Exhibit 10.16
RESERVATION DELIVERY AGREEMENT
by and between
GENISYS RESERVATION SYSTEMS, INC.
and
THE TRANSPONET COMPANIES, INC.
Dated as of
February 1, 1998
TABLE OF CONTENTS (continued)
Page
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01. Definition of Terms......................................................................... 2
ARTICLE II
COMPLETION AND OPERATION OF THE
TRANSPONET SYSTEM
Section 2.01. Operation of the TranspoNet System.......................................................... 7
Section 2.02. Availability................................................................................ 7
Section 2.03. Contingency Plan............................................................................ 8
ARTICLE III
OPERATION OF THE GENISYS SYSTEM
Section 3.01. Operation of the Genisys System............................................................. 9
Section 3.02. Availability................................................................................ 9
Section 3.03. Contingency Plan........................................................................... 10
ARTICLE IV
COMPLETION AND OPERATION OF THE
GENISYS/TRANSPONET INTERFACE
Section 4.01. Completion of the Genisys/TranspoNet Interface.............................................. 11
Section 4.02. Cooperation in Completion of the Genisys/TranspoNet Interface
and Costs Related Thereto................................................................ 11
Section 4.03. Project Schedule............................................................................ 11
Section 4.04. Ownership and Use of the Genisys/TranspoNet Interface....................................... 11
Section 4.05. Maintenance and Support of the Genisys/TranspoNet Interface................................. 12
Section 4.06. Changes, Modifications, Upgrades, Etc. to the
Genisys/TranspoNet Interface............................................................. 12
Section 4.07. Availability................................................................................ 12
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TABLE OF CONTENTS (continued)
Page
Section 4.08. Confidential Treatment...................................................................... 12
Section 4.09. Bi-Weekly Reports to Genisys................................................................ 12
ARTICLE V
COMPLETION OF THE TRANSPONET
SOFTWARE PROGRAM INTERFACE
Section 5.01. Operation and Effectiveness of this Article V............................................... 14
Section 5.02. Completion of the TranspoNet Software Program Interface..................................... 14
Section 5.03. TranspoNet's Cooperation in Completion of the TranspoNet
Software Program Interface............................................................... 14
Section 5.04. Ownership of the TranspoNet Software Program Interface...................................... 14
Section 5.05. Changes, Modifications, Upgrades, Etc. to the TranspoNet
Software Program Interface............................................................... 15
Section 5.06. Contingency Plan............................................................................ 15
Section 5.07. Confidential Treatment...................................................................... 15
Section 5.08. Bi-Weekly Reports to TranspoNet............................................................. 15
Section 5.09. Failure to Complete the TranspoNet Software Program Interface............................... 16
Section 5.10. Consent of TranspoNet Required for Use of the TranspoNet
Software Program Interface.............................................................. 16
ARTICLE VI
FINANCIAL ARRANGEMENTS
Section 6.01. Payments to Genisys and TranspoNet.......................................................... 17
Section 6.02. Payments to TranspoNet Service Providers.................................................... 17
Section 6.03. Calculation of Payments to Genisys and TranspoNet When
Utilizing the Genisys/TranspoNet Interface............................................... 18
Section 6.04. Calculation of Payments to Genisys and TranspoNet When
Utilizing the TranspoNet Software Program Interface...................................... 19
Section 6.05. Payments to TranspoNet...................................................................... 20
Section 6.06. Payments to Genisys......................................................................... 21
Section 6.07. Cost of Dedicated Lease Line................................................................ 21
Section 6.08. No Connection Charges to TranspoNet Service Providers....................................... 21
Section 6.09. Promotional and Advertising Expenses........................................................ 21
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TABLE OF CONTENTS (continued)
Page
Section 6.10. Free Trial Offer............................................................................ 22
Section 6.11. No Additional Charges....................................................................... 22
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TABLE OF CONTENTS (continued)
Page
ARTICLE VII
COVENANTS, AGREEMENTS, OBLIGATIONS
AND RIGHTS OF GENISYS
Section 7.01. Mutually Acceptable Press Release........................................................... 23
Section 7.02. Advertising, Promotional Material and ▇▇▇▇▇▇ ▇▇▇▇▇ Releases................................. 23
Section 7.03. Title and Possession........................................................................ 24
Section 7.04. Rights and Access to TranspoNet Data........................................................ 24
Section 7.05. Prohibition on Use and Distribution of TranspoNet Data...................................... 24
Section 7.06. Training in the Genisys System.............................................................. 24
Section 7.07. Maximization of Business.................................................................... 24
ARTICLE VIII
COVENANTS, AGREEMENTS, OBLIGATIONS
AND RIGHTS OF TRANSPONET
Section 8.01. Agreement Between Genisys and Custom Transportation......................................... 25
Section 8.02. Mutually Acceptable Press Release........................................................... 25
Section 8.03. Advertising, Promotional Material and ▇▇▇▇▇▇ ▇▇▇▇▇ Releases................................. 25
Section 8.04. Title and Possession........................................................................ 26
Section 8.05. Rights and Access to Genisys Data........................................................... 26
Section 8.06. Prohibition on Use and Distribution of Genisys Data......................................... 26
Section 8.07. Training in the TranspoNet System and the TranspoNet
Software Programs........................................................................ 26
Section 8.08. Maximization of Business.................................................................... 27
ARTICLE IX
INDEMNIFICATION
Section 9.01. Indemnification of TranspoNet............................................................... 28
Section 9.02. Indemnification of Genisys.................................................................. 29
Section 9.03. Conditions to Indemnification Obligations................................................... 30
Section 9.04. Survival of this Article.................................................................... 30
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TABLE OF CONTENTS (continued)
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ARTICLE X
NON-COMPETITION
Section 10.01. Non-Competition by TranspoNet............................................................... 31
Section 10.02. Non-Competition by Genisys.................................................................. 31
Section 10.03. Injunctive Relief........................................................................... 31
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
Section 11.01. Representations and Warranties of Genisys................................................... 32
Section 11.02. Representations and Warranties of TranspoNet................................................ 33
Section 11.03. Disclaimer of Other Warranties.............................................................. 34
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
Section 12.01. Events of Default........................................................................... 35
Section 12.02. Remedies on Default......................................................................... 36
Section 12.03. No Remedy Exclusive......................................................................... 36
Section 12.04. Limitation of Waiver........................................................................ 36
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Term of Agreement and Renewals Thereof...................................................... 37
Section 13.02. Early Termination for Failure to Meet Minimum
Reservation Criteria.................................................................... 37
Section 13.03. Agreements Upon Termination................................................................. 37
Section 13.04. Fees, Costs and Expenses.................................................................... 38
Section 13.05. Notices..................................................................................... 38
Section 13.06. Assignments................................................................................. 38
Section 13.07. Amendments.................................................................................. 38
Section 13.08. Successors and Assigns...................................................................... 38
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TABLE OF CONTENTS (continued)
Page
Section 13.09. Captions.................................................................................... 39
Section 13.10. Severability................................................................................ 39
Section 13.11. Survival of Certain Provisions.............................................................. 39
Section 13.12. Execution of Counterparts................................................................... 39
Section 13.13. Arbitration................................................................................. 39
Section 13.14. Governing Law............................................................................... 40
Section 13.15. Entire Agreement............................................................................ 40
Section 13.16. Headings.....................................................................................40
-vi-
RESERVATION DELIVERY AGREEMENT
THIS RESERVATION DELIVERY AGREEMENT (the "Agreement") dated as
of this 1st day of February, 1998, by and between GENISYS RESERVATION SYSTEMS,
INC. ("Genisys"), a corporation duly organized under the laws of the State of
New Jersey, with offices presently located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, and THE TRANSPONET COMPANIES, INC. ("TranspoNet"), a corporation
duly organized under the laws of the State of New York, with offices presently
located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, Genisys has developed and completed a computerized
reservation and payment system known as the "Genisys Reservation System" (the
"Genisys System"), which accepts and processes reservations for, and processes
payments for, ground transportation services made by corporations and
individuals through computerized reservation systems ("CRSs") owned and operated
by entities other than Genisys; and
WHEREAS, TranspoNet has developed and completed a computerized
reservation and delivery system (the "TranspoNet System") which delivers
reservations for ground transportation services over the Internet directly into
the computer systems of ground transportation service providers whose computer
systems utilize certain "back-office" software programs owned and marketed by
TranspoNet (the "TranspoNet Service Providers"); and
WHEREAS, Genisys and TranspoNet desire to enter into an
agreement which will provide that all reservations which are received by the
Genisys System and which are reservations for ground transportation services to
be provided by the TranspoNet Service Providers will be processed by the Genisys
System and delivered to the TranspoNet Service Providers through the TranspoNet
System or otherwise, all on the terms and conditions more fully set forth
herein; and
WHEREAS, Genisys and TranspoNet now desire to enter into this
Agreement in order to set forth the respective rights, duties and obligations of
the legal relationship between Genisys and TranspoNet.
NOW THEREFORE, in consideration of good and valuable
consideration, the receipt of which is hereby acknowledged, and of the premises
and the mutual covenants and representations contained herein, Genisys and
TranspoNet hereby agree as follows:
863115.06 (115493.004)
1
ARTICLE I
DEFINITIONS
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Section 1.01. Definition of Terms. Unless the context clearly requires
otherwise, the following terms shall have the following meanings for all
purposes of this Agreement:
"Agreement" means this Reservation Delivery Agreement dated as
of February 1, 1998, by and between Genisys and TranspoNet, as this Agreement
may be hereafter amended and supplemented.
"Basic Service Provider Booking Fee" means the fee agreed upon
from time to time by Genisys and TranspoNet which is to be charged to each
TranspoNet Service Provider who receives or processes less than an average of
100 reservations per day during the preceding calendar month through the Genisys
System and/or the TranspoNet System. The Basic Service Provider Booking Fee
shall be the same no matter which CRS initially delivered the reservation to the
Genisys System. As of the date of this Agreement, Genisys and TranspoNet agree
that the initial Basic Service Provider Booking Fee shall be $3.90 per
reservation received and processed by the Genisys System and/or the TranspoNet
System, regardless of whether such reservation is thereafter changed and/or
cancelled. The Basic Service Provider Booking Fee may hereafter only be modified
by a written agreement executed by Genisys and TranspoNet.
"CRS" means any computerized reservation system owned and
operated by an entity other than Genisys with which (i) Genisys has entered into
an agreement pursuant to which such computerized reservation system has agreed
to accept reservations for Ground Transportation Services and deliver such
reservations to the Genisys System and (ii) the Genisys System is able to
commercially accept, process and transmit the reservations delivered to the
Genisys System by such computerized reservation system. As of the date of this
Agreement, a "CRS" includes, but is not limited to, the computerized reservation
systems generally known as "Apollo" and "Sabre". As of the date of this
Agreement, Genisys has entered into an agreement with the CRS generally known
"Worldspan" pursuant to which "Worldspan" has agreed to accept reservations for
Ground Transportation Services and deliver such reservations to the Genisys
System, but the Genisys System is not currently able to commercially accept,
process and transmit the reservations delivered to the Genisys System by
"Worldspan". Genisys anticipates that the Genisys System will be able to
commercially accept, process and transmit the reservations delivered to the
Genisys System by "Worldspan" within ninety (90) days after the execution of
this Agreement. Whenever the Genisys System hereafter becomes capable of
commercially accepting, processing and transmitting reservations for Ground
Transportation Services made through "Worldspan" or any other CRS other than
"Apollo" and "Sabre", Genisys shall give written notice of such fact to
TranspoNet as soon as practicable after the Genisys System acquires such
capability.
