or
after June 1, 2002, an amount equal to the
greater of (1) the total actual number of
Ticket Transactions for the applicable month
multiplied by the Email Price or (2) the
Minimum Number of Ticket Transactions for
the applicable month multiplied by the Email
Price (collectively, "Transaction Fees").
14
(ii) The Transaction Fees will fully compensate UPSTREAM
for performance of all Services, fulfillment of all
UPSTREAM's responsibilities and effectively meeting
the Service Levels identified in Exhibit B.
8.2 ADJUSTMENTS TO TRANSACTION FEES.
(i) DOUBLE DOWN MONTH FOR VOICE PRICE. ORBITZ agrees that
with respect to any Minimum Forecast Month in which
(A) the total actual Ticket Transactions are less
than the Minimum Number of Ticket Transactions and
(B) the actual Contact Ratio for telephone-based
Contacts Handled is less than the Staffing Contact
Ratio for such Minimum Forecast Month (a "Double Down
Month"), the payment of Transaction Fees as set forth
in Section 8.l(i)(A) shall be replaced with this
Section 8.2(i), such that ORBITZ will pay UPSTREAM
the per Ticket Transaction fees for all Ticket
Transactions generated on or after August 1, 2002, an
amount equal to the Minimum Number of Ticket
Transactions multiplied by the Double Down Voice
Price.
(ii) DOUBLE DOWN MONTH FOR EMAIL PRICE. ORBITZ agrees that
with respect to any Minimum Forecast Month in which
(A) the total actual Ticket Transactions are less
than the Minimum Number of Ticket Transactions and
(B) the actual Contact Ratio for email-based Contacts
Handled is less than the Staffing Contact Ratio for
such Minimum Forecast Month (a "Double Down Month"),
the payment of Transaction Fees as set forth in
Section 8.1(i)(B) shall be replaced with this Section
8.2(ii), such that ORBITZ will pay UPSTREAM the per
Ticket Transaction fees for all Ticket Transactions
generated on or after June 1, 2002, an amount equal
to the Minimum Number of Ticket Transactions
multiplied by the Double Down Email Price.
(iii) Parity Month for Voice Price. ORBITZ agrees that
with respect to any Minimum Forecast Month in
which (A) the total actual Ticket Transactions are
less than the Minimum Number of Ticket
Transactions and (B) the Contact Ratio for
telephone-based Contacts is one or more intervals
above the Staffing Contact Ratio on the pricing
matrices contained in Exhibit D and (C) the actual
number of telephone Contacts Handled is within
[***] percent ([***]%) above or below the projected
number of telephone Contacts Handled (such
projections to be calculated by multiplying the
Minimum Monthly Forecast by the Staffing Contact
Ratio), the payment of Transaction Fees as set
forth in Section 8.1(i)(A) shall be replaced with
this Section 8.2(iii), such that ORBITZ will pay
UPSTREAM the per Ticket Transaction fees for all
Ticket Transactions generated on or after August
1, 2002, an amount equal to the Minimum Number of
Ticket Transactions multiplied by the Parity Voice
Price.
(iv) PARITY MONTH FOR EMAIL PRICE. ORBITZ agrees that
with respect to any Minimum Forecast Month in
which (A) the total actual Ticket Transactions are
less than the Minimum Number of Ticket
Transactions
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and (B) the Contact Ratio for email-based Contacts
is one or more intervals above the Staffing
Contact Ratio on the pricing matrices contained in
Exhibit D and (C) the actual number of email
Contacts Handled is within [***] percent ([***]%)
above or below the projected number of email
Contacts Handled (such projections to be
calculated by multiplying the Minimum Monthly
Forecast by the Staffing Contact Ratio), the
payment of Transaction Fees as set forth in
Section 8.1(i)(B) shall be replaced with this
Section 8.2(iv), such that ORBITZ will pay
UPSTREAM the per Ticket Transaction fees for all
Ticket Transactions generated on or after June 1,
2002, an amount equal to the Minimum Number of
Ticket Transactions multiplied by the Parity Email
Price.
(v) In the event the Contact Ratio or the Ticket
Transactions falls above or below the last range
set forth on the applicable matrix, the parties
will mutually agree upon new pricing matrices to
reflect such event, which revised pricing shall be
consistent with the pricing set forth in the
preceding matrices. On the earlier to occur of
the Transfer Date or the date which is 120 days
after the date of the Transfer Notice, the pricing
set forth on Exhibits D-3 shall apply to the
payment of Transaction Fees; provided, however,
that if ORBITZ, having given the Transfer Notice,
(A) notifies UPSTREAM that it wishes to delay the
Transfer Date to a day which is more than 120 days
after the date of the Transfer Notice (the
"Delay"), then ORBITZ shall be responsible for any
documented labor costs which Contractor incurs for
the length of the Delay or (B) notifies UPSTREAM
that it wishes to revoke the Transfer Notice
entirely ("Cancellation"), so as to not utilize
Contractor to perform the Contractor Services,
then ORBITZ shall be responsible for any
documented labor costs which Contractor incurs in
connection with terminating any employees who were
hired between the date of the Transfer Notice and
the date of such Cancellation.
(vi) Beginning in year 3 of the Term, an additional
Transaction Fee of $[***] shall be added to each
Ticket Transaction, and in calendar years 4 and 5 of
the Term, an additional Transaction Fee of $[***]
shall be added to each Ticket Transaction (the
"Add-on Fee"). Such Add-on Fee, when implemented,
shall be included in the definition "Transaction
Fee". The purpose of the Add-on Fee is to compensate
UPSTREAM for its anticipated increases in labor
costs.
8.3 UPCHARGES.
(i) TELEPHONE. The Transaction Fees assume an Average
Handle Time for telephone Contacts of [***] minutes.
In addition to the Transaction Fees, ORBITZ will pay
UPSTREAM an additional fee ("Upcharge Fee") per
Ticket Transaction for Average Handle Times ranging
from anything over [***] minutes up to [***] minutes
as follows:
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16
AVERAGE HANDLE TIME UPCHARGE FEE
------------------- ------------
[***] minutes $[***]
[***] minutes $[***]
[***] minutes $[***]
[***] minutes $[***]
[***] minutes $[***]
; provided that the Upcharge Fee shall be capped at the point
the Average Handle Time reaches [***] minutes; provided,
however, that the Upcharge Fee shall extend past an Average
Handle Time of [***] minutes (at the rate of $[***] for every
[***] minutes beyond [***]) if the Average Handle Time is
driven above [***] minutes based on (i) the occurrence of any
of the following at an airline which is one of the top 10
airlines in booking volume on the ORBITZ website (A)
bankruptcy, (B) major air schedule change disproportionate to
typical semi-annual air schedule changes, (C) major service
disruption due to a strike, slow down or merger; (ii)
bankruptcy of a car or hotel company which is listed within
the ORBITZ booking path; (iii) failure of another ORBITZ
vendor, such as ETX or Worldspan, which affects performance of
the ORBITZ web site or delivery of ORBITZ travel products to
customers; (iv) system unavailability of the ORBITZ website,
or (v) any substantial change to the ORBITZ web site made by
ORBITZ, which causes an increase in Average Handle Time.
(ii) EMAIL. The Transaction Fees assume an Average Handle
Time for email Contacts of between [***] and [***]
minutes (as noted on Exhibit D-2). In addition to the
Transaction Fees, ORBITZ will pay UPSTREAM an
Upcharge Fee per Ticket Transaction for Average
Handle Times ranging from anything over [***] minutes
up to [***] minutes as follows:
Average Handle Time Upcharge Fee
[***]-[***] minutes $[***]
[***]-[***] minutes $[***]
; provided that the Upcharge Fee shall be capped at the
point the Average Handle Time reaches [***] minutes.
8.4 TRANSITION FEES FOR TELEPHONE-BASED CONTACTS HANDLED.
During the Implementation Period, ORBITZ agrees to pay
UPSTREAM $[***] per telephone Contact Handled ("Transition
Fees"), which Transition Fees shall be calculated by
UPSTREAM based on its ACD reports.
8.5 REWARDS PROGRAM. ORBITZ agrees that with respect to any
telephone Contacts Handled related to the Rewards Program, if
the Average Handle Time is 4.5 minutes or more, ORBITZ will
pay UPSTREAM $4.50 per Contact Handled; and if the Average
Handle Time is 0-4.49 minutes, ORBITZ will pay UPSTREAM $3.75
per Contact Handled ("Rewards Fees"), which Rewards Fees shall
be calculated by UPSTREAM based on its ACD reports. If calls
average above 6.5 minutes for a period of sixty (60) days or
more, the Parties agree to mutually agree to new pricing
terms.
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8.6 CORPORATE TRAVEL PROGRAM. UPSTREAM will be compensated for all
Contacts Handled with respect to the Corporate Travel Program
in accordance with Sections 8.1 and 8.2, i.e. such "Contacts
Handled" will be paid based on the Transaction Fees; provided,
however, that upon the earlier of (i) [***] Ticket
Transactions attributable to the Corporate Travel Program or
(ii) [***] months from the end of the Implementation Period
(the "Corporate Travel Threshold") the Contacts Handled with
respect to the Corporate Travel Program will be excluded from
the calculation of the Contact Ratio, and the pricing
applicable to and the Services to be provided by UPSTREAM in
connection with such program will be subject to the mutual
agreement of the parties. If, prior to reaching the Corporate
Travel Threshold, the scope of the Services to be provided by
UPSTREAM with respect to the Corporate Travel Program changes
substantially, such that either the Average Handle Time for
the Contacts Handled exceeds [***] minutes or the Contact
Ratio applicable to such Contacts Handled exceeds [***]
percent ([***]%), in either case by more [***] percent
([***]%) over any [***] day period (a "Change in Scope"), then
the pricing applicable to and the Services to be provided by
UPSTREAM in connection with such program will be subject to
mutual agreement of the parties. In the event that either the
Corporate Travel Threshhold is reached or there is a Change in
Scope, the new pricing agreed upon by the parties will be
added as a new Exhibit D-4 and Services to be provided in
connection with the Corporate Travel Program will be added to
Exhibit A by addendum to be mutually executed by the parties.
8.7 TIMELY INVOICING. Within 5 days following the end of an
ARC Month, ORBITZ shall provide UPSTREAM with either a
Final Monthly Report or a Preliminary Monthly Report. Upon
receipt of a Preliminary Monthly Report, UPSTREAM shall
compare the Preliminary Monthly Report against UPSTREAM's
ACD to calculate the estimated Transaction Fees ("Estimated
Fees") applicable to such month and shall invoice ORBITZ
for the Estimated Fees on a timely basis. UPSTREAM shall
ensure that any Contacts Handled for which UPSTREAM is
being compensated under Sections 8.5 (and after reaching
the Corporate Travel Threshold 8.6) shall be deleted from
the Contact Ratio prior to calculation of the Estimated
Fees and the Final Fees. UPSTREAM shall provide such
additional information on invoices as ORBITZ shall
reasonably require. If not earlier provided, within 10
business days following the end of an ARC Month, ORBITZ
shall provide UPSTREAM with the Final Monthly Report. Upon
receipt of the Final Monthly Report, UPSTREAM shall compare
the Final Monthly Report against the ACD to calculate the
final Transaction Fees ("Final Fees"), and to the extent
the Estimated Fees (as invoiced to ORBITZ) differ from the
Final Fees, such amounts will be an adjustment to the
Estimated Fee invoice to be issued by UPSTREAM in the
following month.
8.8 TAXES. Taxes shall be identified separately from the Fees
and shall be shown separately on invoices. Except as
provided below, ORBITZ shall pay on invoice all taxes that
are lawfully imposed by any governmental authority and are
based
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18
on or measured by any payment of ORBITZ for Ticket
Transactions and Services pursuant to this Agreement and
for which no exemption is applicable. UPSTREAM shall
collect from ORBITZ and shall remit to the appropriate tax
authorities all such taxes. UPSTREAM shall pay all taxes
which are based on or measured by UPSTREAM's gross or net
income or gross or net receipts (including any capital
gains taxes or minimum taxes), or taxes which are capital,
doing business, excess profits, net worth or franchise
taxes. UPSTREAM shall be responsible for any penalty or
interest that may arise from the failure of UPSTREAM to
invoice ORBITZ for any such taxes that are to be paid by
ORBITZ.
8.9 PAYMENT OF FEES; PAYMENT DISPUTES.
(i) ORBITZ shall remit payment to UPSTREAM for
undisputed amounts within thirty (30) days of
ORBITZ's receipt of the invoice.
