EXHIBIT 10.4
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS DOCUMENT HAVE
BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
EXPEDIA, INC. /PEOPLESUPPORT, INC.
AMENDED AND RESTATED CUSTOMER SUPPORT SERVICES
AGREEMENT
This Amended and Restated Customer Support Services Agreement (the "Agreement")
is entered into by and between Expedia, Inc., a Washington corporation located
at ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("EI"), and
PeopleSupport, Inc., a Delaware corporation, located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("COMPANY") to be effective as of July 1, 2004
("Effective Date").
RECITALS
WHEREAS, EI has developed a proprietary application for arranging, planning and
reserving air, hotel and car rental transactions on the Internet along with
other electronic commerce applications;
WHEREAS, EI operates a web site known as "Expedia," that provides on-line travel
services, using its proprietary application; and
WHEREAS, EI and COMPANY entered into that certain Customer Support Services
Agreement, dated as of December 11, 2000 (the "Original Effective Date"), as
amended by an Amendment No 1, dated November 17, 2001, an Amendment No. 2, dated
November 22, 2002, and an Amendment No. 3, dated December 17, 2003 (such
agreement, as amended, the "Original Agreement") pursuant to which EI requested
that COMPANY provide, and COMPANY agreed to provide, certain customer support
services and other services to the customers of Expedia.
WHEREAS, as of July 1, 2004, the Parties are current with respect to all
obligations to one another under this Agreement.
WHEREAS, EI and COMPANY now wish to amend and restate their respective rights
and obligations under the Original Agreement as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein, the parties
hereby agree as follows:
AGREEMENT
1. COMPANY Services.
(a) General. COMPANY agrees to provide customer support, en route
assistance, quality control and other services, including without limitation
those identified in Exhibit A (the "Services") to customers of Expedia, on the
terms and conditions provided herein in accordance with (i) EI standard customer
service policies and procedures as detailed in documentation provided by EI to
COMPANY (including, without limitation, EI policies set forth in Exhibit E),
which may be modified by EI from time to time in its sole discretion; and (ii)
the performance requirements set forth in Exhibit C. The parties shall mutually
prepare a procedures manual prior to launch and maintain such manual, setting
forth detailed procedures for providing the Services.
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(b) Facilities. COMPANY shall provide, maintain and staff one (1) or more
customer care (phone and email support) facilities, (the "Facilities") to
provide the Services set forth in Exhibit A of the Agreement. EI owns the
toll-free telephone number that will be posted on the ▇▇▇▇▇▇▇.▇▇▇ Web Site
("Customer Service Number"). COMPANY, at its sole cost, will purchase, install
and maintain all software, hardware and telecommunications equipment at the
Facilities that are necessary to provide the Services under this Agreement.
COMPANY is responsible for maintaining all necessary telecommunications
equipment and services at the Facilities to provide the Services, including all
costs associated therewith. COMPANY shall ensure that the Facilities has, and
shall maintain, an infrastructure capable of supporting a variety of
communication methods as may be reasonably required by EI. The technology to be
provided by COMPANY for purposes of this Agreement shall meet the requirements
set forth by EI as provided to COMPANY in writing from time to time. Other
facilities may be added as mutually agreed by amendment of this Agreement. The
technology to be provided by COMPANY for purposes of this Agreement shall meet
the requirements set forth by EI as provided from time to time.
(c) Software, Hardware and Equipment. It is understood that COMPANY will
provide leasehold improvements, telecommunication systems, furniture and
fixtures, computers and proprietary software and, as between the parties, this
software and equipment will be owned by COMPANY.
(d) Problem Resolution. COMPANY agrees to resolve customer complaints in a
manner that meets or exceeds the performance requirements as set forth in
Exhibit C. In the event COMPANY is unable to resolve a problem, COMPANY may
escalate the problem to EI-designated representative(s) in accordance with
applicable procedures.
(e) ACD System. COMPANY will maintain an Automatic Call Distribution
("ACD") system capable of providing the information identified in Exhibits C and
G to EI in a format designated by EI. If COMPANY changes its current ACD system
or adds facilities, COMPANY will ensure that any such new ACD system is capable
of providing the information set forth in Exhibits C and G. COMPANY shall
provide EI with standard specifications and documentation from its ACD system
with respect to the Services provided by COMPANY under this Agreement.
(f) Disaster Recovery. COMPANY must have a documented disaster recovery
plan. Such plan shall set forth the implementation and management of disaster
recovery procedures and shall be submitted to Expedia for reasonable review and
approval within thirty (30) days of the execution of this Agreement. At a
minimum, the disaster recovery plan shall include the following:
Recovery Plan:
- Contact emergency services, as needed.
- Contact TRAVSUP HOTPAGER and notify them of the nature of the
problem, the estimated length of the problem and the estimated
impact on service delivery.
- Contact site and notify them of the same items as in #1 and
#2, immediately above
- Contact Expedia Customer Service management via e-mail and
voicemail and notify them of the same items as in #1 and #2,
above
- Work to estimate length and severity of problem to determine
what level of response is needed."
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(g) Backup-up Power. COMPANY shall supply line-conditioned,
uninterruptable power supply ("UPS") backed-up power to the Facilities in order
to protect against line spikes, power surges, and temporary power outages and
fluctuations.
(h) Facilities Access. COMPANY shall take reasonable security measures, at
least as great as the precautions it takes to protect its own confidential
information, but no less than reasonable care, to keep confidential the
Confidential Information of EI. COMPANY shall restrict access to the Facilities
as reasonably necessary to ensure the security of EI's Confidential Information.
(i) Onsite Visit. At EI's discretion, with reasonable advance notice, EI
reserves the right to make onsite visits to the Facilities. In connection with
such visits, COMPANY will provide to EI, as and when required by EI, access for
a reasonable number of EI personnel to office premises at the sites equipped
with standard office equipment as available to personnel of COMPANY in proximate
offices, at no charge.
(j) Training. COMPANY will ensure that all its employees and EI-permitted
contractors and subcontractors performing any Services hereunder agree to
undertake and successfully complete all training programs provided by EI with
respect to the Services as EI in its sole discretion deems necessary to prepare
COMPANY to provide the Services outlined in this Agreement. Training will be
conducted at a mutually agreed upon facility where EI shall provide
"train-the-trainer" training at no charge to COMPANY, except that all travel,
accommodation and related expenses for COMPANY employees and employees of
contractors or subcontractors, shall be the responsibility of COMPANY, or such
contractors or subcontractors, respectively. COMPANY acknowledges and agrees
that as a result of EI providing "train-the-trainer" training, COMPANY shall be
responsible for internal and ongoing training of its personnel after receiving
initial "train-the-trainer" training. COMPANY will designate a primary contact
to work with EI to address ongoing training needs. EI agrees to provide the
necessary training materials, for limited duplication, upon request by COMPANY
and following EI approval, to be used by COMPANY to provide training as required
under the terms of this Agreement. ***
(k) Implementation Services. COMPANY prepared a implementation plan
setting forth detailed procedures for providing the Services (the
"Implementation Plan"), which has been previously implemented.
(l) Reporting. For systems under the control of COMPANY, COMPANY shall
comply with all applicable reporting requirements by providing EI with the
reports specified in Exhibits C and G (each a "Report"), including management
reporting and any other information requested from time to time with respect to
the Services performed. All Reports shall be complete and accurate. Each Report,
whether in electronic or paper format, shall meet the standard Report
requirements identified for the Report in Exhibits C and F or as specifically
requested by EI from time to time. COMPANY shall deliver each Report, and all
supporting documentation therefor, within the time and date specified in
Exhibits C or F or as specifically requested by EI from time to time. COMPANY
shall correct any errors in a Report within five (5) business days following
EI's notice specifying the item in respect of which an error may have occurred.
(m) Confidentiality of Service Requests/Calls. Nothing contained in this
Agreement shall give COMPANY or its agents or contractors, the right to use,
modify, reproduce, distribute and/or publish any EI customer records,
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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including without limitation reservations, service records or customer
complaints resolved by COMPANY during the fulfillment of COMPANY obligations
hereunder, all of which shall be considered Confidential Information under
Section 10 of this Agreement.
