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EXHIBIT 10.21
Execution Draft
FORTDOVE LIMITED
AND
▇▇▇▇ ▇▇▇▇▇▇▇▇ PLC
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SERVICE BUREAU/OUTSOURCING AGREEMENT
FOR
ONLINE FULFILMENT SERVICES
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▇▇▇▇▇▇▇▇ CHANCE
[*] The redacted portions indicated by this symbol are the subject of a
confidential treatment request and have been filed separately with the
Securities and Exchange Commission.
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CONTENTS
CLAUSE PAGE
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1. Definitions.................................................... 2
2. Scope Of Services.............................................. 4
3. NEWCO's Proprietary Rights; HR Restrictions.................... 5
4. Pricing And Payment............................................ 6
5. Limited Warranty............................................... 7
6. Limitation Of Liability........................................ 7
7. Force Majeure.................................................. 8
8. Term........................................................... 9
9. Termination.................................................... 9
10. Non-Solicitation............................................... 11
11. Confidentiality................................................ 11
12. Non-Competition................................................ 12
13. Joint Oversight Committee...................................... 13
14. Governing Law And Dispute Resolution........................... 14
15. General........................................................ 15
16. Counterparts................................................... 16
SCHEDULE 1 SERVICES......................................... 17
SCHEDULE 2 CHARGES.......................................... 22
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THIS SERVICE BUREAU/OUTSOURCING AGREEMENT (this "Agreement") is made this ___
day of ___________, 2000 between
(1) FORTDOVE LIMITED company number 3841799 with registered address ▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("▇▇▇▇▇"); and
(2) ▇▇▇▇ ▇▇▇▇▇▇▇▇ PLC company number 2107443 with registered address, Abbey
House, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("HR").
WHEREAS
(A) The HR Group of companies wish to offer on-line travel booking services
to certain customers;
(B) NEWCO provides certain services to the travel industry, including an
online booking fulfilment service bureau for the servicing of
electronic transactions;
(C) HR and NEWCO wish to enter into an agreement for the provision by NEWCO
to the HR Group of Services (as defined below), on the terms and
conditions set out herein.
1. DEFINITIONS
In this Agreement:
1.1 CHARGES means the charges payable by HR to NEWCO in respect of the
Services, as set out in Schedule 2;
1.2 CONSUMER TRAVEL SERVICES means travel services for air, car, train and
hotel accommodations offered and provided on an individual, per item
basis to the general public. This includes charter and consolidator
services for air transportation;
1.3 CORPORATE TRAVEL SERVICES means travel services provided to a business
entity's employees and/or contractors which are paid for or reimbursed
by such entity which contracted directly with HR or with a travel
agency, web portal, or other entity to provide such services;
1.4 CUSTOMER means an entity doing business, relating to travel agency
services, with a given party on the date in question. For corporate
entities, only those divisions or portions of a corporation doing
business with such party on the date in question are considered to be
included in the definition of Customer;
1.5 EFFECTIVE DATE means the date of this Agreement, unless otherwise
agreed between the parties;
1.6 GLOBAL DISTRIBUTION SYSTEM OR ("GDS") means the Sabre, Amadeus,
Worldspan and the International version of Galileo computer system and
networks used to check and make reservations of a travel related nature
and such other global distribution systems as may be agreed from time
to time;
1.7 GROUP means, in relation to a company, that company and each subsidiary
of the company and its subsidiaries for the time being;
1.8 HR GROUP means the Group of companies of which ▇▇▇▇ ▇▇▇▇▇▇▇▇ plc is the
ultimate holding company, together with all the travel franchisees of
that Group;
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1.9 JOC means the joint oversight committee to be established in accordance
with Clause 13;
1.10 LEISURE TRAVEL SERVICES means travel services offered to the general
public that represent a combination of travel products that are
pre-packaged as tours, cruises, and other speciality leisure services;
1.11 MODIFICATIONS means changes to the Product that provide additional
features and/or functionality, expanding the capabilities of the
Product in existing functional areas, or affect existing functionality;
1.12 PRODUCT means the logical grouping of the Software, in object code
only, and related documentation which is sold by a specific product
name and which is employed in the provision of the Services;
1.13 SERVICE BUREAU means the computer facilities located at NEWCO offices
of and/or its subsidiaries from which NEWCO, through its Online
Fulfilment Services division ("OFS") will provide the Services and data
information to HR;
1.14 SERVICES means those online transaction processing and fulfilment
services as set out within Schedule 1, as amended from time to time by
agreement between the parties;
1.15 SHAREHOLDERS AGREEMENT means the Shareholders Agreement of on or about
even date entered into between Newco, WTT Inc and HR for the
establishment and operation of Newco as a joint venture company;
1.16 SOFTWARE means all of the software programs licensed to or created by
NEWCO from time to time and used by NEWCO in the provision of the
Services, being the Products identified in Schedule 1 as amended from
time to time by written agreement between the parties and all
associated Software releases;
1.17 TERM means the term of this Agreement, as set out in Clause 8;
1.18 VALUE ADDED TAX means value added tax as provided for in the Value
Added Tax ▇▇▇ ▇▇▇▇ and any other tax of a similar fiscal nature whether
imposed in the United Kingdom (instead of or in addition to value added
tax) or elsewhere;
1.19 WTT INC means WT Technologies Inc, with its principal place of business
at ▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇.