(ii) In order to dispute an invoice, or any part
thereof, ORBITZ shall set forth in writing the
amounts disputed and the specific basis or reason
for the dispute, which shall be reasonable
detailed ("Dispute Notice"). The Dispute Notice
must be received by UPSTREAM on or prior to the
due date of the invoice disputed, or within two
(2) months after an audit conducted by or on
behalf of ORBITZ. ORBITZ shall not dispute any
invoice unless ORBITZ believes, in good faith,
that ORBITZ is being charged for Services which
have not been provided or at prices higher than
those set forth in Exhibit D (as may have been
amended from time-to-time), or that errors in
calculation or the like have occurred, or that
ORBITZ is otherwise being charged for items
contrary to the provisions of this Agreement. Upon
compliance by ORBITZ with the foregoing
provisions, ORBITZ may withhold payment of the
disputed amount(s) of the invoice, and shall remit
to UPSTREAM the undisputed amount(s) in a timely
manner. Upon receipt of the Dispute Notice,
UPSTREAM must promptly provide any requested
documentation or information, and otherwise
cooperate in a timely fashion with ORBITZ in the
validation of any disputed charges, and both
parties shall make reasonable, diligent, good
faith efforts to resolve the dispute within thirty
(30) days following the date of the Dispute
Notice. If the dispute is not resolved within such
period, the dispute shall be submitted to the
dispute resolution procedures set forth in Exhibit
E within ten (10) business days thereafter.
8.10 IMPLEMENTATION AMOUNT. UPSTREAM shall provide ORBITZ a credit
of $[***], which shall be applied against any Fees due from
ORBITZ to UPSTREAM in five monthly increments of $[***],
beginning with the first invoice issued by UPSTREAM after
completion of the Implementation Period, to help mitigate
ORBITZ's costs in transitioning from its existing vendor to
UPSTREAM during the Implementation Period. Such transition
will include all development and integration work with respect
to CRM programming. In addition, upon the [***] month
anniversary of the Transfer Date, UPSTREAM shall pay to ORBITZ
a fee
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19
of $[***] to help mitigate ORBITZ's costs in transitioning
email-related Services from UPSTREAM to the Contractor.
8.11 DEBIT MEMOS AND OTHER REFUNDABLE ITEMS. If any UPSTREAM
personnel, in performance of the Services, cause ORBITZ to
suffer a financial loss via a debit memo issued from the
airlines, refunds that are given directly from ORBITZ to
ORBITZ customers, refunds that are not given directly to
ORBITZ customers or charges to ORBITZ-supplied credit cards
(collectively, "Refundable Items"), whether arising out of
the negligence, error, mistake or fraud of such personnel
or the systems employed, operated or controlled by UPSTREAM
in performance of the Services, and regardless of when such
Refundable Items arise, then UPSTREAM shall reimburse
ORBITZ for the entire amount of such loss. On a monthly
basis ORBITZ shall notify UPSTREAM of any Refundable Item
and ORBITZ shall be permitted to apply any such amounts
owed to ORBITZ arising out of Refundable Items as a credit
to reduce currently outstanding undisputed amounts owed by
ORBITZ on the then-current invoice. If the net Refundable
Items amounts owed to ORBITZ exceed the amounts owed by
ORBITZ for the current monthly period, such excess amount
shall be applied as a credit to undisputed amounts owed by
ORBITZ for the next monthly period. In the event there are
any amounts owed by UPSTREAM at the termination or
expiration of this Agreement, such amounts shall be paid to
ORBITZ within forty-five (45) days following the
termination or expiration.
8.12 TELECOM AND IVR CHARGES. ORBITZ shall be responsible for
all telecom connectivity and IVR charges necessary for the
performance of the Services from the Facilities, excluding
any intelligent call management ("ICM") routing charges,
CTI routing, connectivity and surcharges (including the
cost of T-ls and ACD-related charges ("Routing Charges"),
including, without limitation, the initial $[***] hardware
set up fee associated with connectivity (including, without
limitation, peripheral gateways, servers, dedicated
circuits, etc). The parties acknowledge that ORBITZ will
be invoiced directly by its telecom provider for the
Routing Charges, and such Routing Charges shall be
subsequently invoiced by ORBITZ to UPSTREAM, and UPSTREAM
shall pay such invoice within 30 days of receipt thereof.
Except for charges related to telecom connectivity or IVR
charges between ORBITZ and the United States facility,
which serves as the point of presence for Contacts sent to
Contractor, ORBITZ shall not be responsible for the telecom
or IVR charges related to the Contractor Agreement. ORBITZ
shall reimburse UPSTREAM, at UPSTREAM's actual cost (not to
exceed $[***] per call, inclusive of taxes), without
xxxx-up, for all outbound telephone calls made by UPSTREAM
in connection with a Contact Handled.
8.13 RIGHT TO AUDIT. During the Term and for two years
thereafter, (i) UPSTREAM shall maintain, and shall cause
its subcontractors (including the Contractor) to maintain,
true and accurate records of all information relating to
its performance of the Services and all transactions
pursuant to this Agreement and (ii) ORBITZ shall maintain
true and accurate records of all information relating to
the ARC
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and Direct Connect reports prepared by ORBITZ and provided to
UPSTREAM in connection with this Agreement. ORBITZ, its
auditors or its authorized representatives shall have the
right during normal business hours and upon reasonable
advance written notice to UPSTREAM to conduct audits or
inspections of those books and records, HR procedures and
facilities, and other documentation reasonably necessary to
verify compliance with the terms of this Agreement, accuracy
of invoices and reports provided herein. UPSTREAM, its
auditors or its authorized representatives shall have the
right during normal business hours and upon reasonable advance
written notice to ORBITZ to conduct audits or inspections of
those books, records and other documentation reasonably
necessary to verify compliance with the terms of this
Agreement and accuracy of the ARC and Direct Connect reports.
In the event any such audit reveals material errors by a
variance of 5% or more, then the auditing party reserves the
right, in addition to any other remedies available to such
party under this Agreement, at law or in equity, to recover
from the audited party the reasonable costs incurred by the
auditing party in connection with such audit. In addition,
upon reasonable advance written notice to UPSTREAM, ORBITZ,
its auditors or authorized representatives shall have access
at all reasonable times to the part of any facilities at which
UPSTREAM is providing the Services, to the UPSTREAM
personnel, to all ORBITZ-related data maintained by UPSTREAM
and to documentation relating to the Services for the purpose
of performing audits and to verify the integrity of data owned
by ORBITZ, to examine the systems that process, store, support
and transmit that data, and to examine UPSTREAM's performance
of the Services. Each party's right to conduct inspections and
audits under this Section 8.11 shall not be conducted more
than twice per year (provided that if a variance of 5% or
more is found in any particular audit, then the auditing party
shall be allowed an additional audit in that same year). All
audits and inspections hereunder shall be conducted in such a
way so as to avoid, to the extent possible, any disruption of
the audited party's business.
8.14 DISCUSSION OF FINANCIAL CONDITION. The parties agree to have
their respective financial/accounting personnel discuss, on an
as-needed basis, the financial condition of each party as it
relates to each party's ability to perform its obligations
under this Agreement. Further, each party shall provide the
other party with its annual audited financial statement within
a reasonable period of time following the availability of such
audited financial statement from the party's independent
auditors; provided, however, that if a Triggering Event
occurs, the party not the cause of such Triggering Event shall
have the right to demand, and the party causing such
Triggering Event shall provide, copies of the quarterly
unaudited financial statements of the party causing such
Triggering Event. A "Triggering Event" shall mean (i) the
failure of a party to make any payment hereunder when due and
the failure to make such payment within 30 days following
receipt of a notice from the non-defaulting party that such
21
payment is in default or (ii) if ORBITZ is entitled to 5 or
more Service Level Credits over any rolling four (4) month
period.
9. EXCLUSIVITY.
9.1 PROVISION OF SERVICES. UPSTREAM agrees that for a period of
twelve (12) months following the date that such individual has
been involved with ORBITZ's account or given access to any
ORBITZ Confidential Information, such personnel (while
employed by UPSTREAM) shall not directly or indirectly provide
services similar to those provided to ORBITZ to any
Competitive Entity (as defined in Section 9.2).
9.2 LOCATION OF SERVICES. UPSTREAM agrees that during the Term,
UPSTREAM shall not (i) establish a call center providing
similar services to the Services provided to ORBITZ to any
Competitive Entity (as defined below) within one hundred
fifty (150) miles of an UPSTREAM call center providing
Services to ORBITZ (subject to the exception for the
Contractor as stated in Section 4.4(ix)) or (ii) provide
any type of services to any Competitive Entity from the
same facility in which UPSTREAM performs the Services for
ORBITZ. "Competitive Entity" shall mean any party who
sells or otherwise provides travel products, services or
information related to airline tickets, hotels, rental
cars, cruises or vacation packages online, including,
without limitation, any GDS, Sabre Inc. (including Easy
Sabre and Travelocity), HRN, Expedia Inc. (including
Travelscape), Xxxxxxxxx.xxx Incorporated, American Express
Company, XxxxxxXxx.xxx, Cendant Corporation (including
XxxXxxx.xxx, XxxxxXxxxxxx.xxx, and Galileo International),
XxxXxxxx.xxx, Inc., XxxxxxXxxx.xxx, Xxxx00.xxx, Inc., and
any successor entity to any of the foregoing (each, a
"Competitive Entity"); provided that any individual
airline, hotel chain, cruise company or car rental company
that is not owned by one of the Competitive Entities, shall
not be considered a Competitive Entity.
10. TERM AND TERMINATION
10.1 TERM. The term of this Agreement shall commence on the
Effective Date and, unless terminated earlier as provided
herein, shall continue for five (5) years from the end of the
Implementation Period (the "Term"). The date which marks the
end of the implementation Period shall be referred to as the
"Implementation Date", and if the parties do not indicate in
writing, in the form of an Addendum to this Agreement, the
actual implementation Date, then July 31, 2002 shall be deemed
the implementation Date.
10.2 TERMINATION FOR MATERIAL BREACH. In the event either party
materially fails to perform or comply with this Agreement or
any provision hereof, including those set forth in the
Exhibits to this Agreement, and fails to remedy the default
within ninety (90) days after the receipt of written notice to
that effect, then the other party shall have the right, at its
sole option and upon written notice to the
22
defaulting party, to terminate this Agreement upon written
notice. Any notice of default hereunder shall be
prominently labeled "NOTICE OF DEFAULT," and shall be
delivered pursuant to Section 12.5. The rights and remedies
provided in this section are not exclusive and are in
addition to any other rights and remedies provided by law
or this Agreement.
10.3 TERMINATION BY ORBITZ. Orbitz shall have the right to
terminate this Agreement at any time, (i) upon notice to
UPSTREAM, in the event of a Chronic Failure (as described
in Exhibit B) or (ii) upon 9 months prior written notice to
in the event UPSTREAM undergoes any Change in Control which
results in any of the following entities having control
over UPSTREAM: any GDS, Sabre Inc. (including Easy Sabre
and Travelocity), HRN, Expedia Inc. (including
TraveIscape), Xxxxxxxxx.xxx Incorporated, XxxxxxXxx.xxx,
Cendant Corporation (including XxxXxxx.xxx,
XxxxxXxxxxxx.xxx, and Galileo International), XxxXxxxx.xxx,
Inc., XxxxxxXxxx.xxx, Xxxx00.xxx, Inc., and any successor
entity to any of the foregoing.
10.4 TERMINATION FOR CONVENIENCE. Either party may terminate this
Agreement upon nine (9) months' prior written notice at any
time after the Effective Date but prior to the date which is
one year prior to the end of the Term ("Termination for
Convenience"), with or without cause; provided, however, that
upon termination under this Section 10.4 (and not in the event
of termination for any other reason set forth elsewhere in
Section 10), the terminating party shall pay the other party a
termination fee on the effective date of such termination (the
"Termination Fee") as follows:
(a) if notice of termination is given between the
Effective Date and the first anniversary of the
implementation Date, [***];
(b) if notice of termination is given between the
first and second anniversaries of the
implementation Date, [***];
(c) if notice of termination is given between the
second and third anniversaries of the
Implementation Date, [***];
(d) if notice of termination is given between the
third and fourth anniversaries of the
Implementation Date, [***];
(e) if notice of termination is given between the
fourth anniversary and the end of the Term, [***].
Any notice of Termination for Convenience hereunder
shall be prominently labeled "NOTICE OF TERMINATION
FOR CONVENIENCE", and shall be delivered pursuant to
Section 12.6.
--------
*** Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
23
10.5 TERMINATION FOR INSOLVENCY. Either party shall have the right
to terminate this Agreement at anytime, upon 30 days' prior
written notice to the other party, if such other party (a)
goes into voluntary or involuntary liquidation, (b) is
declared insolvent either in bankruptcy proceedings or other
legal proceedings; is or becomes party to an agreement with
creditors due to such party's failure or inability to pay its
debts as they fall due, (c) has a receiver appointed over the
whole or part of such party's business.
10.6 TRANSITIONAL SERVICES. Upon any termination of this Agreement
by either party' regardless of the reason, UPSTREAM shall, at
ORBITZ's request, provide ORBITZ such transitional services as
are reasonably necessary to permit ORBITZ to transfer the
performance of the Services to ORBITZ's own personnel and/or
to another provider or providers, such as, by way of example,
the orderly delivery to ORBITZ of its database in suitable
form, the continuation and tapering of Services as necessary
to minimize disruption, training or support services, and
assignment of post office boxes and telephone numbers (the
"Transitional Services"). Once ORBITZ and UPSTREAM have
reached agreement on the nature and scope of Transitional
Services, UPSTREAM shall provide to ORBITZ an estimate of the
entire cost thereof. In the event that a party is in material
breach of this Agreement, such breaching party shall be
responsible for all reasonably mutually-agreed costs arising
out of such transition services incurred by the non-breaching
party, provided, however that such non-breaching party shall
use commercially reasonable efforts to mitigate such costs.