(n) Change of Service. The parties agree, that from time to time during
the term of this Agreement, EI may request reasonable non-material changes in
the scope or manner of performance of the Services being performed by COMPANY
hereunder, and that COMPANY shall comply with such non- material changes.
Further, the parties agree, that from time to time during the term of this
Agreement, EI may request reasonable material changes in the scope or manner of
performance of the Services being performed by COMPANY ("Material Change
Request"). Upon receipt of each Material Change Request, COMPANY will evaluate
the impact that such Change Request will have on the resources required by
COMPANY to perform the Services and the amounts then payable to COMPANY
hereunder. COMPANY will give written notice to EI as to the results of such
evaluation ("Material Change Proposal") within five (5) business days following
receipt of that Material Change Request, unless otherwise agreed to by EI. If EI
does not receive a Material Change Proposal in response to the applicable
Material Change Request within five (5) business days, the Material Change
Request is deemed accepted. In the event that the Material Change Proposal
establishes that COMPANY's performance Of the Service in compliance with the
applicable Material Change Request would materially, and adversely impact
COMPANY resources and revenues, the parties agree to negotiate in good faith to
reach mutually agreeable terms for the performance of, and payment for the
Services requested under the Material Change Request.
2. Payment.
(a) COMPANY is fully responsible for all costs incurred in providing the
Services under this Agreement and all Exhibits hereto, independent of any
provision for reimbursement set forth herein.
(b) EI will pay COMPANY the amounts specified in Exhibit D subject to
adjustments, deductions or credits to such amounts as provided for in this
Agreement or any Exhibit hereto. COMPANY will invoice EI Accounts Payable on a
monthly basis, on or before the fifth-teenth (15th) day of the month following
the month for which activity is being invoiced, and shall include full
documentation supporting such invoice. Payment terms are net thirty (30) days
after receipt of invoice or as specified in this Agreement or Exhibits.
3. Ownership and License Grants.
(a) Use of EI's Name. This Agreement does not constitute a trademark or
service ▇▇▇▇ license. As of the Effective Date, EI shall be deemed to have
granted COMPANY a non-exclusive, personal, non-transferable, non-assignable,
royalty-free license to use the Expedia(R) name solely in conjunction with
answering and responding to email inquiries, and incoming Calls from, making
outbound callbacks to Expedia customers as necessary for providing Services
pursuant to the terms of this Agreement. Such license grant shall remain in
effect while this Agreement is in good standing, but shall expire at the
expiration or earlier termination of this Agreement. Specific additional terms
and conditions pertaining to this license grant are set forth in Exhibit H,
which is incorporated herein by this reference. COMPANY may list EI in its
customer listing. Notwithstanding the foregoing, COMPANY shall not use EI's
name, except as set forth in this Agreement, or as otherwise approved in writing
by EI.
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(b) Customer Information. Except as otherwise provided herein, COMPANY
acknowledges and agrees that the information acquired by COMPANY in connection
with the provision of Services pursuant to this Agreement, including without
limitation customer and prospect information, sales information, back office and
general ledger data, customer travel reservation and itinerary information, and
EI customer lists and updates (including customer names, addresses and telephone
numbers) (collectively, "Customer Data") shall be considered proprietary
information of EI, including all Customer Data stored using any COMPANY
database, and all right, title and interest in the Customer Data is owned by EI.
COMPANY shall use such Customer Data only as necessary to perform the Services
in accordance with this Agreement and shall maintain such Customer Data in
strict confidence in accordance with the provisions of Section 10 hereof. Upon
request from EI, COMPANY shall provide EI with any or all Customer Data in
COMPANY's possession. Upon termination or expiration of this Agreement, COMPANY
shall within ten (10) days thereafter, or within such other timeframe as EI may
reasonably agree to, provide EI with all documents and materials containing
Customer Data (including data stored or maintained in electronic format, whether
or not created or stored using a COMPANY database), together with all other
materials and property of EI, which are in its possession or under its control.
(c) Custom Tools. At the sole discretion of EI, EI may grant COMPANY a
non-exclusive, personal, non-transferable, non-assignable, royalty-free license
to access and use certain software tools ("Expedia User Management Tools")
developed or to be developed by EI and to be identified from time to time during
the term of this Agreement solely for the purpose of assisting COMPANY in
providing the Services to Expedia customers under this Agreement. Upon the
expiration or termination of this Agreement, COMPANY's license to use the
Expedia User Management Tools will automatically terminate.
(d) EI Intellectual Property Rights. EI owns all right, title and interest
in and to any software or other intellectual property it provides to COMPANY
during the term of this Agreement, including without limitation the items listed
on Exhibit B, any and all Expedia User Management Tools, and training materials.
All software so provided shall be used by COMPANY in accordance with the terms
of the End User License Agreement ("▇▇▇▇") accompanying the software, however,
that notwithstanding any provision in a ▇▇▇▇ to the contrary, COMPANY may not
transfer any such software so provided.
(e) COMPANY Software License. COMPANY shall ▇▇▇▇▇ ▇▇ a non-exclusive,
personal, non-transferable, non-assignable, royalty-free license to access and
use certain intellectual property consisting of all computer programming and/or
formatting code or operating instructions that is owned or licensed by COMPANY
and employed in the delivery of the Services (collectively "COMPANY Intellectual
Property"), and to be identified from time to time during the term of this
Agreement solely for the purpose of assisting COMPANY in providing the Services
to Expedia customers under this Agreement. Upon the expiration or termination of
this Agreement, EI's license to use the COMPANY Intellectual Property will
automatically terminate.
(f) COMPANY owns all right, title and interest in and to any COMPANY
Intellectual Property that it provides to EI during the term of this Agreement.
All COMPANY Intellectual Property so provided shall be used by EI in accordance
with the terms of the End User License Agreement ("▇▇▇▇") accompanying the
COMPANY Intellectual Property, if any, however, that notwithstanding any
provision in a ▇▇▇▇ to the contrary, EI may not transfer any such COMPANY
Intellectual Property so provided.
4. Warranties.
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(a) COMPANY warrants that:
(i) It possesses all necessary authority to enter into this
Agreement, and that by so doing it does not violate any other agreements
to which it is a party; and
(ii) The Services will be performed in a professional manner and
shall conform in all material respects with the service requirements set
forth in this Agreement including, without limitation, those set forth in
Exhibits A and C; and
(iii) The Services will be performed by (i) employees of COMPANY
acting within the scope of their employment who have signed
confidentiality agreements with COMPANY (with appropriate acknowledgments
of confidentiality) substantially in the form attached as Exhibit K; and
(iv) In providing Services to Expedia customers and any other
persons or entities, COMPANY shall make no representations nor undertake
any obligations on behalf of EI concerning the Services and/or any other
EI products or services beyond those expressly made or undertaken by
Expedia and communicated to Expedia customers on the Expedia web site.
COMPANY, including all of COMPANY's employees, temporary employees and
contractors shall conform to all applicable laws and government rules and
regulations. COMPANY assumes all responsibility for providing any training
that may be required to ensure compliance with such legal requirements.
COMPANY shall offer to Expedia customers only those Services authorized by
this Agreement, advising customers requesting other services that Expedia
does not provide such services, and then documenting and advising EI of
all such requests; and
(v) that COMPANY owns, or has valid license to, all worldwide
rights, title and interest in the COMPANY Intellectual Property, employed
in the delivery of the Services, or licensed to EI, and that such COMPANY
Intellectual Property and any and all other software and materials COMPANY
publishes or uses in providing the Services under this Agreement do not
and will not infringe any intellectual property rights owned by EI or any
other person or entity including, but not limited to, any copyright,
patent, trademark or trade secret; and
(vi) Except as otherwise provided in this Agreement, COMPANY will
not reproduce, sell, publish, or in any manner commercially exploit the
Expedia(R) name or any information or derivatives of information acquired
in connection with its provision of Services or allow such reproduction,
sale, publication or exploitation by any employee or person retained for
the purpose of providing such services except as agreed to in writing by
EI; and
(vii) COMPANY agrees to work cooperatively and professionally in
conjunction with third parties who are providing similar services to EI to
ensure that Expedia customers receive consistent high quality Services
under this Agreement.