"CRS Processing Fee" means the fee which is charged to Genisys
by a CRS for each reservation for Ground Transportation Services which is
received and processed by such CRS and delivered to the Genisys System, as such
fee may be changed from time to time in accordance with the contract between
Genisys and such CRS. As of the date of this Agreement, the CRS Processing Fee
charged by "Sabre" and "Worldspan" is $1.00 per reservation (regardless of
whether such reservation is thereafter changed or cancelled) and the CRS
Processing Fee charged by "Apollo" is $0.75 per reservation with an additional
$0.75 charge for each change to, or cancellation of, such reservation. Genisys
shall give written notice of any change in the CRS Processing Fee to TranspoNet
as soon as practicable after Genisys receives notification of such change from
the CRS or such change has been agreed upon by Genisys and the CRS.
"Discounted Service Provider Booking Fee" means the fee agreed
upon from time to time by Genisys and TranspoNet which is to be charged to each
TranspoNet Service Provider who receives or processes an average of 100 or more
reservations per day during the preceding calendar month through the Genisys
System and/or the TranspoNet System. The Discounted Service Provider Booking Fee
shall be the same no matter which CRS initially delivered the reservation to the
Genisys System. As of the date of this Agreement, Genisys and TranspoNet agree
that the initial Discounted Service Provider Booking Fee shall be $3.70 per
reservation received and processed by the Genisys System and/or the TranspoNet
System, regardless of whether such reservation is thereafter changed and/or
cancelled. The Discounted Service Provider Booking Fee may hereafter only be
modified by a written agreement executed by Genisys and TranspoNet.
"Disputed Charge" means the fee which, except for the
provisions of Section 6.02 of this Agreement and the terms and provisions of the
service provider agreement between Genisys and the TranspoNet Service Provider,
the TranspoNet Service Provider would have been entitled to receive in
connection with a Disputed Reservation.
"Disputed Reservation" means a reservation relating to Ground
Transportation Services for which Genisys receives notice after the provision of
the Ground Transportation Services that the client or customer of the TranspoNet
Service Provider is disputing the validity or size of the charge by the
TranspoNet Service Provider to such client or customer or the quality of the
Ground Transportation Services rendered by the TranspoNet Service Provider in
connection with such TranspoNet Reservation.
"Genisys" means Genisys Reservation Systems, Inc., a New
Jersey corporation, including all successors and assigns thereof.
"Genisys Confidentiality Agreement" means the Confidentiality
Agreement made and effective as of November 15, 1997, by and between Genisys and
TranspoNet.
"Genisys Data" means any and all data and information which is
input into, or received or processed by the Genisys System relating to any
reservation for Ground Transportation Services, including, without limitation,
any TranspoNet Reservation.
"Genisys System" means the computerized reservation and
payment system for Ground Transportation Services which has been developed and
completed by Genisys and is known as the "Genisys Reservation System," and all
upgrades, modifications and enhancements to such computerized reservation system
as may be developed by Genisys during the term of this Agreement.
"Genisys/TranspoNet Interface" means (i) the computer system
or other hardware and software that functions as an interface between the
Genisys System and the TranspoNet System to deliver and process information
relating to TranspoNet Reservations between the Genisys System and the
TranspoNet System, and (ii) all upgrades, modifications and enhancements to the
computer system or other hardware described in clause (i) of this definition as
may be developed during the term of this Agreement. All right, title and
interest in and to the Genisys/TranspoNet Interface shall be owned by TranspoNet
as more fully provided in Section 4.04 hereof.
"Ground Transportation Services" means the transportation of
one or more individuals from one or more locations to another location or
locations, or a round trip between two locations, through the use of any and all
vehicles used or intended to be used for the picking up and discharging of
passengers for hire, including, but not limited to, stretch limousines, sedans,
vans, black car services, executive services, shuttle service, bus service and
airport service vehicles.
"Intra-Service Provider Reservation" means any reservation
relating to Ground Transportation Services which is accepted and processed by
the Genisys System and delivered to the TranspoNet System through the
Genisys/TranspoNet Interface and thereafter is transferred from one TranspoNet
Service Provider to another TranspoNet Service Provider through the TranspoNet
System.
"Off-Peak Hours" means any hours other than Peak Hours.
"Peak Hours" means all hours in the period commencing at
8:00 a.m. on Monday and ending at 6:00 p.m. on Friday during each week.
"SEC" means the United States Securities and Exchange
Commission and any successor or successors thereto.
"Service Provider" means any individual, firm, partnership,
corporation or other entity which is in the business of providing Ground
Transportation Services for business and leisure travellers.
"Specifications" means the functional, technical and
performance specifications for the Genisys System, the TranspoNet System, the
Genisys/TranspoNet Interface, the TranspoNet Software Program Interface, or the
TranspoNet Software Programs, as the case may be.
"TranspoNet" means The TranspoNet Companies, Inc., a New York
Corporation, including all subsidiaries, affiliated companies, successors and
assigns thereof.
"TranspoNet Confidentiality Agreement" means the
Confidentiality Agreement made and effective as of November 15, 1997, by and
between TranspoNet and Genisys.
"TranspoNet Data" means any and all data and information which
is input into, or received or processed by, the TranspoNet System relating to
any reservation for Ground Transportation Services which is delivered to any
TranspoNet Service Provider.
"TranspoNet Reservation" means any reservation relating to
Ground Transportation Services which are to be provided by a TranspoNet Service
Provider.
"TranspoNet Service Provider" means any Service Provider which
(i) has entered into an agreement with TranspoNet to receive reservations for
Ground Transportation Services through the TranspoNet System and has entered
into a service provider agreement with Genisys to receive payment for each
TranspoNet Reservation for which it has rendered Ground Transportation Services
in accordance with the terms and conditions of such service provider agreement,
or (ii) utilizes a TranspoNet Software Program to perform its "back-office"
functions and has entered into a service provider agreement with Genisys to
receive payment for each TranspoNet Reservation for which it has rendered Ground
Transportation Services in accordance with the terms and conditions of such
service provider agreement.
"TranspoNet Software Programs" means any and all computer
software programs which are currently owned and marketed by TranspoNet, or which
may hereafter be developed, owned and marketed by TranspoNet and which are
designed to perform certain "back-office" functions for Service Providers such
as accounting, accounts payable, accounts receivable, etc. As of the date of
this Agreement, "TranspoNet Software Programs" consist of the computer software
programs commonly known as "CARS," "Limoware", "LMS" and "Odyssey". If
TranspoNet hereafter develops any additional TranspoNet Software Program,
TranspoNet shall give Genisys written notice of such fact as soon as possible
after such development is complete and before TranspoNet begins to market such
additional TranspoNet Software Program.
"TranspoNet Software Program Interface" means (i) the computer
system or other hardware and software that functions as an interface between the
Genisys System and TranspoNet Software Programs to deliver and process
information relating to TranspoNet Reservations between the Genisys System and
the TranspoNet Software Programs, and (ii) all upgrades, modifications and
enhancements to the computer system or other hardware described in clause (i) of
this definition as may be developed during the term of this Agreement.
"TranspoNet System" means the computerized reservation and
delivery system which has been developed by TranspoNet which will deliver
TranspoNet Reservations over the Internet directly into the computer systems of
TranspoNet Service Providers through a TranspoNet Software Program.
When used in this Agreement, the phrase "term of this
Agreement" or other similar term, shall be deemed to include the original term
of this Agreement and any renewals thereof as provided in Section 13.01 hereof,
unless the context clearly indicates otherwise.
Except where the context otherwise requires, words used in
this Agreement importing the singular number shall include the plural number and
vice versa, words importing persons shall include firms, associations,
corporations, partnerships and other entities, and pronouns stated in either the
masculine, feminine or the neuter gender shall also include the masculine,
feminine or the neuter gender, as the case may be.
2
ARTICLE II
COMPLETION AND OPERATION OF THE TRANSPONET SYSTEM
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Section 2.01. Operation of the TranspoNet System. At all times
after the Genisys/TranspoNet Interface becomes operational and the TranspoNet
System begins to accept and transmit reservations for Ground Transportation
Services received from the Genisys System to TranspoNet Service Providers,
TranspoNet shall operate the TranspoNet System in such a manner so that the
TranspoNet System shall:
(a) Accept and process all reservations for Ground
Transportation Services delivered to the TranspoNet System from the Genisys
System through the Genisys/TranspoNet Interface;
(b) Be capable of accepting from and transmitting to the
computer systems of each TranspoNet Service Provider through the TranspoNet
Software Programs all information relating to each reservation delivered from
the Genisys System;
(c) Transmit all information relating to each reservation made
through the Genisys System through the Genisys/TranspoNet Interface to
TranspoNet Service Providers in a timely and efficient manner consistent with
acceptable industry standards;
(d) Be capable of accepting from, and transmitting to, the
various computer systems of the TranspoNet Service Providers all information
relating to each Intra-Service Provider Reservation which is intended to be
delivered or transmitted through the TranspoNet System;
(e) Be kept in good working order and repair consistent with
industry standards and practice, perform in accordance with the performance
criteria and be otherwise free of errors.
Section 2.02. Availability. Except during shutdowns for
scheduled maintenance and during any other unanticipated or unscheduled
emergency maintenance or other shutdowns, the TranspoNet System shall be
available 24 hours each day, Monday through Sunday, to accept and process
reservations from the Genisys System. During any period of time in excess of two
hours during the Peak Hours, or in excess of six hours during the Off-Peak
Hours, where the TranspoNet System is unable to deliver reservations to the
TranspoNet Service Providers as contemplated in Section 2.01 hereof, Genisys
shall be entitled to utilize the contingency plan developed in accordance with
Section 2.03 of this Agreement to transmit to the TranspoNet Service Providers
all reservations which otherwise would have been transmitted to TranspoNet
Service Providers in accordance with Section 2.01 hereof. Notwithstanding
anything herein to the contrary, so long as the TranspoNet Service Providers
shall accept, process and provide
Ground Transportation Services for reservations which are transmitted to
TranspoNet Service Providers pursuant to the contingency plan developed in
accordance with Section 2.03 of this Agreement, TranspoNet shall not in any way
be liable for any loss of business or revenue suffered by Genisys as a result of
reservations being transmitted pursuant to such contingency plan.
Section 2.03. Contingency Plan. As soon as practicable after
the execution of this Agreement, Genisys and TranspoNet shall develop a mutually
acceptable contingency plan designed to enable Genisys to transmit, and the
TranspoNet Service Providers to receive and process, reservations for Ground
Transportation Services through means other than the TranspoNet System. Once
Genisys and TranspoNet have agreed on such a contingency plan, Genisys and
TranspoNet shall keep such contingency plan in place at all times during the
term of this Agreement and Genisys and TranspoNet shall use such plan in each
instance in which the TranspoNet System is unable to deliver reservations to the
TranspoNet Service Providers as contemplated in Section 2.01 of this Agreement
for a period of time greater than two hours during the Peak Hours or six hours
during the Off-Peak Hours. During the term of this Agreement, Genisys and
TranspoNet shall test the implementation of such contingency plan on a periodic
basis at least once every year.
3
ARTICLE III
OPERATION OF THE GENISYS SYSTEM
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Section 3.01. Operation of the Genisys System. At all times
after the Genisys/TranspoNet Interface or the TranspoNet Software Program
Interface becomes operational and either Interface begins to accept and transmit
reservations for Ground Transportation Services from the Genisys System to the
TranspoNet Service Providers, Genisys shall operate the Genisys System in such a
manner so that the Genisys System shall:
(a) Accept and process all reservations for Ground
Transportation Services made through the CRSs;
(b) Be capable of accepting from, and transmitting to the
TranspoNet Service Providers through the use of either the Genisys/TranspoNet
Interface or the TranspoNet Software Program Interface certain information
relating to each TranspoNet Reservation made through the CRSs;
(c) Transmit all information relating to each TranspoNet
Reservation made through the CRSs through either the Genisys/TranspoNet
Interface or the TranspoNet Software Program Interface in a timely and efficient
manner consistent with acceptable industry standards and practice; and
(d) Be kept in good working order and repair consistent with
industry standards and practice, perform in accordance with the performance
criteria and otherwise be free from errors.