1.20 In this Agreement, a reference to:
1.20.1 a "subsidiary" or "holding company" is to be construed in
accordance with section 736 of the Companies ▇▇▇ ▇▇▇▇ and a
"subsidiary undertaking" or "parent undertaking" is to be
construed in accordance with section 258 of the Companies ▇▇▇
▇▇▇▇;
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1.20.2 a statutory provision includes a reference to the statutory
provision as modified or re-enacted or both from time to time
before/whether before or after the date of this Agreement and
any subordinate legislation made or other thing done under the
statutory provisions before/whether before or after the date
of this Agreement;
1.20.3 a document is a reference to that document as modified from
time to time;
1.20.4 a person includes a reference to a government, state, state
agency, corporation, body corporate, association or
partnership;
1.20.5 a person includes a reference to that person's legal personal
representatives, successors and permitted assigns;
1.20.6 the singular includes the plural and vice versa unless the
context otherwise requires;
1.20.7 a clause or schedule, unless the context otherwise requires,
is a reference to a clause of a schedule to this Agreement.
1.21 The headings in this Agreement do not affect its interpretation.
2. SCOPE OF SERVICES
2.1 NEWCO shall provide the Services to HR during the Term subject to the
terms and conditions of this Agreement for Corporate Travel Services
Customer Accounts of all travel agencies within the HR Group, with the
exception of any such travel agency located in the United States and
Rider Travel in Canada. HR may use the Services to provide support for
its Leisure Travel Services and Consumer Travel Services functions,
subject to the limitations contained in the Shareholders Agreement and
in the Software Licence of on or about even date between Technology
Licensing Company LLC and NEWCO. In addition, the rights conferred on
HR under this Agreement to use the Services expressly exclude the right
of HR or the HR Group to use the Services to provide online fulfilment
services to any travel agencies not within the HR Group.
2.2 The Software required to provide the Services will run and reside at
the Service Bureau. The Software will be run by NEWCO in consultation
with HR to meet HR's specific needs and requests, (to be mutually
determined and outlined by the JOC), in the provision of Services
hereunder. NEWCO shall provide information and reports to HR on the
performance of the Services as reasonably required by HR.
2.3 At the request of HR, the Service Bureau will process transactions from
HR's company-owned locations Corporate Travel Service Customers
everywhere in the world, with the exception of the United States and
Rider Travel in Canada. HR may obtain rights to acquire a licence to
the Software and support services under a separate agreement with
NEWCO.
2.4 The Software will include adaptations for efficient use with each GDS.
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2.5 From time to time, HR may request specific Modifications to the
Software. NEWCO agrees to negotiate in good faith with HR towards the
development of such Modifications and, subject to the outcome of such
negotiations, HR agrees to pay for such requested Modification(s) on
the terms set out in the Software Development Agreement of even date
between the parties hereto.
2.6 All Modifications shall be made available to HR prior to or at the same
time as being made available to all other (if any) joint funders of the
Modifications, users and licensees of the Software, unless such
Modifications were totally funded by a third party. Subject to Clause
4.4, all Modifications offered as part of the Services to other users
and licensees will be made available to HR at NEWCO's then current
rates or less, at NEWCO's discretion. All such Modifications shall be
loaded on NEWCO's server as part of the Service Bureau.
2.7 All new Products shall be made available to HR prior to or at the same
time as being made available to other (if any) joint funders of the
Product, users and licensees of the Software, unless such Products were
totally funded by a third party. Subject to Clause 4.4, all new
Products offered as part of the Services to other users and licensees
will be made available to HR at NEWCO's then current rates or less, at
NEWCO's discretion, having regard to any funding provided to NEWCO by
HR.
2.8 The JOC shall set priorities for the allocation of NEWCO resources
necessary to adequately perform under this Agreement. Once the JOC sets
a start date for any project or other matter to be undertaken under
this Agreement, such start date cannot be changed by NEWCO unless by
written agreement between the parties. In setting such priorities and
start dates the JOC shall take into consideration other business issues
facing NEWCO and HR and other commitments of NEWCO and HR.
2.9 The JOC will periodically discuss and review HR's competitive
environment which shall include a review of HR's competitors'
technology, cost or pricing structure and service offerings, to the
extent such information is known (and to the extent that disclosure of
such information is not restricted by a third party). If the JOC
determines that NEWCO has ceased to be competitive in terms of the
technology associated with the Services, the Charges or the quality of
the Services then, the parties shall jointly determine, in good faith,
if a change in technology, cost or services should be made.
3. NEWCO'S PROPRIETARY RIGHTS; HR RESTRICTIONS
3.1 HR acknowledges that the Software, and the related documentation embody
valuable confidential and proprietary information of NEWCO and/or its
licensors, the development of which required the expenditure of
considerable time and money by NEWCO and/or its licensors, and are
protected by copyright law and international treaty. HR shall treat
such information so received in confidence and shall not use, copy,
disclose, nor permit any of its personnel, agents or sub-contractors to
use, copy, or disclose the same, for any purpose that is not
specifically authorised under this Agreement.