(viii) Prior to the commencement of the work to be performed
hereunder and throughout the entire performance by COMPANY, COMPANY shall
procure and maintain insurance adequate to cover any and all liability
which COMPANY may incur as a result of the performance of work included in
this Agreement. Such
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insurance shall be in a form and with insurers acceptable to EI, and shall
comply with the following minimum requirements:
(A) Commercial General Liability insurance of the
Occurrence Form, with policy limits of not less than Two
Million Dollars (US$2,000,000.00) combined single limit each
occurrence for Bodily Injury and Property Damage combined, and
One Million Dollars (US$1,000,000.00) Personal and Advertising
Injury Limit.
(B) Professional Liability And Errors & Omissions
Liability Insurance with policy limits of not less than Three
Million Dollars (US$3,000,000.00) each claim with a deductible
of not more than fifty Thousand Dollars (US$50,000.00). Such
insurance shall include coverage for infringement of
proprietary rights of any third party, including without
limitation copyright, trade secret and trademark infringement
as related to COMPANY's performance under this Agreement.
Throughout the term of this Agreement, the Professional
Liability And Errors & Omissions Liability Insurance
retroactive coverage date will be no later than the Effective
Date of this Agreement. Upon expiration or termination of this
Agreement, COMPANY will maintain an extended reporting period
providing that claims first made and reported to the insurance
company within one year after the end of this Agreement will
deemed to have been made during the policy period.
A copy of the certificate of insurance shall be included as Exhibit
J. Failure by COMPANY to furnish certificates of insurance or failure by
EI to request same shall not constitute a waiver by EI of any of the
insurance requirements set forth herein. COMPANY shall notify EI in
writing at least thirty (30) days advance if COMPANY's insurance coverage
is to be canceled or materially altered so as not to comply with the
requirements of this section.
In the event of such failure on the part of COMPANY to provide the
certificates as requested herein, and in the event of liability or expense
incurred by EI as a result of such failure by COMPANY, COMPANY hereby
agrees to indemnify EI for all liability and expense (including reasonable
attorneys' fees and expenses associated with establishing the right to
indemnity) incurred by EI as a result of such failure by COMPANY; and
(ix) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND
ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PRODUCTS AND SERVICES
PROVIDED PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, AND (EXCEPT AS SET FORTH IN SECTION 7(a))
INDEMNIFICATION.
(b) EI warrants that:
(i) Any services performed by EI pursuant to this Agreement will, be
performed in a professional manner; and
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(ii) The Expedia User Management Tools do not and will not infringe
any intellectual property rights owned by any other person or entity
including, but not limited to, any copyright, patent, trademark or trade
secret to the extent that COMPANY will be required to refrain from using
such tools (and EI will not be able to provide substitute technology which
reasonably provides the same or similar functionality) with the overall
result that COMPANY will not be able to reasonably perform the Services as
intended herein; and
(iii) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EI AND ITS
SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND SERVICES PROVIDED
PURSUANT TO THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND (EXCEPT AS SET FORTH IN SECTION 7(d)) INDEMNIFICATION.
5. Personnel.
(a) COMPANY personnel assigned to Expedia shall be employees of COMPANY
and not employees of EI and shall remain under the direction and control of
COMPANY. These COMPANY personnel shall receive such salaries, compensation and
benefits as COMPANY shall determine. COMPANY agrees to be responsible for all of
its federal and state taxes, withholding, social security, insurance and other
benefits, and all salaries, benefits and other costs of such COMPANY personnel.
(b) Notwithstanding the foregoing, COMPANY personnel assigned to Expedia
shall adhere to EI quality control standards as set forth in Exhibit C.
(c) EI shall have the option to participate in any decisions regarding any
assignment of COMPANY personnel to Expedia. COMPANY acknowledges EI' right to
require immediate removal and prompt replacement from the Expedia team, any
COMPANY employee, or agent performing COMPANY's obligations under this Agreement
who engages in any conduct prohibited by law or inconsistent with EI policy as
set forth in Exhibit E, so long as such removal and replacement is not
discriminatory or in violation of law.
6. Non-Competition and Non-Solicitation; Exclusivity.
(a) COMPANY personnel shall not target or solicit Expedia customers for
any other COMPANY supported business or any additional travel business beyond
provision of the Services governed by this Agreement, nor shall COMPANY use
information gained in the provision of the Services to compete with Expedia in
providing travel services.
(b) Notwithstanding the preceding section 6(a), COMPANY shall not be
prohibited from providing services to Expedia customers who contact COMPANY
independently (other than in conjunction with Expedia), or whose names appear on
mailing lists developed independently of Expedia or who were customers of
COMPANY prior to the Effective Date.
(c) EI shall not solicit COMPANY personnel assigned to Expedia to work for
EI without prior written consent of COMPANY.
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(d) EI agrees that, during the Term of this Agreement, COMPANY's
Philippine operations is the only Philippines source that EI will use to handle
telephone and email support in the Philippines.
7. Indemnification.
(a) COMPANY Indemnification. COMPANY agrees to indemnify, defend, and hold
EI harmless from and against any and all claims, actions, demands, and costs,
including reasonable attorneys' fees and expenses arising out of or in
connection with third party claims related to the COMPANY Intellectual Property,
and/or as a result of the performance of the Services provided under this
Agreement by COMPANY or its employees, independent contractors or subcontractors
and agents ("COMPANY Indemnified Claims"). Acts for which COMPANY shall
indemnify EI include, but shall not be limited to, representations or
obligations undertaken on behalf of EI concerning the Services to customers
which exceed the scope of the Services as set forth in this Agreement; any act
or omission in violation of any applicable government statutes, laws, rules and
regulations or industry rules and regulations. In addition, COMPANY agrees to
defend EI against, and pay the amount of any adverse final judgment or
settlement to which COMPANY consents resulting from, any third party claim(s)
("Indemnified IP Claims") that the COMPANY Intellectual Property and/or
COMPANY's provision of any services pursuant to this Agreement, infringes any
third party patent, copyright, trademark or trade secret enforceable under the
laws of the United States; provided that COMPANY is notified promptly in writing
of the Indemnified IP Claim and has sole control over its defense and
settlement, and EI provides reasonable assistance in the defense and/or
settlement of such claim. EI reserves the right to control the defense of any
COMPANY Indemnified Claim and to conduct all proceedings or negotiations in
connection therewith, and if it so undertakes, all other proceedings or
negotiations to settle or defend any such COMPANY Indemnified Claim shall be at
EI' expense, provided that (i) COMPANY shall have the right to approve of any
settlement of any such COMPANY Indemnified Claim; such approval shall not be
unreasonably withheld, and (ii) EI shall be responsible for payment of all
attorneys' fees incurred by EI after it has exercised its right to control the
defense. COMPANY shall pay any and all expenses and other reasonable costs
incurred by EI arising in connection with its obligations under this Section
7(a) promptly upon demand.
(b) EI General Indemnification. EI agrees to indemnify, defend and hold
COMPANY harmless from and against any and all claims, actions, demands,
liabilities, and costs, including reasonable attorneys' fees and expenses,
arising out of or in connection with third party claims as a result of (i) the
business of Expedia unless arising out of or in connection with circumstances
for which COMPANY is indemnifying EI pursuant to Section 7(a) above; and (ii)
any injuries to the person or property of any Expedia customer while traveling
on an Expedia itinerary unless arising out of or in connection with the
negligence of COMPANY ("EI Indemnified Claim"). COMPANY reserves the right to
control the defense of any EI Indemnified Claim and to conduct all proceedings
or negotiations in connection therewith, and, if it so undertakes, all other
proceedings or negotiations to settle or defend any such EI Indemnified Claim
shall be at COMPANY's expense, provided that (i) EI shall have the right to
approve of any settlement of any such EI Indemnified Claim, such approval shall
not be unreasonably withheld, and (ii) COMPANY shall be responsible for payment
of all attorneys' fees incurred by COMPANY after it has exercised its right to
control the defense. EI shall pay any and all expenses and other costs incurred
by COMPANY arising in connection with its obligations under this Section 7(b)
promptly upon demand.