Section 3.02. Availability. Except during shutdowns for
scheduled maintenance and during any other unanticipated or unscheduled
emergency maintenance or other shutdowns, the Genisys System shall be available
24 hours each day, Monday through Sunday, to process and deliver requests for
reservations from CRSs to either the TranspoNet System through the
Genisys/TranspoNet Interface or the TranspoNet Software Programs through the
TranspoNet Software Program Interface. During any period of time in excess of
two hours during the Peak Hours, or in excess of six hours during the Off-Peak
Hours, where the Genisys System is unable to deliver reservations to the
TranspoNet Service Providers as contemplated in Section 3.01 hereof, TranspoNet
and the TranspoNet Service Providers shall be entitled to utilize the
contingency plan developed in accordance with Section 3.03 of this Agreement to
receive all reservations which otherwise would have been transmitted to the
TranspoNet Service Providers in accordance with Section 3.01 hereof.
Notwithstanding anything herein to the contrary, so long as the TranspoNet
Service Providers shall accept, process and provide Ground Transportation
Services for reservations which are transmitted to TranspoNet Service Providers
pursuant to the contingency plan developed in accordance with Section 3.03 of
this Agreement, Genisys shall not in any way be liable for any loss of business
or revenue suffered by TranspoNet as a result of reservations being transmitted
pursuant to such contingency plan.
Section 3.03. Contingency Plan. As soon as practicable after
the execution of this Agreement, Genisys and TranspoNet shall develop a mutually
acceptable contingency plan designed to enable the TranspoNet Service Providers
to receive and process reservations for Ground Transportation Services from the
CRSs through means other than the Genisys System. Once Genisys and TranspoNet
have agreed on such a contingency plan, Genisys and TranspoNet shall keep such
contingency plan in place at all times during the term of this Agreement and
Genisys and TranspoNet shall use such plan in each instance in which the Genisys
System is unable to deliver reservations to the TranspoNet Service Providers as
contemplated in Section 3.01 of this Agreement for a period of time greater than
two hours during the Peak Hours or six hours during the Off-Peak Hours. During
the term of this Agreement, Genisys and TranspoNet shall test the implementation
of such contingency plan on a periodic basis at least once every year.
4
ARTICLE IV
COMPLETION AND OPERATION OF THE GENISYS/TRANSPONET INTERFACE
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Section 4.01. Completion of the Genisys/TranspoNet Interface.
TranspoNet has heretofore begun to design, develop, construct and test the
Genisys/TranspoNet Interface and, after the date of execution of this Agreement,
TranspoNet shall continue to diligently proceed with the design, development,
construction and testing of the Genisys/TranspoNet Interface and shall use its
best efforts to complete the Genisys/TranspoNet Interface in accordance with the
Project Schedule referred to in Section 4.03 hereof.
Section 4.02. Cooperation in Completion of the
Genisys/TranspoNet Interface and Costs Related Thereto. Genisys shall give its
full and complete cooperation to TranspoNet in connection with the design,
development, construction and testing of the Genisys/TranspoNet Interface and
shall provide to Transponet all information, requirements and Specifications
relating to the Genisys System which may reasonably be needed in order to
design, develop, construct and test the Genisys/TranspoNet Interface. Genisys
and TranspoNet shall each be responsible for paying all of their own costs, fees
or expenses incurred by them in connection with the design, development,
construction or testing of the Genisys/TranspoNet Interface and of complying
with the provisions of this Section 4.02. Except for its obligations to give its
full and complete cooperation and to pay its own costs, fees and expenses as
previously set forth in this Section 4.02, Genisys shall have no other
obligation relating to the design, development, construction and testing of the
Genisys/TranspoNet Interface and TranspoNet shall have the sole responsibility
to complete the design, development, construction or testing of the
Genisys/TranspoNet Interface.
Section 4.03. Project Schedule. TranspoNet shall use its best efforts to
complete the Genisys/TranspoNet Interface in accordance with the Project
Schedule attached hereto as Schedule A.
Section 4.04. Ownership and Use of the Genisys/TranspoNet
Interface. Subject to the provisions of Section 4.06 hereof, all right, title
and interest in and to the Genisys/TranspoNet Interface, including, without
limitation, all patent rights, copyrights, copyright registrations, trade
secrets, trademarks, service marks and trademark and service ▇▇▇▇ registrations
relating to the Genisys/TranspoNet Interface, shall be owned by TranspoNet at
all times during the term of this Agreement and Genisys shall have no rights in
the Genisys/TranspoNet Interface except as expressly provided in this Agreement.
At all times during this Agreement, Genisys and TranspoNet shall each have the
unrestricted right to use the Genisys/TranspoNet Interface for the purposes
contemplated by this Agreement and each shall have the right to copy the same as
is reasonably necessary for archival and backup purposes. Upon termination of
this Agreement, and subject to the obligations set forth in Section 13.03
hereof, the Genisys/TranspoNet Interface shall continue to be owned by
TranspoNet.
Section 4.05. Maintenance and Support of the
Genisys/TranspoNet Interface. During the term of this Agreement, TranspoNet
shall provide, at its cost and expense, the necessary services related to the
support and maintenance of the Genisys/TranspoNet Interface so that the
Genisys/TranspoNet Interface performs in accordance with the agreed upon
performance criteria and is otherwise free from errors.
Section 4.06. Changes, Modifications, Upgrades, Etc. to the
Genisys/TranspoNet Interface. TranspoNet shall not make any programming change,
addition, deletion, upgrade, modification or enhancement to the
Genisys/TranspoNet Interface which adversely affects the operation of the
Genisys/TranspoNet Interface or its ability to transmit information relating to
TranspoNet Reservations between the Genisys System and the Genisys/TranspoNet
Interface, without the prior written consent of Genisys.
Section 4.07. Availability. Except during shutdowns for
scheduled maintenance and during any other unanticipated or unscheduled
emergency maintenance or other shutdowns, the Genisys/TranspoNet Interface shall
be available 24 hours each day, Monday through Sunday, to accept and process
information relating to reservations for Ground Transportation Services between
the Genisys System and the TranspoNet System. During any period of time in
excess of two hours during the Peak Hours, or in excess of six hours during the
Off-Peak Hours, where the Genisys/TranspoNet Interface is not operational or not
operating properly, Genisys shall be entitled to utilize the contingency plan
developed in accordance with Section 2.03 of this Agreement to transmit to the
TranspoNet Service Providers all reservations which otherwise would have been
transmitted to TranspoNet Service Providers in accordance with Section 2.01
hereof. Notwithstanding anything herein to the contrary, so long as the
TranspoNet Service Providers shall accept, process and provide Ground
Transportation Services for reservations which are transmitted to TranspoNet
Service Providers pursuant to the contingency plan developed in accordance with
Section 2.03 of this Agreement, TranspoNet shall not in any way be liable for
any loss of business or revenue suffered by Genisys as a result of reservations
being transmitted pursuant to such contingency plan.
Section 4.08. Confidential Treatment. To the extent that the
Genisys/TranspoNet Interface represents or contains Confidential Information as
defined in the Genisys Confidentiality Agreement, if and when TranspoNet has
access to such Confidential Information, TranspoNet shall treat such
Confidential Information in accordance with the provisions of the Genisys
Confidentiality Agreement. To the extent that the Genisys/TranspoNet Interface
represents or contains Confidential Information as defined in the TranspoNet
Confidentiality Agreement, if and when Genisys has access to such Confidential
Information, Genisys shall treat such Confidential Information in accordance
with the provisions of the TranspoNet Confidentiality Agreement.
Section 4.09. Bi-Weekly Reports to Genisys. After the
Genisys/TranspoNet Interface becomes operational and begins to accept and
process reservations from the Genisys System in accordance with Section 2.01
hereof, TranspoNet shall provide to Genisys on a bi-weekly basis computerized
reports which describe all of the reservations made through the
TranspoNet System in the preceding two weeks which were confirmed for, and
transmitted to, TranspoNet Service Providers in accordance with Section 2.01
hereof. The form and content of such bi-weekly reports shall be hereafter
mutually agreed upon by Genisys and TranspoNet; provided, however, that in any
event, such bi-weekly reports shall include, among other things, a detailed
listing of all Intra-Service Provider Reservation transactions among the various
TranspoNet Service Providers. TranspoNet shall deliver such bi-weekly reports to
Genisys not later than the Friday following the end of the preceding bi-weekly
period. Upon reasonable notice and request by Genisys, TranspoNet shall make
available for review and inspection by Genisys and/or its accountants, attorneys
and other agents, all books, records, reports, statements, print-outs and other
documents and information upon which the bi-weekly reports produced by
TranspoNet in accordance with this Section 4.09 are based.
5
ARTICLE V
COMPLETION OF THE TRANSPONET
SOFTWARE PROGRAM INTERFACE
------------------------------------------------------------------------------
Section 5.01. Operation and Effectiveness of this Article V.
This Article V shall become operational and effective and be in full force and
effect if: (i) at any time TranspoNet elects to have the provisions of this
Article V become operational and effective by delivering written notice of such
election to Genisys, in which case this Article shall become operational and
effective immediately upon Genisys' receipt of such notice; or (ii) at any time
when Genisys and TranspoNet mutually agree that the provisions of this Article V
shall become operational and effective, in which case this Article shall become
operational and effective at the time mutually agreed upon by Genisys and
TranspoNet. The provisions of this Article V are intended to supplement, and be
in addition to, the provisions of Articles II and IV of this Agreement, are not
intended, in any way, to be an alternative to, or substitution for, the
provisions of Articles II and IV.
Section 5.02. Completion of the TranspoNet Software Program
Interface. As soon as practicable after the provisions of this Article V become
operational, Genisys and TranspoNet shall commence with the design, development,
construction and testing of the TranspoNet Software Program Interface and such
Interface shall be completed as soon as possible thereafter.
Section 5.03. TranspoNet's Cooperation in Completion of the
TranspoNet Software Program Interface. TranspoNet shall give its full and
complete cooperation to Genisys in connection with the design, development,
construction and testing of the TranspoNet Software Program Interface and shall
provide to Genisys all information, requirements and Specifications relating to
the TranspoNet Software Programs, which Genisys may reasonably need in order to
design, develop, construct and test the TranspoNet Software Program Interface.
Genisys and TranspoNet shall each be responsible for paying all of their own
costs, fees or expenses incurred by them in connection with the design,
development, construction or testing of the TranspoNet Software Program
Interface and of compliance with the provisions of this Section 5.03. Except for
its obligations to give its full and complete cooperation and to pay its own
costs, fees and expenses as previously set forth in this Section 5.03,
TranspoNet shall have no other obligation relating to the design, development,
construction and testing of the TranspoNet Software Program Interface and
Genisys shall have the sole responsibility to complete the design, development,
construction or testing of the TranspoNet Software Program Interface.
Section 5.04. Ownership of the TranspoNet Software Program Interface. Subject to
the provisions of Section 5.05 hereof, all right, title and interest in and to
the TranspoNet Software Program Interface, including, without limitation, all
patent rights, copyrights, copyright registrations, trade secrets, trademarks,
service marks and trademark and service ▇▇▇▇ registrations relating to the
TranspoNet Software Program Interface, shall be owned by Genisys at all times
during the term of this Agreement and TranspoNet shall have no rights in the
TranspoNet Software Program Interface except as expressly provided in this
Agreement. At all times during this Agreement, Genisys and TranspoNet shall each
have the unrestricted right to use the TranspoNet Software Program Interface for
the purposes contemplated by this Agreement and each shall have the right to
copy the same as is reasonably necessary for archival and backup purposes. Upon
termination of this Agreement, and subject to the obligations set forth in
Section 13.03 hereof, the TranspoNet Software Program Interface shall continue
to be owned by Genisys.