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3.2 By virtue of this Agreement, HR acquires only the non-exclusive right
as described above to receive the Services provided by NEWCO through
the use of the Software and related documentation, and does not acquire
any licence thereto or any rights of ownership in such materials,
except as may be set forth in a separate agreement. HR shall not
establish its own Service Bureau using the Product (with the exception
of the CORRE family of Products, use of which is governed by the
Service Bureau Software Services Agreement between the parties of even
date) during the Term without the prior written consent of NEWCO,
except as provided in the Shareholders Agreement. Nothing in this
sub-clause shall affect HR's entitlement to use the Services and
Product for the provision of services to its clients under Clause 2.1.,
subject to the terms of any separate agreement between the parties in
respect of such Product.
3.3 NEWCO, and/or its licensors, at all times retain all right, title and
interest in the Software, related documentation, and any derivatives
thereof.
3.4 HR agrees not to remove, alter or conceal any product identification,
copyright notices, or other notices or proprietary restrictions from
the monthly data information reports provided to HR by NEWCO and to
reproduce any and all such notices on any copies of such materials.
3.5 HR recognises and acknowledges that any use or disclosure of the
Software by HR in breach of this Agreement may cause NEWCO irreparable
damage for which other remedies may be inadequate, and HR hereby
acknowledges as proper any request to a court of competent jurisdiction
by NEWCO for injunctive or other equitable relief seeking to restrain
such use or disclosure.
3.6 HR assumes full responsibility for the quality, accuracy and
completeness of the data transmitted or provided by HR or its Customers
to the Service Bureau, whether by means of the Software or otherwise,
including any inaccurate results obtained as a result of such data
where supplied corrupted, inaccurate or incomplete.
4. PRICING AND PAYMENT
4.1 The Charges are set forth on Schedule 2 attached hereto. Prior to the
startup of an HR Customer under this Agreement, the parties will agree
in writing to a specific fee structure for that Customer based upon the
specific Customer requirements. Both parties acknowledge that the
service offering under this Agreement is a startup operation and both
parties will review the pricing in good faith after the Services have
been operating for six (6) months or longer if agreed upon between the
parties. HR shall make all payments of Charges in sterling within
thirty (30) days of receipt of invoice (the "DUE DATE") according to
the payment schedule set forth on Schedule 2, and regardless of whether
HR collects any fees from its Customers. NEWCO shall be entitled to
charge interest on all amounts not paid on the Due Date at the rate of
2% above Barclays Bank plc base rate, from time to time in force. NEWCO
has the right to suspend performance of the Services on 15 days'
written notice if payment of any Charge remains outstanding (and is not
disputed by HR) for more than 30 days following the Due Date.
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4.2 The Charges do not include any charge for Value Added Tax and HR is
solely responsible for paying any and all Value Added Tax arising in
connection with the Services rendered to HR under this Agreement.
4.3 Both parties agree to take all reasonable steps to minimize taxes,
which might be assessed on either party based on the parties'
performance hereunder.
4.4 NEWCO agrees to treat HR as its most favoured customer in respect of
the Services. NEWCO represents that, in the aggregate all of the
Charges and other terms of this Agreement are substantially or
materially comparable to or better than the aggregate charges and other
terms being offered by NEWCO to any of its other customers for the
Services (or services substantially comparable), having regard to the
type and volume of services. If NEWCO offers more favourable aggregate
prices and other terms to any customer during the Term, such terms
shall be made available to HR.
4.5 To review compliance with Clause 4.4, HR may designate an independent
auditor who, at HR's expense will be permitted to examine NEWCO's
charges to other customers, provided, however, that such auditor must
sign a non-disclosure agreement with NEWCO prior to commencing any
examination. NEWCO shall afford reasonable access to the auditor to its
books and records, for the purpose of carrying out such an inspection.
4.6 HR's auditor will be permitted to report to HR only the fact that NEWCO
is or is not in compliance with this provision and will not be
permitted to disclose any specific information to HR regarding NEWCO's
customers. If the auditor reports that NEWCO is not in compliance with
clause 4.4, the auditor will report to NEWCO the changes which need to
be made to the charges and other terms of supply of the Services in
order for NEWCO to be in compliance with clause 4.4 and NEWCO shall
implement such changes within a reasonable period and upon request from
HR, and the auditor shall certify to HR that NEWCO is in compliance
with this provision once the changes have been made.
5. LIMITED WARRANTY
5.1 NEWCO represents and warrants that it will provide the Services with
reasonable skill and care, in a timely, workmanlike fashion and in
accordance with industry standards.
5.2 NEWCO will not be liable to HR for any claim or effect arising from any
cause beyond the control of NEWCO, including any act of Force Majeure
as defined under Clause 7.
5.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS CLAUSE, NO EXPRESS OR IMPLIED
WARRANTY IS MADE BY NEWCO WITH RESPECT TO ANY SERVICE, PRODUCT,
SOFTWARE RELEASE, DATA COMPILATION OR ANY OTHER MATTER, INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR
PURPOSE. WITHOUT PREJUDICE TO THE WARRANTY GIVEN UNDER CLAUSE 5.1,
NEWCO DOES
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NOT WARRANT THAT ALL ERRORS IN THE SOFTWARE CAN OR WILL BE CORRECTED OR
THAT THE FUNCTIONALITY OF THE SOFTWARE WILL MEET HR'S REQUIREMENTS.
