Services Agreement - Rosenbluth International Inc. and Orbitz LLC
SERVICES AGREEMENT
This Service Agreement ("Agreement") effective as of April 22,
2002 ("Effective Date") is entered into by and between Rosenbluth International,
Inc., a Pennsylvania corporation, having its principal place of business at 2401
Walnut Street, Philadelphia, PA 19103 ("UPSTREAM") and Orbitz, LLC, a Delaware
limited liability company, having its principal place of business at 200 South
Wacker Drive, Suite 1900, Chicago, IL 60606 ("ORBITZ").
RECITALS
Whereas, UPSTREAM is in the business of providing various call
center services (including inbound and outbound telemarketing services and
outsourced customer service and related services), professional services,
information integration services, including database marketing and management
services, internet-based customer service and related service, fulfillment
services and related services; and
Whereas, ORBITZ wishes to engage UPSTREAM as its outsource
service provider to provide and manage certain call center services on the terms
and conditions set forth in this Agreement;
Now, therefore, in consideration of the foregoing, the mutual
promises and undertakings set forth below and other good and valuable
consideration exchanged by the parties, the receipt and sufficiency of which are
acknowledged by the parties, the parties agree as follows:
1. PURPOSE. ORBITZ wishes to engage UPSTREAM to perform the Services so as
to (i) be reasonably flexible and responsive to the customer call
requirements of ORBITZ and (ii) measure and report the quality of such
Services pursuant to the Service Levels.
2. DEFINITIONS. Defined terms used but not otherwise defined in the body of
this Agreement shall have the following meaning set forth below:
2.1 "ANNUAL FORECAST" means a twelve (12) month rolling Forecast
provided quarterly on or before the last day of the quarter,
which shall be used for UPSTREAM's planning purposes only.
2.2 "ACD" means automatic call distributor, which is a specialized
telephone system used in the UPSTREAM call centers. ACD is a
programmable device that automatically answers, queues and
distributes calls to agents, plays delay announcements to callers
and provides real-time and historical reports on activities.
2.3 "ARC" means Airlines Reporting Corporation.
2.4 "ARC MONTH" means the ARC monthly reporting period, which is
either a 4 or 5 week 'month' as determined according to the table
provided by ORBITZ to UPSTREAM at the beginning of each calendar
year of the Term. For 2002, the table shall be as set forth on
Exhibit D.
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2.5 "ARC REPORT" means a report of the actual number of Ticket
Transactions reported to ARC.
2.6 "AVERAGE AFTER-CALL WORK" means work that is necessitated by and
immediately follows an inbound Contact. Often includes entering
data, filling out forms and making outbound Contact necessary to
complete the transaction. The agent is unavailable to receive
another inbound Contact while in this mode.
2.7 "AVERAGE HANDLE TIME" means the sum of Average Talk Time and
Average After-Call Work for a specified time period, as measured
by UPSTREAM's ACD.
2.8 "AVERAGE TALK TIME" means time an agent spends with a caller
during a Contact. Includes everything from "hello" to "goodbye."
2.9 "CMS" means call management system used for staffing, scheduling
and real time reports from the call centers.
2.10 "CHANGE IN CONTROL" means the occurrence of any of the following
events with respect to a party:
(i) an acquisition by any individual, entity or group of
beneficial ownership of more than 50% of either (1) the
then outstanding equity interests of the party (the
"Outstanding Interests") or (2) the combined voting power
of the then outstanding voting interests of the party
entitled to vote in the general election of directors (the
"Voting Interests"); or
(ii) a reorganization, merger, consolidation or sale or other
disposition of all or substantially all of the assets of
the party (a "CIC Event"); excluding, however, a CIC Event
pursuant to which the individuals and entities who are the
beneficial owners, respectively, of the Outstanding
Interests and the Voting Interests immediately prior to
such CIC Event beneficially own, directly or indirectly,
50% or more, respectively, of the Outstanding Interests
and the Voting Interests of the entity resulting from such
CIC Event.
2.11 "CONTACT" means receipt of an inbound telephone call or inbound
email from an ORBITZ customer or any combination thereof.
2.12 "CONTACT HANDLED" means a Contact, which is answered by UPSTREAM
and handled through to resolution of the customer's issue, as
measured by UPSTREAM's automatic call distribution ("ACD") system
at the Facilities.
2.13 "CONTACT RATIO" means the ratio of Contacts Handled (minus
Contacts Handled with respect to the Orbitz Rewards Program or
other programs mutually agreed upon by the parties) to Ticket
Transactions. In the event the Contacts Handled with respect to
the Corporate Travel Program are priced separately (as agreed
upon by the parties pursuant to Section 8.6), then such Contacts
Handled shall
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also be subtracted from Contacts Handled for purposes of
calculating the Contact Ratio.
2.14 "CONTACT ACCURACY" means the measure of the accuracy of the
information provided to a customer in connection with a Contact
Handled.
2.15 "CORPORATE TRAVEL PROGRAM" means the travel products and services
to be offered by ORBITZ to corporate users of the ORBITZ web
site.
2.16 "DIRECT CONNECT REPORT" means a report of the actual number of
direct connection Ticket Transactions booked by ORBITZ based on
information derived by ORBITZ from the airlines on which such
Ticket Transactions were booked.
2.17 "DISASTER RECOVERY PLAN" means a detailed plan for backup and
disaster recovery developed and maintained by UPSTREAM.
2.18 "DOUBLE DOWN EMAIL PRICE" [***]
2.19 "DOUBLE DOWN VOICE PRICE" [***]
2.20 "EMAIL PRICE" [***]
2.21 "FINAL MONTHLY REPORT" [***]
2.22 "GDS ENVIRONMENTS" means any GDS platform environment, including,
without limitation, Worldspan, Sabre, Apollo and Shares.
2.23 "FEES" shall mean the Transaction Fees, Transition Fees and/or
Rewards Fees, as applicable.
2.24 "FORECAST" means a forecast of the anticipated number of Ticket
Transactions for a calendar month.
2.25 "LAUNCH DATE" means the date on which the Implementation (as
defined below) and transition of the Services from ORBITZ's
existing vendor to UPSTREAM commences. The Launch Date shall
occur on April 29,2002.
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2.26 "MINIMUM FORECAST MONTH" [***]
2.27 "MINIMUM NUMBER OF TICKET TRANSACTIONS" [***]
2.28 "MONTHLY FORECAST" [***]
2.29 "PARITY EMAIL PRICE" [***]
2.30 "PARITY VOICE PRICE" [***]
2.31 "PRELIMINARY MONTHLY REPORT" means a preliminary report of the
Ticket Transactions in the previous month, which data shall be
based on ORBITZ's daily reports received from etravelexperts,
LLC, ORBITZ's provider of ticket fulfillment and handling
services, back office reporting and ARC Settlement and reporting
services ("ETX").
2.32 "REWARDS PROGRAM" means the affinity program to be offered to
ORBITZ customers, whereby customers will have the opportunity to
accrue points in the Rewards Program by using their
ORBITZ-branded credit card or otherwise conducting transactions
on the ORBITZ web site, and to redeem those points for
travel-related rewards available from ORBITZ.
2.33 "SERVICES" means the call center services to be provided by
UPSTREAM to ORBITZ under this Agreement, as more fully described
on Exhibit A hereto, Exhibit B hereto and the Policies and
Procedures Guide. Services shall also include handling all
Contacts related to (i) car and hotel accommodation reservations,
(ii) the Rewards Program (as defined in Section 2.10), and the
Corporate Travel Program (as defined in Section 2.6). The
UPSTREAM personnel who handle Rewards Program Contacts shall be
the same whether such Contacts are telephone or email-based and
Contractor shall not handle the Rewards Program Contacts.
2.34 "SERVICE LEVEL" means, individually and collectively, the service
levels, performance standards and other quantitative and
qualitative performance
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standards and commitments for the Services contained in this
Agreement, as set forth in Exhibit B.
2.35 "SERVICE LEVEL CREDITS" [***]
2.36 "SOFTWARE" means any software, programming or computer code,
including without limitation, the computer telephony integration
("CTI") software, staffing and scheduling software, call
monitoring software and KANA email management software, owned by
UPSTREAM or that are provided on behalf of or licensed and used
by UPSTREAM in performance of the Services, along with all
related documentation.
2.37 "STAFFING CONTACT RATIO" [***]
2.38 "TICKET TRANSACTION" [***]
2.39 "TRANSFER DATE" means the date on which Contractor has begun
performing the Contractor Services.
2.40 "VOICE PRICE" [***]
3. SERVICES.
3.1 UPSTREAM shall perform the Services in accordance with Exhibit A,
Exhibit B hereto and the Policies and Procedures Guide. While in
communication with ORBITZ's customers or potential customers,
UPSTREAM personnel shall conduct themselves in a businesslike and
friendly manner that reflects well upon ORBITZ and shall comply
with the additional conduct requirements set forth in the
Policies and Procedures Guide. UPSTREAM personnel performing the
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Services shall not receive any personal telephone calls on any
ORBITZ toll free number, nor shall any UPSTREAM personnel for
receipt of incoming calls use the ORBITZ toll free number.
UPSTREAM shall not subcontract any portion of the Services
without the express written consent of ORBITZ, not to be
unreasonably withheld, except as set forth in Section 4. UPSTREAM
shall comply with all laws applicable to UPSTREAM's business
which relate to or affect the Services.
3.2 In providing the Services, UPSTREAM shall support all GDS
Environments. With respect to Services to be performed by
UPSTREAM in response to Contacts, ORBITZ shall provide to
UPSTREAM with the Annual Forecast and the Monthly Forecast. The
Annual Forecast does not, in any way, represent a commitment by
ORBITZ to provide call volume to UPSTREAM.
3.3 [***]
3.4 UPSTREAM shall obtain, at its expense, all licenses and rights
necessary for UPSTREAM to perform the Services, including,
without limitation, licenses to use the Software.
3.5 [***]
3.6 In the event any third-party who is an ORBITZ customer brings a
claim based on UPSTREAM's negligence, for which UPSTREAM would
have an indemnification obligation pursuant to Section
11.2(a)(ii), ORBITZ shall first use its best efforts to enforce
against such third-party the terms and conditions (and
specifically, the limitations on liability) as they exist on the
ORBITZ web site.
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4. IMPLEMENTATION AND OUTSOURCING.
4.1 ORBITZ shall use reasonable commercial efforts to (i) develop an
agent interface from Chicago to the UPSTREAM call center
locations in Dickinson and Fargo, North Dakota (the
"Facilities"), (ii) use ORBITZ's desktop interface tool, and
(iii) facilitate telecom connectivity between ORBITZ vendors and
the Facilities required to effectively manage its call volume
(the "Implementation"). Implementation shall commence on the
Launch Date and shall be completed no later than July 31, 2002
(the "Implementation Period"). In the event ORBITZ does not
completed its obligations as set forth in this Section 4.1 prior
to the end of the Implementation Period, then for whatever period
by which such performance is delayed, UPSTREAM's performance of
its Implementation obligations (as set forth on Exhibit A) shall
be delayed by an equivalent period of time.
4.2 In order to facilitate successful Implementation, UPSTREAM will
undertake the Implementation obligations set forth on Exhibit A
and will utilize the Facilities to perform the Services. Upon
mutual agreement of the parties, additional sites may be used by
UPSTREAM in performance of the Services based on increases in
ORBITZ's call volume or resource needs.