Section 5.05. Changes, Modifications, Upgrades, Etc. to the
TranspoNet Software Program Interface. Genisys shall not make any programming
change, addition, deletion, upgrade, modification or enhancement to the
TranspoNet Software Program Interface which adversely affects the operation of
the TranspoNet Software Program Interface or its ability to transmit information
relating to TranspoNet Reservations between the Genisys System and the
TranspoNet Software Program Interface, without the prior written consent of
TranspoNet.
Section 5.06. Contingency Plan. As soon as practicable after
the execution of this Agreement, Genisys and TranspoNet shall develop a mutually
acceptable contingency plan designed to enable Genisys to transmit, and the
TranspoNet Service Providers to receive and process reservations for Ground
Transportation Services through means other than the TranspoNet Software Program
Interface. Once Genisys and TranspoNet have agreed on such a contingency plan,
Genisys and TranspoNet shall keep such contingency plan in place at all times
during the term of this Agreement and Genisys shall use such plan in each
instance in which the TranspoNet Software Program Interface is not operational
or is otherwise unavailable for a period of time greater than two hours during
the Peak Hours or six hours during the Off-Peak Hours. During the term of this
Agreement, Genisys and TranspoNet shall test the implementation of such
contingency plan on a periodic basis at least once every year.
Section 5.07. Confidential Treatment. To the extent that the
TranspoNet Software Program Interface represents or contains Confidential
Information as defined in the Genisys Confidentiality Agreement, if and when
TranspoNet has access to such Confidential Information, TranspoNet shall treat
such Confidential Information in accordance with the provisions of the Genisys
Confidentiality Agreement. To the extent that the TranspoNet Software Program
Interface represents or contains Confidential Information as defined in the
TranspoNet Confidentiality Agreement, if and when Genisys has access to such
Confidential Information, Genisys shall treat such Confidential Information in
accordance with the provisions of the TranspoNet Confidentiality Agreement.
Section 5.08. Bi-Weekly Reports to TranspoNet. After the
TranspoNet Software Program Interface becomes operational and begins to accept
and process reservations delivered from the Genisys System, Genisys shall
provide to TranspoNet on a bi-weekly basis computerized reports which describe
all of the reservations made through the Genisys System and the TranspoNet
Software Program Interface in the preceding two weeks which were
confirmed for, and transmitted to, TranspoNet Service Providers. The form and
content of such bi-weekly reports shall be hereafter mutually agreed upon by
Genisys and TranspoNet; provided, however, that in any event, such bi-weekly
reports shall include, among other things, the date the reservation was made, a
description of the origination and destination of the ride, the date of such
ride and the fee received for such Ground Transportation Services. Genisys shall
deliver such bi-weekly reports to TranspoNet not later than the Friday following
the end of the preceding bi-weekly period. Upon reasonable notice and request by
TranspoNet, Genisys shall make available for review and inspection by TranspoNet
and/or its accountants, attorneys and other agents, all books, records, reports,
statements, print-outs and other documents and information upon which the
bi-weekly reports produced by Genisys in accordance with this Section 5.08 are
based.
Section 5.09. Failure to Complete the TranspoNet Software
Program Interface. If the TranspoNet Software Program Interface is not
operational by no later than sixty (60) days after the provisions of this
Article V shall have become operational and effective, then, unless Genisys and
TranspoNet mutually agree otherwise, this Agreement shall immediately terminate
and thereafter shall become null and void in its entirety, except as otherwise
provided in Section 13.11 hereof. If this Agreement terminates and becomes null
and void as a result of the preceding sentence, Genisys and TranspoNet shall be
completely free and unrestricted to pursue and enter into alternative
contractual arrangements with any third parties which cover the same subject
matter, in whole or in part, as is the subject of this Agreement.
Section 5.10. Consent of TranspoNet Required for Use of the
TranspoNet Software Program Interface. Notwithstanding anything in this Article
V or elsewhere in this Agreement to the contrary, whenever Genisys desires to
have the Genisys System utilize the TranspoNet Software Program Interface to
transmit reservations to a particular TranspoNet Service Provider, Genisys must
obtain the prior written consent of TranspoNet before the Genisys System begins
to transmit reservations to each such TranspoNet Service Provider through the
use of the TranspoNet Software Program Interface.
6
ARTICLE VI
FINANCIAL ARRANGEMENTS
------------------------------------------------------------------------------
Section 6.01. Payments to Genisys and TranspoNet. Genisys and
TranspoNet agree that Genisys, TranspoNet and each TranspoNet Service Provider
shall receive payment in accordance with the terms and provisions of this
Article VI for their services rendered in connection with each reservation for
Ground Transportation Services received and processed by the Genisys System in
accordance with the terms and provisions of this Agreement.
Section 6.02. Payments to TranspoNet Service Providers. Within
five (5) business days after a TranspoNet Service Provider inputs the
information required to be inputted into the Genisys System in connection with
each reservation for Ground Transportation Services received and processed by
such TranspoNet Service Provider, Genisys will make payment to such TranspoNet
Service Provider of all amounts due and owing to such TranspoNet Service
Provider on the terms and conditions set forth in this paragraph. At the
conclusion of each business day, Genisys shall calculate and make payment to
such TranspoNet Service Provider of all amounts due and owing to such TranspoNet
Service Provider as follows:
(i) Genisys shall calculate the aggregate dollar amount (gross amount) due
to the TranspoNet Service Provider for all reservations received and processed
by the TranspoNet Service Provider in accordance with this Agreement and the
terms of the service provider agreement between Genisys and such TranspoNet
Service Provider at least five (5) business days prior thereto and for which the
TranspoNet Service Provider has not previously been paid;
(ii) Except as otherwise set forth in Section 6.10 hereof, Genisys shall
deduct from the amount calculated in accordance with clause (i) above the total
aggregate dollar amount of: (a) all payment processing fees which Genisys must
pay in connection with the reservations for which the TranspoNet Service
Provider is entitled to receive payment under clause (i) above; (b) in the case
of a TranspoNet Service Provider who received and processed less than an average
of 100 reservations per day during the preceding calendar month, all Basic
Service Provider Booking Fees relating to all reservations for which the
TranspoNet Service Provider is entitled to receive payment under clause (i)
above; and (c) in the case of a TranspoNet Service Provider who received and
processed an average of 100 or more reservations per day during the preceding
calendar month, all Discounted Service Provider Booking Fees relating to all
reservations for which the TranspoNet Service Provider is entitled to receive
payment under clause (i) above;
(iii) Genisys shall deduct from the remaining amount the sum of all
Disputed Charges which it is entitled to withhold from the TranspoNet Service
Provider in accordance with the terms of the service provider agreement between
Genisys and such TranspoNet Service Provider; and
(iv) Genisys shall add to the remaining amount the sum of all Disputed
Charges which have been resolved in favor of the TranspoNet Service Provider in
accordance with the terms of the service provider agreement between Genisys and
such TranspoNet Service Provider.
The amount remaining after the calculations, deductions and
additions required by clauses (i), (ii), (iii) and (iv) above shall be the net
amount payable by Genisys to the TranspoNet Service Provider.
Section 6.03. Calculation of Payments to Genisys and
TranspoNet When Utilizing the Genisys/TranspoNet Interface. If the Genisys
System transmits reservations to the TranspoNet Service Providers through the
Genisys/TranspoNet Interface as contemplated by Articles II and IV of this
Agreement, then, on Saturday of each week, Genisys shall make the following
calculations:
(i) Genisys shall calculate the total aggregate dollar amount of all CRS
Processing Fees deducted by Genisys in accordance with clause (ii) of Section
6.02 in connection with all reservations for Ground Transportation Services
which were transmitted through the Genisys/TranspoNet Interface and for which
all TranspoNet Service Providers received payment from Genisys during such
preceding week;
(ii) Genisys shall: (a) calculate the total aggregate dollar amount of all
Basic Service Provider Booking Fees deducted by Genisys in accordance with
clause (ii) of Section 6.02 in connection with all reservations for Ground
Transportation Services which were received by the Genisys System from any CRS
other than "Apollo" and transmitted through the Genisys/TranspoNet Interface and
for which all TranspoNet Service Providers received payment from Genisys during
such preceding week; (b) calculate the dollar amount which equals 70.7% of the
total aggregate dollar amount calculated in accordance with clause (a) of this
subparagraph and such amount shall be retained by Genisys; and (c) calculate the
dollar amount which equals 29.3% of the total aggregate dollar amount calculated
in accordance with clause (a) of this subparagraph and such amount shall be
payable to TranspoNet;
(iii) Genisys shall: (a) calculate the total aggregate dollar amount of all
Basic Service Provider Booking Fees deducted by Genisys in accordance with
clause (ii) of Section 6.02 in connection with all reservations for Ground
Transportation Services which were received by the Genisys System from the
"Apollo" CRS and transmitted through the Genisys/TranspoNet Interface and for
which all TranspoNet Service Providers received payment from Genisys during such
preceding week; (b) calculate the dollar amount which equals 71.5% of the total
aggregate dollar amount calculated in accordance with clause (a) of this
subparagraph and such amount shall be retained by Genisys; and (c) calculate the
dollar amount which equals 28.5% of the total aggregate dollar amount calculated
in accordance with clause (a) of this subparagraph and such amount shall be
payable to TranspoNet;
(iv) Genisys shall: (a) calculate the total aggregate dollar amount of all
Discounted Service Provider Booking Fees deducted by Genisys in accordance with
clause (ii) of Section 6.02 in connection with all reservations for Ground
Transportation Services which were received by the Genisys System from any CRS
other than "Apollo" and transmitted through the Genisys/TranspoNet Interface and
for which all TranspoNet Service Providers received payment from Genisys during
such preceding week; (b) calculate the dollar amount which equals 70.0% of the
total aggregate dollar amount calculated in accordance with clause (a) of this
subparagraph and such amount shall be retained by Genisys; and (c) calculate the
dollar amount which equals 30.0% of the total aggregate dollar amount calculated
in accordance with clause (a) of this subparagraph and such amount shall be
payable to TranspoNet; and
(v) Genisys shall: (a) calculate the total aggregate dollar amount of all
Discounted Service Provider Booking Fees deducted by Genisys in accordance with
clause (ii) of Section 6.02 in connection with all reservations for Ground
Transportation Services which were received by the Genisys System from the
"Apollo" CRS and transmitted through the Transponet Interface and for which all
TranspoNet Service Providers received payment from Genisys during such preceding
week; (b) calculate the dollar amount which equals 70.0% of the total aggregate
dollar amount calculated in accordance with clause (a) of this subparagraph and
such amount shall be retained by Genisys; and (c) calculate the dollar amount
which equals 30.0% of the total aggregate dollar amount calculated in accordance
with clause (a) of this subparagraph and such amount shall be payable to
TranspoNet.