6. LIMITATION OF LIABILITY
6.1 NEITHER HR, NEWCO NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES
OR AGENTS, WILL BE LIABLE TO THE OTHER FOR ANY CLAIMS FOR SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE SERVICES PROVIDED
BY THIS AGREEMENT OR A BREACH OF THE AGREEMENT, EVEN IF THAT DAMAGE WAS
REASONABLY FORESEEABLE OR EITHER PARTY WAS AWARE OF THE POSSIBILITY OF
THAT LOSS OR DAMAGE ARISING, WHETHER SUCH DAMAGES OR CLAIMS ARE BASED
ON BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT,
PRODUCTS LIABILITY OR OTHERWISE.
6.2 IN NO EVENT WILL EITHER PARTY'S LIABILITY FOR ANY DAMAGES OR INJURIES
TO EITHER PARTY HEREUNDER EVER EXCEED THE TOTAL CHARGES PAID BY HR FOR
THE SERVICES PROVIDED HEREUNDER, REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCT
LIABILITY OR OTHERWISE.
6.3 Nothing in this Agreement shall operate to limit or exclude the
liability of either party in respect of death or personal injury
arising as a result of the negligence of that party.
7. FORCE MAJEURE
7.1 If a party (the "AFFECTED PARTY") is prevented, hindered or delayed
from or in performing any of its obligations under this Agreement by a
Force Majeure Event:
7.1.1 the Affected Party's obligations under this Agreement are
suspended while the Force Majeure Event continues and to the
extent that it is prevented, hindered or delayed;
7.1.2 as soon as reasonably possible after the start of the Force
Majeure the Affected Party shall notify the other party in
writing of the Force Majeure Event, the date on which the
Force Majeure Event started and the effects of the Force
Majeure Event on its ability to perform its obligations under
this Agreement;
7.1.3 the Affected Party shall make all reasonable efforts to
mitigate the effects of the Force Majeure Event on the
performance of its obligations under this Agreement; and
7.1.4 as soon as reasonably possible after the end of the Force
Majeure Event the Affected Party shall notify the other party
in writing that the Force Majeure Event has ended and resume
performance of its obligations under this Agreement.
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7.2 If the Force Majeure Event continues for more than [three] months
starting on the day the Force Majeure Event starts, a party may
terminate this Agreement by giving not less than 30 days' written
notice to the other party.
7.3 In Clause 7, "FORCE MAJEURE EVENT" means an event beyond the reasonable
control of the Affected Party including, without limitation, act of
God, war, riot, civil commotion, malicious damage, compliance with a
law or governmental order, rule, regulation or direction, accident or
breakdown of plant or machinery not due to the negligence of the
Affected Party, fire, flood and storm.
8. TERM
8.1 The initial term of this Agreement shall be ten years from the
Effective Date. Upon the expiration of the initial term this Agreement
shall be automatically renewed for a consecutive additional one (1)
year terms, unless either party provides the other with notice of
cancellation of this Agreement at least thirty (30) days prior to
expiration of the then current term in which case this Agreement shall
expire at the end of such current term or unless otherwise terminated
under this Clause.
9. TERMINATION
9.1 A party (the "INITIATING PARTY") may terminate this Agreement with
immediate effect by written notice to the other party (the "BREACHING
PARTY") on or at any time after the occurrence of an event specified in
clause 9.2 in relation to the Breaching Party.
9.2 The events are:
9.2.1 the Breaching Party being in material breach of an obligation
under this Agreement and, if the breach is capable of remedy,
failing to remedy the breach within 30 days starting on the
day after receipt of written notice from the Initiating Party
giving details of the breach and requiring the Breaching Party
to remedy the breach;
9.2.2 the Breaching Party passing a resolution for its winding up or
a court of competent jurisdiction making an order for the
Breaching Party's winding up or dissolution;
9.2.3 the making of an administration order in relation to the
Breaching Party or the appointment of a receiver over, or an
encumbrancer taking possession of or selling, an asset of the
Breaching Party;
9.2.4 the Breaching Party making an arrangement or composition with
its creditors generally or making an application to a court of
competent jurisdiction for protection from its creditors
generally;
9.3 HR may terminate this Agreement with immediate effect upon written
notice to NEWCO within 60 days following a change of control of NEWCO
(whether such control is exercised as sole or joint control, with a
third party) occurring other than as a result of a change of control of
HR; in this clause , "CONTROL" means the ability to
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direct the affairs of another whether by way of contract, ownership of
shares or otherwise howsoever/has the meaning given by section 416 or
section 840 of the Income and Corporation Taxes Act 1988 so that there
is a change of control whenever there is a change of control as defined
in either section 416 or section 840.
9.4 If there is any material change, as determined by either party; (1) in
any laws, ordinances, orders, rules or regulations governing the way
the parties may operate; (2) in travel industry conditions, including
but not limited to, airfares (e.g., net fares or net/net fare
arrangements) or compensation to HR, by action of any industry vendor,
governing body or client; or (3) in technology including but not
limited to computer reservation systems or the internet; which material
change has the effect of materially increasing or decreasing the cost
of doing business; then, either party shall have the right to provide
written notice to the other party of such change and both parties agree
to renegotiate in good faith the financial and/or service terms of this
Agreement. If the parties are unsuccessful in renegotiating mutually
satisfactory terms within 30 days of such material change, either party
shall have the right to terminate this Agreement at any time thereafter
with sixty (60) days' advance written notice. Following such
termination the parties shall co-operate to ensure that termination
assistance is provided to HR at a cost which is reasonable in the light
of the material change in circumstances.