4.3 UPSTREAM shall provide ORBITZ with three full-time dedicated
resources (the "IT Resources") for professional services,
technology development and CTI programming during the
Implementation Period. After the Implementation Period, the IT
Resources shall be available at ORBITZ's request to perform 200
hours per month of free technical programming throughout the
Term, for purposes of reporting modifications and CTI integration
and related programming. If performance of additional development
services requested by ORBITZ will exceed 200 hours per month,
UPSTREAM shall provide ORBITZ prior written notice of any such
excess hours, and if ORBITZ authorizes such excess hours,
UPSTREAM shall be paid at a rate of $[***] per hour.
4.4 SERVICES TO BE PERFORMED BY CONTRACTOR. Upon receipt of notice
from ORBITZ at any time after November 30, 2002 ("Transfer
Notice"), which notice shall be given if, and only if, ORBITZ
desires to give such notice, UPSTREAM will (within 120 days of
receipt of the Transfer Notice) outsource the processing of email
Contacts (the "Contractor Services") to an overseas third-party
selected by UPSTREAM and approved by ORBITZ (such approval not to
be unreasonably withheld) ("Contractor"), pursuant to an
agreement between UPSTREAM and the Contractor (the "Contractor
Agreement"), and ORBITZ consents to such subcontracting, provided
that:
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(i) UPSTREAM shall provide ORBITZ with advance written notice
of the Transfer Date, which date shall occur no later than
120 days after the date of the Transfer Notice, and shall
report to ORBITZ monthly with such information as may be
requested by ORBITZ from time-to-time with respect to
Contractor's performance thereof.
(ii) UPSTREAM acknowledges that the Contractor Services are a
portion of the Services to be provided under this
Agreement, and with respect to the performance of the
Contractor Services, UPSTREAM shall ensure that all
obligations of UPSTREAM pursuant to this Agreement,
including, but not limited to, obligations relating to the
Service Levels, reporting, personnel training and
expertise, Confidential Information, intellectual
property, and ORBITZ's audit rights, shall be binding on
Contractor under the Contractor Agreement (the "Contractor
Obligations") and UPSTREAM shall aggressively enforce all
such Contractor Obligations. UPSTREAM shall be fully
responsible for any and all actions taken by Contractor in
performance, violation or failure of the Contractor
Obligations ("Contractor Actions"), as if such Contractor
Actions were performed by UPSTREAM under this Agreement.
The Contractor Agreement shall provide that ORBITZ is an
intended third-party beneficiary of the Contractor
Agreement, with the right to enforce the Contractor
Agreement as though it were a party thereto.
(v) UPSTREAM shall ensure, and shall be responsible, at its
sole cost and expense, for all necessary and advisable
training of Contractor prior to and during any performance
by Contractor of the Contractor Obligations. At ORBITZ's
request, (i) UPSTREAM shall cause Contractor to enter into
a separate non-disclosure agreement with ORBITZ and/or
(ii) UPSTREAM shall execute an estoppel letter in a form
requested by ORBITZ and not more than monthly, certified
by an officer of the UPSTREAM, that Contractor is in full
compliance with all terms of the Contractor Agreement.
Any dispute arising under, or in connection with,
the Contractor Agreement shall be submitted to
binding arbitration on terms substantially similar
to those set forth on Exhibit H, and such
arbitration shall take place in the United States,
and UPSTREAM shall obligate Contractor, in the
Contractor Agreement, to be bound by and
participate in such arbitration at the election of
ORBITZ.
In the event Contractor breaches the Contractor
Agreement or any of the Contractor Obligations,
ORBITZ shall have the right to cause UPSTREAM (i)
to require Contractor to take all necessary
remedial actions at their sole cost and expense and
in a time frame appropriate to the circumstance or
(ii) to terminate the Contractor Agreement with
respect to the Contractor Services being
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performed by Contractor; and following any such
termination, UPSTREAM shall either (i) replace
Contractor with another subcontractor, subject to
ORBITZ's approval or (ii) transfer the performance
of the Contractor Services back to the Facilities,
and in either event, the pricing applicable to the
Contractor Services (as specified in Section 8.1,
Exhibit D-3) shall continue to apply to any such
Contractor Services, whether such Contractor
Services are being performed by another contractor
or directly by UPSTREAM. The Contractor Agreement
shall require that the Contractor Services shall be
performed in a secure environment, such that only
those employees of Contractor performing the
Contractor Services shall have access to ORBITZ
confidential information or to the area within
Contractor's facility where the Contractor Services
are being performed (the "Secure Area"). Further,
Contractor shall (A) not provide similar services
to the Contractor Services any Competitive Entity
(as defined in Section 9.2) within or on the same
floor of the building in which the Secure Area is
located, (B) ensure that Contractor employees
(while employed by Contractor) who provide the
Contractor Services shall not, during the Term and
for a period of 12 months thereafter, provide
similar services to any Competitive Entity.
Upon mutual agreement of the parties to the pricing therefore, the
parties shall include outsourcing of telephone Contacts within the
definition of Contractor Services.
4.5 TRANSFER OF CONTRACTOR SERVICES FOR FORCE MAJEURE. In the event
UPSTREAM transfers the Contractor Services back to the Facilities
due to a force majeure event (as described in Section 12.7
below), which would excuse Contractor from providing Contractor
Services, then for the period of time during which the force
majeure event continues, and subject to UPSTREAM's
responsibilities pursuant to the Disaster Recovery Plan, pricing
applicable to the Services shall revert to the United States
pricing matrices as set forth in Section 8.1 and attached as
Exhibit D-2.
5. UPSTREAM RESPONSIBILITIES.
5.1 EXCLUSIVITY. Provision of the Services shall be exclusive to
UPSTREAM, such that neither a third party nor ORBITZ's own
personnel shall provide the same or similar services as those
provided by UPSTREAM under this Agreement; provided, however, if
UPSTREAM is unable to find a Contractor acceptable to ORBITZ
pursuant to Section 4.4, such that the Transfer Date can occur
within one hundred twenty (120) days following the Transfer
Notice, then the pricing applicable to Contractor Services (as
set forth on Exhibit D-3) shall apply with respect to email and
UPSTREAM shall continue to provide all of the Services (including
Contractor Services that were to be provided on ORBITZ's request
by the Contractor) at its Facilities.
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5.2 REQUIRED REPORTS. UPSTREAM shall present to ORBITZ, or ORBITZ's
designated project manager, (i) all of the reports specified on
Exhibit A and (ii) a report on a daily basis, in a form
acceptable to ORBITZ, which specifies such information as may be
mutually agreed upon by the parties hereto. ORBITZ and all ORBITZ
agents and contractors will have real-time access (provided that
during the Implementation Period such access shall be on a near
real-time basis) to all ORBITZ CMS data, and remote access to the
Nice System (as defined in Section 5.10) and other ORBITZ-related
data maintained by UPSTREAM, to develop reports, analyze trends
and otherwise use for internal business purposes, as needed.
5.3 ACCESS TO ORBITZ'S ELECTRONIC RESOURCES. UPSTREAM shall strictly
follow all ORBITZ security rules and procedures (that are
provided to UPSTREAM in advance and in writing) for use of ORBITZ
electronic resources. All user identification numbers and
passwords disclosed to UPSTREAM and any information obtained by
UPSTREAM as a result of UPSTREAM's access to, and use of, ORBITZ
computer and electronic storage systems shall be deemed to be and
shall be treated as ORBITZ's Confidential Information, as such
term is defined in the NDA, as referenced and incorporated herein
pursuant to Section 7.1.
5.4 COOPERATION. UPSTREAM agrees to reasonably cooperation with third
parties that ORBITZ may engage in connection with the
development, testing, integration, maintenance and operation of
the ORBITZ website and related systems. UPSTREAM shall work with
ORBITZ and its ticketing service partner and other
ORBITZ-designated service providers to optimize the customer
service and fulfillment processes. UPSTREAM shall assist in the
implementation of any telecommunications equipment required to
interface with ORBITZ, Worldspan, L.P. (or any other GDS
providing services to ORBITZ), ORBITZ's ticketing service partner
and other ORBITZ-designated service providers to accomplish a
seamless operation.
5.5 KEY PERSONNEL. [***]
5.6 SECURITY POLICIES. UPSTREAM agrees that all UPSTREAM personnel,
while visiting the premises of ORBITZ or other third parties in
performance of the Services, shall comply with all the internal
rules and regulations of ORBITZ or the other party, including
security procedures, which shall be provided to UPSTREAM in
advance and in writing.
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5.7 INSURANCE. UPSTREAM shall, at its own expense, obtain and
maintain insurance as set forth in Exhibit C. These insurance
coverages shall be primary and non-contributing with respect to
any other insurance or self-insurance that may be maintained by
UPSTREAM.
5.8 PROBLEM ANALYSIS. If UPSTREAM fails to meet any of the Service
Levels, UPSTREAM shall (i) promptly investigate and report on the
causes of the problem, (ii) use its best efforts to correct the
problem and begin meeting the Service Levels as soon as
practicable and (iii) advise ORBITZ, as and to the extent
reasonably requested by ORBITZ, of the status of remedial efforts
to be undertaken with respect to such problem and provide ORBITZ
reasonable evidence that the causes of such problem have been or
will be corrected.
5.9 CONTINUOUS IMPROVEMENT REVIEWS. Within three (3) months after the
Launch Date, and at least quarterly thereafter, UPSTREAM shall
schedule a meeting with ORBITZ to review the Service Levels. As
part of this review process, the parties shall mutually determine
whether or not increased or additional Services are required and
negotiate in good faith on additional Service Levels, if
applicable, to be added to Exhibit B.
5.10 MEASUREMENT AND MONITORING. UPSTREAM shall maintain the
measurement and monitoring tools, metrics and reporting
procedures set forth on Exhibits A and B to measure and report
UPSTREAM's performance of the Services against the applicable
Service Levels, including, without limitation, the NICE, Inc.
online monitoring tool whereby the monitoring party may listen to
calls remotely or historically and view actual screen shots used
throughout the handling of a Contact (the "NICE system"). The
NICE System shall be installed and functional no later than the
completion of the Implementation Period. UPSTREAM shall provide
ORBITZ with information and access to such tools and procedures
upon request, for purposes of audit verification. If ORBITZ
reasonably requests that UPSTREAM provide additional tools,
metrics and reports, UPSTREAM shall, in its sole discretion,
provide them as part of the Services.
5.11 DISASTER RECOVERY SERVICES. UPSTREAM shall submit a Disaster
Recovery Plan to ORBITZ as soon as reasonably practicable, and
the parties agree to use commercially reasonable efforts to agree
upon a final Disaster Recovery Plan no later than the end of the
Implementation Period. The Disaster Recovery Plan shall be deemed
incorporated herein by reference and shall be attached hereto as
Exhibit F. UPSTREAM shall implement the Disaster Recovery Plan as
necessary, and such implementation shall be incorporated into the
Services. The Disaster Recovery Plan shall include procedures for
periodic backup of data, procedures for declaration of a
disaster, notification procedures for UPSTREAM personnel and
ORBITZ personnel and procedures for recovery of processing
functions following a disaster. The cost of additional equipment
required for UPSTREAM to perform the requirements of the Disaster
Recovery Plan shall be agreed upon by the parties and, to the
extent such cost is to be reimbursed by ORBITZ, shall be
reimbursed without markup.
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5.12 STATEMENTS OF WORK. In the event ORBITZ requests any additional
services be performed by UPSTREAM not specified in the Services,
such project will be performed by UPSTREAM pursuant to a
statement of work ("SOW") that must be signed by both parties.