8. Term and Default.
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(a) This Agreement shall commence as of the Effective Date, and shall
continue in force until May 31, 2007 (the "Term"), unless earlier terminated by
EI as provided in this Agreement or Exhibits hereto.
(b) For Breach. In the event that either party materially breaches any
provision of this Agreement, the non-breaching party will give the party in
default written notice specifying the nature of the breach ("Notice of
Default"). In the event that the defaulting party fails to cure such breach
within thirty (30) days after receipt of the Notice of Default, then the
non-breaching party may terminate this Agreement immediately upon the expiration
of the thirty (30) day notice period.
(c) Uncurable Breach. In the event either party causes a material breach
of the provisions of Sections 1(l), 3(b), 6(a), or 10, such breach will justify
termination for cause, and the non-breaching party may terminate this Agreement
immediately with no further obligations under this Agreement.
(d) For Convenience. [INTENTIONALLY OMMITTED]
(e) Other Remedies. All remedies set forth in this Section 8 shall be in
addition to and not in lieu of all other remedies available under this
Agreement, at law or in equity.
(f) Survival. Sections 7, 8(f), 8(g), 10, 11, 14 and 15 of this Agreement
shall survive expiration or termination for any reason.
(g) Transition. Upon the expiration or earlier termination of this
Agreement, COMPANY shall cooperate with EI to assist in the orderly transition
of Services to EI, or as EI may direct, in a professional manner, with no
disruption to the Services.
9. Default in Performance and Remedies. [INTENTIONALLY OMITTED]
10. Confidentiality and Publicity.
(a) EI and COMPANY agree that the terms of the Non-Disclosure Agreement
executed by the parties, dated and attached hereto as Exhibit I shall be deemed
incorporated herein, and further, that all terms and conditions of this
Agreement shall be deemed Confidential Information as defined in such
Non-Disclosure Agreement.
(b) The parties acknowledge that monetary damages may not be a sufficient
remedy for unauthorized disclosure or use of Confidential Information and that
the parties may seek, without waiving any other rights or remedies, such
injunctive or equitable relief as may be deemed proper by a court of competent
jurisdiction.
(c) COMPANY shall not issue any press release or advertising concerning
COMPANY's relationship with EI and the Services hereunder, without EI' written
pre-approval.
11. Notices and Requests. All notices, authorizations, and requests in
connection with this Agreement shall be deemed given on the day they are (i)
deposited in the mail, postage prepaid, certified or registered, return receipt
requested; or (ii) sent by air courier, charges prepaid, with a confirming
telefax; or (iii) transmitted, if transmitted by facsimile, and addressed as
follows:
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Notices to COMPANY:
PEOPLESUPPORT, INC.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTN: Corporate Counsel
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Vice President of Sales
Notices to EI:
EXPEDIA, INC.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ U.S.A.
ATTN: SVP, Agency Operations
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Executive Vice President of Operations
With a copy to: General Counsel
or to such other address as the party to receive the notice or request so
designates by written notice to the other.
12. Audits and Onsite Visits. COMPANY agrees to maintain accurate and adequate
books and records related to the Services for the following period of time: (i)
for any applicable statute of limitations; (ii) for any compulsory extension or
tolling of any applicable statute of limitations; and (iii) for any reasonable
voluntary extension by EI of any statute of limitations under circumstances in
which the governmental entity could otherwise compel an extension; provided
however, that in no case will such period be less than five (5) years. EI may
audit the books and records of COMPANY relating directly to the provision of
COMPANY's performance of the Services under this Agreement and may consult with
COMPANY's accountants as is reasonable to verify COMPANY's compliance with the
terms of this Agreement. Any such audit shall be performed by an independent
auditor and shall be paid for by EI unless material discrepancies are disclosed.
"Material" shall mean a discrepancy of one percent (1%) or higher between
amounts billed to EI and COMPANY's records. If material discrepancies are
disclosed, COMPANY agrees to reimburse EI for the reasonable costs associated
with the audit. COMPANY agrees to promptly correct any deficiencies detected in
the audit and shall promptly refund or deduct from amounts payable, not to
exceed total payments outstanding at the time of the refund, any overpayments
disclosed by such an audit, except for specific past instances of non-monetary
noncompliance not capable of correction due to the passage of time. In the event
that COMPANY fails to refund any
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overpayment disclosed by the audit within thirty (30) days from the date of the
audit report, EI may, at its election, set-off any such overpayment against any
money subsequently due by EI to COMPANY. In the event the discrepancy indicates
that EI has been undercharged, COMPANY may add the additional charges to a
subsequent invoice, and EI will pay the invoice in accordance with the
provisions set forth in this Agreement. Any audit will be conducted during
COMPANY's normal business hours in such a manner as not to unreasonably
interfere with COMPANY's normal business activities. At such times, EI and its
agents shall be entitled to enter all locations of COMPANY necessary to provide
or otherwise to support or to account for the Services, to conduct the foregoing
audits, and to examine and make copies of all books and records regarding any or
all information which EI is permitted to audit hereunder.
13. Taxes.
(a) The amounts to be paid by EI to COMPANY herein do not include any
foreign, U.S. federal, state, local, municipal or other governmental taxes,
duties, levies, fees, excises or tariffs, arising as a result of or in
connection with the transactions contemplated under this Agreement including,
without limitation, (i) any state or local sales or use taxes or any value added
tax or business transfer tax now or hereafter imposed on the provision of goods
and services to EI by COMPANY under this Agreement, (ii) taxes imposed or based
on or with respect to or measured by any net or gross income or receipts of
COMPANY, (iii) any franchise taxes, taxes on doing business, gross receipts
taxes or capital stock taxes (including any minimum taxes and taxes measured by
any item of tax preference), (iv) any taxes imposed or assessed after the date
upon which this Agreement is terminated, (v) taxes based upon or imposed with
reference to COMPANY's real and/or personal property ownership and (vi) any
taxes similar to or in the nature of those taxes described in (i), (ii), (iii),
(iv) or (v) above, now or hereafter imposed on COMPANY (all such amounts,
together with any penalties, interest or any additions thereto, collectively
"Taxes"). EI is not liable for any Taxes incurred in connection with or related
to the sale of goods and services under this Agreement, and all such Taxes shall
be the financial responsibility of COMPANY, provided that EI shall pay to
COMPANY Collected Taxes as indicated below. COMPANY agrees to indemnify, defend
and hold EI harmless from any Taxes (other than Collected Taxes) or claims,
causes of action, costs (including, without limitation, reasonable attorneys'
fees) and any other liabilities of any nature whatsoever related to such Taxes.
(b) Any sales or use taxes described above that (i) are owed by EI solely
as a result of entering into this Agreement and the payment of the fees
hereunder, (ii) are required to be collected from EI by COMPANY under applicable
law, and (iii) are based solely upon the amounts payable under this Agreement
(such taxes the "Collected Taxes"), shall be stated separately as applicable on
COMPANY's invoices and shall be remitted by EI to COMPANY, whereupon COMPANY
shall remit to EI official tax receipts indicating that such Collected Taxes
have been collected by COMPANY. EI may provide to COMPANY an exemption
certificate (including without limitation a resale certificate) in which case
COMPANY shall not collect the taxes covered by such certificate. COMPANY agrees
to take such steps as are requested by EI to minimize such Collected Taxes in
accordance with all relevant laws and to cooperate with and assist EI, at EI's
request, in challenging the validity of any Collected Taxes or taxes otherwise
paid by EI. COMPANY shall indemnify and hold EI harmless from any Collected
Taxes, penalties, interest, or additions to tax arising from amounts paid by EI
to COMPANY under this Agreement, that are asserted or assessed against EI to the
extent such amounts relate to amounts that are paid to or collected by COMPANY
from EI under this section. If any taxing authority refunds any tax to COMPANY
which EI originally paid to COMPANY, or COMPANY otherwise becomes aware that any
tax was incorrectly and/or erroneously collected from EI, or COMPANY otherwise
receives an economic benefit (such as an audit offset) as the result of
incorrectly and/or erroneously receiving Collected Taxes from EI, then COMPANY
shall promptly remit to EI an amount equal to such refund, incorrect collection
or tax benefit as the case may be plus any interest thereon.