9.5 Both parties shall have an obligation to take such steps as may be
reasonably necessary to minimize damages to the parties on termination,
including, but not limited to, minimising all contractual obligations
that but for the existence of this Agreement, neither party would have
entered into.
9.6 Without prejudice to each party's accrued rights and obligations, upon
termination of this Agreement for any reason, the parties' further
obligations hereunder will immediately cease. If the Agreement is
terminated due to a breach by NEWCO, NEWCO will be responsible for
submitting to HR all information and reports required under Exhibit A
for the portion of the month up to and including the effective
termination date. If the Agreement is terminated due to a breach by HR,
NEWCO will have no such obligation to provide such information and
reports to HR for the month when termination became effective.
9.7 In the event of termination of this Agreement by Newco, Newco will work
together with HR or a designated third party to identify the
information, materials and resources HR is entitled to receive and to
develop an overall plan for transitioning such items to HR in
accordance with the following provisions (collectively, "Termination
Assistance"). The terms of this Agreement as they relate to Termination
Assistance shall remain in effect until Newco has completed its
Termination Assistance. Newco will provide the Termination Assistance
described below for a period of no less than ninety (90) days and no
more than six (6) months per HR's written request, except as provided
in this Section. Newco's obligation to provide Termination Assistance
will be conditioned upon HR paying to Newco all outstanding invoices
prior to the commencement of any Termination Assistance and will be
conditioned upon HR
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continuing to pay when due any and all fees due hereunder during the
Termination Assistance period. HR shall pay Newco standard hourly rates
and reasonable expenses for any Termination Assistance provided by
Newco. This fee is in addition to any other payments required under
this Agreement. Notwithstanding the termination or expiration of this
Agreement, the terms and conditions of this Agreement will apply to
all services provided by Newco during such period. If HR requests
Termination Assistance beyond the available capacity of the Newco
on-site staff, such request will be treated as a request for additional
services and HR will pay the agreed upon charge for such additional
services. The provision of this Section will survive the expiration or
termination of this Agreement for any reason.
9.8 HR and Newco will jointly develop a plan (the "Transition Plan") to
effect the orderly transition and migration to HR or a designated third
party from Newco of all services then being performed or managed by
Newco under this Agreement (the "Termination Transition"). The
Transition Plan will set forth the tasks to be performed by HR and
Newco, the time for completing such tasks and the criteria for
declaring the transition "completed". The parties and their employees
and agents will co-operate in good faith to execute the plan and each
party agrees to perform those tasks assigned to it in the Transition
Plan. Newco will direct the execution of the Transition Plan. The
Transition Plan will include the following tasks and such other tasks
as may be agreed upon by HR and Newco:
9.8.1 Providing HR access to necessary data files and programs,
certain non-proprietary operational procedures and data and
documentation in Newco's possession related to the Services;
9.8.2 Returning all HR confidential and proprietary information in
Newco's possession, except for one copy which Newco may
retain, subject to its confidentiality obligations, for
internal record keeping purposes and for compliance with
applicable professional standards; and
9.8.3 Returning all HR data and documentation. Newco will deliver to
HR all HR data in a format application for use by HR and will
seek to minimise the amount of manual data entry or re-keying
necessary in connection with the transfer of such data to HR.
9.9 Obligation To Minimise Damages. Both parties shall have an obligation
to take such steps as may be reasonably necessary to minimise damages
to the parties on termination, including, but not limited to, minimise
all contractual obligations that but for the existence of this
Agreement, neither party would have entered into.
9.10 Such provisions of this Agreement as are required to survive its
termination or expiry in order to give full force and effect to the
rights and obligations of the parties hereunder shall be deemed to so
survive.
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9.11 Termination of this Agreement does not constitute either party's
exclusive remedy for breach or non-performance by the other party and
each party is entitled to seek all other available remedies, both legal
and equitable, including injunctive relief.
10. NON-SOLICITATION
10.1 During the Term, neither party shall employ, solicit or make any offers
to employ any employees used by the other in connection with the
performance of the Services, without the prior written consent of the
other, which consent shall not be unreasonably withheld. The
non-breaching party shall be entitled, in addition to any other
remedies it may have at law or in equity, to a payment from the party
in breach of this Clause in an amount equal to three months' salary of
any employee that party employs, solicits or offers to employ in breach
of this Clause.
11. CONFIDENTIALITY
11.1 During the course of this Agreement a party (the "Receiving Party") may
come into possession of technology, computer software, documentation,
trade secrets, products, copyrights or other confidential and
proprietary information ("Confidential Information") of the other (the
"Disclosing Party").
11.2 The Receiving Party:
11.2.1 may not use Confidential Information for a purpose other than
the performance of its obligations under this Agreement;
11.2.2 may not disclose Confidential Information to a person except
with the prior written consent of the Disclosing Party or in
accordance with clauses 11.3 and 11.4; and
11.2.3 shall make every effort to prevent the use or disclosure of
Confidential Information.