Payment for the Transitional Services provided by UPSTREAM
shall be made pursuant to the terms of Section 8.1 or as the
parties may otherwise agree in writing. Payment of any
outstanding amounts due pursuant to Section 8 shall continue
to be due pursuant to the terms of this Agreement. Upon
termination of this Agreement for any reason, UPSTREAM shall
promptly return to ORBITZ (or at ORBITZ's request, destroy)
any and all ORBITZ Data, Customer Information or other
Confidential Information of ORBITZ in UPSTREAM's possession.
10.7 SURVIVAL. The following provisions shall survive any
termination or expiration of this Agreement: 2; 4.4(iii),
(iv), (vii) and (ix)(B); 7; 8.1 -8.13; 9.1; 10- 12.
11. INDEMNIFICATION AND LIMITATIONS ON LIABILITY.
11.1 MUTUAL INDEMNITIES. Each Party agrees to indemnify, defend,
and hold harmless the other Party and its successors, assigns,
affiliates, officers, employees, and agents from and against
any and all claims, actions, damages, liabilities, costs and
expenses, including reasonable attorneys' fees and expenses,
arising out of any third party claim related to:
(a) Any death or personal injury, or any destruction of
or damage to any real or tangible personal property,
alleged to have been caused by or on behalf of the
indemnifying Party or its employees or agents.
(b) Any infringement of a United States letters patent, a
trade secret, or any copyright, trademark, service
xxxx, trade name or similar proprietary rights
conferred by statute, by common law, or by contract
alleged to have
24
occurred as a result of rights conveyed, materials
provided, or work performed by or on behalf of the
indemnifying Party.
11.2 INDEMNIFICATION.
(a) UPSTREAM agrees to indemnify, defend and hold
harmless ORBITZ and its successors, assigns,
affiliates, officers, employees and agents from
and against any and all claims, actions, damages,
liabilities, costs and expenses, including
reasonable attorneys' fees and expenses, arising
out of any third party claim related to (i) the
characterization, as a result of the conduct of
UPSTREAM, by any taxing authority of any employee
or contractor engaged by UPSTREAM to perform the
Services as an employee of ORBITZ for the purposes
of imposing upon Orbitz liability for payroll
taxes, (ii) the negligent, willful or intentional
misconduct of UPSTREAM personnel in performance of
the Services, (iii) any claims to the extent due
to violations by UPSTREAM personnel of applicable
laws, (iv) breach of any of UPSTREAM's
representations or warranties under this
Agreement, and (v) any Contractor Actions or any
breach by Contractor of the Contractor Obligations.
(b) ORBITZ agrees to indemnify, defend and hold
harmless UPSTREAM and its successors, assigns,
affiliates, officers, employees and agents from
and against any and all claims, actions, damages,
liabilities, costs and expenses, including
reasonable attorneys' fees and expenses, arising
out of any third party claim related to (i)
willful or intentional tortuous conduct of ORBITZ
personnel, (ii) violations by ORBITZ of applicable
laws (iii) breach of any of ORBITZ's
representations or warranties under this
Agreement, (iv) UPSTREAM's use, in accordance with
applicable specifications or manuals, of any
software, equipment, information or materials
provided by ORBITZ, which infringe on a trademark,
service xxxx, copyright or other intellectual
property right of any third party and (v) ORBITZ
marketing materials, products or services.
11.3 INDEMNIFICATION PROCEDURES. Any Party claiming indemnification
pursuant to this Agreement will give the indemnifying Party
prompt written notice of any matters with respect to which
this indemnity may apply, will give the indemnifying Party
full opportunity to control the response thereto and the
defense thereof, and will provide reasonable cooperation and
assistance in connection with the defense and/or settlement of
the claim. However, the indemnified Party may, at its own
expense, participate in such defense and in any settlement
discussions, either directly or through counsel of its choice.
11.4 LIMITATIONS ON LIABILITY. ANY LIABILITY OF EITHER PARTY
ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED ON
CONTRACT, TORT, NEGLIGENCE, INTENDED CONDUCT, STRICT
LIABILITY, OR OTHERWISE, WILL BE LIMITED TO THE OTHER PARTY'S
ACTUAL, DIRECT DAMAGES AND WILL BE SUBJECT TO THE FOLLOWING:
11.5 EXCEPT FOR DAMAGES RESULTING FROM THE LIABLE PARTY'S GROSS
NEGLIGENCE, WILLFUL MISCONDUCT, OR FAILURE TO PERFORM ANY OF
ITS CONFIDENTIALITY, INDEMNIFICATION, OR
25
PAYMENT OBLIGATIONS HEREUNDER, THE AMOUNT OF DAMAGES
RECOVERABLE AGAINST THE LIABLE PARTY FOR ALL EVENTS, ACTS,
AND OMISSIONS WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL
AMOUNT OF FEES PAID BY ORBITZ TO UPSTREAM UNDER THIS
AGREEMENT.
11.6 IN NO EVENT WILL THE LIABLE PARTY BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES,
EXCEPTING DAMAGES ARISING OUT OF (1) BREACH OF THE
CONFIDENTIALITY PROVISIONS HEREIN OR (U) THE LIABLE PARTY'S
INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 11.
12. MISCELLANEOUS.
12.1 REFERENCES. Neither party shall advertise that UPSTREAM
provides the Services to ORBITZ or otherwise use the other
party's name without the express prior written consent of the
other party or, in any event, disclose any of the other
party's Confidential Information, which shall include, without
limitation, the terms of this Agreement, except as required by
law or to that party's attorneys, accountants or other
advisors as reasonably necessary.
12.2 GOVERNING LAW. This Agreement shall be governed by the
laws of the state of
New York, without giving effect to
conflicts of laws principles.
12.3 ARBITRATION. Any controversy or claim arising out of, in
connection with or relating to this Agreement shall be
resolved solely by the parties' management and according to
the dispute resolution procedures set forth in Exhibit E,
which is attached hereto and by this reference made a part
hereof.
12.4 MODIFICATIONS. This Agreement may not be modified or
altered in any respect, except in writing by the parties.
12.5 ASSIGNMENT. This Agreement will be binding upon, and inure
to the benefit of, the Parties and their respective
successors and assigns. However, (i) ORBITZ may, without
the prior written consent of UPSTREAM, assign or transfer
this Agreement, or any of its rights or obligations under
this Agreement, to any person or entity other than one who
(A) merges, consolidates, or otherwise combines with ORBITZ
or otherwise acquires all or substantially all of the
operating assets of ORBITZ, and (B) agrees or otherwise
becomes legally obligated to comply with and be bound by
the provisions of this Agreement to the same extent as
ORBITZ; and (ii) UPSTREAM may, without the prior written
consent of ORBITZ, assign or transfer this Agreement to
UpStream, Inc. (a wholly-owned subsidiary of UPSTREAM as of
the Effective Date), but only if (A) Upstream, Inc. agrees
or otherwise becomes legally obligated to comply with and
be bound by the provisions of this Agreement to the same
extent as UPSTREAM, (B) Upstream, Inc. offers call center
services similar to the Services being provided hereunder
in the ordinary course of its business and (C) UPSTREAM
guarantees to ORBITZ, in writing, every obligation and
liability of Upstream, Inc. to the same extent as though it
had been named as a party to this Agreement.
12.6 NOTICES. Any notice required or permitted by this Agreement
will be deemed given (i) when delivered, if delivered by hand
or by facsimile (transmission
26
confirmed), (ii) on the next business day, if sent by
overnight courier service for next business day delivery,
or (iii) on the third business day, if sent by prepaid
United States mail, return receipt requested, in each case
to the applicable Party at the address or facsimile number
specified as follows: If to ORBITZ:
Orbitz, LLC
000 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: 000-000-0000
With a copy to:
Orbitz, LLC
000 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile No.: 000-000-0000
If to UPSTREAM:
Xxxxxxxxxx International, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: President
Facsimile No.: 000-000-0000
with a copy to:
Xxxxxxxxxx International, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile No.: 000-000-0000
Either Party may change its address or facsimile number for
notice purposes by giving the other Party prior written notice
of the new address and/or facsimile number and the date upon
which the change will be effective.
12.7 FORCE MAJEURE. Neither Party will be responsible or liable
for, and that Party will be excused from, any
non-performance or delay in the performance of any of its
non-monetary obligations under this Agreement if and to the
extent that such non-performance or delay (i) is caused by
an act of God, terrorist act, natural disaster, civil
disturbance, or any other factor beyond the control of that
Party, whether or not foreseeable, and (ii) could not have
been prevented by that Party's taking normal and customary
precautions. In the event that either Party is excused from
the performance of its obligations pursuant to this
Section, then that Party will use all efforts that are
practicable under the circumstances to resume performance
of its obligations as soon as feasible.
12.8 FURTHER ASSURANCES. Each Party agrees to execute, acknowledge,
and deliver such further instruments and documents, and to do
such other acts and things, as may
27
be required by law or reasonably requested by the other
Party to carry out the full intent and purposes of this
Agreement.
12.9 THIRD PARTY BENEFICIARIES. This Agreement is for the
benefit of the Parties and is not intended to confer any
rights or benefits on any third party, including any
employee or creditor of either Party.
12.10 NO WAIVER; CUMULATIVE REMEDIES. No delay on the part of either
Party in exercising any right, power or privilege hereunder
will operate as a waiver thereof. No waiver on the part of
either Party of any such right, power or privilege will
preclude any further exercise thereof or the exercise of any
other such right, power or privilege. 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.
12.11 CONSTRUCTION. The Section and similar headings used in this
Agreement are for reference purposes only and are to be given
no effect in the construction or interpretation of this
Agreement. Any references in this Agreement to an Article,
Section, or Exhibit is to that Article or Section of, or that
Exhibit to, this Agreement, unless otherwise specified. As
used in this Agreement, the words "hereof" or "hereunder" or
other words of similar import refer to this entire Agreement
and not any separate portion hereof, unless otherwise
specified.
12.12 SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction will, as to
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without either invalidating
the remaining provisions hereof, to the extent that such
remaining provisions are capable of substantial performance,
or affecting the validity or enforceability of such provision
in any other jurisdiction.
12.13 COUNTERPARTS. This Agreement maybe executed in multiple
counterparts, each of which will be an original and all of
which will together constitute one single agreement between
the Parties.
12.14 ENTIRE AGREEMENT. This Agreement, including the Exhibits
hereto, each of which is incorporated herein for all purposes,
constitutes the entire agreement and understanding of the
Parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both
written and oral, between the Parties with respect to the
subject matter hereof.
IN WITNESS WHEREOF, UPSTREAM and ORBITZ have caused this Agreement to be
executed as of the Effective Date.
Xxxxxxxxxx International, Inc. Orbitz, LLC
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxx
---------------------------------- -------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx Xxxx
-------------------------------- -----------------------
Title: Vice President Sales, Marketing Title: VP Customer Experience
------------------------------- ----------------------
/S/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
--------------------------------------
Senior Vice President
--------------------------------------
28
EXHIBIT A
SERVICES
OVERVIEW
UPSTREAM will provide outsourced customer contact center services to ORBITZ,
inclusive of effectively and satisfactorily handling inbound and outbound
customer contacts (telephone Contacts and emails), providing effective
management practices, and leading contact center technology solutions.
All services shall be provided in English. In addition, UPSTREAM shall make
available Customer Service Specialists capable of providing the Service in
Spanish, as necessary, based on anticipated demand for Spanish speaking
Customer Service Specialists of up to five percent (5%) of the total daytime
staff; 7:00 am to 7:00 pm Central Time. For all other hours, emergency services
requiring Spanish language Services shall be handled through a third-party
translation service, and other calls requiring Spanish language Services may be
handled on the following business day.
UPSTREAM will handle both inbound Tier 1 and Tier 2 call and email volumes. The
ORBITZ inbound call volume is segmented into non-complex customer service
inquiries, including website navigation, general questions about booking a
reservation, error messages they receive on the website, etc. (approximately
60% of all contacts), known as Tier 1 contacts, and more complex, airline
ticketing, hotel and rental car inquiries (approximately 40% of all contacts),
known as Tier 2 contacts.
DEFINITIONS
CUSTOMER SERVICE SPECIALIST - The general term for an UPSTREAM employee who
handles both inbound and outbound telephone Contacts and/or processes inbound
email Contacts.
TIER 1 (CUSTOMER SERVICE SPECIALIST) - Inbound ORBITZ telephone Contacts
related to general customer inquiries that do not require the Specialist to
have a travel background to effectively handle the inquiry but does require
in-depth knowledge of the ORBITZ web site, navigation techniques, business
rules, etc. Call types that are defined as Tier 1 include: General Site
Questions/Navigation, Itinerary Confirmation, Questions on ORBITZ Policies,
Pre-Booking Air Problems, Hotel Questions/Problems, Car Questions/Problems,
Seat Assignment, and other Miscellaneous Questions/Problems that may result
from using the Web Site. Tier 1 Customer Service Specialist will also respond
to email requests sent to XXXXXX.xxx These inquiries will be handled in the
same manner as phone Contacts with the response back through email unless the
customer requests a different mode of contact.