Each SOW will be subject to the terms of this Agreement and the
services to be performed thereunder shall be deemed "Services" as
defined herein. In the event of any conflict or inconsistency
between the terms of this Agreement and any SOW, this Agreement
will prevail. Each SOW shall include, as applicable, (i) the
start date, location and scheduled completion of the project,
(ii) a description of the project and services to be performed by
UPSTREAM, (iii) project milestones, (iv) ORBITZ acceptance
criteria for the project and any deliverables thereunder, (v) the
hourly rates or project rate for the project, (vi) the names of
all key project personnel and (vii) such other information as may
be agreed to by the parties.
5.13 RESOURCES. UPSTREAM shall be responsible, at its sole cost and
expense, for UPSTREAM's Implementation obligations and for all
training, account management, facilities costs, equipment and
Software costs, Avaya G3r phone switches, as well as all other
supporting applications necessary in UPSTREAM's performance of
the Services. UPSTREAM shall be responsible, at its sole cost and
expense, for obtaining the technology necessary in performing the
Services, including software licenses and maintenance for the
KANA (or any similar) email management system, CTI application
software for "screen pops" and reporting, call monitoring
software that displays both screen shots as well as call data,
staffing and scheduling software as necessary to meet ORBITZ
specifications as well as remote monitoring and web-based
reporting.
5.14 POLICIES AND PROCEDURES GUIDE. UPSTREAM shall, in conjunction
with ORBITZ, develop and maintain a policies and procedures guide
("Policies and Procedures Guide") by the end of the
Implementation Period, which shall be updated from time-to-time
as mutually agreed by the parties and shall include, without
limitation, the following:
(i) How UPSTREAM shall perform the Services under this
Agreement, including (a) the equipment and Software being
used, (b) the operations manuals, user guides,
specifications and other documentation which provides
further details of the Services, (c) the activities that
UPSTREAM proposes to undertake in order to provide the
Services, including, where appropriate, those direction,
supervision, monitoring, staffing, reporting, planning and
oversight activities normally undertaken at facilities
that provide services of the type UPSTREAM shall provide
under this Agreement;
(ii) The procedures for UPSTREAM-ORBITZ communication and
interaction, including (a) ARC Report processes, (b)
Contact handling and transferring policies, (c) back
office processes, (d) problem management and escalation
procedures, (e) priority and project procedures, and (f)
quality assurance procedures; and quality assurance
processes and
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procedures to ensure the Services are performed in
accordance with the Service Levels, including, without
limitation, (a) a provision that UPSTREAM personnel
handling email-based Contacts shall have typing
proficiency of no less than 50 words per minute with two
(2) or less errors and (b) a provision that prohibits
UPSTREAM personnel from taking messages in response to
Contacts in an effort to manipulate Average Handle Time;
credit card error messages and fraud prevention
procedures, as set forth on Exhibit G hereto; and
(v) Training manuals and training procedures. Without
limitation on UPSTREAM's obligations, UPSTREAM shall be
responsible for conducting all necessary and advisable
training of its staff, including, but not limited to,
performing recurrent training to ensure agent proficiency;
and the manuals and procedures shall reflect this
obligation.
In the event of a conflict between the Policies and
Procedures Guide and this Agreement, the provisions of
this Agreement shall control unless the parties expressly
agree to otherwise and such agreement is set forth in
writing. UPSTREAM shall periodically update the Policies
and Procedures Guide to reflect mutually agreed-upon
changes in the operations or procedures described therein,
and shall provide the updated Policies and Procedures
Guide to ORBITZ for review and comment.
The Policies and Procedures Guide shall be ORBITZ
Confidential Information.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Each party represents and warrants to the other that (a) such
party has the organizational power and authority to execute and
deliver this Agreement and to perform its obligations under this
Agreement, (b) the execution, delivery and performance of this
Agreement by such party have been duly authorized by all
necessary organizational action, and this Agreement has been duly
and validly executed on behalf of such party, (c) such party's
entrance into this Agreement shall not violate such party's
agreements with any third party and (d) such party shall comply
in all material respects with any applicable laws, regulations
and rules.
6.2 UPSTREAM represents and warrants that (a) UPSTREAM shall perform
the Services in a competent and business-like manner using
personnel familiar with and possessing at least an
industry-standard level of skill in the technologies involved and
Contractor is, and on an ongoing basis will be, competent and
qualified to perform the Services, (b) UPSTREAM shall perform the
Services in accordance with the Service Levels set forth in
Exhibit B, (c) UPSTREAM is either the owner of, or authorized to
use, any and all Software and other intellectual property
necessary for UPSTREAM to perform the Services, (d) UPSTREAM
shall perform the Services in a manner that does not infringe or
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misappropriate any intellectual property rights of any third
party, (e) UPSTREAM shall take reasonable steps to prevent the
introduction and proliferation of any virus or similar item in
the systems used to provide the Services and (f) UPSTREAM has
obtained all licenses, authorizations or permits required to
perform its obligations under this Agreement (including those
required by UPSTREAM and/or Contractor in connection with
performance of the Contractor Agreement) under all applicable
federal, state or local laws and under all applicable rules and
regulations of all authorities having jurisdiction over the
Services. If a charge of non-compliance by UPSTREAM with any such
laws, regulations, ordinances or codes occurs, UPSTREAM shall
promptly notify ORBITZ of such charges in writing.
6.3 ORBITZ represents and warrants that (a) no portion of any ORBITZ
Data (as defined in Section 7.2 below) does or will contain any
"back door, "time bomb", "Trojan horse," "worm," "drop dead
device," "virus" or other instructions, circuitry or other
technological means, the effect of which is to access, modify,
disrupt, damage, delay or interfere, with the use of UPSTREAM's
computer or telecommunications equipment or facilities and (b)
ORBITZ has obtained all licenses, authorizations or permits
required to provide ORBITZ Data and Customer Information (to the
extent such Customer Information is provided by ORBITZ directly
to UPSTREAM) to UPSTREAM under all applicable international,
federal, state or local laws and under all applicable rules and
regulations having jurisdiction over the transfer of such data.
If a charge of non-compliance with any such laws, regulations,
ordinances or codes occurs, the party receiving such notice shall
promptly notify the other party such charges in writing.
6.4 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
SECTION 6, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES
TO THE OTHER, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
7. CONFIDENTIALITY, DATA AND TITLE TO WORK PRODUCTS.
7.1 GENERAL. The parties shall continue to be bound by the terms of
that certain Mutual Non-Disclosure Agreement entered into by and
between the parties as of March 1, 2002 ("NDA"), which is
incorporated herein by reference (the "NDA"). UPSTREAM further
agrees that it has or will enter into and maintain appropriate
confidentiality agreements with any UPSTREAM employees, agents or
subcontractors who perform Services for ORBITZ, which shall
require such individuals, for a period of not less than 12 months
following the date such individual has been involved with
ORBITZ'S account or given access to any ORBITZ Confidential
Information, to treat ORBITZ's Confidential Information in
accordance with the confidentiality and non-disclosure
obligations set forth in this Agreement and the NDA.
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7.2 ORBITZ DATA. UPSTREAM understands and acknowledges that ORBITZ
and UPSTREAM may (i) manage, modify and update pre-existing data
and information provided by or through ORBITZ or ORBITZ customers
and (ii) generate, manage, modify, maintain and update additional
data and information in connection with ORBITZ, ORBITZ customers
and the transactions entered into by and on behalf of ORBITZ's
customers (collectively, "ORBITZ Data"). ORBITZ data will be
treated as Confidential Information under the NDA.
7.3 CUSTOMER INFORMATION. In the course of providing the Services and
sale of products through ORBITZ and ORBITZ customers, information
may be developed that relates to the quantity, type, destination,
preferences, amount and other information associated with
ORBITZ's customers use of services and purchase of products,
together with the development of transactional, contact history
and billing information (collectively, "Customer Information").
Any such Customer Information will be treated as Confidential
Information under the NDA. UPSTREAM hereby assigns all right,
title and interest that UPSTREAM may have or obtain in such
Customer Information to ORBITZ. UPSTREAM shall use the Customer
Information only in performance of the Services. Upon ORBITZ's
request, UPSTREAM shall provide all Customer Information to
ORBITZ in the form and manner reasonably requested by ORBITZ.
UPSTREAM shall comply at all times with ORBITZ's privacy policy
as posted on the ORBITZ web site.
7.4 TITLE TO WORK PRODUCTS. All right, title and interest in and to
all tangible and intangible work and work products, including the
Policies and Procedures Guide,(collectively "Work") developed or
produced by UPSTREAM in performance of the Services shall be
considered a "work-for-hire" within the meaning of the Copyright
Act and all right, title and interest in and to patents,
copyrights, trade secrets, trademarks and other intellectual
property derived from such Work shall be and remain the property
of ORBITZ. Notwithstanding the foregoing, ORBITZ acknowledges
that all pre-existing items used by UPSTREAM generally in the
performance of services for any of its customers and also used in
the performance of the Services hereunder, whether in tangible or
intangible form, including, without limitation, ideas, concepts,
know-how, methods or methodologies, reports, algorithms, formulae
and techniques and all copies of the foregoing ("UPSTREAM
Proprietary Tools") shall not be included in the definition of
Work, and all related patent, copyright, trademarks, trade
secret, intellectual property and other ownership rights shall
remain exclusively with UPSTREAM. To the extent any UPSTREAM
Proprietary Tools are provided to ORBITZ in the performance of
the Services, including any creation of the Policies and
Procedures Guide, ORBITZ shall have a worldwide, royalty-free,
non-exclusive, right and license to use such UPSTREAM Proprietary
Tools in order to exercise its rights under this Agreement.
7.5 TERMS OF THIS AGREEMENT. Each party agrees that the existence of
this Agreement, along with its terms and conditions are
Confidential Information of each party.
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8. FINANCIAL TERMS.
8.1 TRANSACTION FEES.
[***]
8.2 ADJUSTMENTS TO TRANSACTION FEES.
[***]
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8.3 UPCHARGES.
[***]
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8.4 TRANSITION FEES FOR TELEPHONE-BASED CONTACTS HANDLED. [***]
8.5 REWARDS PROGRAM. [***]
8.6 CORPORATE TRAVEL PROGRAM. [***]
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such program will be subject to mutual agreement
of the parties. In the event that either the Corporate Travel
Threshhold is reached or there is a Change in Scope, the new
pricing agreed upon by the parties will be added as a new Exhibit
D-4 and Services to be provided in connection with the Corporate
Travel Program will be added to Exhibit A by addendum to be
mutually executed by the parties.
8.7 TIMELY INVOICING. Within 5 days following the end of an ARC
Month, ORBITZ shall provide UPSTREAM with either a Final Monthly
Report or a Preliminary Monthly Report. Upon receipt of a
Preliminary Monthly Report, UPSTREAM shall compare the
Preliminary Monthly Report against UPSTREAM's ACD to calculate
the estimated Transaction Fees ("Estimated Fees") applicable to
such month and shall invoice ORBITZ for the Estimated Fees on a
timely basis. UPSTREAM shall ensure that any Contacts Handled for
which UPSTREAM is being compensated under Sections 8.5 (and after
reaching the Corporate Travel Threshold 8.6) shall be deleted
from the Contact Ratio prior to calculation of the Estimated Fees
and the Final Fees. UPSTREAM shall provide such additional
information on invoices as ORBITZ shall reasonably require. If
not earlier provided, within 10 business days following the end
of an ARC Month, ORBITZ shall provide UPSTREAM with the Final
Monthly Report. Upon receipt of the Final Monthly Report,
UPSTREAM shall compare the Final Monthly Report against the ACD
to calculate the final Transaction Fees ("Final Fees"), and to
the extent the Estimated Fees (as invoiced to ORBITZ) differ from
the Final Fees, such amounts will be an adjustment to the
Estimated Fee invoice to be issued by UPSTREAM in the following
month.