11.3 The Receiving Party may disclose Confidential Information to any of its
directors, other officers, employees and sub-contractors (a
"RECIPIENT") to the extent that disclosure is desirable for the
purposes of this Agreement.
11.4 The Receiving Party shall ensure that a Recipient is made aware of and
complies with the Receiving Party's obligations of confidentiality
under this Agreement as if the Recipient was a party to this Agreement.
11.5 Clauses 11.2 to 11.4 do not apply to Confidential Information which:
11.5.1 is at the date of this Agreement, or at any time after that
date becomes, publicly known other than by the Receiving
Party's or Recipient's breach of this Agreement;
11.5.2 can be shown by the Receiving Party to the Disclosing Party's
reasonable satisfaction to have been known by the Receiving
Party before disclosure by the Disclosing Party to the
Receiving Party; or
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11.5.3 is required to be disclosed by law or any regulatory
authority.
11.6 The Receiving Party`s obligation with respect to the Confidential
Information of the Disclosing Party shall survive the termination or
expiry of this Agreement.
12. NON-COMPETITION
12.1 The parties agree to be bound by the restrictions placed upon them in
Clause 10 of the Shareholders Agreement.
12.2 During the term of this Agreement, NEWCO will not sell or license any
services or Products licensed under this Agreement directly to HR's
Customers receiving travel management services without giving notice to
HR, requesting sales assistance, and sharing any profits received from
such sale or license with HR as outlined below:
(a) For any accounts won by NEWCO that NEWCO and HR jointly
solicited and on which HR provides sales assistance, NEWCO and
HR shall share the NEWCO profits equally on a quarterly basis,
after first deducting amortization, start-up and
implementation costs;
(b) For any new accounts won by NEWCO that HR did not provide
assistance in soliciting, NEWCO shall keep all profits.
12.3 Should an HR Customer request that HR be omitted from the processing
cycle on any transaction, NEWCO shall share equally with HR all profits
which NEWCO makes in excess of fifty cents ($ .50) on each such
transaction.
12.4 During the Term, NEWCO may compete with HR for new accounts including
from divisions, affiliates or subsidiaries of HR's Customers which are
not existing customers of HR, provided that NEWCO does not undercut HR.
12.5 For all NEWCO Customers who do not use the services of a travel agency,
NEWCO hereby grants to HR a right of first refusal to provide travel
management services to NEWCO for such Customers on an outsourced basis.
All such services shall be provided to the Customer as private label
services under NEWCO's OFS brand name.
12.6 Except to the extent that this Agreement, or any agreement or
arrangement of which it forms part, is a non-notifiable agreement
pursuant to Section 27A of the Restrictive Trade Practices Act 1976
(the "ACT"), no provision of this Agreement, or of any agreement or
arrangement of which it forms part, by virtue of which such agreement
or arrangement is subject to registration under the Act shall take
effect until the day after particulars of such agreement or arrangement
have been duly furnished to the Director General of Fair Trading
pursuant to Section 24 of the Act.
13. JOINT OVERSIGHT COMMITTEE
13.1 JOC PROCEDURES. The following representatives will comprise a joint
oversight committee (the "JOC") which will meet at least quarterly. The
functions of such committee, among other things, will be to carry out
its obligations as expressed
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throughout this Agreement, to provide Product and Services direction,
review and analyze changes in the market, prioritize resources to
improve performance of the parties' obligations hereunder, review and
analyze the performance of the parties, and to review recommendations
and suggestions to enhance the performance of the Services.
NEWCO Designees (2): ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
HR Designees (2): ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
13.2 If a JOC Member resigns or leaves its employer or for any other reason
ceases to be a JOC Member, the party with a vacancy will promptly
appoint a replacement.
13.3 JOC PROCEDURES. All actions of the JOC will be subject to the following
process. An equal number of appointed representatives from each party
must be in attendance for the JOC to conduct a meeting.
13.3.1 Each party hereby appoints the following individual as its
Management Representative for purposes of this Agreement:
NEWCO: ▇▇▇▇▇ ▇▇▇
HR: ▇▇▇▇▇ ▇▇▇▇▇
13.3.2 Thirty (30) days prior to replacing its Management
Representative, HR or NEWCO, as the case may be, shall notify
the other in writing identifying its proposed replacement.
13.4 REPORT CONTENTS. NEWCO will prepare (i) a listing of key Service
activities, and (ii) definitions of measurements of qualitative and
quantitative service performance levels for each such key Service
activity ("Service Performance Levels"), and will submit such listings
and definitions to the JOC for approval. The Service Performance Levels
will be used to measure HR's and NEWCO's performance of their
responsibilities under this Agreement.
13.5 Performance Levels. NEWCO will deliver to the JOC for each calendar
quarter (within thirty (30) days of the end of such quarter),
commencing with the calendar quarter beginning April 1, 2000, service
performance reports ("SERVICE PERFORMANCE REPORTS") that identify, for
each JOC approved key Service activity, the Service Performance Level
for that activity. The JOC will review the parties' performance during
the relevant time period (including but not limited to the information,
contained in the Service Performance Reports), and will provide
feedback to both NEWCO and HR regarding the performance of their
respective responsibilities under this Agreement. The JOC will also
periodically review the definitions and measurements
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used in the Service Performance Reports and revise them as necessary to
reflect the most appropriate measures of NEWCO and HR performance.