TIER 2 (CUSTOMER SERVICE SPECIALIST) - Inbound ORBITZ telephone Contacts
related to more complex customer inquiries that require the Specialist to have
a significant travel and GDS (`global distribution system') background to
effectively handle the inquiry. Call types that are defined as Tier 2 include:
Airline Ticket Exchange, Schedule Changes, Airline Ticket Refunds, Airline
Reservation Cancellation, Complex Airline Purchase/Booking Problems, and other
Complex Questions/Problems relating to any product ORBITZ sells on its web site
after a purchase has been made. Tier 2 representatives will also be the primary
customer service Specialist that handles ORBITZ Corporate Contacts. These are
all Contacts that will be sent over a separate 800 line and provide special
services relating to Corporate customers to be defined in future requirements
and work processes. Tier 2 Customer Service Specialist will also respond to
email requests sent to XXXXXX.xxx. These inquiries will be handled in the same
manner as phone Contacts with the response back through email unless the
customer requests a different mode of contact.
EXPERIENCED SPECIALISTS - Specialist with an average of 2 years of UPSTREAM
inbound contact handling experience OR an average of 3 years of customer
-facing/GDS utilizing travel agency experience.
INEXPERIENCED SPECIALIST - Specialist without the experience identified in the
definition of an Experienced Specialist.
29
EMAIL PROCESSED - The completion of a response to an inbound customer email in
which the Specialist reads the content of the customer email and crafts a
custom or template response that effectively addresses the customer's initial
email request. Auto-reply email responses sent to customers are not included as
Emails Processed for billing or Service Level purposes. In addition, UPSTREAM
will use best efforts to monitor the number and types of emails that cannot be
delivered to customers due to bad email addresses. These in cases where emails
contain critical information such as schedule changes, purchase confirmations,
account change notifications, travel alert documentation or cancellation
requests, UPSTREAM will evaluate and attempt to call the customer if a phone
number exists in their file. The Specialist will they attempt to obtain the
proper email address from the customer in order to update the customer record
and resend the email.
TERMS
The all-inclusive pricing, identified in the Pricing Section of this contract
includes all costs associated with delivering customer service to the service
levels identified in the Service Level Agreement.
2. Team Leaders shall be hired and assigned full-time to the ORBITZ
Program on a 15:1 ratio. This means for every 15 Specialists approved
and assigned to the ORBITZ program, one full-tune dedicated Team
Leader shall be assigned. This Team Leader shall be an experienced
individual as defined above. The Team Leader Role will be to
manage Tier 1 or 2 Customer Service Specialists, provide scheduling
assistance, be available to answer process and procedure questions,
monitor Contacts and act as an escalation for customers who have
complaints or issues regarding the service they received. Team
Leaders are defined as `Key Personnel' in the Agreement for
Services and the requirements for filling such Team Leader roles
shall be mutually agreed upon by the parties and the actual
employees to serve as Team Leaders will be mutually agreed upon by
the parties prior to being assigned to the ORBITZ Program. Team
Leader level or above staff shall be on-duty to cover every
shift,-including overnight, weekend and holiday shifts at each of
the contact center locations in which the ORBITZ Program is served.
Quality Assurance Coaches (`QAC') shall be hired and assigned full-time
to the ORBITZ Program on a 15:1 ratio for Inexperienced Specialists and
30:1 for Experienced Specialists. QAC Roles included monitoring
Contacts and providing direct feedback to Tier 1 and 2 Customer Service
Specialist. They will also be responsible for consistency between the
sites, act as a measure for overall quality and provide reports
detailed accuracy of Contacts handled. QACs are defined as `Key
Personnel' in the Agreement for Services and the requirements for
filling such QAC roles shall be mutually agreed upon by the parties and
the actual employees to serve as QACs will be mutually agreed upon by
the parties, prior to being assigned to the ORBITZ Program. At least
two (2) QAC's shall be designated and assigned full-time to the quality
assurance monitoring of up to 30 Email Specialists.
4. Attrition Training
i. UPSTREAM will provide ORBITZ a monthly Headcount/Attrition
report
ii. UPSTREAM shall be solely responsible for the training and
other costs associated with replacing Specialists who have
left the ORBITZ Program for any of the following reasons:
resignation, termination, transfer to another program,
promotion, demotion, or retirement.
iii. Attrition Training Cost consists of new hire training costs,
including the hourly agent-training wage, trainer expense,
materials, Specialist nesting costs, or any other related
cost.
5. Coaching/On-Floor Training
i. Specialist coaching and on-floor training will be conducted by
Team Leaders, QAC's, Trainers, or other management as needed
to ensure high-quality of customer service and to ensure that
Specialists understand ORBITZ policies, procedures, and
contact handling workflows.
ii. UPSTREAM shall bear the cost of all Specialist coaching and
on-floor training.
30
iii. Coaching/On-Floor Training time shall be recorded by each
Specialist by tracking time via AUX code of the ACD.
6. UPSTREAM shall be responsible for all costs associated with recruiting,
hiring, employee screening, and other related activities.
7. ORBITZ will require each candidate for hire to achieve a reasonable
proficiency level acceptable to Orbitz on the ORBITZ certification test
prior to taking calls. This test will be created and approved by ORBITZ
and may be edited based on UPSTREAM HR feedback and as additional
hiring experience is obtained.
8. ORBITZ may have two (2) full-time ORBITZ-employees on-site in each of
the UPSTREAM contact center locations. These employees will be provided
permanent work spaces within the UPSTREAM locations in which to work.
These spaces for both these employees will be provided a networked PC
with standard software, a telephone with DID, and access to a printer
and fax.
9. ORBITZ shall have full-time dedicated UPSTREAM Trainers who will be
responsible for the development of the Specialists training curriculum
(both formal classroom and coaching/on-floor training) as well as the
continuous focus on improving customer service quality and minimizing
handle time. The Trainers are defined as `Key Personnel' in the
Agreement for Services and the requirements for filling such Trainer
roles shall be mutually agreed upon by the parties and the actual
employees to serve as Trainers will be mutually agreed upon by the
parties, prior to being assigned to the ORBITZ Program. ORBITZ may
determine at any time and for any reason to elect to have a new Trainer
assigned to the ORBITZ program.
10. All Team Leaders, QACs, Trainers, and management are required to attend
ORBITZ training. At the discretion of ORBITZ, ORBITZ may require Team
Leaders, QAC's Trainers, or other management involved in the ORBITZ
program top the ORBITZ Certification Test prior to involvement on the
ORBITZ program. All non-Specialist training costs are considered
included in the all-inclusive pricing identified in 1.3. above. It is
expected that Team Leaders, QAC's, Trainers and other UPSTREAM
management would be required to complete additional standard UPSTREAM
training related to their position prior to involvement on the ORBITZ
program.
11. New Hire Training Curriculum Lengths
New Hire Tier l: 4 to 5 weeks
New Hire Tier 2: 2 to 3 weeks
Tier 1 to Tier 2 Conversion: 2 to 4 weeks
GDS Conversion Training: 1 week
12. Nesting Requirements - UPSTREAM shall follow the Nesting process for
all new Specialists as defined in the ORBITZ Nesting Requirements
document, dated July 2001. The Nesting process is subject to revision
and will require mutual approval by ORBITZ and UPSTREAM. The parties
shall mutually define the Nesting Requirements prior to the end of the
Implementation Period.
13. UPSTREAM shall dedicate a portion of the QAC team to the inbound phone
quality monitoring and a portion to email quality monitoring, dependent
on the phone/email ratio.
14. Inbound phone and Email QAC's shall perform at least a 1% review of
all contacts made to the operation and develop quality scorecards based
on this volume ongoing.
15. The QAC teams shall continue to populate the Contact Driver database
for the tracking of call types as defined by the ORBITZ Feedback Loop
Process definition. The parties will mutually define a Feedback Loop
Process prior to the end of the Implementation Period.
31
16. UPSTREAM shall provide ORBITZ with the Avaya and/or ICM hardware and
software (i.e. CentreVu) necessary to provide ORBITZ with a real-time
view into the combined Customer Service Center's contact activity,
including contacts in queue, abandonment rate, average handle time,
etc.
17. UPSTREAM shall provide ORBITZ connectivity to UPSTREAM's data network
to enable the real-time view of email history and in queue via the Kana
platform.
18. UPSTREAM shall provide the following management reports with the
frequency identified below (See Attachment X-Y) for sample report.
ORBITZ requires these reports be available via web-based access and
those designated as "a" - "d" below must be on a real time basis. Those
reports designated as "e" through "1" below will be defined by the
parties during the Implementation Period.
a. 1/2 interval Reporting for Combined Operations
(Daily/Weekly/Monthly) -- as requested
b. ORBITZ 7-Day Rolling Report
c. IVR/ACD integrated report (VDN reporting)
d. Email Reporting (basic Kana reports)
e. Agent Scorecard-combined, by center, by Team Lead
f. Team Lead Scorecard-combined, by center
g. QA Report-Phone
h. QA Report-Email
i. Attrition Report
Headcount Report
k. Training Reports
Any reports required to measure Service Levels identified in
Section Y
20. TECHNOLOGY OVERVIEW FOR THE FACILITIES:
COMPUTER AND PHONE SYSTEMS. UPSTREAM will provide all of its
personnel providing Services hereunder with a desktop with Gateway E-3600 with
19" monitors, 1.6 ghz processor, 256 mb RAM, 00 xx xxxx xxxxx, XX-XXX 20x,
Windows 2000, Ethernet Adaptor and speakers or at least comparable desktops.
UPSTREAM will provide industry standard, commercial grade phone systems using an
Avaya Definity Enterprise Communications Server, Model G3si Versions 6,8 & 9.
The system will allow for digital voice communications switch for processing and
reporting on telephone calls and/or data communications in addition to a feature
rich system including an ACD and an adjunct CMS for reporting. Additionally, not
later than the conclusion of the Implementation Period, UPSTREAM will equip the
desktops with remote monitoring and recording capabilities of both calls and
data for quality control purposes, joint monitoring and calibration.
Within 60 days of the conclusion of the Implementation Period,
UPSTREAM will equip the desktops with workforce management for the purposes of
organizational management, robust forecast and scheduling, strategic planning,
and capacity planning to drive cost effectiveness and workforce optimization.
21. IMPLEMENTATION OBLIGATIONS. UPSTREAM will hire and train
UPSTREAM personnel, program the ACD and take all such other actions necessary to
enable UPSTREAM to fulfill its obligations under the Project Plan, which may be
modified from time-to-time upon mutual agreement of the parties.
22. POLICIES AND PROCEDURES GUIDE. UPSTREAM shall create
the Policies and Procedures Guide as set forth in Section 5.15 and shall
perform the Services pursuant thereto. Each of the activities to be taken by
UPSTREAM or its agents in performance of the Services, as described in the
Policies and Procedures Guide shall be included in the definition of "Services."
TECHNOLOGY OVERVIEW OF UPSTREAM CUSTOMER CARE CENTER
Switch Lucent G3 vr x
32
Intelligent Call Routing Cisco ICM v. y
CTI Cisco CTI
WorkForce Management Blue Pumpkin (or TBD)
Implementation Date: By end of
Implementation Period per contract
Digital Contact Recording Nice (or TBD)
Implementation Date: By end of
Implementation Period per contract
Desktop Intel Pentium IV (1.2 ghz), 128 mb
RAM, 40 gb hdd, 3.5" 1.44 floppy disk
drive, 10/100 NIC card, 17" monitor,
WIN 2000 pre-loaded
TELECOMMUNICATION TERMS
ACD: Automatic Call Distribution. A queue for holding Contacts until an agent
is free to service them. Typically plays music on hold and marketing messages
to the caller.
ANT: Automatic Number Identification. The telephone number of the phone that
the caller dialed from. This is similar to caller ID, but does not include the
name.
AUTOMATED ATTENDANT: An automated system that answers the phone and provides
the caller with options (press one for this, press two for that).
B-CHANNEL: A segment of an ISDN line that carries one voice call.
D-CHANNEL: A segment of an ISDN line that sends data such as the ANT to the
PBX and is used for call control.
BRI: Basic Rate Interface. An ISDN line that supports 2 B-channels and one
D-channel CTI: Computer Telephony Integration. The merging or convergence of
computer applications and telephony technologies.
CO: Central Office. Typically referrers to the main telephone company
equipment location for a certain area.
DNIS: Dialed Number Identification Service. The number the caller dialed.
DTMF: Dual Tone Multi Frequency: is the signal to the phone company that you
generate when you press an ordinary telephones touch keys.
ICM: Intelligent Contact Management Cisco software that connects telephony
networks and components (PBXs and ACDs) with backend databases and applications
in order to allow advanced call routing capabilities.
IVR: Interactive Voice Response. This is a more advanced system than an
Automated Attendant. It enables a caller to do more complex actions such as
account balance lookups based on the user imputing information via voice or
touch tone.
ISDN: Integrated Services Digital Network# A protocol for carrying voice and
data over digital lines.