8.8 TAXES. Taxes shall be identified separately from the Fees and
shall be shown separately on invoices. Except as provided below,
ORBITZ shall pay on invoice all taxes that are lawfully imposed
by any governmental authority and are based on or measured by any
payment of ORBITZ for Ticket Transactions and Services pursuant
to this Agreement and for which no exemption is applicable.
UPSTREAM shall collect from ORBITZ and shall remit to the
appropriate tax authorities all such taxes. UPSTREAM shall pay
all taxes which are based on or measured by UPSTREAM's gross or
net income or gross or net receipts (including any capital gains
taxes or minimum taxes), or taxes which are capital, doing
business, excess profits, net worth or franchise taxes. UPSTREAM
shall be responsible for any penalty or interest that may arise
from the failure of UPSTREAM to invoice ORBITZ for any such taxes
that are to be paid by ORBITZ.
8.9 PAYMENT OF FEES; PAYMENT DISPUTES.
(i) ORBITZ shall remit payment to UPSTREAM for undisputed
amounts within thirty (30) days of ORBITZ's receipt of the
invoice.
(ii) In order to dispute an invoice, or any part thereof,
ORBITZ shall set forth in writing the amounts disputed and
the specific basis or reason for the dispute, which shall
be reasonable detailed ("Dispute Notice"). The
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Dispute Notice must be received by UPSTREAM on or prior to
the due date of the invoice disputed, or within two (2)
months after an audit conducted by or on behalf of ORBITZ.
ORBITZ shall not dispute any invoice unless ORBITZ
believes, in good faith, that ORBITZ is being charged for
Services which have not been provided or at prices higher
than those set forth in Exhibit D (as may have been
amended from time-to-time), or that errors in calculation
or the like have occurred, or that ORBITZ is otherwise
being charged for items contrary to the provisions of this
Agreement. Upon compliance by ORBITZ with the foregoing
provisions, ORBITZ may withhold payment of the disputed
amount(s) of the invoice, and shall remit to UPSTREAM the
undisputed amount(s) in a timely manner. Upon receipt of
the Dispute Notice, UPSTREAM must promptly provide any
requested documentation or information, and otherwise
cooperate in a timely fashion with ORBITZ in the
validation of any disputed charges, and both parties shall
make reasonable, diligent, good faith efforts to resolve
the dispute within thirty (30) days following the date of
the Dispute Notice. If the dispute is not resolved within
such period, the dispute shall be submitted to the dispute
resolution procedures set forth in Exhibit E within ten
(10) business days thereafter.
8.10 IMPLEMENTATION AMOUNT. [***]
8.11 DEBIT MEMOS AND OTHER REFUNDABLE ITEMS. If any UPSTREAM
personnel, in performance of the Services, cause ORBITZ to suffer
a financial loss via a debit memo issued from the airlines,
refunds that are given directly from ORBITZ to ORBITZ customers,
refunds that are not given directly to ORBITZ customers or
charges to ORBITZ-supplied credit cards (collectively,
"Refundable Items"), whether arising out of the negligence,
error, mistake or fraud of such personnel or the systems
employed, operated or controlled by UPSTREAM in performance of
the Services, and regardless of when such Refundable Items arise,
then UPSTREAM shall reimburse ORBITZ for the entire amount of
such loss. On a monthly basis ORBITZ shall notify UPSTREAM of any
Refundable Item and ORBITZ shall be permitted to apply any such
amounts owed to ORBITZ arising out of Refundable Items as a
credit to reduce currently outstanding undisputed
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amounts owed by ORBITZ on the then-current invoice. If the net
Refundable Items amounts owed to ORBITZ exceed the amounts owed
by ORBITZ for the current monthly period, such excess amount
shall be applied as a credit to undisputed amounts owed by ORBITZ
for the next monthly period. In the event there are any amounts
owed by UPSTREAM at the termination or expiration of this
Agreement, such amounts shall be paid to ORBITZ within forty-five
(45) days following the termination or expiration.
8.12 TELECOM AND IVR CHARGES. ORBITZ shall be responsible for all
telecom connectivity and IVR charges necessary for the
performance of the Services from the Facilities, excluding any
intelligent call management ("ICM") routing charges, CTI routing,
connectivity and surcharges (including the cost of T-ls and
ACD-related charges ("Routing Charges"), including, without
limitation, the initial [***] hardware set up fee associated with
connectivity (including, without limitation, peripheral gateways,
servers, dedicated circuits, etc). The parties acknowledge that
ORBITZ will be invoiced directly by its telecom provider for the
Routing Charges, and such Routing Charges shall be subsequently
invoiced by ORBITZ to UPSTREAM, and UPSTREAM shall pay such
invoice within 30 days of receipt thereof. Except for charges
related to telecom connectivity or IVR charges between ORBITZ and
the United States facility, which serves as the point of presence
for Contacts sent to Contractor, ORBITZ shall not be responsible
for the telecom or IVR charges related to the Contractor
Agreement. ORBITZ shall reimburse UPSTREAM, at UPSTREAM's actual
cost (not to exceed $[***] per call, inclusive of taxes), without
mark-up, for all outbound telephone calls made by UPSTREAM in
connection with a Contact Handled.
8.13 RIGHT TO AUDIT. During the Term and for two years thereafter, (i)
UPSTREAM shall maintain, and shall cause its subcontractors
(including the Contractor) to maintain, true and accurate records
of all information relating to its performance of the Services
and all transactions pursuant to this Agreement and (ii) ORBITZ
shall maintain true and accurate records of all information
relating to the ARC and Direct Connect reports prepared by ORBITZ
and provided to UPSTREAM in connection with this Agreement.
ORBITZ, its auditors or its authorized representatives shall have
the right during normal business hours and upon reasonable
advance written notice to UPSTREAM to conduct audits or
inspections of those books and records, HR procedures and
facilities, and other documentation reasonably necessary to
verify compliance with the terms of this Agreement, accuracy of
invoices and reports provided herein. UPSTREAM, its auditors or
its authorized representatives shall have the right during normal
business hours and upon reasonable advance written notice to
ORBITZ to conduct audits or inspections of those books, records
and other documentation reasonably necessary to verify compliance
with the terms of this Agreement and accuracy of the ARC and
Direct Connect reports. In the event any such audit reveals
material
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errors by a variance of [***] or more, then the auditing party
reserves the right, in addition to any other remedies available
to such party under this Agreement, at law or in equity, to
recover from the audited party the reasonable costs incurred by
the auditing party in connection with such audit. In addition,
upon reasonable advance written notice to UPSTREAM, ORBITZ, its
auditors or authorized representatives shall have access at all
reasonable times to the part of any facilities at which UPSTREAM
is providing the Services, to the UPSTREAM personnel, to all
ORBITZ-related data maintained by UPSTREAM and to documentation
relating to the Services for the purpose of performing audits and
to verify the integrity of data owned by ORBITZ, to examine the
systems that process, store, support and transmit that data, and
to examine UPSTREAM's performance of the Services. Each party's
right to conduct inspections and audits under this Section 8.11
shall not be conducted more than twice per year (provided that if
a variance of [***] or more is found in any particular audit,
then the auditing party shall be allowed an additional audit in
that same year). All audits and inspections hereunder shall be
conducted in such a way so as to avoid, to the extent possible,
any disruption of the audited party's business.
8.14 DISCUSSION OF FINANCIAL CONDITION. The parties agree to have
their respective financial/accounting personnel discuss, on an
as-needed basis, the financial condition of each party as it
relates to each party's ability to perform its obligations under
this Agreement. Further, each party shall provide the other party
with its annual audited financial statement within a reasonable
period of time following the availability of such audited
financial statement from the party's independent auditors;
provided, however, that if a Triggering Event occurs, the party
not the cause of such Triggering Event shall have the right to
demand, and the party causing such Triggering Event shall
provide, copies of the quarterly unaudited financial statements
of the party causing such Triggering Event. A "Triggering Event"
shall mean (i) the failure of a party to make any payment
hereunder when due and the failure to make such payment within 30
days following receipt of a notice from the non-defaulting party
that such payment is in default or (ii) if ORBITZ is entitled to
5 or more Service Level Credits over any rolling four (4) month
period.
9. EXCLUSIVITY.
9.1 PROVISION OF SERVICES. UPSTREAM agrees that for a period of
[***] following the date that such individual has been involved
with ORBITZ's account or given access to any ORBITZ Confidential
Information, such personnel (while employed by UPSTREAM) shall
not directly or indirectly provide services similar to those
provided to ORBITZ to any Competitive Entity (as defined in
Section 9.2).
9.2 LOCATION OF SERVICES. UPSTREAM agrees that during the Term,
UPSTREAM shall not (i) establish a call center providing similar
services to the Services provided to ORBITZ to any Competitive
Entity (as defined below) within one
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hundred fifty (150) miles of an UPSTREAM call center providing
Services to ORBITZ (subject to the exception for the Contractor
as stated in Section 4.4(ix)) or (ii) provide any type of
services to any Competitive Entity from the same facility in
which UPSTREAM performs the Services for ORBITZ. "Competitive
Entity" shall mean any party who sells or otherwise provides
travel products, services or information related to airline
tickets, hotels, rental cars, cruises or vacation packages
online, including, without limitation, any GDS, Sabre Inc.
(including Easy Sabre and Travelocity), HRN, Expedia Inc.
(including Travelscape), Priceline.com Incorporated, American
Express Company, TravelWeb.com, Cendant Corporation (including
TheTrip.com, CheapTickets.com, and Galileo International),
GetThere.com, Inc., LowestFare.com, Site59.com, Inc., and any
successor entity to any of the foregoing (each, a "Competitive
Entity"); provided that any individual airline, hotel chain,
cruise company or car rental company that is not owned by one
of the Competitive Entities, shall not be considered a
Competitive Entity.
10. TERM AND TERMINATION
10.1 TERM. The term of this Agreement shall commence on the Effective
Date and, unless terminated earlier as provided herein, shall
continue for five (5) years from the end of the Implementation
Period (the "Term"). The date which marks the end of the
implementation Period shall be referred to as the "Implementation
Date", and if the parties do not indicate in writing, in the form
of an Addendum to this Agreement, the actual implementation Date,
then July 31, 2002 shall be deemed the implementation Date.
10.2 TERMINATION FOR MATERIAL BREACH. In the event either party
materially fails to perform or comply with this Agreement or any
provision hereof, including those set forth in the Exhibits to
this Agreement, and fails to remedy the default within ninety
(90) days after the receipt of written notice to that effect,
then the other party shall have the right, at its sole option and
upon written notice to the defaulting party, to terminate this
Agreement upon written notice. Any notice of default hereunder
shall be prominently labeled "NOTICE OF DEFAULT," and shall be
delivered pursuant to Section 12.5. The rights and remedies
provided in this section are not exclusive and are in addition to
any other rights and remedies provided by law or this Agreement.
