Services Agreement [Amendment No. 1] - Rosenbluth International Inc. and Orbitz LLC
AMENDMENT NO. 1
TO THE
SERVICES AGREEMENT
THIS AMENDMENT is made this 8th day of January 2003, by and between
Rosenbluth International, Inc., a Pennsylvania corporation, having its principle
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").
This Amendment amends that certain Services Agreement entered into by and
between ORBITZ and UPSTREAM, on April 22, 2002 (the "Agreement").
WHEREAS, ORBITZ and UPSTREAM intend to revise or amend certain
portions of the Agreement in accordance with the terms of Section 12.4 therein;
NOW, THEREFORE, in exchange of good and valuable consideration that
will not hereinafter be challenged, the parties hereby agree as follows:
PRECEDENCE. To the extent a term or expression used in this Amendment
is defined in the Agreement, the term or expression will have the
meaning ascribed to it in the Agreement, unless agreed otherwise in
this Amendment. To the extent any terms or conditions of this
Amendment conflict with the terms of the Agreement, the terms of this
Amendment will prevail.
2. CONTRACTOR SERVICES. Pursuant to Section 4.4 of the Agreement, the
parties hereby memorialize UPSTREAM's receipt of ORBITZ's notice that
ORBITZ desires UPSTREAM to outsource the processing of corporate and
leisure email Contacts to an overseas third-party, which the parties
hereby agree will be the entity currently known as LAWKIM UPSTREAM
Contract Management Private Limited, Chitalsar, Mapada, S.V. Road
Thane 400_,607, Maharashtra, India (hereinafter, the "Contractor").
ORBTIZ hereby approves of LAWKIM UPSTREAM Contract Management Private
Limited as the Contractor. In accordance with Section 4.4 of the
Agreement, UPSTREAM agrees to outsource the processing of corporate
and leisure email Contacts to the Contractor in accordance with the
terms of the Agreement, as amended herein.
3. TRANSITION. UPSTREAM will cause the Contractor to commence processing
corporate and leisure email Contacts on January 8th, 2003. One hundred
percent (100%) of corporate and leisure email Contacts processed by
UPSTREAM must be processed by the Contractor by March 1, 2003.
UPSTREAM may continue to process corporate and leisure email Contacts
in the United States of America throughout the term of the Agreement;
provided, however, that after March 1, 2003, except as expressly
stated in the Agreement, the pricing for processing email Contacts
will be based on the assumption that 100% of all email Contacts are
processed by the Contractor regardless of the actual percentage of
email Contacts that are processed by the Contractor.
4. PRICING. [***]
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5. UPCHARGES. [***]
6. SERVICE LEVELS. Section 3 (Service Level: Email Response Time) of
Exhibit B (Service Level Requirements) is hereby amended to state
that after February 28th, 2003, on average [***] of all email-based
Contacts processed during any calendar month must result in a Contact
Handled within [***] hours of the initiation of the Contact (the "Time
Requirement") and that the remaining email based Contacts must result
in a Contact Handled within [***] hours of the initiation of the
Contact; provided, however, that if the Ticket Transactions projected
in the Monthly Forecast for the most immediate month to which such
Forecast applies (e.g. for the Monthly Forecast provided on July 31,
the most immediate month would be August) is exceeded, the Time
Requirement shall be adjusted as follows:
<Table>
<Caption>
Forecast Exceeded by: Time Requirement
<S> <C>
3.1 -5.0% [***] minutes
5.0- 7.0% [***] minutes
7.0- 9.9% [***] minutes
</Table>
In the event that the Forecast is exceeded by more than [***],
UPSTREAM shall use commercially reasonable efforts to respond to all
email-based Contacts within [***] minutes, but any failure to do
so will not result in any Service Level Credits or in material
breach of this Agreement.
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The foregoing notwithstanding, in the event that email-based Contacts
are performed at the Facility due to (i) a Force Majeure Event, (ii)
ORBITZ' election, or (iii) UPSTREAM'S election after determining that
it was necessary to perform such services at the Facility in order to
avoid a Chronic Failure (as defined in Exhibit B, Section 6 of the
Agreement), then this amendment to Section 3 of Exhibit B shall be of
no force and effect with respect to the Contacts processed at the
Facility and the service level shall revert to the original provision
set forth in the Agreement with respect to the Contacts processed at
the Facility. Prior to March 1 2003, the minimum service level set
forth in the Agreement prior to the commencement of this Amendment
will remain in effect with respect to both Contractor and UPSTREAM.
7. UPSTREAM REMITTANCE. [***]
8. COSTS. For the avoidance of doubt, UPSTREAM is responsible for costs
(such as training, development, line charges, telecom charges) and
other costs or expenses, related to the outsourcing of email
processing to the Contractor, accordance with the terms of the
Agreement. The last sentence of Section 8.12 of the Agreement shall be
deleted in its entirety and replaced with the following: ORBITZ shall
reimburse UPSTREAM, at UPSTREAM'S actual cost (not to exceed [***] per
minute, inclusive of taxes), without mark-up, for all outbound
telephone calls made by UPSTREAM in connection with Contact Handled.
9. CUSTOMER INFORMATION. For the avoidance of doubt, UPSTREAM will
include in the Contractor Agreement a provision which requires the
Contractor to comply at all times with ORBITZ's privacy policy as
posted on the ORBITZ website.
10. IP ASSIGNMENT. To the extent that any of the intellectual property
rights, including without limitation any copyrights, in or to the Work
developed or produced by UPSTREAM or the Contractor in the performance
of the Services do not vest in ORBITZ upon creation, UPSTREAM hereby
assigns, agrees to assign and agrees to include in the Contractor
Agreement an obligation on the part of the Contractor to assign, any
and all such rights to ORBITZ for no additional consideration. To the
extent such rights cannot be assigned to ORBITZ, UPSTREAM agrees to
license and to include in the Contractor Agreement an obligation on
the part of the Contractor to license such rights exclusively and
irrevocably to ORBITZ for no additional consideration. To the extent
such rights, including without limitation any moral rights, cannot be
licensed to ORBITZ, then UPSTREAM agrees to waive and to include in
the Contractor Agreement an obligation on the part of the Contractor
to waive such rights against ORBITZ. At ORBITZ's request, UPSTREAM
will execute, and will include in the Contractor Agreement an
obligation on the part of the Contractor to execute any additional
documents or take such additional actions as may be reasonably
required to give full legal effect to this Agreement, for no
additional consideration.
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11. ENTIRE AGREEMENT. This Amendment sets forth the complete and entire
agreement between the parties with respect to the subject matter of
the Amendment and supercedes and replaces any prior agreements between
the parties, whether oral or in writing, with respect to its subject
matter. Except as otherwise set forth in this Amendment, the terms and
conditions of the Agreement will remain in full force and effect. This
Amendment will be governed by the laws of the state of New York.
IN WITNESS WHEREOF, the parties hereby cause this Amendment to be
executed by their duly authorized representatives identified below.
ROSENBLUTH INTERNATIONAL, INC. ORBITZ LLC
("UPSTREAM") ("ORBITZ")
By: Jerome W. Johnson By: Eliah Kahn
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Signature: /s/ Jerome W. Johnson Signature: /s/ Eliah Kahn
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Title: COO - Upstream Title: VP Customer Experience
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Date: 1-8-03 Date: 1-13-03
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