ORBITZ AGENT DESKTOP: Formally known as K-Term. This is an enhanced k-term
application that includes workflows, caller history and multiple GDS access.
33
PBX: Private Branch Exchange. A telephone exchange particular to a private
organization.
PG: Peripheral Gateway. A device that translates request between an ICM and
its connected peripherals.
PRI: Primary Rate Interface. An ISDN line that supports 23 B-channels and one
D-channel.
TTS: Text to Speech. Computer generated speech that is read from a text-based
document.
UUI: User to User Information. A way to pass information over the D-channel of
an ISDN line.
UUID: Unique User Identifier. A TellME specific identifier assigned uniquely
to each call.
VDN: Vector Defined Network. An alternate way to dial a number.
VPN: Virtual Private Network. A term used when encrypting data between two
points and transporting that data over the public Internet.
VXML: VoiceXML. An industry standard markup for voice enabling applications.
IF UPSTREAM DECIDES, IN ITS REASONABLE DISCRETION, TO CHANGE ANY OF THE
FOREGOING TECHNOLOGY USED BY UPSTREAM IN PERFORMANCE OF THE SERVICES, AND SUCH
CHANGE RESULTS IN ADDITIONAL CHARGES TO ORBITZ RELATED TO SUCH TECHNOLOGY,
UPSTREAM SHALL BE RESPONSIBLE FOR ALL SUCH CHARGES.
23. UPSTREAM and ORBITZ shall work together in good faith to mutually agree
upon modified standards and procedures for conducting criminal background
checks by May 15, 2002, at which time all UPSTREAM employees hired thereafter
and employed on the Orbitz account shall meet the agreed-upon background check
standards. In the event that UPSTREAM becomes aware that an UPSTREAM employee
assigned to the ORBITZ account is subsequently convicted of a criminal felony
or material misdemeanor, UPSTREAM shall remove that employee from the ORBITZ
account.
24. ORBITZ shall have the right to demand that UPSTREAM remove from the
Orbitz account any employee providing Services, and UPSTREAM shall remove such
employee from the Orbitz account, in the event such employee has acted
unprofessionally in performance of the Services. Further, the Policies and
Procedures Guide will include expected conduct and required action for
unprofessional performance of the Services.
34
EXHIBIT B
SERVICE LEVEL REQUIREMENTS
1. SERVICE LEVEL: TELEPHONE CONTACT RESPONSE TIME
Minimum Service Level Requirement: UPSTREAM must achieve an Average
Speed of Answer of [***] seconds or less ("ASA") to satisfy this
Service Level; provided, however, that if the Ticket Transactions
projected in the Monthly Forecast for the most immediate month to which
such Forecast applies (e.g. for the Monthly Forecast provided on August
1, the most immediate month would be August) is exceeded, the Required
Percentage shall be adjusted as follows:
Forecast Exceeded by: ASA:
[***]% [***]
[***]% [***]
[***]% [***]
[***]% [***]
* In the event the Forecast is exceeded by more than [***]%, UPSTREAM
shall use commercially reasonable efforts achieve an ASA of at least
[***] seconds, but any failure to do so will not result in any Service
Level Credits or in material breach of this Agreement.
For purposes of this Service Level Requirement: "Average Speed of
Answer" means the average delay of all calls; it is total Delay divided
by total number of Contacts. "Delay" means the time a caller spends in
queue, waiting for an UPSTREAM agent to become available.
Service Level Bonus: the ASA for telephone based Contacts is:
(i) within [***] seconds or less, UPSTREAM will be
entitled to a bonus of [***];
(ii) within [***] seconds or less, UPSTREAM will be
entitled to a bonus of [***];
(iii) within [***] seconds or less, UPSTREAM will be
entitled to a bonus of [***]
Service Level Credit: If the ASA for telephone based Contacts is:
(i) [***] seconds, ORBITZ shall be entitled to a Service
Level Credit of [***];
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35
(ii) [***] seconds, ORBITZ shall be entitled to a Service
Level Credit of [***];
(iii) [***] seconds or more, ORBITZ shall be entitled to a
Service Level Credit of [***]
Notwithstanding the foregoing, for a period of [***] months
commencing on the Implementation Date, UPSTREAM shall not be
entitled to any Service Level Bonuses and ORBITZ shall not be
entitled to any Service Level Credits pursuant to this Section
1. At the end of such [***] month period, the parties will
mutually determine any necessary adjustments to this Service
Level Requirement; provided that if the parties cannot
mutually agree upon any necessary adjustments prior to the end
of such [***] months period, then the Service Level
Requirement and subsequent revised bonus and credits, shall
apply to UPSTREAM's performance with respect to telephone
Contact response time.
2. SERVICE LEVEL: TELEPHONE CONTACT HANDLED ACCURACY
Minimum Service Level Requirement: UPSTREAM shall monitor at least
[***]% of telephone-based Contacts and evaluate each Contact Handled
for the accuracy of the information provided to the customer, which
evaluation shall be conducted in accordance with the QA Scoresheet,
which sets forth metrics and performance goals to be achieved by each
agent. UPSTREAM shall submit a QA Scoresheet to ORBITZ as soon as
reasonably practicable, and the parties agree to use commercially
reasonable efforts to agree upon a final QA Scoresheet no later than
the end of the Implementation Period. The final version of the QA
Scoresheet will be incorporated by reference herein and attached to
this Exhibit B as Schedule 1. The monitoring and evaluation of the
UPSTREAM agents shall be done by the appropriate UPSTREAM quality
assurance personnel; provided, however that ORBITZ reserves the right
to use its own personnel or contractors to participate in or perform
such monitoring and evaluations. At least twice per month, the parties
shall meet and jointly review the evaluations. UPSTREAM shall report
the average agent accuracy based on the monitoring and evaluation (the
"Accuracy Percentage") to ORBITZ. An Accuracy Percentage of [***]%
shall satisfy' this Service Level.
Service Level Bonus: If the Accuracy Percentage is
(i) [***]%, UPSTREAM will be entitled to a bonus of [***];
(ii) [***]%, UPSTREAM will be entitled to a bonus of [***];
(iii) [***]%, UPSTREAM will be entitled to a bonus of [***]
Service Level Credit: If the Accuracy Percentage is
(i) [***]% ORBITZ shall be entitled to a Service Level
Credit of [***];
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36
(ii) [***]%, ORBITZ shall be entitled to a Service Level
Credit of [***];
[***]% or less, ORBITZ shall be entitled to a Service
Level Credit of [***]
3. SERVICE LEVEL: EMAIL RESPONSE TIME
Minimum Service Level Requirement: UPSTREAM shall provide an
auto-response to every email-based Contact within 30 minutes. On
average [***]% of all email-based Contacts must result in a Contact
Handled within [***] hours of the initiation of the Contact (the "Time
Requirement"); provided, however, that if the Ticket Transactions
projected in the Monthly Forecast for the most immediate month to which
such Forecast applies (e.g. for the Monthly Forecast provided on July
31, the most immediate month would be August) is exceeded, the Time
Requirement shall be adjusted as follows:
Forecast Exceeded by: Time Requirement:
[***]% [***] hours [***] minutes
[***]% [***] hours [***] minutes
[***]% [***] hours [***] minutes
[***]% [***]
In the event the Forecast is exceeded by more than 10%, UPSTREAM shall
use commercially reasonable efforts to respond to all email-based
Contacts within 4 hours 45 minutes, but any failure to do so will not
result in any Service Level Credits or in material breach of this
Agreement.
Service Level Bonus: if within the Time Requirement, the Contact
results in a Contact Handled:
(i) [***]% of the time, UPSTREAM will be entitled to
bonus of [***];
(ii) [***]% of the time, UPSTREAM will be entitled to a
bonus of [***];
(iii) [***]% of the time or more, UPSTREAM will be
entitled to a bonus of [***]
Service Level Credit: if within the Time Requirement, the Contact
results in a Contact Handled less than [***]% of the time, ORBITZ shall
be entitled to a Service Level Credit of [***]% of the Transaction Fees
multiplied [***]%.
4. SERVICE LEVEL: EMAIL CONTACT HANDLED ACCURACY
Minimum Service Level Requirement: UPSTREAM shall monitor at least
[***]% of email-based Contacts and evaluate each Contact Handled for
the accuracy of the
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37
information provided to the customer, which evaluation shall be
conducted in accordance with the QA Scoresheet, which sets forth
metrics and performance goals to be achieved by each agent. UPSTREAM
shall submit a QA Scoresheet to ORBITZ as soon as reasonably
practicable, and the parties agree to use commercially reasonable
efforts to agree upon a final QA Scoresheet no later than the end of
the Implementation Period. The final version of the QA Scoresheet
will be incorporated by reference herein and attached to this Exhibit
B as Schedule 1. The monitoring and evaluation of the UPSTREAM agents
shall be done by the appropriate UPSTREAM quality assurance
personnel; provided, however that ORBITZ reserves the right to use
its own personnel or contractors to participate in or perform such
monitoring and evaluations. At least once per month, the parties
shall meet and jointly review the evaluations. UPSTREAM shall report
the average agent accuracy based on the monitoring and evaluation
(the "Accuracy Percentage") to ORBITZ. An Accuracy Percentage of [***]
% shall satisfy this Service Level.
Service Level Bonus: If the Accuracy Percentage is
(i) [***]%, UPSTREAM will be entitled to a bonus of [***];
(ii) [***]%, UPSTREAM will be entitled to a bonus of [***];
(iii) [***]%, UPSTREAM will be entitled to a bonus of [***]
Service Level Credit: If the Accuracy Percentage is
(i) [***]%, ORBITZ shall be entitled to a Service Level Credit of
[***];
(ii) [***]%, ORBITZ shall be entitled to a Service Level Credit of
[***];
(iii) [***]% or less, ORBITZ shall be entitled to a Service Level
Credit of [***]
5. SERVICE LEVEL: SYSTEMS AVAILABILITY
Minimum Service Level Requirement: UPSTREAM shall be responsible for
making the pieces of the UPSTREAM Systems (including hardware, software
middleware, and firmware) available at [***]% over 365 days/year, 7
days/week, and 24 hours/day, measured on a monthly basis. Monthly
System Availability means, for each calendar month, the percentage
obtained by dividing (i) the aggregate time that the UPSTREAM System is
available to ORBITZ customers during that month, by (ii) the total time
during that month less any Scheduled Downtime during that month and any
time during that month that the UPSTREAM System was not available as a
result of unplanned telecommunication outages or other causes outside
of UPSTREAM's control. For those pieces of the UPSTREAM Systems, which
UPSTREAM does not control UPSTREAM shall use commercially reasonable
efforts to work with UPSTREAM's vendors to
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38
achieve an overall availability of [***]% over 365 days/year,
7 days/week, and 24 hours/day. This covers all unscheduled Systems
outage as well as any scheduled outage (including scheduled
downtime/maintenance as described below.
Service Level Credit: In the event that the Monthly System Availability
of the UPSTREAM System is less than [***]% during any calendar month
during the Term of this Agreement, ORBITZ shall be entitled to a
Service Level Credit determined in accordance with the following:
MONTHLY SYSTEM AVAILABILITY SERVICE LEVEL CREDIT
--------------------------- --------------------
[***]% - [***]% [***]
[***]% - [***]% [***]
[***]% [***]
6. TERMINATION FOR CHRONIC FAILURE
If ORBITZ is entitled to [***] or more Service Level Credits at the
[***]% level over any rolling four (4) month period, ORBITZ shall have
the right, without financial penalty, to terminate the entire Agreement
pursuant to Section 10.3 of the Agreement.
7. In addition to the Service Level Requirements and Chronic Failure
provisions set forth above, with respect to UPSTREAM Systems
availability, the following additional obligations and procedures shall
apply:
I. SYSTEMS AVAILABILITY AS SEEN BY THE ORBITZ SUBSCRIBER
SCHEDULED DOWNTIME/MAINTENANCE
It is expected that occasional downtime will be required to maintain and enhance
the Systems. This downtime must be scheduled and ORBITZ shall be notified at
least 24 hours in advance and be performed between the hours of 2:00 AM and 5:00
AM Eastern Time and limited to a maximum of 2.5 hours per month. UPSTREAM shall
make commercial reasonable efforts to notify ORBITZ of this downtime 48 hours in
advance. If UPSTREAM's required work time exceeds the above maintenance window,
then three days notification to ORBITZ is required.
NOTIFICATIONS/ALERTS TO ORBITZ
During the course of normal operations, service impairments (e.g. slow response,
partial service outage) may occur. UPSTREAM will notify the ORBITZ Network
Operations Center (NOC) of any UPSTREAM-observed high and medium (as defined in
table below) impairments immediately, so that joint investigation and trouble
determination may occur. Telephone notification to [***] as well as electronic
mail to [***] is required. Details of the impairment
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39
should be provided (e.g. service affected, extent of impairment, contact for
joint troubleshooting, etc.).
UPSTREAM is responsible for 365 x 7 x 24 monitoring of the operation of the
systems and taking immediate action to resolve any UPSTREAM systems issues.
UPSTREAM shall provide a written root cause analysis of all unscheduled outages
within 2 working days.