Section 6.04. Calculation of Payments to Genisys and
TranspoNet When Utilizing the TranspoNet Software Program Interface. If the
Genisys System transmits reservations to the TranspoNet Service Providers
through the TranspoNet Software Program Interface as contemplated by Article V
of this Agreement, then, on Saturday of each week, Genisys shall make the
following calculations:
(i) Genisys shall calculate the total aggregate dollar amount of all CRS
Processing Fees deducted by Genisys in accordance with clause (ii) of Section
6.02 in connection with all reservations for Ground Transportation Services
which were transmitted through the TranspoNet Software Program Interface and for
which all TranspoNet Service Providers received payment from Genisys during such
preceding week;
(ii) Genisys shall: (a) calculate the total aggregate dollar amount of all
Basic Service Provider Booking Fees deducted by Genisys in accordance with
clause (ii) of Section 6.02 in connection with all reservations for Ground
Transportation Services which were received by the Genisys System from any CRS
other than "Apollo" and transmitted through the TranspoNet Software Program
Interface and for which all TranspoNet Service Providers received payment from
Genisys during such preceding week; (b) calculate the dollar amount which equals
78.0% of the total aggregate dollar amount calculated in accordance with clause
(a) of this subparagraph and such amount shall be retained by Genisys; and (c)
calculate the dollar amount which equals 22.0% of the total aggregate dollar
amount calculated in accordance with clause (a) of this subparagraph and such
amount shall be payable to TranspoNet;
(iii) Genisys shall: (a) calculate the total aggregate dollar amount of all
Basic Service Provider Booking Fees deducted by Genisys in accordance with
clause (ii) of Section 6.02 in connection with all reservations for Ground
Transportation Services which were received by the Genisys System from the
"Apollo" CRS and transmitted through the TranspoNet Software Program Interface
and for which all TranspoNet Service Providers received payment from Genisys
during such preceding week; (b) calculate the dollar amount which equals 79.0%
of the total aggregate dollar amount calculated in accordance with clause (a) of
this subparagraph and such amount shall be retained by Genisys; and (c)
calculate the dollar amount which equals 21.0% of the total aggregate dollar
amount calculated in accordance with clause (a) of this subparagraph and such
amount shall be payable to TranspoNet;
(iv) Genisys shall: (a) calculate the total aggregate dollar amount of all
Discounted Service Provider Booking Fees deducted by Genisys in accordance with
clause (ii) of Section 6.02 in connection with all reservations for Ground
Transportation Services which were received by the Genisys System from any CRS
other than "Apollo" and transmitted through the TranspoNet Software Program
Interface and for which all TranspoNet Service Providers received payment from
Genisys during such preceding week; (b) calculate the dollar amount which equals
78.0% of the total aggregate dollar amount calculated in accordance with clause
(a) of this subparagraph and such amount shall be retained by Genisys; and (c)
calculate the dollar amount which equals 22.0% of the total aggregate dollar
amount calculated in accordance with clause (a) of this subparagraph and such
amount shall be payable to TranspoNet; and
(v) Genisys shall: (a) calculate the total aggregate dollar amount of all
Discounted Service Provider Booking Fees deducted by Genisys in accordance with
clause (ii) of Section 6.02 in connection with all reservations for Ground
Transportation Services which were received by the Genisys System from the
"Apollo" CRS and transmitted through the TranspoNet Software Program Interface
and for which all TranspoNet Service Providers received payment from Genisys
during such preceding week; (b) calculate the dollar amount which equals 79.0%
of the total aggregate dollar amount calculated in accordance with clause (a) of
this subparagraph and such amount shall be retained by Genisys; and (c)
calculate the dollar amount which equals 21.0% of the total aggregate dollar
amount calculated in accordance with clause (a) of this subparagraph and such
amount shall be payable to TranspoNet.
Section 6.05. Payments to TranspoNet. Genisys shall pay all
amounts due and owing to TranspoNet in accordance with Sections 6.03 and 6.04
hereof as soon as practicable after the calculation of such payments in
accordance with such Sections, but in no event later than Wednesday of the
following week. Notwithstanding anything in this Agreement to the contrary, in
making the weekly payments to TranspoNet required by this Section 6.05, Genisys
shall use its best estimate of the CRS Processing Fees which must be paid to the
"Apollo" CRS in connection with all TranspoNet Reservations for which TranspoNet
is receiving payment as part of such weekly payment. Thereafter, when Genisys
receives the actual statement of all CRS Processing Fees due and owing to the
"Apollo" CRS for the TranspoNet Reservations for which TranspoNet received
payment in the preceding month, Genisys shall make an adjustment to the next
weekly payment due and owing to TranspoNet to reflect the actual CRS Processing
Fees
owed to the "Apollo" CRS for all such TranspoNet Reservations. Each payment made
to TranspoNet pursuant to this Section 6.05 shall be accompanied by a statement,
print-out or other exhibit or schedule detailing the calculations made by
Genisys in accordance with this Article VI in order to determine the amount of
the payment then being made to TranspoNet.
Section 6.06. Payments to Genisys. In addition to all other
amounts which Genisys is entitled to receive in accordance with this Agreement,
TranspoNet agrees to pay to Genisys an amount equal to 28.0% of the fee received
by TranspoNet for each Intra-Service Provider Reservation transaction occurring
during the term of this Agreement. In order to calculate such amounts payable to
Genisys, TranspoNet shall, on Saturday of each week (a) calculate the total
aggregate dollar amount of all fees received by TranspoNet in connection with
all Intra-Service Provider Reservation transactions occurring during the
preceding week, (b) calculate the dollar amount which equals 28.0% of the total
aggregate dollar amount calculated in accordance with clause (a) of this
sentence and such amount shall be payable to Genisys, and (c) calculate the
dollar amount which equals 72.0% of the total aggregate dollar amount calculated
in accordance with clause (a) of this sentence and such amount shall be retained
by TranspoNet. TranspoNet shall pay all amounts due and owing to Genisys in
accordance with this Section 6.06 as soon as practicable after the calculation
of such payments in accordance with this Section, but in no event later than
Wednesday of the following week.
Section 6.07. Cost of Dedicated Lease Line. If the Genisys
System shall be transmitting reservations to the Genisys/TranspoNet Interface as
contemplated by Articles II and IV of this Agreement through the use of a
dedicated leased phone line, then Genisys shall be
responsible for paying 70.0% of the cost of the dedicated lease line and
TranspoNet shall be responsible for paying the remaining 30.0% of such cost.
Section 6.08. No Connection Charges to TranspoNet Service
Providers. No portion of the costs or expenses incurred by Genisys and/or
TranspoNet in connection with the design, development, construction or testing
of the Genisys/TranspoNet Interface or the TranspoNet Software Program Interface
or in connection with soliciting or convincing Service Providers to become
TranspoNet Service Providers and connect with the TranspoNet System and the
Genisys System as contemplated by this Agreement shall be charged in any way to
the TranspoNet Service Providers, provided, however, that TranspoNet shall have
the right to charge any TranspoNet Service Provider for the costs incurred by
TranspoNet in connection with any customization of the TranspoNet Service
Provider's computer system that is necessary to enable such computer system to
receive reservations from the TranspoNet System or through the TranspoNet
Software Program Interface.
Section 6.09. Promotional and Advertising Expenses. Unless
otherwise agreed to in writing prior to the incurrence of any promotional or
advertising expense, Genisys and TranspoNet shall each be responsible for paying
all of their own promotional or advertising costs or expenses incurred by them
in connection with advertising or promoting the availability of receiving and
transmitting reservations through the Genisys System and the TranspoNet System
as contemplated by this Agreement.
Section 6.10. Free Trial Offer. Notwithstanding anything in
this Agreement to the contrary, Genisys and TranspoNet may provide the
TranspoNet Service Providers with free use of the reservation delivery,
processing and payment services of the Genisys System and the TranspoNet System
as set forth in this Agreement. Any such free usage shall be limited to a
fourteen (14) day period and shall be limited to fifteen (15) reservations per
day; provided, however, Genisys and TranspoNet may jointly decide to extend the
length of usage or permit more reservations per day if it is necessary to
accommodate the business needs of a particular TranspoNet Service Provider.
Genisys shall be responsible for paying all CRS Processing Fees for all
reservations delivered to any TranspoNet Service Provider during any such free
usage period contemplated by this Section 6.10. Genisys and TranspoNet shall
jointly purchase all hardware, software and other equipment necessary to provide
a TranspoNet Service Provider with free usage as contemplated by this Section
6.10. Genisys shall be responsible for paying seventy percent (70%) of the cost
of such hardware, software and other equipment and TranspoNet shall be
responsible for paying the remaining thirty percent (30%) of such cost.
Section 6.11. No Additional Charges. Genisys shall have the
sole right, responsibility and obligation to ▇▇▇▇ each TranspoNet Service
Provider for all amounts payable to Genisys and TranspoNet in connection with
each reservation which is delivered and processed by the Genisys System through
the Genisys/TranspoNet Interface or the TranspoNet Software Program Interface in
accordance with the provisions of this Agreement. Except as otherwise set forth
in Section 6.08, TranspoNet shall not be entitled to ▇▇▇▇ any charges or amounts
to any TranspoNet Service Provider in connection with any reservation which is
delivered and processed in accordance with this Agreement.
7
ARTICLE VII
COVENANTS, AGREEMENTS, OBLIGATIONS AND RIGHTS OF GENISYS
------------------------------------------------------------------------------
Section 7.01. Mutually Acceptable Press Release. As soon as
practicable after execution of this Agreement, Genisys shall cooperate with
TranspoNet in preparing and releasing a mutually acceptable press release which
announces the execution of this Agreement and describes the business
relationship between Genisys and TranspoNet resulting from the execution of this
Agreement.
Section 7.02. Advertising, Promotional Material and ▇▇▇▇▇▇
▇▇▇▇▇ Releases. 1. Except as otherwise provided in Section 7.01 hereof, Genisys
shall not distribute, publish or release any press release, newspaper or
magazine article, sales brochure, advertisement or other promotional material or
documentation, which in any manner mentions or references TranspoNet, the
TranspoNet System, the Genisys/TranspoNet Interface or the TranspoNet Software
Program Interface, without the prior written approval of TranspoNet, which
approval shall not be unreasonably withheld. If Genisys desires to distribute,
publish or release any press release, newspaper or magazine article, sales
brochure, advertisement or other promotional material or documentation, which in
any manner mentions or references TranspoNet, the TranspoNet System, the
Genisys/TranspoNet Interface or the TranspoNet Software Program Interface,
Genisys shall provide TranspoNet with a copy of the proposed press release,
newspaper or magazine article, sales brochure, advertisement or other
promotional material or documentation prior to its distribution, publication or
release so as to give TranspoNet an opportunity to review it to determine the
accuracy and appropriateness of the references to TranspoNet, the TranspoNet
System, the Genisys/TranspoNet Interface or the TranspoNet Software Program
Interface. Genisys further agrees that, before TranspoNet shall have any
obligation to give its approval of any such press release, newspaper or magazine
article, sales brochure, advertisement or other promotional material or
documentation, Genisys shall make any and all changes in the references to
TranspoNet, the TranspoNet System, the Genisys/TranspoNet Interface or the
TranspoNet Software Program Interface contained therein as shall be requested by
TranspoNet. Notwithstanding anything contained in this Agreement to the
contrary, Genisys' obligation to get TranspoNet's approval of any press release,
newspaper or magazine article, sales brochure, advertisement or other
promotional material or documentation as provided in this Section 7.02 is only
applicable to press releases, newspaper or magazine articles, sales brochures,
advertisements or other promotional material or documentation which are within
Genisys' control or over which Genisys has editorial review or control.
2. Any reports or forms which Genisys may file with the SEC in
compliance with the provisions of the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, or any of the rules or regulations
promulgated by the SEC under such Acts, and which in any manner mention or
reference TranspoNet, the TranspoNet
System, the Genisys/TranspoNet Interface or the TranspoNet Software Program
Interface, shall not be deemed to be a press release, newspaper or magazine
article, sales brochure, advertisement or other promotional material or
documentation for purposes of this Section 7.05.
Section 7.03. Title and Possession. Genisys agrees that at all
times during the term of this Agreement all right, title and interest in the
TranspoNet System, the Genisys/TranspoNet Interface or any other computer
software or Internet reservation delivery system developed by TranspoNet during
the term of this Agreement shall remain with and be the property of TranspoNet
and Genisys shall acquire no interest whatsoever in the TranspoNet System, the
Genisys/TranspoNet Interface or any other computer software or Internet
reservation delivery system as a result of entering into this Agreement.
Section 7.04. Rights and Access to TranspoNet Data. Genisys
agrees that TranspoNet owns all right, title and interest in the TranspoNet Data
and shall have the right to full and immediate use and access to all TranspoNet
Data without interference from Genisys.
Section 7.05. Prohibition on Use and Distribution of
TranspoNet Data. Except as otherwise permitted by this Agreement, Genisys shall
not use or distribute any TranspoNet Data without TranspoNet's prior written
consent.