14. GOVERNING LAW AND DISPUTE RESOLUTION
14.1 This Agreement is governed by and shall be construed in accordance with
English law.
14.2 INITIAL PROCEDURES. The parties shall make all reasonable efforts to
resolve all disputes without resorting to litigation. If a dispute
arises between the parties, the JOC Representatives will attempt to
reach an amicable resolution. If either JOC Representative determines
that an amicable resolution cannot be reached, such JOC Representative
shall submit such dispute in writing to the Management Representatives
(a "Dispute Notice"), who shall use their best efforts to resolve it or
to negotiate an appropriate modification or amendment.
14.3 ESCALATION. Except as otherwise provided in this Agreement, neither
party shall be permitted to bring proceedings against the other (save
for injunctive relief) until the earlier of (i) the date the Management
Representatives conclude in good faith that an amicable resolution of
the dispute through continued negotiation is unlikely, or (ii) sixty
days from the date of submission of a Dispute Notice by either party.
14.4 The courts of England and Wales have exclusive jurisdiction to hear and
decide any suit, action or proceedings, and to settle any disputes,
which may arise out of or in connection with this Agreement
(respectively, "PROCEEDINGS" and "Disputes") and, for these purposes,
each party irrevocably submits to the jurisdiction of the courts of
England and Wales.
14.5 Each party irrevocably waives any objection which it might at any time
have to the courts of England and Wales being nominated as the forum to
hear and decide any Proceedings and to settle any Disputes and agrees
not to claim that the courts of England and Wales are not a convenient
or appropriate forum.
15. GENERAL
15.1 This Agreement, including the Exhibits attached hereto, represents the
entire understanding and agreement between the parties relating to the
subject matter, and supersedes any and all previous discussions and
communications. No employee or agent of NEWCO nor any distributor is
authorized to make any additional representations or warranties related
to the services provided hereunder or the Software. Any subsequent
amendments and/or additions hereto are effective only if in writing and
signed by both parties.
15.2 All media releases, public announcements and public disclosures by
either party relating to this Agreement, but not including any
disclosure required by legal, accounting or regulatory requirements,
shall be approved by both parties prior to such release.
15.3 Neither party may assign or delegate its rights or obligations under
this Agreement without the prior written consent of the other, save
that a party shall not unreasonably
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withhold its consent to the assignment or delegation by the other of
its rights and/or obligations to a majority-owned subsidiary of that
party, provided that it is satisfied that such subsidiary has the
financial and other resources in order properly to perform that party's
obligations hereunder. Subject to the foregoing limitation on
assignment, this Agreement is binding upon and inures to the benefit of
the successors and assigns of the respective parties hereto.
15.4 NEWCO acknowledges that HR is entering into this agreement on behalf of
and for the benefit of its subsidiaries and its subsidiaries shall
accordingly have the benefit of and shall be entitled to enforce all
rights granted to HR under this Agreement.
15.5 The failure of either party at any time to require performance by the
other party of any provision hereof is not to affect in any way the
full rights of such party to require such performance at any time
thereafter, nor is the waiver by either party of a breach of any
provision hereof to be taken or held to be a waiver of the provision
itself or any future breach.
15.6 The parties hereto are independent contractors, and nothing in this
Agreement is to be construed to create a partnership, joint venture, or
agency relationship between NEWCO and HR.
15.7 If any provision of this Agreement, other than Clause 12, is found to
be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Agreement which shall remain in force.
15.8 A notice under or in connection with this Agreement shall be in writing
and shall be delivered personally or sent by first class post pre-paid
recorded delivery (or air mail if overseas) or by telex or by fax, to
the party due to receive the notice, at its address set out in this
Agreement or another address specified by that party by written notice
to the other.
15.9 In the absence of evidence of earlier receipt, a notice is deemed
given:
15.9.1 if delivered personally, when left at the address referred to
in clause 15.6;
15.9.2 if sent by post except air mail, two days after posting it;
15.9.3 if sent by air mail, six days after posting it;
15.9.4 if sent by telex, when the proper answer-back is received; and
15.9.5 if sent by fax, on completion of its transmission.
16. COUNTERPARTS
This Agreement may be executed in any number of counterparts, which
shall together constitute one Agreement.
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IN WITNESS WHEREOF, the undersigned duly authorized representatives of the
parties hereto have made and entered into this Agreement.
Fortdove Limited ▇▇▇▇ ▇▇▇▇▇▇▇▇ plc
Signed: Signed:
---------------------------- ---------------------------
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SCHEDULE 1
SERVICES
SERVICE BUREAU/OUTSOURCING AGREEMENT
FOR ONLINE FULFILMENT SERVICES
OFS SOFTWARE LICENSE AGREEMENT:
PRODUCT MODULES GDS VERSION DATE AVAIL. COMMENTS
------- ------- --- ------- ----------- --------
OFS Ticket Partner.................. Sabre June '00 Dates for delivery of this product are
tentative
OFS Ticket Partner.................. Amadeus June '00 pending development meetings with OFS
OFS Ticket Partner.................. Galileo June '00 for ▇▇ ▇▇▇ integration.
OFS Message Partner................. April '00 Available 30 days after data centre build.