II. TROUBLE IDENTIFICATION AND RESOLUTION PROCESS
GOAL OF THE TROUBLE IDENTIFICATION AND RESOLUTION PROCESS
The goal of the trouble identification and resolution process is to resolve all
service problems, which impact the customer experience (a) before they are seen
by a subscriber or (b) as quickly and efficiently as possible once reported by a
subscriber. To this end, monitoring and surveillance as well as troubleshooting
and issue determination and analysis is key to success. Coordination of
activities between ORBITZ and UPSTREAM is essential in many cases.
PRIORITY ASSIGNMENTS AND RESOLUTION INTERVALS
To ensure a concerted, coordinated, resolution effort (as applicable), agreement
on the priority and the target resolution interval is needed. The following
tables list this framework.
------------------------- ----------------------------------------------------------------------------------------
Priority Criteria and Examples
------------------------- ----------------------------------------------------------------------------------------
High CRITERIA:
o Problem has been assessed/verified by UPSTREAM.
o The systems are significantly not delivering
expected value to a significant subscriber base.
A systemic issue is judged to be the cause of the
service interruption.
o UPSTREAM supplied administration tools are not available or operational.
Customer status and configuration issues cannot be resolved
Examples:
o Systems are not accessible by End User
------------------------- ----------------------------------------------------------------------------------------
------------------------- ----------------------------------------------------------------------------------------
Medium CRITERIA:
o Problem has been assessed/verified by UPSTREAM
o Obvious and significant service degradation to
previously experienced UPSTREAM systems
performance.
o Flaw in administration tool that is causing
significant loss of functionality and no clear
workaround is immediately available.
Examples:
o End User is unable to complete an e-mail transaction
------------------------- ----------------------------------------------------------------------------------------
------------------------- ----------------------------------------------------------------------------------------
Low CRITERIA:
o Problem has been assessed/verified by UPSTREAM
40
------------------------- ----------------------------------------------------------------------------------------
Priority Criteria and Examples
------------------------- ----------------------------------------------------------------------------------------
o Problem with the UPSTREAM systems t hat is inconvenient but
can be worked around with minimal disruption to the subscriber's
activity and results in minimal usage reduction.
Examples:
o UPSTREAM systems response time is significantly less than expected
------------------------- ----------------------------------------------------------------------------------------
----------------- ------------------------------ ----------------------- ---------------------- ----------------------------
Priority Initial Response Update Interval Resolution Goal Resource Hours
----------------- ------------------------------ ----------------------- ---------------------- ----------------------------
High [***] minutes or less Every [***] minutes [***] hours 24 x 7 x 365
----------------- ------------------------------ ----------------------- ---------------------- ----------------------------
Medium [***] minutes or less Every [***] [***] hours 24 x 7 x 365
----------------- ------------------------------ ----------------------- ---------------------- ----------------------------
Low [***] business days or less [***] [***] days 8:30 AM - 5 PM, Mon-Fri;
non-holidays
----------------- ------------------------------ ----------------------- ---------------------- ----------------------------
MANAGEMENT NOTIFICATION PROTOCOL
If trouble resolution goals are exceeded, the ORBITZ NOC will provide advisories
to ORBITZ's Senior Management as outlined below. It is expected that UPSTREAM
will implement a similar notification process to their management team. This
will allow maximum situational awareness of key issues and allow coordinated
communications and, as applicable, resolution efforts.
ORBITZ Notification Protocol
------------------------------- ---------------------------- ---------------------------- ----------------------------
Priority Resolution Goal Exceeded 2x Resolution Goal Exceeded 3x Resolution Goal Exceeded
------------------------------- ---------------------------- ---------------------------- ----------------------------
High Director of Operations CIO CIO
------------------------------- ---------------------------- ---------------------------- ----------------------------
Medium Director of Operations CIO CIO
------------------------------- ---------------------------- ---------------------------- ----------------------------
Low Director of Operations CIO CIO
------------------------------- ---------------------------- ---------------------------- ----------------------------
UPSTREAM Notification Protocol (UPSTREAM contacts to be supplied)
------------------------------- ---------------------------- ---------------------------- ----------------------------
Priority Resolution Goal Exceeded 2x Resolution Goal Exceeded 3x Resolution Goal Exceeded
------------------------------- ---------------------------- ---------------------------- ----------------------------
High Director Technical Director Technical Chief Information Officer
Operations Operations
------------------------------- ---------------------------- ---------------------------- ----------------------------
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------------------------------- ---------------------------- ---------------------------- ----------------------------
Priority Resolution Goal Exceeded 2x Resolution Goal Exceeded 3x Resolution Goal Exceeded
------------------------------- ---------------------------- ---------------------------- ----------------------------
Medium Director Technical Director Technical Chief Information Officer
Operations Operations
------------------------------- ---------------------------- ---------------------------- ----------------------------
Low Director Technical Director Technical Chief Information Officer
Operations Operations
------------------------------- ---------------------------- ---------------------------- ----------------------------
ORBITZ/UPSTREAM Escalation Contact Information
The following table lists the points of contact for consultation and escalation
of identified issues between UPSTREAM Care and Operations and ORBITZ Care and
Operations. All ORBITZ calls will be handled on a 365 x 7 x 24 basis.
ORBITZ CONTACTS (FOR UPSTREAM USE)
------------------------------- ---------------------------- ---------------------------- ----------------------------
Call Types ORBITZ Department ORBITZ Phone Numbers to Use Hours of Operation
------------------------------- ---------------------------- ---------------------------- ----------------------------
Customer Issues NOC [***] 7 x 24
------------------------------- ---------------------------- ---------------------------- ----------------------------
Operational Issues NOC [***] 7 x 24
------------------------------- ---------------------------- ---------------------------- ----------------------------
UPSTREAM CONTACTS (FOR ORBITZ USE)
----------------------------- --------------------------------- --------------------------- ----------------------------
Call Types UPSTREAM Department UPSTREAM Phone Numbers to Hours of Operation
Use
----------------------------- --------------------------------- --------------------------- ----------------------------
Customer Issues UPSTREAM Customer Care [***] 7 x 24
----------------------------- --------------------------------- --------------------------- ----------------------------
Operational Issues NOC/Telecommunications Data [***] 7 x 24
Communications
----------------------------- --------------------------------- --------------------------- ----------------------------
Operational Issues System Operations (Kana, Web [***] 5 x 24 M - F
Reporting) After Hours
----------------------------- --------------------------------- --------------------------- ----------------------------
Operational Issues GM of Data [***] 8:30 am - 5 pm M-F;
Communications/Systems Ops After Hours
Director of 8:30 am - 5 pm
NOC/Telecommunications After Hours
----------------------------- --------------------------------- --------------------------- ----------------------------
III. OPEN ISSUES LIST AND REPORTING
There are two types of UPSTREAM reporting that will be require& operational and
customer care.
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OPERATION REPORTING
UPSTREAM will provide reports to ORBITZ's NOC on the status of all customer
experience impacting issues on a daily basis.
CUSTOMER CARE
UPSTREAM will provide reports to ORBITZ summarizing Customer Care Issues on a
daily basis.
REVIEW
UPSTREAM and ORBITZ agree to review reports and the parties' performance under
this SLA. Meetings shall occur upon agreement of the parties or can be
requested by either party, in case of performance issues of the other party.
Notwithstanding the foregoing, UPSTREAM and ORBITZ agree to review 30 days
prior to contract renewal their performance under this SLA.
IV. SYSTEMS PERFORMANCE VALIDATION AND CHANGE CONTROL
OBJECTIVES OF THE SYSTEMS PERFORMANCE VALIDATION AND CHANGE CONTROL PROCESS
The objectives of the Systems Performance Validation and Change Control Process
are, in general, to assure that the Up|Stream Systems meets, and continues to
meet, reasonable and appropriate customer expectation for performance and
functionality. This process defines the series of sub-processes suggested to
assure Up|Stream Systems performance and system-level compatibility throughout
the Systems and supporting systems life cycle. These sub-processes and the
associated responsibilities are discussed below.
CHANGE NOTIFICATION
Orbitz will be notified of all planned Systems, communications and
hosting/platform related changes, maintenance and upgrades to the Up|Stream
Wireless Site. Notification will be made by means of a mutually agreed format
and single point of contact thirty (30) days prior to the change. Where
notification cannot be made in the requisite time frame, notification will be
made at the earliest possible date. Orbitz will provide change control
information to Up|Stream in advance of changes and by means of a mutually
agreed format and venue. This will allow Orbitz and Up|Stream to complete
analysis and testing, if required, to confirm continued Up|Stream systems
availability.
SYSTEMS VALIDATION & VERIFICATION
The goal of the SV&V process is to capture and/or quantify functional and
performance issues and/or metrics related to an integrated Systems or service
offering prior to commercial launch or cutover related to the Orbitz Internet
Service. Qualifying activities include:
o Systems not previously available to subscribers with ORBITZ's general
service offerings,
o Major software releases/upgrades associated with Systems actively
available as a part of ORBITZ's general service offering,
o Major point releases/upgrades associated with Systems actively
available as a part of ORBITZ's general service offering,
o Major bug fixes or patches to be applied to Systems actively available
through the Orbitz Internet Service, any upgrades or modifications to
the Systems hardware or software platform as available through the
foregoing, and
43
The information captured during the testing stage of this process shall be
Up|Stream Confidential Information and, may be disseminated to the various
responsible constituencies within Orbitz for the general purposes of Care and
Network Planning. Orbitz and Up|Stream will cooperate to assure that testing
occurs on a release version of the applicable software, platform, and
communications environment prior to commercial release or cutover.
SYSTEMS/DEPLOYMENT VALIDATION
The deployment of all planned Systems activities related to the types of
changes identified in this section will be managed through deployment and
validated for commercial use through the Orbitz Internet Service through a
mutually agreed process. (The agreed to process may change in detail and
complexity according to the type of deployment involved e.g.: WAN connectivity
versus major software release/upgrade.) To the extent feasible the deployment
process will include:
o A deployment plan designed, if applicable, to minimize if not mitigate
any impact on ORBITZ's subscribers and defining each major milestone,
dependency and activity owner, and include:
o An estimate of the duration of any associated outage,
o An estimate and description of the impact to ORBITZ's
subscribers,
o A jointly developed test plan validating commercial readiness,
A back-out strategy providing for a return to the previous release,
configuration, or platform in the event of unacceptable performance or
functionality issues as may be captured during testing.
`Night-of' validation occurring immediately following deployment in
order to verify general readiness.
(Where ever appropriate and as mutually agreed) A period of limited
availability following the deployment of a major upgrade or change in
order to validate stability, correct function and performance.)
Unplanned changes, in response to emergency or other unanticipated situations,
will be validated commercially ready at the earliest practicable time following
deployment. These changes will typically occur as a result of trouble resolution
and will be managed as described in Section III of this document.
SYSTEMS CHANGE PROCESS
For each planned major point software release, which has an effect on the
customer experience, an open problem list of key critical issues should be
maintained by Up|Stream. This list must be made available to Orbitz as part of
the Systems Validation and Verification (SV&V) process.
Major Release
Orbitz will be notified of all software major releases accessed via the Orbitz
Internet Service thirty (30) days prior to release. Such major releases will be
submitted to ORBITZ's, through the defined Orbitz point-of-contact (POC). SV&V
Requests submitted for such major software releases will detail all new
applicable functionality and performance changes associated with the major
release. Such major releases will be managed and deployed according to the
agreed to System's Deployment Validation process. All new such software releases
must be backward compatible, except, in certain cases where prior written
consent has been obtained from Orbitz.
Point Release
Orbitz will be notified of all major software point releases accessed via the
Orbitz Internet Service thirty (30) days prior to release. Such point releases
will be submitted to ORBITZ's, through the defined Orbitz POC. SV&V Requests
submitted for such point releases will detail applicable software functionality,
interoperability and
44
performances changes existing in the planned point release. Such point releases
will be managed and deployed according to the agreed to Systems DEPLOYMENT
VALIDATION process.
Patches and Fixes
Recognizing the unpredictable nature of bug fixes and patch releases, Orbitz
will be notified of all major bug fixes and patch releases having a significant
impact on subscribers' ability to utilize the Up|Stream Wireless Site via the
Orbitz Online Wireless Internet Service fifteen (15) days prior to
implementation. Such fixes and patch releases will be submitted to Orbitz.
Through the defined Orbitz POC. Such fixes and releases submitted through such
process will detail the fix and any applicable software functionality,
interoperability and performance implications.
PLATFORM CHANGE PROCESS
System Upgrades and Changes
Up|Stream will undertake efforts to see that Orbitz will be notified of all
planned major Up|Stream systems upgrades ninety (90) days prior to cutover. As
applicable, a 30/60/90 day rolling plan will be maintained between Up|Stream
and Orbitz. All such planned system upgrades will be submitted to the SV&V
process, through the defined Orbitz POC. Such upgrades submitted through such
process will detail the upgrade and applicable material functionality,
interoperability and performance implications.
Maintenance
Up|Stream will provide Orbitz with a 30/60/90 day rolling schedule for planned
downtime maintenance. This schedule will describe the nature of the planned
maintenance and what if any customer or Orbitz system impact can be anticipated.