Section 7.06. Training in the Genisys System. Genisys shall
provide training in the proper operation and functioning of the Genisys System
to TranspoNet personnel, at a time and place to be hereafter mutually agreed
upon by Genisys and TranspoNet, in order to ensure a knowledgeable and efficient
marketing effort of the benefits of this Agreement to the TranspoNet Service
Providers.
Section 7.07. Maximization of Business. Genisys shall use its
best efforts, in cooperation with TranspoNet, to maximize the number of
reservations which are delivered and processed for the TranspoNet Service
Providers as contemplated by this Agreement. Such best efforts shall include but
are not be limited to, cross-referencing target customers with those of
TranspoNet, developing joint sales strategies with TranspoNet and the TranspoNet
Service Providers and developing and conducting client-presentations with
TranspoNet and the TranspoNet Service Providers.
8
ARTICLE VIII
COVENANTS, AGREEMENTS, OBLIGATIONS AND RIGHTS OF TRANSPONET
------------------------------------------------------------------------------
Section 8.01. Agreement Between Genisys and Custom
Transportation. TranspoNet acknowledges that Genisys has heretofore entered into
an agreement with the Service Provider known as "Custom Transportation" pursuant
to which Genisys is accepting, processing and delivering, and processing
payments for, reservations for Ground Transportation Services made by customers
and clients of Custom Transportation directly through the Genisys System without
utilizing the TranspoNet System, the Genisys/TranspoNet Interface or the
TranspoNet Software Program Interface. Notwithstanding any provision of this
Agreement to the contrary, TranspoNet agrees that Genisys may continue to
accept, process and deliver, and process payments for, such reservations in
accordance with its agreement with Custom Transportation and that, unless Custom
Transportation hereafter agrees to become a TranspoNet Service Provider as
contemplated by this Agreement, the execution and delivery of this Agreement by
Genisys will not in any way affect, change or alter (i) the manner or means by
which Genisys is currently accepting, processing or delivering, or processing
payments for, such reservations, or (ii) the legal or business relationship
between Genisys and Custom Transportation.
Section 8.02. Mutually Acceptable Press Release. As soon as
practicable after execution of this Agreement, TranspoNet shall cooperate with
Genisys in preparing and releasing a mutually acceptable press release which
announces the execution of this Agreement and describes the business
relationship between Genisys and TranspoNet resulting from the execution of this
Agreement.
Section 8.03. Advertising, Promotional Material and ▇▇▇▇▇▇
▇▇▇▇▇ Releases. 1. Except as otherwise provided in Section 8.02 hereof,
TranspoNet shall not distribute, publish or release any press release, newspaper
or magazine article, sales brochure, advertisement or other promotional material
or documentation, which in any manner mentions or references Genisys, the
Genisys System, the Genisys/TranspoNet Interface or the TranspoNet Software
Program Interface, without the prior written approval of Genisys, which approval
shall not be unreasonably withheld. If TranspoNet desires to distribute, publish
or release any press release, newspaper or magazine article, sales brochure,
advertisement or other promotional material or documentation, which in any
manner mentions or references Genisys, the Genisys System, the
Genisys/TranspoNet Interface or the TranspoNet Software Program Interface,
TranspoNet shall provide Genisys with a copy of the proposed press release,
newspaper or magazine article, sales brochure, advertisement or other
promotional material or documentation prior to its distribution, publication or
release so as to give Genisys an opportunity to review it to determine the
accuracy and appropriateness of the references to Genisys, the Genisys System,
the Genisys/TranspoNet Interface or the TranspoNet Software Program Interface.
Genisys further agrees that, before TranspoNet shall have any obligation to give
its approval of any such press release, newspaper
or magazine article, sales brochure, advertisement or other promotional material
or documentation, Genisys shall make any and all changes in the references to
Genisys, the Genisys System, the Genisys/TranspoNet Interface or the TranspoNet
Software Program Interface
contained therein as shall be requested by Genisys. Notwithstanding anything
contained in this Agreement to the contrary, TranspoNet's obligation to get
Genisys' approval of any press release, newspaper or magazine article, sales
brochure, advertisement or other promotional material or documentation as
provided in this Section 8.03 is only applicable to press releases, newspaper or
magazine articles, sales brochures, advertisements or other promotional material
or documentation which are within Genisys' control or over which Genisys has
editorial review or control.
2. Any reports or forms which TranspoNet may file with the SEC in
compliance with the provisions of the Securities Act of 1933, as amended, or the
Securities Exchange Act of 1934, as amended, or any of the rules or regulations
promulgated by the SEC under such Acts, and which in any manner mention or
reference Genisys or the Genisys System shall not be deemed to be a press
release, newspaper or magazine article, sales brochure, advertisement or other
promotional material or documentation for purposes of this Section 8.03.
Section 8.04. Title and Possession. TranspoNet agrees that at
all times during the term of this Agreement all right, title and interest in the
Genisys System, the TranspoNet Software Program Interface and any other computer
software or computer reservation system developed by Genisys during the term of
this Agreement shall remain with and be the property of Genisys and TranspoNet
shall acquire no interest whatsoever in the Genisys System, the TranspoNet
Software Program Interface or any other computer software or computer
reservation system as a result of entering into this Agreement.
Section 8.05. Rights and Access to Genisys Data. TranspoNet
agrees that Genisys owns all right, title and interest in the Genisys Data,
shall have the right to full and immediate use and access to all Genisys Data
without interference from TranspoNet and shall have the exclusive right to
market products developed from the Genisys Data (including Genisys Data which
may also constitute TranspoNet Data for purposes of this Agreement) without
interference from Transponet.
Section 8.06. Prohibition on Use and Distribution of Genisys
Data. Except as otherwise permitted by this Agreement, TranspoNet shall not use
or distribute any Genisys Data without Genisys' prior written consent.
Section 8.07. Training in the TranspoNet System and the
TranspoNet Software Programs. TranspoNet shall provide training in the proper
operation and functioning of the TranspoNet System and the TranspoNet Software
Programs to Genisys personnel, at a time and place to be hereafter mutually
agreed upon by Genisys and TranspoNet, in order to ensure a knowledgeable and
efficient marketing effort of the benefits of this Agreement to the TranspoNet
Service Providers.
Section 8.08. Maximization of Business. TranspoNet shall use
its best efforts, in cooperation with Genisys, to maximize the number of
reservations which are delivered and processed for the TranspoNet Service
Providers as contemplated by this Agreement. Such best efforts shall include but
are not be limited to, cross-referencing target customers with those of Genisys,
developing joint sales strategies with TranspoNet and the TranspoNet Service
Providers and developing and conducting client-presentations with TranspoNet and
the TranspoNet Service Providers.
9
ARTICLE IX
INDEMNIFICATION
------------------------------------------------------------------------------
Section 9.01. Indemnification of TranspoNet. 1. Genisys agrees
to defend, indemnify and hold harmless TranspoNet and its respective directors,
officers, employees and agents (hereinafter in this Article collectively
referred to as "TranspoNet") from any and all claims, liabilities, damages,
losses, costs, fines, penalties, settlements, judgments, and expenses whatsoever
(including reasonable attorney's fees and disbursements) resulting directly or
indirectly, or incurred as a consequence of claims or actions, brought at law or
in equity, against TranspoNet based on an assertion that the Genisys System or
the Specifications relating thereto or the use thereof by TranspoNet pursuant to
this Agreement infringes or otherwise violates any United States patent,
copyright, trademark or any other intellectual property right (including, but
not limited to, misappropriation of trade secrets) without regard to whether
such claim was made in good faith.
2. Genisys agrees to defend, indemnify and hold harmless TranspoNet
from any and all claims, liabilities, damages, losses, costs, fines, penalties,
settlements, judgments, and expenses whatsoever (including reasonable attorney's
fees and disbursements) resulting directly or indirectly, or incurred as a
consequence of claims or actions, brought at law or in equity, against
TranspoNet arising out of the execution and delivery of this Agreement by
Genisys or any transaction between TranspoNet and Genisys contemplated by this
Agreement and which are based on any theory of negligence, breach of contract,
tort or other legal violation by Genisys without regard to whether such claim
was made in good faith.
3. Genisys agrees that if TranspoNet's use of the Genisys System or the
Specifications relating thereto becomes, or in Genisys' opinion is likely to
become, the subject of a claim of infringement or is held to constitute
infringement, Genisys shall, at Genisys' expense and with the understanding that
time is of the essence, procure the right for TranspoNet to continue to use the
Genisys System or the Specifications relating thereto; provided, however that if
Genisys is unable procure such right, then Genisys may terminate this Agreement
by notifying TranspoNet in writing, without incurring any further liability to
TranspoNet. Notwithstanding the foregoing, if TranspoNet is prohibited from
using the Genisys System or the Specifications relating thereto due to such
claim and Genisys proposes to terminate this Agreement, Genisys shall give
TranspoNet thirty (30) days prior written notice during which period TranspoNet
may elect to accept the reduced function, performance and operation of the
Genisys System or any portion thereof and this Agreement shall otherwise remain
in full force and effect.
4. Notwithstanding anything in this Agreement to the contrary, Genisys
shall have no obligation to indemnify TranspoNet with respect to any claim of
infringement based upon or resulting from TranspoNet's use of the Genisys System
or the Specifications relating thereto in violation of any provisions of this
Agreement.
Section 9.02. Indemnification of Genisys. 1. TranspoNet agrees
to defend, indemnify and hold harmless Genisys and its respective directors,
officers, employees and agents (hereinafter in this Article collectively
referred to as "Genisys") from any and all claims, liabilities, damages, losses,
costs, fines, penalties, settlements, judgments, and expenses whatsoever
(including reasonable attorney's fees and disbursements) resulting directly or
indirectly, or incurred as a consequence of claims or actions, brought at law or
in equity, against Genisys based on an assertion that the TranspoNet System, the
Genisys/TranspoNet Interface, the TranspoNet Software Program Interface or the
Specifications relating thereto or the use thereof by Genisys pursuant to this
Agreement infringes or otherwise violates any United States patent, copyright,
trademark or any other intellectual property right (including, but not limited
to, misappropriation of trade secrets) without regard to whether such claim was
made in good faith.
2. TranspoNet agrees to defend, indemnify and hold harmless Genisys
from any and all claims, liabilities, damages, losses, costs, fines, penalties,
settlements, judgments and expenses whatsoever (including reasonable attorney's
fees and disbursements) resulting directly or indirectly, or incurred as a
consequence of claims or actions, brought at law or equity, against Genisys
arising out of the execution and delivery of this Agreement by TranspoNet or any
transaction between Genisys and TranspoNet contemplated by this Agreement and
which are based on any theory of negligence, breach of contract, tort or other
legal violation by TranspoNet without regard to whether such claim was made in
good faith.
3. TranspoNet agrees that if Genisys' use of the TranspoNet System,
Genisys/TranspoNet Interface or the TranspoNet Software Program Interface or the
Specifications relating thereto becomes, or in TranspoNet's opinion is likely to
become, the subject of a claim of infringement or is held to constitute
infringement, TranspoNet shall, at TranspoNet's option and expense and with the
understanding that time is of the essence, either (i) procure the right for
Genisys to continue to use the TranspoNet System, Genisys/TranspoNet Interface
or the TranspoNet Software Program Interface or the Specifications relating
thereto, or (ii) use its reasonable best efforts, to modify or replace the
TranspoNet System, the Genisys/TranspoNet Interface of the TranspoNet Software
Program Interface or any portion thereof, within a reasonable time frame, so
that it becomes non-infringing and retains substantially comparable function,
performance and operation; provided, however that if TranspoNet is unable to
accomplish (i) or (ii) above, then TranspoNet may terminate this Agreement by
notifying Genisys in writing without incurring any further liability to Genisys.