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(c) If taxes are required to be withheld on any amounts otherwise to be
paid by EI to COMPANY, EI will deduct such taxes from the amount otherwise owed
and pay them to the appropriate taxing authority. At COMPANY's written request
and expense, EI will use reasonable efforts to cooperate with and assist COMPANY
in obtaining tax certificates or other appropriate documentation evidencing such
payment, provided, however, that the responsibility for such documentation shall
remain with COMPANY.
(d) This tax section shall govern the treatment of all taxes arising as a
result of or in connection with this Agreement notwithstanding any other section
of this Agreement.
14. Limitation Of Liability. EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS
UNDER SECTION 7 AND ANY BREACH OF SECTION 10, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITIY IN CONNECTION WITH THIS
AGREEMENT FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES
WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR
REVENUE, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION,
AND THE LIKE, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR
UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO
EVENT SHALL EI BE LIABLE TO COMPANY FOR AN AMOUNT IN EXCESS OF THE TOTAL DOLLAR
AMOUNT ACTUALLY PAID BY EI TO COMPANY FROM PURSUANT TO SECTION 2 HEREOF. IN NO
EVENT WILL COMPANY'S AGGREGATE, CUMULATIVE LIABILITY FOR ANY DAMAGES HEREUNDER
EXCEED THE AGGREGATE OF FEES PAID BY EI HEREUNDER FOR THE SERVICES PROVIDED
DURING THE TWELVE (12) MONTH PERIOD THAT IMMEDIATELY PRECEDES THE ACT WHICH GAVE
RISE TO THE CLAIM, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT,
NEGLIGENCE, STRICT LIABILITY, TORT, PRODUCTS LIABILITY OR OTHERWISE.
15. General.
(a) This Agreement shall be construed and controlled by the laws of the
State of Washington. In the event that COMPANY brings a legal action against EI,
EI consents to jurisdiction and venue in the state and federal courts sitting in
the State of California. In the event that EI brings a legal action against
COMPANY, COMPANY consents to jurisdiction and venue in the state and federal
courts sitting in the State of Washington. Process may be served on either party
by US Mail, postage prepaid, certified or registered, return receipt requested,
or by such other method as is authorized by law.
(b) Neither this Agreement, nor any terms or conditions contained herein,
shall be construed as creating a partnership, joint venture, agency relationship
or franchise. COMPANY is an independent contractor for EI. COMPANY will employ
its own employees in order to perform and satisfy its obligations under this
Agreement. Nothing in this Agreement shall be construed as creating an
employer-employee relationship, as a guarantee of future employment. COMPANY
further agrees to be solely responsible for, and to indemnify and hold EI
harmless against any
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and all federal and state taxes, tax withholding, social security, unemployment
insurance, and other taxes and benefits resulting from COMPANY's relationship
with its employees and independent contractors.
(c) This Agreement, including all Exhibits attached hereto, constitutes
the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior and contemporaneous agreements or communications
with respect to the subject matter hereof, with the exception of the
Non-Disclosure Agreement between the parties referenced herein. This Agreement
shall not be modified except by a written agreement dated subsequent to the date
of this Agreement and signed on behalf of COMPANY and EI by their respective
duly authorized representatives.
(d) No waiver of any breach of any provision of this Agreement shall
constitute a waiver of any prior, concurrent, or subsequent breach of the same
or any other provisions hereof, and no waiver shall be effective unless made in
writing and signed by an authorized representative of the waiving party.
(e) If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid, or unenforceable, the remaining
provisions shall remain in full force and effect.
(f) The rights and obligations hereunder shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto, provided any
rights or obligations hereunder shall not be assigned by COMPANY without the
prior written consent of EI. Notwithstanding the foregoing, if COMPANY is
reorganized into another form of entity with the effect that the new entity owns
substantially all of the current assets and business of COMPANY and that the new
entity is controlled by the same person(s) as currently control COMPANY, this
Agreement may be assigned to such new entity without prior written consent of
EI.
(g) In any suit or action to enforce any right or remedy under this
Agreement or to interpret any provision of this Agreement, the prevailing party
will be entitled to recover its costs, including reasonable attorneys' fees.
(h) The section headings herein are for the convenience of the parties and
shall not be deemed to supersede or modify any provisions.
(i) If either party is unable to perform under this Agreement due to
circumstances or causes beyond its control, and which could not by reasonable
diligence have been avoided, such party shall have the option, without
liability, of suspending performance of its obligations under this Agreement for
the duration of such contingency upon written notice to the other party.
However, either party may terminate this Agreement upon written notice to the
other party in the event that such other party has suspended performance of its
obligations under this Agreement for more than thirty (30) days.
(k) This Agreement does not constitute an offer by EI and shall not be
effective until signed by both parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date last written below.
EXPEDIA, INC. PEOPLESUPPORT, INC.
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
/s/ /s/
---------------------------- -------------------------
By By
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------- -------------------------
Name (print) Name (print)
SVP, Agency Operations CEO
---------------------------- -------------------------
Title Title
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EXHIBIT A - SERVICES
1. COMPANY will provide the following Services to Expedia customers:
SERVICE DESCRIPTION
***
2. COMPANY will provide the following Implementation Services to EI:
- COMPANY coordinate relevant Expedia information and oversee the
other Implementation Services;
- COMPANY will provide the assistance described herein to EI in
developing a training manual and training materials relating to EI's
products and services, EI's marketing procedures, and Expedia;
- COMPANY will prepare a Implementation Plan that will include, but
not be limited to, a proposed time schedule for the task items that
need to be completed to enable COMPANY to launch the Services
described above and in the Agreement, and will detail the scope of
work, services, resource requirements and tools required for
implementation.
- COMPANY will provide EI with access to the COMPANY Intellectual
Property.
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***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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EXHIBIT B - EI DELIVERABLES
1. EI will provide the following services to assist COMPANY in providing the
Services under this Agreement:
(a) Train-the-trainer training on the Expedia User Management Tools, if
any are provided to COMPANY, Call tracking methodology and concomitant
technology, and EI's policies and procedures, and on the goods and services
provided on or through Expedia. EI will assemble and create training materials
and provide all materials and information necessary to provide the training of
COMPANY employees contemplated herein.
(b) EI will provide COMPANY with web based *** as needed.
(c) EI will provide COMPANY with the following:
***
2. COMPANY agrees that during the term of this Agreement, COMPANY will not
provide service to non-EI business or companies via ***, or other
telecommunications and application/system hardware and/or software.
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***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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EXHIBIT C - SERVICE PROCESS REQUIREMENTS
1. Customer Service: COMPANY shall provide, maintain and staff the Facilities.
COMPANY will provide *** this service professionally and as detailed under this
Exhibit C and a detailed implementation plan, attached hereto. COMPANY will
adopt as required, EI contact handling and escalation procedures as provided by
EI.
2. ***
3. ***
4. Service Performance Measurements: COMPANY will staff to meet or exceed the
monthly Service Performance Measurements set forth below ("SPM").
(a) *** the parties shall review the then current Service Performance
Measurement ("SPM") standards, scoring and weighting and discuss whether any
changes to them should be made. In the event that the parties do not reach
agreement regarding new SPMs or agree that no changes are warranted, the parties
agree that the then current SPMs shall continue in full force and effect *** If
during the measuring period of the SPMs, events outside of the control of
COMPANY occur, the parties agree to take into consideration the impact of such
events on COMPANY's ability to perform in accordance with the SPMs and make
appropriate adjustments, if any.
SPM GOALS: The SPM Goals *** from the Effective Date through the end of the term
of this Agreement, are set forth below.