Project ▇▇▇▇▇▇▇..................... 4Q '00
OFS Scholar......................... July '00
NOTES:
1 Assumes latest release and components of OFS Ticket Partner along with
future upgrades and releases. Ticket Partner collects data from a ticketed
PNR which is also now an internet application.
2 Assumes latest release and components of OFS Message Partner along with
future upgrades and releases. Message Partner is a total E-mail management
system.
3 Assumes latest release and components of OFS Scholar along with future
upgrades and releases. Scholar is an online knowledge base application for
staff to access processes, procedures, technology and product updates.
4 Assumes latest release and components of the application known as Project
▇▇▇▇▇▇▇. This product facilitates the consolidation of client data from the
OFS transaction dealing components (Ticket Partner, Message Partner, CoRRe
and Voice).
5 Assumes International variants of GDS (Global Distribution Systems) and not
US Domestic variants.
6 The software will be modified to run independently of Sabre's Tbase system.
Data streams will be structured to allow connection to other back office
systems.
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--------------------------------------------------------------------------------
AREA DESCRIPTION HANDLED BY:
--------------------------------------------------------------------------------
Quality Control Automated quality control tests as OFS
defined by policy. This will include
email sent from CoRRe(TM) re: quality
control, schedule changes, industry
notifications, etc.
--------------------------------------------------------------------------------
Non-Client contract 1. Schedule Changes - Automated OFS
Support schedule changes will be changes
that do not require any contact
with the client. This service is
provided to "weed out" PNRs from
the schedule change queues that
do not require agent information.
2. Client contact that is e-mail OFS
driven to a mass audience. An
example would be a new change
in the industry such as security
measures changing (Gulf War)
where all clients must be advised.
Bulk e-mail would be sent.
--------------------------------------------------------------------------------
Technical and 1. Technical support for users OFS
Navigational Support experiencing technical problems
(Telephone) outside the application (example:
browser issues).
2. Coaching for inexperienced or OFS
confused users on functionality
of the application.
--------------------------------------------------------------------------------
Technical and 3. Technical support for users OFS
Navigational Support experiencing technical problems
(Email) outside the application (example:
browser issues).
4. Coaching for inexperienced or OFS
confused users on functionality
of the application.
--------------------------------------------------------------------------------
Application Anomalies or problems with the OFS
Management (Incident application are logged, researched
Reporting) to identify root cause (i.e. CRS,
application, training, content, etc.)
and reported to responsible party for
correction.
--------------------------------------------------------------------------------
Ticketing Ticketing - Paper tickets are OFS
driven to printers residing at the
appropriate location (OFS or the
agency of record. E-tickets are
driven from OFS but recorded on
appropriate BSP location.
--------------------------------------------------------------------------------
Itinery/Receipt E-ticket receipts and/or itineraries OFS
Distribution can be distributed via e-mail, fax or
mail.
--------------------------------------------------------------------------------
BSP Processing 5. IAR processing. This will be HR
determined by ticketing
requirements.
6. OFS will process all BSP reports
for tickets by accessing the
back-office system being used
for that office's BSP report.
--------------------------------------------------------------------------------
Customer Resolution Post-ticketing issues are OFS
researched, i.e. debit memos, lost
tickets, voids, customer
satisfaction problems, etc.)
--------------------------------------------------------------------------------
Travel Support 7. Original booking, pre-ticket HR office of
(Telephone and Email) changes, En-route support, and record
all other calls for users
(changes, seat upgrades,
questions, exchanges, refunds,
etc).
8. Schedule changes that require
manual intervention.
9. OFS will provide access to
Message Partner for all
itineraries and travel related
questions and e-mail inquiries
and communication.
--------------------------------------------------------------------------------
Packaging & 10. Paper Tickets - OFS or remote HR office of
Distribution (Shipping) office satellite ticket record or OFS
printers (STP's).
11. Exchange Tickets will be
driven from OFS since the
majority will be issued
from there originally.
12. Overnight Mail - OFS.
Note: All consumable costs are
passed to HR (envelopes, postage,
overnight services, ticket
jackets, invoices).
--------------------------------------------------------------------------------
MIS Providing travel management data HR
to clients (feed of all
transactions will be provided
to HR by OFS for consolidation).
--------------------------------------------------------------------------------
Accounting 13. Billing the customer on
chargeable activities.
14. Hotel and car commission
tracking.
15. Overrides and revenue
sharing.
--------------------------------------------------------------------------------
Accounting Traditional management provided HR
Management by HRP today.
Note: OFS will provide a Program.
Manager to work with the account
manager and travel manager as
needed.
--------------------------------------------------------------------------------
Manual Transaction Manual bookings made by agents. HR office of
Processing record
--------------------------------------------------------------------------------
Schedule Change Automated processing of schedule OFS and HR
Processing changes - Note: PNRs requiring office of
client contact will be sent to HR record
and those that can be handled via
email will be processed by OFS.
================================================================================
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SCHEDULE 2 CHARGES
NEWCO -- ▇▇▇▇ ▇▇▇▇▇▇▇▇ Outsource "Corporate OFS"
Account by Account basis
Serviced in OFS Facilities
Assumes Travel Agency takes ALL calls
[*] emails per ticket (excess emails charged at $[*] per email)
Price [*]/ticket
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