10.3 TERMINATION BY ORBITZ. Orbitz shall have the right to terminate
this Agreement at any time, (i) upon notice to UPSTREAM, in the
event of a Chronic Failure (as described in Exhibit B) or (ii)
upon 9 months prior written notice to in the event UPSTREAM
undergoes any Change in Control which results in [***]
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10.4 TERMINATION FOR CONVENIENCE. Either party may terminate this
Agreement upon nine (9) months' prior written notice at any time
after the Effective Date but prior to the date which is one year
prior to the end of the Term ("Termination for Convenience"),
with or without cause; provided, however, that upon termination
under this Section 10.4 (and not in the event of termination for
any other reason set forth elsewhere in Section 10), the
terminating party shall pay the other party a termination fee on
the effective date of such termination (the "Termination Fee") as
follows:
(a) if notice of termination is given between the Effective
Date and the first anniversary of the implementation Date,
[***];
(b) if notice of termination is given between the first and
second anniversaries of the implementation Date, [***];
(c) if notice of termination is given between the second and
third anniversaries of the Implementation Date, [***];
(d) if notice of termination is given between the third and
fourth anniversaries of the Implementation Date, [***];
(e) if notice of termination is given between the fourth
anniversary and the end of the Term, $[***].
Any notice of Termination for Convenience hereunder shall
be prominently labeled "NOTICE OF TERMINATION FOR
CONVENIENCE", and shall be delivered pursuant to Section
12.6.
10.5 TERMINATION FOR INSOLVENCY. Either party shall have the right to
terminate this Agreement at anytime, upon 30 days' prior written
notice to the other party, if such other party (a) goes into
voluntary or involuntary liquidation, (b) is declared insolvent
either in bankruptcy proceedings or other legal proceedings; is
or becomes party to an agreement with creditors due to such
party's failure or inability to pay its debts as they fall due,
(c) has a receiver appointed over the whole or part of such
party's business.
10.6 TRANSITIONAL SERVICES. Upon any termination of this Agreement by
either party' regardless of the reason, UPSTREAM shall, at
ORBITZ's request, provide ORBITZ such transitional services as
are reasonably necessary to permit ORBITZ to transfer the
performance of the Services to ORBITZ's own personnel and/or to
another provider or providers, such as, by way of example, the
orderly delivery to ORBITZ of its database in suitable form, the
continuation and tapering of Services as necessary to minimize
disruption, training or support services, and
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assignment of post office boxes and telephone numbers (the
"Transitional Services"). Once ORBITZ and UPSTREAM have reached
agreement on the nature and scope of Transitional Services,
UPSTREAM shall provide to ORBITZ an estimate of the entire cost
thereof. In the event that a party is in material breach of this
Agreement, such breaching party shall be responsible for all
reasonably mutually-agreed costs arising out of such transition
services incurred by the non-breaching party, provided, however
that such non-breaching party shall use commercially reasonable
efforts to mitigate such costs. Payment for the Transitional
Services provided by UPSTREAM shall be made pursuant to the terms
of Section 8.1 or as the parties may otherwise agree in writing.
Payment of any outstanding amounts due pursuant to Section 8
shall continue to be due pursuant to the terms of this Agreement.
Upon termination of this Agreement for any reason, UPSTREAM shall
promptly return to ORBITZ (or at ORBITZ's request, destroy) any
and all ORBITZ Data, Customer Information or other Confidential
Information of ORBITZ in UPSTREAM's possession.
10.7 SURVIVAL. The following provisions shall survive any termination
or expiration of this Agreement: 2; 4.4(iii), (iv), (vii) and
(ix)(B); 7; 8.1 -8.13; 9.1; 10- 12.
11. INDEMNIFICATION AND LIMITATIONS ON LIABILITY.
11.1 MUTUAL INDEMNITIES. Each Party agrees to indemnify, defend, and
hold harmless the other Party and its successors, assigns,
affiliates, officers, employees, and agents from and against any
and all claims, actions, damages, liabilities, costs and
expenses, including reasonable attorneys' fees and expenses,
arising out of any third party claim related to:
(a) Any death or personal injury, or any destruction of or
damage to any real or tangible personal property, alleged
to have been caused by or on behalf of the indemnifying
Party or its employees or agents.
(b) Any infringement of a United States letters patent, a
trade secret, or any copyright, trademark, service mark,
trade name or similar proprietary rights conferred by
statute, by common law, or by contract alleged to have
occurred as a result of rights conveyed, materials
provided, or work performed by or on behalf of the
indemnifying Party.
11.2 INDEMNIFICATION.
(a) UPSTREAM agrees to indemnify, defend and hold harmless
ORBITZ and its successors, assigns, affiliates, officers,
employees and agents from and against any and all claims,
actions, damages, liabilities, costs and expenses,
including reasonable attorneys' fees and expenses, arising
out of any third party claim related to (i) the
characterization, as a result of the conduct of UPSTREAM,
by any taxing authority of any employee or contractor
engaged by UPSTREAM to perform the Services as an employee
of ORBITZ for the purposes of imposing upon Orbitz
liability
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for payroll taxes, (ii) the negligent, willful or
intentional misconduct of UPSTREAM personnel in
performance of the Services, (iii) any claims to the
extent due to violations by UPSTREAM personnel of
applicable laws, (iv) breach of any of UPSTREAM's
representations or warranties under this Agreement, and
(v) any Contractor Actions or any breach by Contractor of
the Contractor Obligations.
(b) ORBITZ agrees to indemnify, defend and hold harmless
UPSTREAM and its successors, assigns, affiliates,
officers, employees and agents from and against any and
all claims, actions, damages, liabilities, costs and
expenses, including reasonable attorneys' fees and
expenses, arising out of any third party claim related to
(i) willful or intentional tortuous conduct of ORBITZ
personnel, (ii) violations by ORBITZ of applicable laws
(iii) breach of any of ORBITZ's representations or
warranties under this Agreement, (iv) UPSTREAM's use, in
accordance with applicable specifications or manuals, of
any software, equipment, information or materials provided
by ORBITZ, which infringe on a trademark, service mark,
copyright or other intellectual property right of any
third party and (v) ORBITZ marketing materials, products
or services.
11.3 INDEMNIFICATION PROCEDURES. Any Party claiming indemnification
pursuant to this Agreement will give the indemnifying Party
prompt written notice of any matters with respect to which this
indemnity may apply, will give the indemnifying Party full
opportunity to control the response thereto and the defense
thereof, and will provide reasonable cooperation and assistance
in connection with the defense and/or settlement of the claim.
However, the indemnified Party may, at its own expense,
participate in such defense and in any settlement discussions,
either directly or through counsel of its choice.
11.4 LIMITATIONS ON LIABILITY. ANY LIABILITY OF EITHER PARTY ARISING
FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT,
TORT, NEGLIGENCE, INTENDED CONDUCT, STRICT LIABILITY, OR
OTHERWISE, WILL BE LIMITED TO THE OTHER PARTY'S ACTUAL, DIRECT
DAMAGES AND WILL BE SUBJECT TO THE FOLLOWING:
11.5 EXCEPT FOR DAMAGES RESULTING FROM THE LIABLE PARTY'S GROSS
NEGLIGENCE, WILLFUL MISCONDUCT, OR FAILURE TO PERFORM ANY OF ITS
CONFIDENTIALITY, INDEMNIFICATION, OR PAYMENT OBLIGATIONS
HEREUNDER, THE AMOUNT OF DAMAGES RECOVERABLE AGAINST THE LIABLE
PARTY FOR ALL EVENTS, ACTS, AND OMISSIONS WILL NOT EXCEED, IN THE
AGGREGATE, THE TOTAL AMOUNT OF FEES PAID BY ORBITZ TO UPSTREAM
UNDER THIS AGREEMENT.
11.6 IN NO EVENT WILL THE LIABLE PARTY BE LIABLE FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE
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DAMAGES, EXCEPTING DAMAGES ARISING OUT OF (1) BREACH OF THE
CONFIDENTIALITY PROVISIONS HEREIN OR (U) THE LIABLE PARTY'S
INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS SECTION 11.
12. MISCELLANEOUS.
12.1 REFERENCES. Neither party shall advertise that UPSTREAM provides
the Services to ORBITZ or otherwise use the other party's name
without the express prior written consent of the other party or,
in any event, disclose any of the other party's Confidential
Information, which shall include, without limitation, the terms
of this Agreement, except as required by law or to that party's
attorneys, accountants or other advisors as reasonably necessary.
12.2 GOVERNING LAW. This Agreement shall be governed by the laws of
the state of New York, without giving effect to conflicts of laws
principles.
12.3 ARBITRATION. Any controversy or claim arising out of, in
connection with or relating to this Agreement shall be resolved
solely by the parties' management and according to the dispute
resolution procedures set forth in Exhibit E, which is attached
hereto and by this reference made a part hereof.
12.4 MODIFICATIONS. This Agreement may not be modified or altered in
any respect, except in writing by the parties.
12.5 ASSIGNMENT. This Agreement will be binding upon, and inure to the
benefit of, the Parties and their respective successors and
assigns. However, (i) ORBITZ may, without the prior written
consent of UPSTREAM, assign or transfer this Agreement, or any of
its rights or obligations under this Agreement, to any person or
entity other than one who (A) merges, consolidates, or otherwise
combines with ORBITZ or otherwise acquires all or substantially
all of the operating assets of ORBITZ, and (B) agrees or
otherwise becomes legally obligated to comply with and be bound
by the provisions of this Agreement to the same extent as ORBITZ;
and (ii) UPSTREAM may, without the prior written consent of
ORBITZ, assign or transfer this Agreement to UpStream, Inc. (a
wholly-owned subsidiary of UPSTREAM as of the Effective Date),
but only if (A) Upstream, Inc. agrees or otherwise becomes
legally obligated to comply with and be bound by the provisions
of this Agreement to the same extent as UPSTREAM, (B) Upstream,
Inc. offers call center services similar to the Services being
provided hereunder in the ordinary course of its business and (C)
UPSTREAM guarantees to ORBITZ, in writing, every obligation and
liability of Upstream, Inc. to the same extent as though it had
been named as a party to this Agreement.
12.6 NOTICES. Any notice required or permitted by this Agreement will
be deemed given (i) when delivered, if delivered by hand or by
facsimile (transmission confirmed), (ii) on the next business
day, if sent by overnight courier service for next business day
delivery, or (iii) on the third business day, if sent by prepaid
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United States mail, return receipt requested, in each case to the
applicable Party at the address or facsimile number specified as
follows:
If to ORBITZ:
Orbitz, LLC
200 South Wacker Drive, 19th Floor
Chicago, Illinois 60606
Attention: President
Facsimile No.: 312-894-4856
With a copy to:
Orbitz, LLC
200 South Wacker Drive, 19th Floor
Chicago, Illinois 60606
Attention: General Counsel
Facsimile No.: 312-894-4856
If to UPSTREAM:
Rosenbluth International, Inc.
2401 Walnut Street
Philadelphia, PA 19103
Attention: President
Facsimile No.: 215-977-5200
with a copy to:
Rosenbluth International, Inc.
2401 Walnut Street
Philadelphia, PA 19103
Attention: General Counsel
Facsimile No.: 215-977-5200
Either Party may change its address or facsimile number for
notice purposes by giving the other Party prior written notice of
the new address and/or facsimile number and the date upon which
the change will be effective.
12.7 FORCE MAJEURE. Neither Party will be responsible or liable for,
and that Party will be excused from, any non-performance or delay
in the performance of any of its non-monetary obligations under
this Agreement if and to the extent that such non-performance or
delay (i) is caused by an act of God, terrorist act, natural
disaster, civil disturbance, or any other factor beyond the
control of that Party, whether or not foreseeable, and (ii) could
not have been prevented by that Party's taking normal and
customary precautions. In the event that either Party is excused
from the performance of its obligations pursuant to this Section,
then that Party will use
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all efforts that are practicable under the circumstances to
resume performance of its obligations as soon as feasible.