***
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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(b) *** each calendar month (the "Delivery Date"), EI shall provide COMPANY with
a report forecasting the volume of *** EI will use reasonable efforts to provide
COMPANY with a report breaking such forecast into *** In the event Expedia does
not provide COMPANY with a forecast for a particular calendar month, then the
*** remains in effect; provided, however, if there is no forecast in effect,
then the forecast shall be deemed to be the ***
***
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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5. Monitoring and Coaching: COMPANY will perform extensive monitoring and
coaching to its phone agents, email representatives, etc. At EI's discretion,
COMPANY will make available to EI ***
6. Response Times to EI: COMPANY will establish and provide EI with a means of
contacting COMPANY *** in the event that EI, in its sole discretion, determines
that matters are urgent and that contact with COMPANY *** is necessary.
Upon COMPANY's receipt of a priority problem report from EI, COMPANY shall take
corrective action so as to respond to EI with regard to the reported problem
within the following time schedule:
***
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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EXHIBIT D - PAYMENTS
Components of COMPANY Compensation: EI will compensate COMPANY for providing the
Services, including those set forth in Exhibit A, as follows:
1. SERVICE FEES:
(a) *** Handling: EI will pay COMPANY fees for the Services in accordance
with the prices set forth in Table I below ***
(b) *** Handling: *** EI will pay COMPANY fees for the Services in
accordance with the prices set forth in Table II below ***
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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TABLE I:
***
TABLE II:
***
(c) "Service Fee" as used herein shall include payment for the following
services: *** The parties may mutually agree to include other services within
this definition of Service Fee.
(d) The Overall Monthly Service Fee is comprised of two (2) components,
one (1) for *** Handling, and one (1) for *** Handling.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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(e) The parties will actively work together to analyze *** cases ***, with
the overall goal to reduce the number of *** cases.
2. *** FEES:
COMPANY agrees to offer and assist *** with the purchase of additional ***
products *** EI will pay COMPANY fees for the *** Services in accordance with
the prices set forth in Table III below.
TABLE III:
***
3. TRAINING:
COMPANY agrees, *** to provide *** new EI specific information classroom
training. In the event COMPANY determines that additional training is needed ***
COMPANY shall provide to EI, for review and approval, a proposed training plan,
*** EI may request that COMPANY provide specific training in addition to the ***
("Expedia Training Request"). Upon receipt of an EI Training Request, COMPANY
will evaluate the EI Training Request and provide a written proposal to EI ***
EI agrees to pay COMPANY *** for any training provided by COMPANY under an
approved COMPANY Training Request, or an approved EI Training Request.
4. PROFESSIONAL SERVICES:
In the event that EI requests "Professional Services," COMPANY shall
provide such services at the rate set forth below for each indicated task
classification. For the purposes of this Agreement, "Professional Services"
means *** All Professional Services work must be pre-approved by EI.
***
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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5. ***
6. ***
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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***
7. COSTS:
(a) EI shall bear the costs for the following items in connection with the
Services ("EI Costs"):
***
(b) COMPANY shall bear the costs for the following items in connection
with the Services ("COMPANY Costs"):
***
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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EXHIBIT E - EI POLICIES
INTRODUCTION
The following code of conduct is not a contract. It is intended solely to
provide general guidance to vendors and their representatives to assist them in
functioning smoothly and efficiently while performing work for EI.
EI is committed to promoting a positive work environment. We expect our vendors
and their employees, agents, and subcontractors (collectively,
"representatives") to adhere to the same standards of conduct and behavior that
we expect from our own employees while you and your representatives are on EI
property or doing business with EI.
The information outlined below is important and should be read carefully. All
third party vendors will be required to educate and, when appropriate, train
their representatives to ensure they are aware of EI's expectations regarding
their behavior and the consequences of any breaches of EI policies.
The policies summarized below are non-exhaustive, and there may be other conduct
not specifically listed that would be unacceptable. EI expects that vendors and
their representatives will conduct themselves in a professional manner at all
times while on EI property or while doing business with EI. EI may require the
immediate removal of any vendor representative who behaves in a manner that is
unlawful or inconsistent with any EI policy, or that is otherwise deemed harmful
to EI's business.
E-MAIL
Electronic mail, or e-mail, provides an easy-to-use, efficient means of
communicating. The following guidelines for preparing and sending e-mail are
designed to ensure that each vendor and its representatives use the e-mail
system in an appropriate manner.
E-mail may not be used as a forum for political, religious, or other debates, or
as a form of entertainment (for example, chain letters). Use of e-mail must be
limited to EI business. All e-mail group aliases (a pre-defined group of users)
must be for EI's business.
To informally exchange information over the computer on a variety of topics, use
the Bulletin Board system.
EI e-mail names are confidential. Do not give e-mail names to anyone outside of
EI. Do not share your password with anyone, attempt to gain access to anyone
else's e-mail account, or use another's email account without permission.
EI prohibits obscene, profane, or otherwise offensive material from being
broadcast across the EI network.
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NON-SOLICITATION POLICY
EI wants to provide a work environment that allows all employees, and all
vendors and their representatives to complete their tasks with the least amount
of disruption. Accordingly, vendors, their representatives, and any other non-EI
employees are not allowed (while on EI property or while using EI owned
equipment) to engage in solicitation or distribution of literature. This policy
prohibits soliciting or handing out materials for any purpose.
COMPANY ACCESS TO INFORMATION AND PROPERTY
E-mail and its contents, as well as any other data stored on or transmitted by
EI-owned equipment, is the property of EI and may be accessed by EI at any time.
Accordingly, the content of e-mail, voice mail, and similar data should not be
regarded as protected by any personal right of privacy.
Additionally, in order to evaluate and improve customer service, EI may monitor,
as necessary, the telephone calls of vendors and their representatives who work
in customer service positions.
Any facilities or equipment, including but not limited to offices, desks,
computers, electronic media, motor vehicles, or lockers used by vendors and
their representatives while on EI property or while conducting EI related
business, may be accessed by EI as needed. Accordingly, you should not consider
protected by any personal right of privacy anything brought onto or stored on EI
property stored on EI equipment, or used while working on EI related business.
Any EI property used by vendors and their representatives while performing EI
related business remains the property of EI.
GIFTS
EI employees cannot accept payments of any amount or gifts or favors valued in
excess of $100 from persons or firms with which we have business dealings,
unless prior approval is obtained from a vice president or more senior company
official. Accordingly, you and your representatives should refrain from giving
to EI employees gifts with a value of more than $100.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
All EI employees, agency temporaries, independent contractors, and vendor
representatives are considered "insiders" for the purposes of state or federal
securities laws that prohibit ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. As an insider, no vendor nor
vendor representative may buy or sell EI's or another company's stock when in
possession of information about EI or another company that is not available to
the investing public and that could influence an investor's decision to buy
stock.
New insider-trading laws carry stiff penalties, and the Securities and Exchange
Commission (SEC) has a mandate to enforce these laws aggressively. EI can be
negatively affected by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and may terminate the services of, or
refuse to do further business with, anyone found to have engaged in illegal
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
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CONFIDENTIALITY
All information supplied by EI to vendors and their representatives should be
regarded as confidential unless otherwise notified. Vendors and their
representatives are not authorized to speak to the press on EI's behalf, unless
being expressly authorized to do so by EI. Prior to performing any work for EI,
all vendors will be required to sign a contract that includes a nondisclosure
agreement.
VENDOR STANDARDS
EI expects its chosen vendors to operate in the best interest of the company at
all times. It is expected that all equipment, manpower and services will be
provided at the highest quality level while maintaining flexibility and cost
effectiveness.
It is the responsibility of the vendor to inform its EI contact (or a member of
EI management) when situations develop that require the vendor to operate in
direct violation of the guidelines set forth in this document.
Additionally, in the event a EI employee has a relationship (spouse or other
family relation, friend, domestic partner, etc.) with a vendor that might create
a conflict of interest or the appearance of a conflict of interest, EI senior
management approval is required prior to contracting for the services of said
vendor.