Notwithstanding the foregoing, if Genisys is prohibited from using the
TranspoNet System, the Genisys/TranspoNet Interface or the TranspoNet Software
Program Interface or the Specifications relating thereto due to such claim and
TranspoNet proposes to terminate this Agreement, TranspoNet shall give Genisys
thirty (30) days prior written notice during which period Genisys may elect to
accept the reduced function, performance and operation of the
TranspoNet System, the Genisys/TranspoNet Interface or the TranspoNet Software
Program Interface or any portion thereof and this Agreement shall otherwise
remain in full force and effect.
4. TranspoNet shall have no obligation to indemnify Genisys with respect
to any claim of infringement based upon or resulting from Genisys' use of the
TranspoNet System, the Genisys/TranspoNet Interface or the TranspoNet Software
Program Interface or the Specifications relating thereto in violation of this
Agreement.
Section 9.03. Conditions to Indemnification Obligations.
Genisys' and TranspoNet's respective indemnification obligations as set forth in
this Article, are contingent upon the indemnitee: (i) giving the indemnitor
prompt written notice of any claim for which indemnification is sought; (ii)
allowing the indemnitor to have the sole right to control and conduct the
defense of any such claim or action and all negotiations for its settlement or
compromise; and (iii) providing reasonable assistance to the indemnitor, such
assistance to be solely at the cost and expense of the indemnitor. In settling
any claim for which indemnification is sought under this Agreement, the
indemnitor is not authorized to take any action which adversely affects the
indemnitee without obtaining the prior written consent of the indemnitee, which
consent shall not be unreasonably withheld. The indemnitee shall have the right
to participate in the defense of any such claim with its own counsel and shall
be responsible for all fees and costs associated with the same. Notwithstanding
the foregoing (i) in the event the indemnitee fails to provide prompt written
notice to the indemnitor of any such claim for which indemnification is sought,
the indemnitor shall be relieved of its indemnity obligation hereunder solely to
the extent that it is prejudiced thereby, and (ii) if the indemnitor fails or
elects not to defend or settle such claim, the indemnitee may defend or settle
such claim and the indemnitor shall pay to the indemnitee any and all damages
and expenses (including attorney's fees and disbursements) incurred and amounts
paid in settlement by the indemnitee.
Section 9.04. Survival of this Article. The provisions of this
Article shall survive any termination of this Agreement without regard to the
basis of termination or the party terminating.
10
ARTICLE X
NON-COMPETITION
------------------------------------------------------------------------------
Section 10.01. Non-Competition by TranspoNet. During the term
of this Agreement, TranspoNet will not (i) directly compete with Genisys, (ii)
directly or indirectly interfere with, disrupt or attempt to disrupt, the
relationship, contractual or otherwise, between Genisys and any of its
customers, clients, suppliers, consultants or employees, or (iii) with the
exception of any computerized reservation system for Ground Transportation
Services which accepts and processes reservations for Ground Transportation
Services from the CRSs which TranspoNet has heretofore developed for the Service
Providers known as "Boston Coach," "Gem", "Royal Coachman" and "Custom
Transportation" and which is actively in use on the date of execution of this
Agreement, directly or indirectly develop, or have developed for it or any
TranspoNet Service Provider, any computerized reservation system for Ground
Transportation Services which accepts and processes reservations for Ground
Transportation Services through the CRSs.
Section 10.02. Non-Competition by Genisys. During the term of
this Agreement, Genisys will not (i) directly compete with TranspoNet, (ii)
directly or indirectly interfere with, disrupt or attempt to disrupt, the
relationship, contractual or otherwise, between TranspoNet and any of its
customers, clients, suppliers, consultants or employees, or (iii) directly or
indirectly develop, or have developed for it, any Internet reservation delivery
system which provides for the delivery of reservations for Ground Transportation
Services to TranspoNet Service Providers through the Internet or is capable of
delivering Intra-Service Provider Reservations through the Internet.
Section 10.03. Injunctive Relief. Genisys and TranspoNet each
acknowledges that the restrictions contained in this Article, in view of the
nature of the respective businesses in which they are engaged, are reasonable
and necessary to protect their respective legitimate interests. Genisys and
TranspoNet each understands and agrees that the remedies at law for violation of
any of the covenants or provisions of this Article will be inadequate, that such
violations will cause irreparable injury within a short period of time, and that
the aggrieved party shall be entitled to preliminary injunctive relief and other
injunctive relief against such violations without the necessity of proving
actual damages. Such injunctive relief shall be in addition to, and in no way in
limitation of, any and all other remedies the aggrieved party shall have at law
and in equity for the enforcement of those covenants and provisions.
11
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
------------------------------------------------------------------------------
Section 11.01. Representations and Warranties of Genisys. Genisys hereby
represents and warrants as follows:
(a) Genisys is a corporation duly authorized, validly existing and in good
standing under the laws of the State of New Jersey and Genisys has the full
right, power and authority to carry on its business as presently being conducted
and to enter into and perform its obligations under this Agreement.
(b) Neither the execution or delivery of this Agreement nor the
performance by Genisys of its obligations contained herein conflicts with or
will conflict with or results or will result in any breach or violation of any
of the terms or provisions of, or constitutes or will constitute a default
under, or results or will result in the creation or imposition of any lien,
charge, claim, encumbrance, pledge, security interest or other restriction of
any kind whatsoever upon, any property or assets (tangible or intangible) of
Genisys pursuant to the terms of (i) the certificate of incorporation or by-laws
of Genisys, (ii) any license, contract, indenture, mortgage, deed of trust,
voting trust agreement, stockholders agreement, note, loan or credit agreement
or any other agreement or instrument to which Genisys is a party or by which
Genisys is or may be bound or to which its property or assets (tangible or
intangible) is or may be subject, or (iii) any statute, judgment, decree, order,
rule or regulation applicable to Genisys of any arbitrator, court, regulatory
body or administrative agency or other governmental agency or body (including,
without limitation, those having jurisdiction over environmental or similar
matters), domestic or foreign, having jurisdiction over Genisys or any of its
activities or properties.
(c) This Agreement constitutes a legal, valid and binding obligation of
Genisys enforceable against Genisys in accordance with its terms, except as such
enforceability may be limited by (i) any applicable bankruptcy, insolvency, debt
adjustment, reorganization, moratorium, or other similar laws affecting the
enforcement of creditors' rights generally; (ii) the exercise of judicial
discretion or the valid exercise of the sovereign police powers of the State of
New Jersey or the constitutional powers of the United States of America; and
(iii) the general principles of equity, the remedy of specific performance and
other equitable remedies.
(d) Genisys is not restricted by agreement from carrying on its business
anywhere in the world.
(e) There are no actions, proceedings, or investigations pending, or to the
knowledge of Genisys, threatened, against Genisys, which would materially
adversely affect Genisys' assets or business; nor does Genisys nor any of its
current officers have any reasonable ground to know of any basis for any such
action, proceeding, or investigation. Neither Genisys nor any of its officers
know or have any reason to believe that there is any event or condition of any
kind or character pertaining to Genisys' business or assets that may materially
adversely affect any such business or assets.
(f) None of the present owners of the stock of Genisys or any of the officers or
directors of Genisys has any direct or indirect interest in any corporation or
business which is involved in any way with or competes with any business
conducted by TranspoNet.
(g) The Genisys System is fully operational and is currently capable of
receiving and processing all reservations for Ground Transportation Services
made through the "Apollo" and "Sabre" CRSs. When the Genisys/TranspoNet
Interface and/or the TranspoNet Software Program Interface are completed in the
manner contemplated by this Agreement, the Genisys System will be capable of
accepting from, and transmitting to, the TranspoNet Service Providers, through
the use of either the Genisys/TranspoNet Interface or the TranspoNet Software
Program Interface, all information relating to each TranspoNet Reservation made
through the CRSs to which the Genisys System is then connected.
Section 11.02. Representations and Warranties of TranspoNet.
TranspoNet hereby represents and warrants as follows:
(a) TranspoNet is a corporation duly authorized, validly existing and in
good standing under the laws of the State of New York and TranspoNet has the
full right, power and authority to carry on its business as presently being
conducted and to enter into and perform its obligations under this Agreement.
(b) Neither the execution or delivery of this Agreement nor the
performance by TranspoNet of its obligations contained herein conflicts with or
will conflict with or results or will result in any breach or violation of any
of the terms or provisions of, or constitutes or will constitute a default
under, or results or will result in the creation or imposition of any lien,
charge, claim, encumbrance, pledge, security interest or other restriction of
any kind whatsoever upon, any property or assets (tangible or intangible) of
TranspoNet pursuant to the terms of (i) the certificate of incorporation or
by-laws of TranspoNet, (ii) any license, contract, indenture, mortgage, deed of
trust, voting trust agreement, stockholders agreement, note, loan or credit
agreement or any other agreement or instrument to which TranspoNet is a party or
by which TranspoNet is or may be bound or to which its property or assets
(tangible or intangible) is or may be subject, or (iii) any statute, judgment,
decree, order, rule or regulation applicable to TranspoNet of any arbitrator,
court, regulatory body or administrative agency or other governmental agency or
body (including, without limitation, those having jurisdiction over
environmental or similar matters), domestic or foreign, having jurisdiction over
TranspoNet or any of its activities or properties.
(c) This Agreement constitutes a legal, valid and binding obligation of
TranspoNet enforceable against TranspoNet in accordance with its terms, except
as such enforceability may be limited by (i) any applicable bankruptcy,
insolvency, debt adjustment, reorganization, moratorium, or other similar laws
affecting the enforcement of creditors' rights generally; (ii) the exercise of
judicial discretion or by the valid exercise of the sovereign police powers of
the State of New York or the constitutional powers of the United States of
America; and (iii) the general principles of equity, the remedy of specific
performance and other equitable remedies.
(d) There are no actions, proceedings, or investigations pending, or to the
knowledge of TranspoNet, threatened, against TranspoNet; nor does TranspoNet or
any of its current officers have any reasonable ground to know of any basis for
any such action, proceeding, or investigation. Neither TranspoNet nor any of its
current shareholders or officers know or have any reason to believe that there
is any event or condition of any kind or character pertaining to TranspoNet's
business or assets that may materially adversely affect any such business or
assets.
(e) TranspoNet is not restricted by agreement from carrying on its
business anywhere in the world.
(f) None of the present officers and directors of TranspoNet has any direct
or indirect interest in any corporation or business which is involved in any way
with or competes with any business conducted by Genisys.
(g) The TranspoNet System has been completed in a manner that permits
the smooth and efficient transmission of all reservations received by the
TranspoNet System to the TranspoNet Service Providers, and that the TranspoNet
System is fully operational and will be capable of receiving and processing
reservations received from the Genisys System when the Genisys/TranspoNet
Interface is completed in the manner contemplated by this Agreement and as
referenced in Schedule A attached hereto.