12.8 FURTHER ASSURANCES. Each Party agrees to execute, acknowledge,
and deliver such further instruments and documents, and to do
such other acts and things, as may be required by law or
reasonably requested by the other Party to carry out the full
intent and purposes of this Agreement.
12.9 THIRD PARTY BENEFICIARIES. This Agreement is for the benefit of
the Parties and is not intended to confer any rights or benefits
on any third party, including any employee or creditor of either
Party.
12.10 NO WAIVER; CUMULATIVE REMEDIES. No delay on the part of either
Party in exercising any right, power or privilege hereunder will
operate as a waiver thereof. No waiver on the part of either
Party of any such right, power or privilege will preclude any
further exercise thereof or the exercise of any other such right,
power or privilege. All remedies provided for in this Agreement
shall be cumulative and in addition to and not in lieu of any
other remedies available to either Party at law, in equity or
otherwise.
12.11 CONSTRUCTION. The Section and similar headings used in this
Agreement are for reference purposes only and are to be given no
effect in the construction or interpretation of this Agreement.
Any references in this Agreement to an Article, Section, or
Exhibit is to that Article or Section of, or that Exhibit to,
this Agreement, unless otherwise specified. As used in this
Agreement, the words "hereof" or "hereunder" or other words of
similar import refer to this entire Agreement and not any
separate portion hereof, unless otherwise specified.
12.12 SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without either invalidating the remaining
provisions hereof, to the extent that such remaining provisions
are capable of substantial performance, or affecting the validity
or enforceability of such provision in any other jurisdiction.
12.13 COUNTERPARTS. This Agreement maybe executed in multiple
counterparts, each of which will be an original and all of which
will together constitute one single agreement between the
Parties.
12.14 ENTIRE AGREEMENT. This Agreement, including the Exhibits hereto,
each of which is incorporated herein for all purposes,
constitutes the entire agreement and understanding of the Parties
with respect to the subject matter hereof and supersedes all
prior agreements and understandings, both written and oral,
between the Parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, UPSTREAM and ORBITZ have caused this Agreement to be
executed as of the Effective Date.
Rosenbluth International, Inc. Orbitz, LLC
By: /s/ Joseph D. Terrion By: /s/ Eliah Kahn
------------------------------------------ --------------------------
Name: Joseph D. Terrion Name: Eliah Kahn
---------------------------------------- -----------------------
Title: Vice President Sales, Marketing Title: VP Customer Experience
--------------------------------------- ----------------------
/s/ Jerome W. Johnson
Jerome W. Johnson
Senior Vice President
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EXHIBIT A
SERVICES
OVERVIEW
UPSTREAM will provide outsourced customer contact center services to ORBITZ,
inclusive of effectively and satisfactorily handling inbound and outbound
customer contacts (telephone Contacts and emails), providing effective
management practices, and leading contact center technology solutions.
All services shall be provided in English. In addition, UPSTREAM shall make
available Customer Service Specialists capable of providing the Service in
Spanish, as necessary, based on anticipated demand for Spanish speaking Customer
Service Specialists of up to five percent (5%) of the total daytime staff; 7:00
am to 7:00 pm Central Time. For all other hours, emergency services requiring
Spanish language Services shall be handled through a third-party translation
service, and other calls requiring Spanish language Services may be handled on
the following business day.
UPSTREAM will handle both inbound Tier 1 and Tier 2 call and email volumes. The
ORBITZ inbound call volume is segmented into non-complex customer service
inquiries, including website navigation, general questions about booking a
reservation, error messages they receive on the website, etc. (approximately 60%
of all contacts), known as Tier 1 contacts, and more complex, airline ticketing,
hotel and rental car inquiries (approximately 40% of all contacts), known as
Tier 2 contacts.
DEFINITIONS
CUSTOMER SERVICE SPECIALIST - The general term for an UPSTREAM employee who
handles both inbound and outbound telephone Contacts and/or processes inbound
email Contacts.
TIER 1 (CUSTOMER SERVICE SPECIALIST) - Inbound ORBITZ telephone Contacts related
to general customer inquiries that do not require the Specialist to have a
travel background to effectively handle the inquiry but does require in-depth
knowledge of the ORBITZ web site, navigation techniques, business rules, etc.
Call types that are defined as Tier 1 include: General Site
Questions/Navigation, Itinerary Confirmation, Questions on ORBITZ Policies,
Pre-Booking Air Problems, Hotel Questions/Problems, Car Questions/Problems, Seat
Assignment, and other Miscellaneous Questions/Problems that may result from
using the Web Site. Tier 1 Customer Service Specialist will also respond to
email requests sent to ORBITZ.com These inquiries will be handled in the same
manner as phone Contacts with the response back through email unless the
customer requests a different mode of contact.
TIER 2 (CUSTOMER SERVICE SPECIALIST) - Inbound ORBITZ telephone Contacts related
to more complex customer inquiries that require the Specialist to have a
significant travel and GDS ('global distribution system') background to
effectively handle the inquiry. Call types that are defined as Tier 2 include:
Airline Ticket Exchange, Schedule Changes, Airline Ticket Refunds, Airline
Reservation Cancellation, Complex Airline Purchase/Booking Problems, and other
Complex Questions/Problems relating to any product ORBITZ sells on its web site
after a
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purchase has been made. Tier 2 representatives will also be the primary
customer service Specialist that handles ORBITZ Corporate Contacts. These are
all Contacts that will be sent over a separate 800 line and provide special
services relating to Corporate customers to be defined in future requirements
and work processes. Tier 2 Customer Service Specialist will also respond to
email requests sent to ORBITZ.com. These inquiries will be handled in the same
manner as phone Contacts with the response back through email unless the
customer requests a different mode of contact.
EXPERIENCED SPECIALISTS - Specialist with an average of 2 years of UPSTREAM
inbound contact handling experience OR an average of 3 years of customer
-facing/GDS utilizing travel agency experience.
INEXPERIENCED SPECIALIST - Specialist without the experience identified in the
definition of an Experienced Specialist.
EMAIL PROCESSED - The completion of a response to an inbound customer email in
which the Specialist reads the content of the customer email and crafts a custom
or template response that effectively addresses the customer's initial email
request. Auto-reply email responses sent to customers are not included as Emails
Processed for billing or Service Level purposes. In addition, UPSTREAM will use
best efforts to monitor the number and types of emails that cannot be delivered
to customers due to bad email addresses. These in cases where emails contain
critical information such as schedule changes, purchase confirmations, account
change notifications, travel alert documentation or cancellation requests,
UPSTREAM will evaluate and attempt to call the customer if a phone number exists
in their file. The Specialist will they attempt to obtain the proper email
address from the customer in order to update the customer record and resend the
email.
TERMS
The all-inclusive pricing, identified in the Pricing Section of this contract
includes all costs associated with delivering customer service to the service
levels identified in the Service Level Agreement.
2. Team Leaders shall be hired and assigned full-time to the ORBITZ Program on
a [***] ratio. This means for every [***] Specialists approved and assigned
to the ORBITZ program, one full-tune dedicated Team Leader shall be
assigned. This Team Leader shall be an experienced individual as defined
above. The Team Leader Role will be to manage Tier 1 or 2 Customer Service
Specialists, provide scheduling assistance, be available to answer process
and procedure questions, monitor Contacts and act as an escalation for
customers who have complaints or issues regarding the service they
received. Team Leaders are defined as 'Key Personnel' in the Agreement for
Services and the requirements for filling such Team Leader roles shall be
mutually agreed upon by the parties and the actual employees to serve as
Team Leaders will be mutually agreed upon by the parties prior to being
assigned to the ORBITZ Program. Team Leader level or above staff shall be
on-duty to cover every shift,-including overnight, weekend and holiday
shifts at each of the contact center locations in which the ORBITZ Program
is served.
---------
*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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Quality Assurance Coaches ('QAC') shall be hired and assigned full-time to
the ORBITZ Program on a [***] ratio for Inexperienced Specialists and [***]
for Experienced Specialists. QAC Roles included monitoring Contacts and
providing direct feedback to Tier 1 and 2 Customer Service Specialist. They
will also be responsible for consistency between the sites, act as a
measure for overall quality and provide reports detailed accuracy of
Contacts handled. QACs are defined as 'Key Personnel' in the Agreement for
Services and the requirements for filling such QAC roles shall be mutually
agreed upon by the parties and the actual employees to serve as QACs will
be mutually agreed upon by the parties, prior to being assigned to the
ORBITZ Program. At least two (2) QAC's shall be designated and assigned
full-time to the quality assurance monitoring of up to 30 Email
Specialists.
4. Attrition Training
i. UPSTREAM will provide ORBITZ a monthly Headcount/Attrition report
ii. UPSTREAM shall be solely responsible for the training and other
costs associated with replacing Specialists who have left the ORBITZ
Program for any of the following reasons: resignation, termination,
transfer to another program, promotion, demotion, or retirement.
iii. Attrition Training Cost consists of new hire training costs,
including the hourly agent-training wage, trainer expense,
materials, Specialist nesting costs, or any other related cost.
5. Coaching/On-Floor Training
i. Specialist coaching and on-floor training will be conducted by Team
Leaders, QAC's, Trainers, or other management as needed to ensure
high-quality of customer service and to ensure that Specialists
understand ORBITZ policies, procedures, and contact handling
workflows.
ii. UPSTREAM shall bear the cost of all Specialist coaching and on-floor
training.
iii. Coaching/On-Floor Training time shall be recorded by each Specialist
by tracking time via AUX code of the ACD.
6. UPSTREAM shall be responsible for all costs associated with recruiting,
hiring, employee screening, and other related activities.
7. ORBITZ will require each candidate for hire to achieve a reasonable
proficiency level acceptable to Orbitz on the ORBITZ certification test
prior to taking calls. This test will be created and approved by ORBITZ and
may be edited based on UPSTREAM HR feedback and as additional hiring
experience is obtained.
8. ORBITZ may have two (2) full-time ORBITZ-employees on-site in each of the
UPSTREAM contact center locations. These employees will be provided
permanent work spaces within the UPSTREAM locations in which to work. These
spaces for both
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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these employees will be provided a networked PC with standard software, a
telephone with DID, and access to a printer and fax.
9. ORBITZ shall have full-time dedicated UPSTREAM Trainers who will be
responsible for the development of the Specialists training curriculum
(both formal classroom and coaching/on-floor training) as well as the
continuous focus on improving customer service quality and minimizing
handle time. The Trainers are defined as 'Key Personnel' in the Agreement
for Services and the requirements for filling such Trainer roles shall be
mutually agreed upon by the parties and the actual employees to serve as
Trainers will be mutually agreed upon by the parties, prior to being
assigned to the ORBITZ Program. ORBITZ may determine at any time and for
any reason to elect to have a new Trainer assigned to the ORBITZ program.
10. All Team Leaders, QACs, Trainers, and management are required to attend
ORBITZ training. At the discretion of ORBITZ, ORBITZ may require Team
Leaders, QAC's Trainers, or other management involved in the ORBITZ program
top the ORBITZ Certification Test prior to involvement on the ORBITZ
program. All non-Specialist training costs are considered included in the
all-inclusive pricing identified in 1.3. above. It is expected that Team
Leaders, QAC's, Trainers and other UPSTREAM management would be required to
complete additional standard UPSTREAM training related to their position
prior to involvement on the ORBITZ program.