ORBITZ's NOC will be notified of all unplanned maintenance or changes as
described in the "Notifications/Alerts to Orbitz" section of this document.
V. BUSINESS RECOVERY
The following section describes the capabilities for business recovery.
Telephone network
Up|Stream's voice phone network uses intelligent call routing and management. In
the event of a regional disaster, calls are re-routed to areas of the company
that are not affected by the regional problem. The Network Operations Center
continuously monitors the status of the network and dynamically re-routes
traffic if required. Default call routing and remote network management dial-in
is used if the NOC looses connectivity from the network.
CTI COMPONENTS
The CTI components will follow the same recovery operations as the Telephone
network. The CT! application will be deployed in both Xxxxxxxxx and Fargo, North
Dakota. The recovery plan is that each site backs up the other site.
RIVERPLACE DATA CENTER RECOVERY
Critical systems located at the data center may be recovered at alternative
site(s) by exercising arrangements with vendors and having them ship equipment
to alternative sites within 24 to 26 hours.
All vital records (backup media) is stored off site and maintained at First
National Deposit Corporation. All systems backups are sent to First National
Daily. If retrieval of backup media is required a call is placed to First
National and after supplying appropriate profile information and password the
media is then dispatched by courier to designated location.
45
Data Communication Network
Up|Stream's Data communications network uses redundant data lines terminated
into diverse routers at each Customer Care location. Each center is independent
of each other therefore Up|Stream has the ability route traffic from the
effected location. The data network is monitored 24 hours a day 365 days a year.
46
SCHEDULE I TO EXHIBIT B
QA SCORESHEET
(TO BE ATTACHED HERETO NO LATER THAN THE END OF THE IMPLEMENTATION PERIOD)
47
EXHIBIT C
UPSTREAM INSURANCE COVERAGE
1. REQUIRED INSURANCE. UPSTREAM shall, at its own
expense, obtain and maintain the following insurance:
a. Commercial General Liability, with coverage including
premises/operations, contractual, personal and advertising
injury, and products/completed operations liabilities, with
limits of not less than $5,000,000 per occurrence for bodily
injury and property damage combined. ORBITZ shall be named as
an additional insured. Limits of liability requirements may be
satisfied by a combination of Commercial General Liability and
Umbrella Excess Liability policies.
b. Motor Vehicle Liability insurance for owned, non-owned and
hired vehicles, with limits of not less than $1,000,000 per
occurrence for bodily injury and property damage combined. If
no vehicles are owned or leased, the Commercial General
Liability insurance shall be extended to provide insurance of
non-owned and hired automobiles. UPSTREAM shall be named as
additional insured. Limits of liability requirements may be
satisfied by a combination of Automobile Liability and
Umbrella Excess Liability policies.
c. Worker's Compensation insurance, including coverage for all
costs, benefits and liabilities under Worker's Compensation
and similar laws which may accrue in favor of any person
employed by UPSTREAM, for all states in which the project or
work to be performed is located, and Employer's Liability
insurance with limits of liability of not less than $100,000
per accident or disease and $500,000 aggregate by disease.
Such insurance shall contain a waiver of subrogation in favor
of ORBITZ unless such waivers are not available in the
state(s) where the project or work to be performed is
located. UPSTREAM shall require in its subcontractor
agreements that its subcontractors will maintain Worker's
Compensation and Employer's Liability insurance and UPSTREAM
further agrees to indemnify ORBITZ for any loss, cost,
liability, expense and/or damage suffered by ORBITZ as a
result of the failure of its subcontractors to maintain such
insurance.
d. Fidelity Bond covering employee dishonesty with limits of not
less than $1,000,000 per loss. UPSTREAM agrees to provide a
third party liability endorsement.
e. Professional Liability or Errors & Omissions Insurance with
limits of not less than $3,000,000 per claim.
2. POLICIES. Insurance shall be purchased form companies
having a rating of A-VII or better in the current Best's Insurance Reports
published by A.M. Best Company. Policies of insurance shall provide that they
will not be cancelled without at least thirty (30) days' prior written notice
to ORBITZ. The Professional Liability, Error and Omissions and the Commercial
General Liability coverages shall be primary and non-contributing with respect
to
48
any other insurance or self-insurance that may be maintained by UPSTREAM.
Certificates of insurance evidencing coverage shall be submitted within a
reasonable time after the execution of this Agreement, and on each insurance
policy renewal thereafter. UPSTREAM shall, at ORBITZ's request, make copies of
its insurance policies available for review by ORBITZ at UPSTREAM's corporate
headquarters. If UPSTREAM does not provide ORBITZ with such certificates of
insurance, or in ORBITZ's opinion, such policies do not afford adequate
protection for ORBITZ, then ORBITZ will so advice UPSTREAM. Thereafter, if
UPSTREAM does not furnish evidence of acceptable coverage within fifteen (15)
days, then ORBITZ shall have the right, in its sole discretion, to (i) withhold
payments from UPSTREAM and, in its discretion, purchase such insurance as it
deems necessary to comply with the description of insurance in this section
until evidence of such acceptable coverage is provided, or (ii) immediately
terminate this Agreement. Failure to obtain and maintain required insurance
shall not relieve UPSTREAM of any obligation contain in this Agreement.
Additionally, any approval by ORBITZ of any of UPSTREAM' s insurance policies
shall not relieve UPSTREAM of any obligation contained in this Agreement.
49
EXHIBIT D
2002 ARC MONTHLY REPORTING TABLE
YEAR 2002 WEEKS
--------- -----
Jan 31 Dec 01 - 27 Jan 02 4
Feb 28 Jan 02 - 24 Feb 02 4
Mar 25 Feb 02 - 31 Mar 02 5
Apr 1 Apr 02 - 28 Apr 02 4
May 29 Apr 02 - 2 Jun 02 5
Jun 3 Jun 02 - 30 Jun 02 4
Jul 1 Jul 02 - 28 Jul 02 4
Aug 29 Jul 02 - 1 Sep 02 5
Sep 2 Sep 02 - 29 Sep 02 4
Oct 30 Sep 02 - 3 Nov 02 5
Nov 4 Nov 02 - 1 Dec 02 4
Dec 2 Dec 02 - 29 Dec 02 4
Total 52
50
EXHIBIT D-l
U.S. Telephone Transaction Fee Pricing Matrices
[LOGO]
Orbitz US Phone P/Ticket Pricing Grid - Contract Year One
-------------------------------------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 - 10,000,000 - 10,500,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999 10,499,999 10,999,999
-------------------------------------------------------------------------------------------------------------------------------
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
22.00%-23.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
24.00%-25.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
26.00%-27.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
28.00%-29.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
30.00%-31.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
32.00%-33.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
34.00%-35.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
36.00%-37.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
38.00%-39.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
40.00%-41.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
42.00%-43.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
44.00%-45.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
46.00%-47.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
48.00%-49.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
50.00%-51.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
52.00%-53.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------------------------------------------------------------------------------------
Orbitz P/Tkt Pricing Grid - Contract Year One nmarten
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*** Certain information on this page has been omitted and filed separately with
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11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 - 13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 -
11,499,999 11,999,999 12,499,999 12,999,999 13,499,999 13,999,999 14,499,999 15,499,999 15,999,999 16,499,999
---------------------------------------------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
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16,500,000 - 17,000,000 - 17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
16,999,999 17,499,999 17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
-------------------------------------------------------------------------------------------------------
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[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***] [***] [***]
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Orbitz US Phone P/Ticket Pricing Grid - Contract Year Two
[LOGO]
-------------------------------------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 - 10,000,000 - 10,500,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999 10,999,999 10,499,999
-------------------------------------------------------------------------------------------------------------------------------
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
22.00%-23.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
24.00%-25.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
26.00%-27.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
28.00%-29.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
30.00%-31.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
32.00%-33.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
34.00%-35.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
36.00%-37.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
38.00%-39.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
40.00%-41.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
42.00%-43.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
44.00%-45.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
46.00%-47.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
48.00%-49.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
50.00%-51.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
52.00%-53.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
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Orbitz P/Tkt Pricing Grid - Contract Year Two nmarten
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11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 - 13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 -
11,499,999 11,999,999 12,499,999 12,999,999 13,499,999 13,999,999 14,499,999 15,499,999 15,999,999 16,499,999
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[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***] [***] [***]
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omitted portions.
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Orbitz US Phone P/Ticket Pricing Grid - Contract Year Three
-------------------------------------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 - 10,000,000 - 10,500,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999 10,499,999 10,999,999
-------------------------------------------------------------------------------------------------------------------------------
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
22.00%-23.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
24.00%-25.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
26.00%-27.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
28.00%-29.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
30.00%-31.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
32.00%-33.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
34.00%-35.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
36.00%-37.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
38.00%-39.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
40.00%-41.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
42.00%-43.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
44.00%-45.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
46.00%-47.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
48.00%-49.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
50.00%-51.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
52.00%-53.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
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11,499,999 11,999,999 12,499,999 12,999,999 13,499,999 13,999,999 14,499,999 15,499,999 15,999,999 16,499,999
---------------------------------------------------------------------------------------------------------------------------------
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Orbitz P/Tkt Pricing Grid - Contract Year Three nmarten
OrbitzUSPhoneGrid_client4-12-02 UpStream Confidential 4/12/02
*** Certain information on this page has been omitted and filed separately with
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omitted portions.
Page 59
[LOGO]
Orbitz US Phone P/Ticket Pricing Grid - Contract Year 4 & 5
-------------------------------------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 - 10,000,000 - 10,500,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999 10,499,999 10,999,999
-------------------------------------------------------------------------------------------------------------------------------
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
22.00%-23.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
24.00%-25.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
26.00%-27.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
28.00%-29.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
30.00%-31.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
32.00%-33.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
34.00%-35.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
36.00%-37.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
38.00%-39.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
40.00%-41.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
42.00%-43.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
44.00%-45.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
46.00%-47.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
48.00%-49.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
50.00%-51.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
52.00%-53.99% [***] [***] [***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------------------------------------------------------------------------------------
Orbitz P/Tkt Pricing Grid - Xxxxxxxx Xxxxx 0 & 0 xxxxxxx
XxxxxxXXXxxxxXxxx_xxxxxx0-00-00 UpStream Confidential 4/12/02
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the Commission. Confidential treatment has been requested with respect to the
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11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 - 13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 -
11,499,999 11,999,999 12,499,999 12,999,999 13,499,999 13,999,999 14,499,999 15,499,999 15,999,999 16,499,999
---------------------------------------------------------------------------------------------------------------------------------
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16,500,000 - 17,000,000 - 17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
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Orbitz P/Tkt Pricing Grid - Xxxxxxxx Xxxxx 0 & 0 xxxxxxx
XxxxxxXXXxxxxXxxx_xxxxxx0-00-00 UpStream Confidential 4/12/02
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Page 62
EXHIBIT D-2
U.S. Email Transaction Fee Pricing Matricies
[LOGO]
----------------------------------------------------------------------------------------------------------------------------------
3.5 minute AHT email price p/ticket
----------------------------------------------------------------------------------------------------------------------------------
Year 2002 2003 2004 2005 2006
----------------------------------------------------------------------------------------------------------------------------------
Transactions [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
Ratio [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
US [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
Contractor [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
3.75 minute AHT email price p/ticket
----------------------------------------------------------------------------------------------------------------------------------
Year 2002 2003 2004 2005 2006
----------------------------------------------------------------------------------------------------------------------------------
Transactions [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
Ratio [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
US [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
Contractor [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
4.0 minute AHT email price p/ticket
----------------------------------------------------------------------------------------------------------------------------------
Year 2002 2003 2004 2005 2006
----------------------------------------------------------------------------------------------------------------------------------
Transactions [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
Ratio [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
US [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
Contractor [***] [***] [***] [***] [***]
----------------------------------------------------------------------------------------------------------------------------------
OrbitzEmailPricing3.5-4.0AHT_client4-12-02 nmarten
Upstream Confidential 4/12/2002
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the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 63
[LOGO]
Orbitz US Email P/Ticket Pricing Grids - Contract Year One
3.5 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------------
3.75 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------------
4.0 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------------
Orbitz US Email Pricing P/Tkt - Contact Year One nmarten
OrbitzEmailOricing3.5-4.0AHT_Client4- 12- 02 Upstream Confidential 4/12/2002
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
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13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
-------------------------------------------------------------------------------------------
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-------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
-----------------------------------------------------------------------------
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-----------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
-------------------------------------------------------------------------------------------
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[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
-----------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***]
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-----------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
-------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
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-------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
-----------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
-----------------------------------------------------------------------------
Orbitz US Email Pricing P/Tkt - Contact Year One nmarten
OrbitzEmailOricing3.5-4.0AHT_Client4- 12- 02 Upstream Confidential 4/12/2002
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 65
[LOGO]
Orbitz US Email P/Ticket Pricing Grids - Contract Year Two and Three
3.5 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------------
3.75 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------------
4.0 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------------
Orbitz US Email Pricing P/Tkt - Contact Year Two and Three nmarten
OrbitzEmailOricing3.5-4.0AHT_Client4- 12- 02 Upstream Confidential 4/12/2002
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 66
-------------------------------------------------------------------------------------------
13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
-------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
-----------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
-----------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
-------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
-----------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***]
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-----------------------------------------------------------------------------
-------------------------------------------------------------------------------------------
13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
-------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
-----------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***]
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[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***]
-----------------------------------------------------------------------------
Orbitz US Email Pricing P/Tkt - Contact Year Two and Three nmarten
OrbitzEmailOricing3.5-4.0AHT_Client4- 12- 02 Upstream Confidential 4/12/2002
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 67
[LOGO]
Orbitz US Email P/Ticket Pricing Grids - Contract Year Four and Five
3.5 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------------
3.75 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------------
4.0 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------------
Orbitz US Email Pricing P/Tkt - Contact Year Four and Five nmarten
OrbitzEmailOricing3.5-4.0AHT_Client4- 12- 02 Upstream Confidential 4/12/2002
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 68
-------------------------------------------------------------------------------------------
13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
-------------------------------------------------------------------------------------------
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
[***] [***] [***] [***] [***] [***] [***]
-------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------
17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
-----------------------------------------------------------------------------
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13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
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17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
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13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
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Orbitz US Email Pricing P/Tkt - Contact Year Four and Five nmarten
OrbitzEmailOricing3.5-4.0AHT_Client4- 12- 02 Upstream Confidential 4/12/2002
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 69
EXHIBIT D-3
Contractor Email Pricing Matrices
[LOGO]
Orbitz Contractor Email P/Ticket Pricing Grids
3.5 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------
RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------------
3.75 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
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RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
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4.0 Minute AHT
--------------------------------------------------------------------------------------------------
ANNUAL TRANSACTIONS
RATIO
6,000,000 - 6,500,000 - 7,000,000 - 7,500,000 - 8,000,000 - 8,500,000 - 9,000,000 -
6,499,999 6,999,999 7,499,999 7,999,999 8,499,999 8,999,999 9,999,999
--------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
--------------------------------------------------------------------------------------------------
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RATIO
10,000,000 - 10,500,000 - 11,000,000 - 11,500,000 - 12,000,000 - 12,500,000 - 13,000,000 -
10,499,999 10,999,999 11,499,999 11,999,999 12,499,999 12,999,999 13,499,999
--------------------------------------------------------------------------------------------------------
4.00%-5.99% [***] [***] [***] [***] [***] [***] [***]
6.00%-7.99% [***] [***] [***] [***] [***] [***] [***]
8.00%-9.99% [***] [***] [***] [***] [***] [***] [***]
10.00%-11.99% [***] [***] [***] [***] [***] [***] [***]
12.00%-13.99% [***] [***] [***] [***] [***] [***] [***]
14.00%-15.99% [***] [***] [***] [***] [***] [***] [***]
16.00%-17.99% [***] [***] [***] [***] [***] [***] [***]
18.00%-19.99% [***] [***] [***] [***] [***] [***] [***]
20.00%-21.99% [***] [***] [***] [***] [***] [***] [***]
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Orbitz US Email Pricing P/Tkt nmarten
OrbitzEmailOricing3.5-4.0AHT_Client4- 12- 02 Upstream Confidential 4/12/2002
*** Certain information on this page has been omitted and filed separately with
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omitted portions.