Section 11.03. Disclaimer of Other Warranties. EXCEPT AS
SPECIFICALLY SET FORTH IN THIS AGREEMENT, GENISYS AND TRANSPONET
EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES CONCERNING THE GENISYS
SYSTEM, THE TRANSPONET SYSTEM, THE GENISYS/TRANSPONET INTERFACE OR
THE TRANSPONET SOFTWARE PROGRAM INTERFACE OR ANY OTHER PRODUCTS
OR SERVICES TO BE RENDERED HEREUNDER, WHETHER EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
12
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
------------------------------------------------------------------------------
Section 12.01. Events of Default. The occurrence and
continuation of any one of the following shall constitute an Event of Default
hereunder:
(a) Failure or refusal by either Genisys or TranspoNet, as the case may
be, to make any payment required to be made by such party in accordance with
Article VI of this Agreement and such failure or refusal shall remain uncured
for a period of seven (7) days after written notice thereof has been given to
either Genisys or TranspoNet, as the case may be, by the non-defaulting party;
or
(b) Failure or refusal by either Genisys or TranspoNet, as the case may
be, to observe, perform or comply with any other covenant, condition or
agreement on its part to be observed or performed in this Agreement and such
failure or refusal shall remain uncured for a period of fifteen (15) days after
written notice thereof has been given to either Genisys or TranspoNet, as the
case may be, by the non-defaulting party; provided, however, that if such
default cannot by its nature be cured within fifteen (15) days, such default
shall not become an Event of Default so long as either Genisys or TranspoNet, as
the case may be, is diligently pursuing a cure and delivers a report to the
other party at least once every fifteen (15) days setting forth the status of
its attempts to cure such default; or
(c) Any representation or warranty made by either Genisys or TranspoNet,
as the case may be, pursuant to or in connection with this Agreement shall prove
to be false or misleading in any material respect when made; or
(d) If either Genisys or TranspoNet shall (i) commence a voluntary case
or similar proceeding under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or (ii) authorize, apply for or consent
to the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian or similar official for itself and/or any of its properties,
or (iii) make any general assignment for the benefit of creditors, or (iv) make
a written declaration or admission to the effect that it is unable to meet its
debts as such debts mature, or (v) authorize or take any action in furtherance
of any of the foregoing; or
(e) If a court having jurisdiction in the premises shall enter a decree or
order (i) for relief in respect of either Genisys or TranspoNet in an
involuntary case or similar proceeding under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or (ii) appointing a
receiver, liquidator, assignee, trustee, custodian or similar official for
either Genisys or TranspoNet and/or any of their respective properties, as the
case may be,
or (iii) for the dissolution, liquidation or winding up of either Genisys or
TranspoNet and their respective affairs, or (iv) finding or determining that
either Genisys or TranspoNet is unable to meet its debts as such debts mature;
and any such decree or order shall remain unstayed and in effect for a period of
sixty (60) consecutive days.
Section 12.02. Remedies on Default. Upon the occurrence of an Event of Default
under Section 12.01 hereof, the non-defaulting party may take one or more of the
following actions:
(i) Send written notice to the defaulting party declaring this Agreement
to be immediately terminated, null and void and of no further force or effect;
or
(ii) Institute an action or proceeding to seek monetary damages; or
(iii) Institute an action or proceeding to seek equitable remedies including,
but not limited to, injunctions or specific performance.
The parties hereto agree that monetary damages may be
insufficient to adequately compensate any non-defaulting party and that
equitable remedies shall constitute appropriate remedies upon the occurrence of
an Event of Default hereunder.
Section 12.03. No Remedy Exclusive. No remedy conferred upon
or reserved to the parties hereto in this Agreement is intended to be exclusive
of any other available remedy or remedies, but each and every such remedy shall
be cumulative and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law or in equity or by statute. No
delay or omission to exercise any right or power accruing upon any default shall
impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may
be deemed expedient. In order to entitle any party hereto to exercise any remedy
reserved to it in this Agreement, it shall not be necessary to give any notice
to the other party, other than such notice as may be herein expressly required.
Section 12.04. Limitation of Waiver. The breach, default or
nonperformance of any obligation, covenant, representation, warranty, duty or
agreement contained herein by either party hereto may be waived only by a
written instrument signed by the other party; provided, however, that no such
waiver shall serve to waive any subsequent breach, default or nonperformance,
nor shall any such waiver serve to waive a recurrence of the breach, default or
nonperformance so waived, nor shall the failure to enforce any remedy by any
party with respect to any breach, default or nonperformance serve as a waiver
thereof.
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ARTICLE XIII
MISCELLANEOUS
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Section 13.01. Term of Agreement and Renewals Thereof. The
term of this Agreement shall be for a period of two (2) years from the date
hereof, unless renewed or earlier terminated in accordance with the provisions
hereof. This Agreement shall automatically be renewed for successive one (1)
year periods unless at least thirty (30) days prior to the end of the original
two (2) year period or any renewal period, one party notifies the other party
that this Agreement will terminate at the end of said original period or renewal
period.
Section 13.02. Early Termination for Failure to Meet Minimum
Reservation Criteria. Notwithstanding anything in this Agreement to the
contrary, if the Genisys System shall not be accepting and processing not less
than: (i) one hundred (100) TranspoNet Reservations per day by no later than
ninety (90) days after the Genisys/TranspoNet Interface and/or the TranspoNet
Software Program Interface are completed and the services of the Genisys System
and the TranspoNet System contemplated by this Agreement become commercially
available to be marketed to the TranspoNet Service Providers, and/or (ii) two
hundred fifty (250) TranspoNet Reservations per day by no later than one hundred
eighty (180) days after the Genisys/TranspoNet Interface and/or the TranspoNet
Software Program Interface are completed and the services of the Genisys System
and the TranspoNet System contemplated by this Agreement become commercially
available to be marketed to the TranspoNet Service Providers, then either party
shall have the right to terminate this Agreement upon fifteen (15) days prior
written notice to the other party and, thereafter, unless Genisys and TranspoNet
shall otherwise agree, this Agreement shall terminate immediately at the
expiration of the fifteenth (15th) day after delivery of such notice and
thereupon this Agreement shall become null and void in its entirety except as
otherwise set forth in Section 13.11 hereof. Genisys and TranspoNet shall
cooperate fully with each other, and shall each use their best efforts, to
assure that the minimum number of TranspoNet Reservations referred to in the
first sentence of this Section are accepted and processed by the Genisys System
by no later than the dates set forth in such first sentence of this Section.
Section 13.03. Agreements Upon Termination. 1. Upon any
termination of this Agreement, unless otherwise agreed to in writing by Genisys
and TranspoNet, Genisys and TranspoNet shall destroy all copies of the
Genisys/TranspoNet Interface or the TranspoNet Software Program Interface (in
object code and in source code forms, if applicable) in their possession,
partial or complete, in all types of media and computer memory, and all other
materials relating thereto. Within ten (10) days after the date of the
termination of this Agreement, an officer of each party shall certify in writing
to the other party that the certifying party has complied with the provisions of
this paragraph 1 of Section 13.03. The provisions of this Section shall survive
the termination of this Agreement until fulfilled without regard to the basis of
termination or the party terminating.
2. Genisys agrees that, upon request by TranspoNet, and in any event upon
termination of this Agreement, Genisys shall turn over to TranspoNet all
documents, papers or other material in its possession or under its control which
may contain or be derived from Confidential Information (as defined in the
TranspoNet Confidentiality Agreement), together with all documents, notes or
other work product which are connected with or derived from Genisys' services to
TranspoNet whether or not such material is at the date thereof in Genisys'
possession.
3. TranspoNet agrees that upon request by Genisys, and in any event upon
termination of this Agreement, TranspoNet shall turn over to Genisys all
documents, papers or other material in its possession or under its control which
may contain or be derived from Confidential Information (as defined in the
Genisys Confidentiality Agreement), together with all documents, notes or other
work product which are connected with or derived from TranspoNet's services to
Genisys whether or not such material is at the date thereof in TranspoNet's
possession.
Section 13.04. Fees, Costs and Expenses. Except as otherwise
set forth in this Agreement or as otherwise agreed to in a writing signed by the
parties hereto, all fees, costs and expenses incurred by either party hereto in
connection with the performance of its obligations, covenants, duties and
agreements under this Agreement shall be for the account of such party and shall
be paid by such party and the other party hereto shall not have any liability
whatsoever for any such fees, costs and expenses.
Section 13.05. Notices. All notices, certificates or other
communications shall be sufficiently given and shall be deemed given on the
fifth day following the day on which the same have been mailed by certified
mail, postage prepaid, addressed as follows: if to Genisys, at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Director, with a copy
to ▇▇▇▇ ▇. ▇▇▇▇▇, Secretary and a copy to ▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Wilentz, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇, P.A., ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; and
if to TranspoNet, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, with a copy to ▇▇▇ ▇▇▇▇▇▇▇▇, Esq., Rosner, Bresler,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
Section 13.06. Assignments. This Agreement may not be assigned by either party
without the prior written consent of the other party.
Section 13.07. Amendments. This Agreement may only be modified or amended by a
written instrument signed by the parties hereto.
Section 13.08. Successors and Assigns. All covenants,
representations, warranties, duties, obligations and agreements contained in
this Agreement by or on behalf of the parties hereto shall bind and inure to the
benefit of the respective successors and assigns of the parties hereto, whether
or not so expressed.
Section 13.09. Captions. Captions contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit or extend the scope or
intent of this Agreement or any provision thereof.
Section 13.10. Severability. If any provision of this
Agreement shall be held or deemed to be or shall, in fact, be illegal,
inoperative or unenforceable, the same shall not affect any other provision or
provisions herein contained and this Agreement shall be construed and enforced
to the end that the obligations contemplated hereby be enforced as if such
illegal or invalid provisions had not been contained herein.
Section 13.11. Survival of Certain Provisions. Notwithstanding
anything in this Agreement to the contrary, the payment provisions of Sections
4.02, 5.03, 6.09 and the provisions of ARTICLE IX hereof shall survive any
termination or expiration of this Agreement and shall remain in full force and
effect.
Section 13.12. Execution of Counterparts. This Agreement may
be simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument. Both
parties hereto may sign the same counterpart or each party hereto may sign a
separate counterpart.
Section 13.13. Arbitration. To the extent permitted by law,
any controversy arising under this Agreement which the parties are unable to
resolve by mutual agreement shall be submitted to binding arbitration in
accordance with the then current rules of the American Arbitration Association
(the "AAA"), and any decision in such arbitration shall be conclusive as to the
matters submitted to arbitration, shall be final and binding upon the parties
hereto and may be enforced in any court of competent jurisdiction. Either party
may give the other party written notice of its desire to have a matter
arbitrated, in which event a hearing thereon shall be commenced within a
reasonable time thereafter. Any rule of the AAA to the contrary notwithstanding,
the issue submitted to arbitration shall be heard and decided by a panel of
three arbitrators, one of whom shall be designated by Genisys, one of whom shall
be designated by TranspoNet and the third to be mutually acceptable to Genisys
and TranspoNet; provided, however, that in the absence of any such designation
or agreement, the balance of the arbitration panel shall be designated by the
AAA. Any decision as to the issues properly submitted to the arbitration panel,
including the sharing of the costs of the arbitration, which is joined in by at
least two members of the arbitration panel, shall be the decision of the panel
and such decision shall be final and binding upon the parties and not subject to
appeal. Any decision or award of the arbitration panel shall be based solely on
the provisions of this Agreement. If the subject matter for the decision or
award is not covered by the provisions of this Agreement, it shall be based upon
the law (excluding any laws relating to conflicts of laws) of the State of New
Jersey. The arbitration panel shall not be requested nor shall it have the power
to render any decision or award except in accordance with the provisions of this
Section 13.13. Any decision or award not complying with the foregoing shall be
subject to appeal and judicial review upon the petition
of either party. Any arbitration hearing taking place in accordance with the
provisions of this Section 13.13 shall be held in New York, New York, unless
the parties otherwise agree in writing.
Section 13.14. Governing Law. This Agreement shall be governed exclusively by
and construed in accordance with the applicable laws of the State of New Jersey
relating to contracts made and to be entirely performed in such State.
Section 13.15. Entire Agreement. This Agreement contains the
entire agreement of the parties hereto and supersedes all prior written or oral
agreements, understandings and negotiations with respect to the subject matter
hereof other than the Genisys Confidentiality Agreement and the TranspoNet
Confidentiality Agreement.
Section 13.16. Headings. The headings to the various Articles
and Sections of this Agreement have been inserted for convenience only and do
not constitute a part of this Agreement and are not intended in any way to
define, limit or interpret the contents of any such Article or Section.
IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be executed in their respective names by their duly authorized officers, all
as of the date first above written.
GENISYS RESERVATION SYSTEMS, INC.
By:_______________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chief Executive Officer
THE TRANSPONET COMPANIES, INC.
By:_______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief Executive Officer
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