11. New Hire Training Curriculum Lengths
<Table>
<S> <C>
New Hire Tier l: [***] weeks
New Hire Tier 2: [***] weeks
Tier 1 to Tier 2 Conversion: [***] weeks
GDS Conversion Training: [***]
</Table>
12. Nesting Requirements - UPSTREAM shall follow the Nesting process for all
new Specialists as defined in the ORBITZ Nesting Requirements document,
dated July 2001. The Nesting process is subject to revision and will
require mutual approval by ORBITZ and UPSTREAM. The parties shall mutually
define the Nesting Requirements prior to the end of the Implementation
Period.
13. UPSTREAM shall dedicate a portion of the QAC team to the inbound phone
quality monitoring and a portion to email quality monitoring, dependent on
the phone/email ratio.
14. Inbound phone and Email QAC's shall perform at least a [***] review of all
contacts made to the operation and develop quality scorecards based on this
volume ongoing.
15. The QAC teams shall continue to populate the Contact Driver database for
the tracking of call types as defined by the ORBITZ Feedback Loop Process
definition. The parties will mutually define a Feedback Loop Process prior
to the end of the Implementation Period.
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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16. UPSTREAM shall provide ORBITZ with the Avaya and/or ICM hardware and
software (i.e. CentreVu) necessary to provide ORBITZ with a real-time view
into the combined Customer Service Center's contact activity, including
contacts in queue, abandonment rate, average handle time, etc.
17. UPSTREAM shall provide ORBITZ connectivity to UPSTREAM's data network to
enable the real-time view of email history and in queue via the Kana
platform.
18. UPSTREAM shall provide the following management reports with the frequency
identified below (See Attachment X-Y) for sample report. ORBITZ requires
these reports be available via web-based access and those designated as "a"
- "d" below must be on a real time basis. Those reports designated as "e"
through "1" below will be defined by the parties during the Implementation
Period.
a. 1/2 interval Reporting for Combined Operations (Daily/Weekly/Monthly)
-- as requested
b. ORBITZ 7-Day Rolling Report
c. IVR/ACD integrated report (VDN reporting)
d. Email Reporting (basic Kana reports)
e. Agent Scorecard-combined, by center, by Team Lead
f. Team Lead Scorecard-combined, by center
g. QA Report-Phone
h. QA Report-Email
i. Attrition Report
Headcount Report
k. Training Reports
Any reports required to measure Service Levels identified in Section Y
20. TECHNOLOGY OVERVIEW FOR THE FACILITIES:
COMPUTER AND PHONE SYSTEMS. UPSTREAM will provide all of its personnel
providing Services hereunder with a desktop with Gateway E-3600 with 19"
monitors, 1.6 ghz processor, 256 mb RAM, 20 gb bard drive, CD-ROM 20x, Windows
2000, Ethernet Adaptor and speakers or at least comparable desktops. UPSTREAM
will provide industry standard, commercial grade phone systems using an Avaya
Definity Enterprise Communications Server, Model G3si Versions 6,8 & 9. The
system will allow for digital voice communications switch for processing and
reporting on telephone calls and/or data communications in addition to a feature
rich system including an ACD and an adjunct CMS for reporting. Additionally, not
later than the conclusion of the Implementation Period, UPSTREAM will equip the
desktops with remote monitoring and recording capabilities of both calls and
data for quality control purposes, joint monitoring and calibration.
Within 60 days of the conclusion of the Implementation Period,
UPSTREAM will equip the desktops with workforce management for the purposes of
organizational management, robust forecast and scheduling, strategic planning,
and capacity planning to drive cost effectiveness and workforce optimization.
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21. IMPLEMENTATION OBLIGATIONS. UPSTREAM will hire and train UPSTREAM
personnel, program the ACD and take all such other actions necessary to enable
UPSTREAM to fulfill its obligations under the Project Plan, which may be
modified from time-to-time upon mutual agreement of the parties.
22. POLICIES AND PROCEDURES GUIDE. UPSTREAM shall create the Policies
and Procedures Guide as set forth in Section 5.15 and shall perform the Services
pursuant thereto. Each of the activities to be taken by UPSTREAM or its agents
in performance of the Services, as described in the Policies and Procedures
Guide shall be included in the definition of "Services."
<Table>
<Caption>
TECHNOLOGY OVERVIEW OF UPSTREAM CUSTOMER CARE CENTER
----------------------------------------------------
<S> <C>
Switch Lucent G3 vr x
Intelligent Call Routing Cisco ICM v. y
CTI Cisco CTI
WorkForce Management Blue Pumpkin (or TBD)
Implementation Date: By end of Implementation
Period per contract
Digital Contact Recording Nice (or TBD)
Implementation Date: By end of Implementation
Period per contract
Desktop Intel Pentium IV (1.2 ghz), 128 mb
RAM, 40 gb hdd, 3.5" 1.44 floppy disk drive,
10/100 NIC card, 17" monitor, WIN 2000
pre-loaded
</Table>
TELECOMMUNICATION TERMS
ACD: Automatic Call Distribution. A queue for holding Contacts until an agent is
free to service them. Typically plays music on hold and marketing messages to
the caller.
ANT: Automatic Number Identification. The telephone number of the phone that the
caller dialed from. This is similar to caller ID, but does not include the name.
AUTOMATED ATTENDANT: An automated system that answers the phone and provides the
caller with options (press one for this, press two for that).
B-CHANNEL: A segment of an ISDN line that carries one voice call.
D-CHANNEL: A segment of an ISDN line that sends data such as the ANT to the PBX
and is used for call control.
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BRI: Basic Rate Interface. An ISDN line that supports 2 B-channels and one
D-channel CTI: Computer Telephony Integration. The merging or convergence of
computer applications and telephony technologies.
CO: Central Office. Typically referrers to the main telephone company equipment
location for a certain area.
DNIS: Dialed Number Identification Service. The number the caller dialed.
DTMF: Dual Tone Multi Frequency: is the signal to the phone company that you
generate when you press an ordinary telephones touch keys.
ICM: Intelligent Contact Management Cisco software that connects telephony
networks and components (PBXs and ACDs) with backend databases and applications
in order to allow advanced call routing capabilities.
IVR: Interactive Voice Response. This is a more advanced system than an
Automated Attendant. It enables a caller to do more complex actions such as
account balance lookups based on the user imputing information via voice or
touch tone.
ISDN: Integrated Services Digital Network# A protocol for carrying voice and
data over digital lines.
[***]
PBX: Private Branch Exchange. A telephone exchange particular to a private
organization.
PG: Peripheral Gateway. A device that translates request between an ICM and its
connected peripherals.
PRI: Primary Rate Interface. An ISDN line that supports 23 B-channels and one
D-channel.
TTS: Text to Speech. Computer generated speech that is read from a text-based
document.
UUI: User to User Information. A way to pass information over the D-channel of
an ISDN line.
UUID: Unique User Identifier. A TellME specific identifier assigned uniquely to
each call.
VDN: Vector Defined Network. An alternate way to dial a number.
VPN: Virtual Private Network. A term used when encrypting data between two
points and transporting that data over the public Internet.
VXML: VoiceXML. An industry standard markup for voice enabling applications.
IF UPSTREAM DECIDES, IN ITS REASONABLE DISCRETION, TO CHANGE ANY OF THE
FOREGOING TECHNOLOGY USED BY UPSTREAM IN PERFORMANCE OF THE SERVICES, AND SUCH
CHANGE RESULTS IN
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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ADDITIONAL CHARGES TO ORBITZ RELATED TO SUCH TECHNOLOGY, UPSTREAM SHALL BE
RESPONSIBLE FOR ALL SUCH CHARGES.
23. UPSTREAM and ORBITZ shall work together in good faith to mutually agree upon
modified standards and procedures for conducting criminal background checks by
May 15, 2002, at which time all UPSTREAM employees hired thereafter and employed
on the Orbitz account shall meet the agreed-upon background check standards. In
the event that UPSTREAM becomes aware that an UPSTREAM employee assigned to the
ORBITZ account is subsequently convicted of a criminal felony or material
misdemeanor, UPSTREAM shall remove that employee from the ORBITZ account.
24. ORBITZ shall have the right to demand that UPSTREAM remove from the Orbitz
account any employee providing Services, and UPSTREAM shall remove such employee
from the Orbitz account, in the event such employee has acted unprofessionally
in performance of the Services. Further, the Policies and Procedures Guide will
include expected conduct and required action for unprofessional performance of
the Services.
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EXHIBIT B
SERVICE LEVEL REQUIREMENTS
[***]
---------
*** The contents of this exhibit, consisting of twelve pages, have
been omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.
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EXHIBIT C
UPSTREAM INSURANCE COVERAGE
1. REQUIRED INSURANCE. UPSTREAM shall, at its own expense, obtain
and maintain the following insurance:
a. Commercial General Liability, with coverage including
premises/operations, contractual, personal and advertising injury, and
products/completed operations liabilities, with limits of not less
than $5,000,000 per occurrence for bodily injury and property damage
combined. ORBITZ shall be named as an additional insured. Limits of
liability requirements may be satisfied by a combination of Commercial
General Liability and Umbrella Excess Liability policies.
b. Motor Vehicle Liability insurance for owned, non-owned and hired
vehicles, with limits of not less than $1,000,000 per occurrence for
bodily injury and property damage combined. If no vehicles are owned
or leased, the Commercial General Liability insurance shall be
extended to provide insurance of non-owned and hired automobiles.
UPSTREAM shall be named as additional insured. Limits of liability
requirements may be satisfied by a combination of Automobile Liability
and Umbrella Excess Liability policies.
c. Worker's Compensation insurance, including coverage for all costs,
benefits and liabilities under Worker's Compensation and similar laws
which may accrue in favor of any person employed by UPSTREAM, for all
states in which the project or work to be performed is located, and
Employer's Liability insurance with limits of liability of not less
than $100,000 per accident or disease and $500,000 aggregate by
disease. Such insurance shall contain a waiver of subrogation in favor
of ORBITZ unless such waivers are not available in the state(s) where
the project or work to be performed is located. UPSTREAM shall require
in its subcontractor agreements that its subcontractors will maintain
Worker's Compensation and Employer's Liability insurance and UPSTREAM
further agrees to indemnify ORBITZ for any loss, cost, liability,
expense and/or damage suffered by ORBITZ as a result of the failure of
its subcontractors to maintain such insurance.
d. Fidelity Bond covering employee dishonesty with limits of not less
than $1,000,000 per loss. UPSTREAM agrees to provide a third party
liability endorsement.
e. Professional Liability or Errors & Omissions Insurance with limits of
not less than $3,000,000 per claim.
2. POLICIES. Insurance shall be purchased form companies having a
rating of A-VII or better in the current Best's Insurance Reports published by
A.M. Best Company. Policies of insurance shall provide that they will not be
cancelled without at least thirty (30) days' prior written notice to ORBITZ. The
Professional Liability, Error and Omissions and the Commercial General Liability
coverages shall be primary and non-contributing with respect to
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any other insurance or self-insurance that may be maintained by UPSTREAM.
Certificates of insurance evidencing coverage shall be submitted within a
reasonable time after the execution of this Agreement, and on each insurance
policy renewal thereafter. UPSTREAM shall, at ORBITZ's request, make copies of
its insurance policies available for review by ORBITZ at UPSTREAM's corporate
headquarters. If UPSTREAM does not provide ORBITZ with such certificates of
insurance, or in ORBITZ's opinion, such policies do not afford adequate
protection for ORBITZ, then ORBITZ will so advice UPSTREAM. Thereafter, if
UPSTREAM does not furnish evidence of acceptable coverage within fifteen (15)
days, then ORBITZ shall have the right, in its sole discretion, to (i) withhold
payments from UPSTREAM and, in its discretion, purchase such insurance as it
deems necessary to comply with the description of insurance in this section
until evidence of such acceptable coverage is provided, or (ii) immediately
terminate this Agreement. Failure to obtain and maintain required insurance
shall not relieve UPSTREAM of any obligation contain in this Agreement.