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EXHIBIT F - COMPANY DELIVERABLES
In addition to the Services to be provided by COMPANY pursuant to Exhibit A of
this Agreement, COMPANY shall provide the following:
1. Maintenance of CRS equipment;
2. ACD phone prompting and reporting (EI reserves the right to assume this
responsibility), including Call overflow capabilities to auxiliary facilities;
3. Reporting systems sufficient to provide reports as set forth in this
Agreement and otherwise to provide the Services as set forth in this Agreement;
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EXHIBIT G - COMPANY REPORTING REQUIREMENTS
COMPANY shall provide EI with data and reporting as specified below. COMPANY
agrees to provide *** prior to implementation as requested by EI. ***
1. *** Data. COMPANY shall archive *** statistics *** The *** reports shall be
made available to EI *** in a format approved by EI.
*** summary will include the following with *** totals:
- *** (subject to the availability of data in *** system)
- *** (subject to the availability of data in *** system)
- *** (measured in fractions of hours) (subject to the availability of
data in *** system)
- ***
- *** seconds
- *** (measured in seconds)
- *** seconds
- *** (per 24 hour period)
- *** minutes handled per *** hour period
- *** minutes handled per *** hour period (subject to the availability
of data in *** system)
2. COMPANY shall archive *** statistics. The *** archive data will be made
available to EI within *** from the end of each ***, per an electronic file
format to be approved by EI.
*** summary will include the following with *** totals:
- *** (subject to the availability of data in *** system)
- *** (subject to the availability of data in *** system)
- *** (measured in fractions of hours) (subject to the availability of
data in *** system)
- ***
- *** seconds
- *** (measured in seconds)
- *** seconds
- *** minutes handled
- *** minutes handled (subject to the availability of data in ***
system)
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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3. Incident Reports. All *** generated by COMPANY, will be *** using a *** to be
provided by EI. On an exception basis, EI may require COMPANY to *** types. Such
information may include, but not be limited to, *** description.
4. Business Reviews. COMPANY shall organize and present *** business reviews for
EI. The agenda and expectations will be based on input from EI. In general,
these meetings will include a *** At a minimum, COMPANY shall include:
***
EI REPORT OBLIGATIONS
EI will provide COMPANY with the following reports. Additional reports may be
requested by COMPANY and will be jointly developed by COMPANY and EI.
***CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY FILED WITH THE COMMISSION.
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EXHIBIT H - RULES FOR USE OF EI NAME
COMPANY's use of EI's name pursuant to the provisions of Section 3(a) of
the Agreement is further conditioned upon the following restrictions:
(1) RESTRICTED USE OF ▇▇▇▇. COMPANY is not entitled to use the name
"Expedia" on, without limitation, signage, letterhead, business cards, in
advertising, telephone directory listings, invoices or on any other materials
connected to COMPANY's business and business practices, except for those
materials designed and approved by EI. COMPANY is not entitled either by
implication or otherwise to any title in the EI trademarks, service marks, trade
names, logos or symbols. COMPANY agrees to comply with guidelines for use of the
name "Expedia" as may be prescribed by EI from time to time. COMPANY agrees not
to form a company, commercial organization, firm or legal entity with a name
incorporating as part of its name the word "Expedia" or any similar word and not
to apply for any registration of or to claim any rights in the word "Expedia" or
any similar word as a trade name, trademark or service ▇▇▇▇.
(2) QUALITY REQUIREMENTS. COMPANY agrees that use of EI's name for
answering incoming telephone calls from, making outbound callbacks to, and
providing travel documents to Expedia customers pursuant to providing Services,
as permitted under the Agreement will be at the same level of quality previously
established by and as prescribed from time to time by EI and will be at least
commensurate with industry standards.
(3) RESERVATION OF RIGHTS. All rights not expressly granted are reserved
by EI.
(4) NO PREJUDICE OF RIGHTS. COMPANY agrees not to take any action or fail
to take action which would prejudice the rights of EI in the name "Expedia" or
any other trademark, service ▇▇▇▇, logo, trade name or symbol of Expedia, Inc.
(5) PROTECTION OF TRADEMARKS, SERVICE MARKS, LOGOS AND TRADE NAMES.
COMPANY agrees to report to EI, as soon as possible after it comes to COMPANY's
notice, any suspected infringement or disparaging use of the "Expedia" trade
name or any trade name, trademark, service ▇▇▇▇, logo, or symbol owned by EI.
(6) MISUSE. This Agreement may be terminated immediately if COMPANY
misuses (including, but not limited to, infringement, disparagement and
dilution) the name Expedia or any other trademark, service ▇▇▇▇, logo, trade
name or symbol of EI.
(7) NO FURTHER CONVEYANCES. COMPANY shall not assign, transfer or
sublicense the rights granted in the Agreement or this Exhibit H (or any right
granted herein) in any manner, except as specifically provided in this
Agreement.
-H1-
Expedia Confidential
EXHIBIT I - NON-DISCLOSURE AGREEMENT BETWEEN THE PARTIES
[COPY OF EXISTING AGREEMENT TO BE ATTACHED TO FINAL AGREEMENT.]
-I1-
Expedia Confidential
EXHIBIT J - CERTIFICATE OF INSURANCE
[COMPANY TO PROVIDE CERTIFICATE OF INSURANCE TO BE ATTACHED TO FINAL AGREEMENT.]
Expedia Confidential
-J1-
EXHIBIT K - EMPLOYEE NON-DISCLOSURE AGREEMENT FORM
PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by
PEOPLESUPPORT, INC. (the "Company"), and the compensation now and hereafter paid
to me, I hereby agree as follows:
1. Recognition of Company's Rights; Nondisclosure. At all times during the
term of my employment and thereafter, I will hold in strictest confidence and
will not disclose, use, or publish any of the Company's Proprietary Information
(defined below), except as required in connection with my work for the Company,
or unless approved in writing by an officer of the Company. I hereby assign to
the Company any rights I may have or acquire in such Proprietary Information and
recognize that all Proprietary Information shall be the sole property of the
Company and its assigns and that the Company and its assigns shall be the sole
owner of all patent rights, copyrights, mask work rights, trade secret rights
and all other rights throughout the world (collectively, "Proprietary Rights")
in connection therewith. As used in this Agreement, the period of my employment
includes any time during which I may be retained by the Company as a consultant.
The term "Proprietary Information" shall mean trade secrets, confidential
knowledge, data or any other proprietary information of the Company and each
subsidiary of the Company. By way of illustration but not limitation,
"Proprietary Information" includes (a) inventions, mask works, trade secrets,
ideas, processes, formulas, source and object codes, data, programs, other works
of authorship, know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "Inventions"); (b)
information regarding plans for research, development, new products, marketing
and selling, business plans, budgets and unpublished financial licenses, prices
and costs, suppliers and customers; and (c) information regarding the skills and
compensation of other employees of the Company, its subsidiaries and affiliates.
2. Third Party Information. I understand that the Company has received and
in the future will receive from third parties confidential or proprietary
information ("Third Party Information") which the Company is required to keep
confidential and use only for certain limited purposes. During the term of my
employment and thereafter, I will hold Third Party Information in the strictest
confidence and will not disclose (to anyone other than Company personnel who
need to know such information in connection with their work for the Company) or
use, except in connection with my work for the Company, Third Party Information
unless authorized in writing by an officer of the Company.
3. Assignment of Inventions.
(a) I hereby assign to the Company all my right, title and interest in and
to any and all Inventions (and all Proprietary Rights with respect thereto)
whether or not patentable or registrable under copyright or similar statutes,
made or conceived or reduced to practice or learned by me, either alone or
jointly with others, during the period of my employment with the Company. I
recognize that this Agreement does not require assignment of any invention which
qualifies fully for protection under Section 2870 of the California Labor Code
(hereinafter "Section 2870"), which provides as follows:
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Expedia Confidential
(i) Any provision in an employment agreement which provides
that an employee shall assign, or offer to assign, any of his or her
rights in an invention to his or her employer shall not apply to an
invention that the employee developed entirely on his or her own
time without using the employer's equipment, supplies, facilities,
or trade secret information except for those inventions that either:
(A) Relate at the time of conception or reduction to practice
of the invention to the employer's business, or actual or
demonstrably anticipated research or development of the employer.