Page 70
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17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
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13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
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17,500,000 - 18,000,000 - 18,500,000 - 19,000,000 - 19,500,000 - 20,000,000 -
17,999,999 18,499,999 18,999,999 19,499,999 19,999,999 20,499,999
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13,500,000 - 14,000,000 - 15,000,000 - 15,500,000 - 16,000,000 - 16,499,999 - 17,000,000 -
13,999,999 14,499,999 15,499,999 15,999,999 16,499,999 16,999,999 17,499,999
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Orbitz US Email Pricing P/Tkt nmarten
OrbitzEmailOricing3.5-4.0AHT_Client4- 12- 02 Upstream Confidential 4/12/2002
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to the
omitted portions.
Page 71
Exhibit E
Dispute Resolution Procedures
If a dispute or claim is not resolved by the management of the
parties within ninety (90) days (or such longer period as the parties mutually
agree) after submission by written notice by one party to the other party, the
dispute or claim shall be settled by binding arbitration. The arbitration shall
be conducted according to the procedures set forth herein and the commercial
arbitration rules of the American Arbitration Association ("AAA"). In the event
of a conflict between the procedures set forth herein and the applicable AAA
rules, the procedures set forth herein shall govern.
The exclusive location of the arbitration shall be in
New York,
NY. The arbitration shall be conducted in English before a panel of three (3)
arbitrators to be selected according to the applicable AAA rules. No person
shall be part of the arbitral panel unless that person has agreed in writing to
abide by the arbitration provisions set forth herein. No discovery will be
permitted in connection with the arbitration unless, and only to the extent,
discovery is authorized in writing by the arbitral panel upon (a) a demand
therefor by a party, and (b) a majority decision of the arbitral panel that
there is a substantial need for discovery in order to decide the dispute in a
fair and timely manner on the merits. The parties and the arbitrators shall
treat the existence and all aspects of the arbitration as confidential.
The arbitrators may not award any relief of any kind except
monetary relief subject to the limits set forth in this Agreement. Without
limitation on the foregoing, in no event may the arbitrators award (i)
non-monetary or equitable relief of any sort; (ii) damages inconsistent with the
terms of this Agreement; (iii) punitive damages; or (iv) any award or remedy of
any kind that could not be made or imposed by a court deciding the matter in the
same jurisdiction. The parties expressly waive their right to claim and obtain
such damages or relief in the arbitration proceeding or any other forum (except
only to the extent of claims for injunctive relief for protection of
confidential information or infringement of intellectual property, which claims
may be submitted to any court of competent jurisdiction). The result of the
arbitration will be final and binding on the parties. Judgment on the
arbitrators' award may be entered in any court having jurisdiction.
72
EXHIBIT F
Disaster Recovery Plan
(to be attached hereto no later than the end of the Implementation Period)
73
EXHIBIT G
Call Center Requirements - Credit Card Error Messages and Fraud Prevention
I. CREDIT CARD ERROR MESSAGES
Some Orbitz customers receive error messages at the website if the certain
conditions related to their credit card account status exist. These errors will
cause the customer's credit card number to be placed in an Orbitz 24-hour
temporary negative file, that will restrict the use of that card on the Orbitz
website. Reasons for these error messages include:
>> Insufficient funds
>> Bank has deactivated card due to fraud or suspected fraud
>> Credit limit exceeded
When these conditions exist, the customer will be directed by an error message
at the site to contact their card-issuing bank to remedy the problem. Neither
Upstream nor Orbitz can remedy these situations. The cardholders must call the
Bank themselves to correct it. Upstream should be aware of these error messages
and instruct customers to remedy these situations with their banks.
II. FRAUD PREVENTION
A. Negative File
Negative File is an internal Block List of Credit Cards in which Orbitz
uses to protect themselves against possible fraudulent transactions.
Customers that have been added to the Orbitz negative file database will
receive a specific error message (error message 163) informing them that
we cannot process the purchase with credit card they are attempting to
use. After the customer has corrected any credit card discrepancies with
their card-issuing bank, we will have to remove the customer from the
negative file database before they can make a purchase on the website.
The customers will be directed to contact Customer Service to correct the
problem.
To remove the credit card from the negative file, Upstream must perform
the following procedures.
Upstream should collect the following information from the customer:
1. Email address used to establish the Orbitz account
2. Name as it appears on the customer's credit card
3. Last 4 digits of the credit card
4. Customer's phone number
74
5. Determine if the customer is purchasing on the behalf of a
business account and an estimated monthly volume of transactions expected to be
booked on the Orbitz website.
Upstream Agents should pass the information onto an Upstream
supervisor.
Upstream supervisor then should call Orbitz Revenue Protection
Department. Orbitz Revenue Protection Department agents are
available from 6 am to 12:30 AM. - seven days a week. If no one
answers, they should leave a message. This is the only number for
them to contact. No action will take place from 12:30 Am to 6 AM.
The Orbitz Revenue Protection Department will perform a series of
fraud checks to determine if the credit card number should be
removed from the negative file. If the credit card is deemed to
have been used in a fraudulent manner, the Orbitz Revenue
Protection Department will leave the credit card in the negative
file and void out any associated PNR's.
If the Orbitz Revenue Protection Department determines that the
credit card can be removed from the negative file, removal will
take place and the Upstream supervisor will be subsequently
contacted. Upstream will then be required to contact the customer
to inform them that they credit card can now be used to make
purchase on the website.
B. Notification of Fraudulent Use of Credit Card
If Upstream receives a call from a credit card holder stating that their
card was used in a fraudulent manner to make a purchase on the Orbitz
Website, the Upstream agent should collect the following information from
caller:
1. Name of cardholder
2. Type of credit card
3. Last 4 digits of credit card
4. Date of purchase
5. Dollar amount
6. Airline
7. Ticket numbers/and or Reservation number
8. Name of passengers (if available)
9. Phone number where the caller can be reached
Upstream should then inform them they will be notifying Orbitz' Revenue
Protection Department and they will receive a call back within 24-hours.
Upstream should call the Orbitz' Revenue Protection Department and
provide all of the information collected.
Upstream should document the call in the PNR, if one is available.
75
C. Suspicious Caller Contact
If an Upstream agent receives a call where they think there is a possibility of
fraudulent activity occurring, (i.e., customer calling to change reservation or
address, or any other suspicious requests) they should pass the PNR and email
address on to a Supervisor. The Supervisor should contact the Orbitz' Revenue
Protection.
76
EXHIBIT H
INTERNATIONAL ARBITRATION PROVISIONS
AGREEMENT TO ARBITRATE. Any dispute arising out of, relating to, or having any
connection with, this Agreement, including any question regarding its existence,
validity, interpretation, performance, breach or termination, and any tort or
other common law or statutory claims arising out of or relating to its
negotiation, execution or performance, shall be exclusively and finally settled
by arbitration in accordance with the Rules of Arbitration of the International
Court of Arbitration of the International Chamber of Commerce (the "ICC").
CONDUCT OF THE ARBITRATION. The place of arbitration shall be in the State of
New York, U.S.A. The arbitration shall be conducted in the English language, and
all documents and testimony offered into evidence during the arbitration shall
be translated into English at the expense of the party offering the evidence.
CHOICE OF LAW. The arbitral panel shall determine the rights and obligations of
the parties according with the substantive laws of the State of
New York other
than those laws that would refer the matter to the law of another jurisdiction.
Any procedural issues not resolved by this Agreement or the ICC Rules shall be
governed by, in order of priority, the law of the State of
New York, U.S.A.,
including that state's International Arbitration Act, if any, and the United
States Arbitration Act. Except as agreed by the parties, the arbitral panel
shall have no power to alter or modify any terms or provisions of this
Agreement, or to render any award which, by its terms or effects, would alter or
modify any term or provision of this Agreement or to act as amiable COMPOSITEUR
or EX AEQUO ET XXXX. The arbitral panel shall have no authority to award
special, indirect, consequential, exemplary or punitive damages for any reason.
The arbitrators may also award interim and equitable relief, including specific
performance. The parties expressly agree that prior to the formation of the
arbitral panel, nothing in this Agreement shall prevent the parties from
applying to a court of competent jurisdiction for provisional or interim
measures or for injunctive relief as may be necessary to safeguard the property
or rights that are the subject matter of the arbitration. After the arbitral
panel is impaneled, however, the panel shall have exclusive jurisdiction to hear
applications for such relief, except that the parties agree that any interim
measures or injunctive relief ordered by the arbitral panel may be immediately
and specifically enforced by a court of competent jurisdiction.
COMMENCEMENT OF ARBITRATION. Notice of the demand for arbitration shall be
served upon the party against whom the demand is made at the same time that the
demand is filed with ICC Court of International Arbitration. In no event shall a
demand for arbitration be made or permitted after the date when the claims being
asserted in the demand would be barred by the applicable contractual or
statutory limitation period.
THE ARBITRAL PANEL. The arbitral panel shall be composed of three arbitrators to
be selected in accordance with the ICC Rules. The presiding arbitrator shall not
be of the same nationality as any of the parties. The arbitrators shall be and
remain at all times independent of the parties. The arbitrators must be fluent
in the English language. Once the arbitral panel has been composed, the
arbitrators shall act as neutrals and not as party arbitrators, and no party
shall engage in any ex pane communication with any member of the arbitral panel
regarding the
77
substance of the arbitration or any claims being arbitrated before
the panel. All decisions of the arbitral panel shall be by majority vote.
COSTS AND INTEREST. The costs of the arbitration proceeding, including attorneys
fees and expenses, shall be born in the manner determined by the arbitrators.
The award may include interest from the date of any breach or violation of this
Agreement as determined by the arbitral award until paid in full, at the
interest rate established in the award. Interest may be compounded at the
discretion of the arbitrators.
THE AWARD. The award shall be in writing and state the reasons upon which it is
based. Any monetary award shall be made in United States Dollars. The award
shall be final and binding on the parties. Any court having jurisdiction over
the person or the property of the person against whom enforcement of the
judgment is sought may enter judgment on the award.
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