Additionally, any approval by ORBITZ of any of UPSTREAM' s insurance policies
shall not relieve UPSTREAM of any obligation contained in this Agreement.
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EXHIBIT D
2002 ARC MONTHLY REPORTING TABLE
<Table>
<Caption>
Year 2002 Weeks
--------- -----
<S> <C> <C>
Jan 31 Dec 01 - 27 Jan 02 4
Feb 28 Jan 02 - 24 Feb 02 4
Mar 25 Feb 02 - 31 Mar 02 5
Apr 1 Apr 02 - 28 Apr 02 4
May 29 Apr 02 - 2 Jun 02 5
Jun 3 Jun 02 - 30 Jun 02 4
Jul 1 Jul 02 - 28 Jul 02 4
Aug 29 Jul 02 - 1 Sep 02 5
Sep 2 Sep 02 - 29 Sep 02 4
Oct 30 Sep 02 - 3 Nov 02 5
Nov 4 Nov 02 - 1 Dec 02 4
Dec 2 Dec 02 - 29 Dec 02 4
Total 52
</Table>
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EXHIBIT D-l
U.S. TELEPHONE TRANSACTION FEE PRICING MATRICES
[***]
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*** The contents of this exhibit, consisting of twelve pages, have been
omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.
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EXHIBIT D-2
U.S. EMAIL TRANSACTION FEE PRICING MATRICES
[***]
----------
*** The contents of this exhibit, consisting of seven pages, have been
omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.
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EXHIBIT D-3
CONTRACTOR EMAIL PRICING MATRICES
[***]
----------
*** The contents of this exhibit, consisting of two pages, have been
omitted and filed separately with the Commission. Confidential
treatment has been requested with respect to the omitted portions.
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EXHIBIT E
DISPUTE RESOLUTION PROCEDURES
If a dispute or claim is not resolved by the management of the parties
within ninety (90) days (or such longer period as the parties mutually agree)
after submission by written notice by one party to the other party, the dispute
or claim shall be settled by binding arbitration. The arbitration shall be
conducted according to the procedures set forth herein and the commercial
arbitration rules of the American Arbitration Association ("AAA"). In the event
of a conflict between the procedures set forth herein and the applicable AAA
rules, the procedures set forth herein shall govern.
The exclusive location of the arbitration shall be in New York, NY.
The arbitration shall be conducted in English before a panel of three (3)
arbitrators to be selected according to the applicable AAA rules. No person
shall be part of the arbitral panel unless that person has agreed in writing to
abide by the arbitration provisions set forth herein. No discovery will be
permitted in connection with the arbitration unless, and only to the extent,
discovery is authorized in writing by the arbitral panel upon (a) a demand
therefor by a party, and (b) a majority decision of the arbitral panel that
there is a substantial need for discovery in order to decide the dispute in a
fair and timely manner on the merits. The parties and the arbitrators shall
treat the existence and all aspects of the arbitration as confidential.
The arbitrators may not award any relief of any kind except monetary
relief subject to the limits set forth in this Agreement. Without limitation on
the foregoing, in no event may the arbitrators award (i) non-monetary or
equitable relief of any sort; (ii) damages inconsistent with the terms of this
Agreement; (iii) punitive damages; or (iv) any award or remedy of any kind that
could not be made or imposed by a court deciding the matter in the same
jurisdiction. The parties expressly waive their right to claim and obtain such
damages or relief in the arbitration proceeding or any other forum (except only
to the extent of claims for injunctive relief for protection of confidential
information or infringement of intellectual property, which claims may be
submitted to any court of competent jurisdiction). The result of the arbitration
will be final and binding on the parties. Judgment on the arbitrators' award may
be entered in any court having jurisdiction.
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EXHIBIT F
DISASTER RECOVERY PLAN
(TO BE ATTACHED HERETO NO LATER THAN THE END OF THE IMPLEMENTATION PERIOD)
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EXHIBIT G
CALL CENTER REQUIREMENTS - CREDIT CARD ERROR MESSAGES AND FRAUD PREVENTION
I. CREDIT CARD ERROR MESSAGES
Some Orbitz customers receive error messages at the website if the certain
conditions related to their credit card account status exist. These errors will
cause the customer's credit card number to be placed in an Orbitz 24-hour
temporary negative file, that will restrict the use of that card on the Orbitz
website. Reasons for these error messages include:
- Insufficient funds
- Bank has deactivated card due to fraud or suspected fraud
- Credit limit exceeded
When these conditions exist, the customer will be directed by an error message
at the site to contact their card-issuing bank to remedy the problem. Neither
Upstream nor Orbitz can remedy these situations. The cardholders must call the
Bank themselves to correct it. Upstream should be aware of these error messages
and instruct customers to remedy these situations with their banks.
II. FRAUD PREVENTION
A. NEGATIVE FILE
Negative File is an internal Block List of Credit Cards in which Orbitz
uses to protect themselves against possible fraudulent transactions.
Customers that have been added to the Orbitz negative file database
will receive a specific error message (error message 163) informing
them that we cannot process the purchase with credit card they are
attempting to use. After the customer has corrected any credit card
discrepancies with their card-issuing bank, we will have to remove the
customer from the negative file database before they can make a
purchase on the website. The customers will be directed to contact
Customer Service to correct the problem.
To remove the credit card from the negative file, Upstream must
perform the following procedures.
Upstream should collect the following information from the customer:
1. Email address used to establish the Orbitz account
2. Name as it appears on the customer's credit card
3. Last 4 digits of the credit card
4. Customer's phone number
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5. Determine if the customer is purchasing on the behalf of a
business account and an estimated monthly volume of transactions expected to be
booked on the Orbitz website.
Upstream Agents should pass the information onto an Upstream
supervisor.
Upstream supervisor then should call Orbitz Revenue Protection
Department. Orbitz Revenue Protection Department agents are
available from 6 am to 12:30 AM. - seven days a week. If no one
answers, they should leave a message. This is the only number for
them to contact. No action will take place from 12:30 Am to 6 AM.
The Orbitz Revenue Protection Department will perform a series of
fraud checks to determine if the credit card number should be
removed from the negative file. If the credit card is deemed to
have been used in a fraudulent manner, the Orbitz Revenue
Protection Department will leave the credit card in the negative
file and void out any associated PNR's.
If the Orbitz Revenue Protection Department determines that the
credit card can be removed from the negative file, removal will
take place and the Upstream supervisor will be subsequently
contacted. Upstream will then be required to contact the customer
to inform them that they credit card can now be used to make
purchase on the website.
B. NOTIFICATION OF FRAUDULENT USE OF CREDIT CARD
If Upstream receives a call from a credit card holder stating that
their card was used in a fraudulent manner to make a purchase on the
Orbitz Website, the Upstream agent should collect the following
information from caller:
1. Name of cardholder
2. Type of credit card
3. Last 4 digits of credit card
4. Date of purchase
5. Dollar amount
6. Airline
7. Ticket numbers/and or Reservation number
8. Name of passengers (if available)
9. Phone number where the caller can be reached
Upstream should then inform them they will be notifying Orbitz' Revenue
Protection Department and they will receive a call back within
24-hours.
Upstream should call the Orbitz' Revenue Protection Department and
provide all of the information collected.
Upstream should document the call in the PNR, if one is available.
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C. SUSPICIOUS CALLER CONTACT
If an Upstream agent receives a call where they think there is a possibility of
fraudulent activity occurring, (i.e., customer calling to change reservation or
address, or any other suspicious requests) they should pass the PNR and email
address on to a Supervisor. The Supervisor should contact the Orbitz' Revenue
Protection.
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EXHIBIT H
INTERNATIONAL ARBITRATION PROVISIONS
AGREEMENT TO ARBITRATE. Any dispute arising out of, relating to, or having any
connection with, this Agreement, including any question regarding its existence,
validity, interpretation, performance, breach or termination, and any tort or
other common law or statutory claims arising out of or relating to its
negotiation, execution or performance, shall be exclusively and finally settled
by arbitration in accordance with the Rules of Arbitration of the International
Court of Arbitration of the International Chamber of Commerce (the "ICC").
CONDUCT OF THE ARBITRATION. The place of arbitration shall be in the State of
New York, U.S.A. The arbitration shall be conducted in the English language, and
all documents and testimony offered into evidence during the arbitration shall
be translated into English at the expense of the party offering the evidence.
CHOICE OF LAW. The arbitral panel shall determine the rights and obligations of
the parties according with the substantive laws of the State of New York other
than those laws that would refer the matter to the law of another jurisdiction.
Any procedural issues not resolved by this Agreement or the ICC Rules shall be
governed by, in order of priority, the law of the State of New York, U.S.A.,
including that state's International Arbitration Act, if any, and the United
States Arbitration Act. Except as agreed by the parties, the arbitral panel
shall have no power to alter or modify any terms or provisions of this
Agreement, or to render any award which, by its terms or effects, would alter or
modify any term or provision of this Agreement or to act as amiable COMPOSITEUR
OR EX AEQUO ET BONO. The arbitral panel shall have no authority to award
special, indirect, consequential, exemplary or punitive damages for any reason.
The arbitrators may also award interim and equitable relief, including specific
performance. The parties expressly agree that prior to the formation of the
arbitral panel, nothing in this Agreement shall prevent the parties from
applying to a court of competent jurisdiction for provisional or interim
measures or for injunctive relief as may be necessary to safeguard the property
or rights that are the subject matter of the arbitration. After the arbitral
panel is impaneled, however, the panel shall have exclusive jurisdiction to hear
applications for such relief, except that the parties agree that any interim
measures or injunctive relief ordered by the arbitral panel may be immediately
and specifically enforced by a court of competent jurisdiction.
COMMENCEMENT OF ARBITRATION. Notice of the demand for arbitration shall be
served upon the party against whom the demand is made at the same time that the
demand is filed with ICC Court of International Arbitration. In no event shall a
demand for arbitration be made or permitted after the date when the claims being
asserted in the demand would be barred by the applicable contractual or
statutory limitation period.
THE ARBITRAL PANEL. The arbitral panel shall be composed of three arbitrators to
be selected in accordance with the ICC Rules. The presiding arbitrator shall not
be of the same nationality as any of the parties. The arbitrators shall be and
remain at all times independent of the parties. The arbitrators must be fluent
in the English language. Once the arbitral panel has been composed, the
arbitrators shall act as neutrals and not as party arbitrators, and no party
shall engage in any ex pane communication with any member of the arbitral panel
regarding the
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substance of the arbitration or any claims being arbitrated before the panel.
All decisions of the arbitral panel shall be by majority vote.
COSTS AND INTEREST. The costs of the arbitration proceeding, including attorneys
fees and expenses, shall be born in the manner determined by the arbitrators.
The award may include interest from the date of any breach or violation of this
Agreement as determined by the arbitral award until paid in full, at the
interest rate established in the award. Interest may be compounded at the
discretion of the arbitrators.
THE AWARD. The award shall be in writing and state the reasons upon which it is
based. Any monetary award shall be made in United States Dollars. The award
shall be final and binding on the parties. Any court having jurisdiction over
the person or the property of the person against whom enforcement of the
judgment is sought may enter judgment on the award.
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