(B) Result from any work performed by the employee for the
employer.
(ii) To the extent a provision in an employment agreement
purports to require an employee to assign an invention otherwise
excluded from being required to be assigned under subdivision i.,
the provision is against the public policy of this state and is
unenforceable.
(b) I also assign to or as directed by the Company all my right, title and
interest in and to any and all Inventions, full title to which is required to be
in the United States by a contract between the Company and the United States or
any of its agencies.
(c) I acknowledge that all original works of authorship which are made by
me (solely or jointly with others) within the scope of my employment and which
are protectable by copyright are "works made for hire," as that term is defined
in the United States Copyright Act (17 U.S.C., Section 101). Inventions assigned
to or as directed by the Company by this paragraph 3 are hereinafter referred to
as "Company Inventions."
4. Enforcement of Proprietary Rights. I will assist the Company in every
proper way to obtain and from time to time enforce United States and foreign
Proprietary Rights relating to Company Inventions in any and all countries. I
will execute, verify and deliver such documents and perform such other acts
(including appearances as a witness) as the Company may reasonably request for
use in applying for, obtaining, perfecting and enforcing such Proprietary Rights
and the assignment thereof. In addition, I will execute, verify and deliver
assignments of such Proprietary Rights to the Company or its designee. My
obligation to assist the Company with respect to Proprietary Rights will survive
the termination of my employment, but the Company will compensate me at a
reasonable rate after my termination for my time actually spent at the Company's
request on such assistance.
If the Company is unable for any reason, after reasonable effort, to
secure my signature on any document as described in the preceding paragraph, I
hereby irrevocably designate and appoint the Company and its duly authorized
officers and agents as my agent and attorney in fact, to act on my behalf to
execute, verify and file any such documents and to do all other lawfully
permitted acts to further the purposes of the preceding paragraph, with the same
legal force and effect as if executed by me. I hereby waive and quitclaim to the
Company any and all claims which I now or may hereafter have for infringement of
any Proprietary Rights assigned hereunder to the Company.
5. Obligation To Keep Company Informed. During my employment, I will
promptly disclose to the Company fully and in writing and will hold in trust for
the sole right and benefit of the Company any and all Inventions. After
termination of my employment, I will disclose all patent applications filed by
me within a year after termination of employment. At the time of each such
disclosure, I will advise the Company in writing of any Inventions that I
believe fully qualify for protection under Section 2870; and I will provide to
the Company in writing all evidence
-K2-
Expedia Confidential
necessary to substantiate that belief. I understand that the Company will keep
in confidence and will not disclose to third parties without my consent any
proprietary information disclosed in writing to the Company pursuant to this
Agreement relating to Inventions that qualify fully for protection under the
provisions of Section 2870.
6. Prior Inventions. Any Inventions which I made prior to my employment
with the Company are excluded from the scope of this Agreement. To avoid any
uncertainty, I have set forth on Exhibit A a complete list of all Inventions
that I have, alone or jointly with others, conceived, developed or reduced to
practice prior to my employment with the Company, that I consider to be my
property or the property of third parties and that I wish to exclude from the
scope of this Agreement. If disclosure of any such Invention on Exhibit A would
cause me to violate any prior confidentiality agreement, I understand that I am
not to list such Inventions in Exhibit A but am to indicate on Exhibit A that
all Inventions have not been listed for that reason.
7. Additional Activities. I agree that during my employment by the Company
I will not, without the Company's express written consent, engage in any
employment or business activity other than for the Company, and for the period
of my employment by the Company and for one year after the date of termination
of my employment by the Company I will not (i) induce any employee of the
Company to leave the employ of the Company or (ii) solicit the business of any
client or customer of the Company (other than on behalf of the Company).
8. No Improper Use of Materials. During my employment by the Company I
will not improperly use or disclose any confidential information or trade
secrets, if any, of any former employer or any other person to whom I have an
obligation of confidentiality, and I will not bring onto the premises of the
Company any unpublished documents or any property belonging to any former
employer or any other person to whom I have an obligation of confidentiality
unless consented to in writing by that former employer or person.
9. No Conflicting Obligation. I represent that my performance of all the
terms of this Agreement does not and will not breach any agreement to keep in
confidence information acquired by me in confidence or in trust prior to my
employment by the Company. I have not entered into, and I agree I will not enter
into, any agreement either written or oral in conflict herewith.
10. Return of Company Documents. When I leave the employ of the Company, I
will deliver to the Company all drawings, notes, memoranda, specifications,
devices, formulas and documents, together with all copies thereof, and any other
material containing or disclosing any Company Inventions, Third Party
Information or Proprietary Information of the Company. I agree that any property
on the Company's premises and owned by the Company, including disks and other
storage media, filing cabinets or other work areas, is subject to inspection by
Company personnel at any time with or without notice. Prior to leaving, I will
cooperate with the Company in completing and signing the Company's termination
statement for technical and management personnel.
11. Legal and Equitable Remedies. Because my services are personal and
unique and because I may have access to and become acquainted with the
Proprietary Information of the Company, the Company will have the right to
enforce any provision of this Agreement by injunction, specific performance or
other equitable relief, without prejudice to any other rights and remedies that
the Company may have for a breach of this Agreement.
12. Notices. Any notices required or permitted hereunder shall be given to
the appropriate party at the address specified below or at such other address as
the party shall specify in writing. Such notice shall be deemed given
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Expedia Confidential
upon personal delivery to the appropriate address or if sent by certified or
registered mail, three days after the date of mailing, or if sent by nationally
recognized courier, one day after the date of delivery to such courier.
13. General Provisions.
13.1 Governing Law. This Agreement will be governed by and construed
according to the laws of the State of California.
13.2 Entire Agreement. This Agreement sets forth the entire agreement and
understanding between the Company and me relating to the subject matter hereof
and supersedes all prior discussions between us. No modification of or amendment
to this Agreement or waiver of any rights under this Agreement will be effective
unless in writing signed by me and the Chief Executive Officer or General
Counsel of the Company.
13.3 Severability. If one or more of the provisions in this Agreement are
deemed unenforceable by law, then the remaining provisions will continue in full
force and effect.
13.4 Successors and Assigns. This Agreement will be binding upon my heirs,
executors, administrators and other legal representatives and will be for the
benefit of the Company, its successors and its assigns.
13.5 Survival. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
13.6 Employment. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by the
Company.
13.7 Waiver. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right.
This Agreement shall be effective as of the first day of my employment
with the Company, namely: ____________, 20__.
I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHTS TO INVENTIONS I MAKE
DURING MY EMPLOYMENT, AND RESTRICTS MY RIGHT TO DISCLOSE OR USE THE COMPANY'S
PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO MY EMPLOYMENT.
-K4-
Expedia Confidential
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY FILLED OUT EXHIBIT A TO THIS AGREEMENT.
Dated: _______________, 20__.
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Print Name
Address:
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ACCEPTED AND AGREED TO:
PEOPLESUPPORT, INC.
By
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-K5-
Expedia Confidential
EXHIBIT A
PeopleSupport, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. The following is a complete list of all inventions or improvements
relevant to the subject matter of my employment by PeopleSupport, Inc. (the
"Company") that have been made or conceived or first reduced to practice by me
alone or jointly with others prior to my engagement by the Company:
[ ] No inventions or improvements.
[ ] See below:
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[ ] Due to confidentiality agreements with a prior employer, I cannot disclose
certain inventions that would otherwise be included on the above-described
list.
[ ] Additional sheets attached.
2. I propose to bring to my employment the following devices, materials
and documents of a former employer or other person to whom I have an obligation
of confidentiality that are not generally available to the public, which
materials and documents may be used in my employment pursuant to the express
written authorization of my former employer or such other person (a copy of
which is attached hereto):
[ ] No materials.
[ ] See below:
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[ ] Additional sheets attached.
Dated: ______ __, 20__.
Very truly yours,
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Name