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EXHIBIT 10.22
WORLDTRAVEL TECHNOLOGIES LLC
and
FORTDOVE LIMITED
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RECIPROCAL SOFTWARE DEVELOPMENT AGREEMENT
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▇▇▇▇▇▇▇▇ CHANCE
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS....................................................................................
2. DEVELOPMENT SERVICES TO BE PROVIDED BY DEVELOPER...............................................
3. IMPLEMENTATION AND ACCEPTANCE OF DESIGN SPECIFICATIONS AND CUSTOM SOFTWARE.....................
4. PROJECT MANAGEMENT; DELIVERY...................................................................
5. PERFORMANCE....................................................................................
6. ACCEPTANCE TESTING.............................................................................
7. BETA TESTING...................................................................................
8. PRICE AND PAYMENT..............................................................................
9. WARRANTIES AND REPRESENTATIONS.................................................................
10. CONFIDENTIALITY................................................................................
11. OWNERSHIP......................................................................................
12. INDEMNITY......................................................................................
13. GENERAL INDEMNITY..............................................................................
14. TERM AND TERMINATION...........................................................................
15. JOINT OVERSIGHT COMMITTEE......................................................................
16. DISPUTE RESOLUTION.............................................................................
17. FORCE MAJEURE..................................................................................
18. NON-SOLICITATION...............................................................................
19. MISCELLANEOUS..................................................................................
20. COUNTERPARTS...................................................................................
SCHEDULE 1 DELIVERY ORDER # ................................................................
SCHEDULE 2 CHANGE ORDER PROCEDURE...........................................................
(i)
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THIS AGREEMENT is made on 2000
BETWEEN:
WORLDTRAVEL TECHNOLOGIES LLC, a company formed under the laws of Georgia, whose
principal place of business is at ▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇ ("WTT" or "Client/Developer", as the case may be;); and
FORTDOVE LIMITED, a company incorporated in England and Wales (registered no.
3841799), whose registered office is at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇ ("NEWCO" or "Client/Developer", as the case may be;)
WHEREAS:
(A) ▇▇▇▇ ▇▇▇▇▇▇▇▇, WTT and WTT's sole parent company WTT Inc have entered
into the Shareholders Agreement (as defined below);
(B) WTT and NEWCO wish to enter an agreement for the provision by either
party of certain software development services to the other in order
that each party may provide technical travel services and grant
sublicences of custom software to its customers.
1. DEFINITIONS
1.1 In this Agreement:
"ACCEPTANCE" means the satisfactory completion of Alpha Testing and
Beta Tests under Clauses 6 and 7;
"APPLICATION SOFTWARE means the software modules or components which
perform the functions and comply with the proposal and specifications
identified or set forth in the Design Specifications. Each Application
Software module or component, specification and proposal included or
referred to in the Design Specifications is expressly incorporated
herein by reference. The Application Software shall be delivered in
machine readable object code form
"ACCEPTANCE TESTS" are the acceptance test provisions of any Design
Specifications, the satisfactory completion of which shall also be
specified as Milestones;
"CLIENT" means the Party to this Agreement which is commissioning
development work from the Developer;
"CUSTOM SOFTWARE" shall mean the Application Software and the
Documentation;
"CUSTOMER" means an undertaking to whom a party, on any date, is
supplying (or in the preceding (12) months has supplied) goods or
services;
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"DELIVERY ORDER" is an order in the form of Schedule 1 submitted by
Client and ultimately signed by both parties under which Client and
Developer agree the additional terms on which work will be carried out
and the detail of the work to be performed;
"DESIGN SPECIFICATIONS" means, at a minimum, system flow charts,
program descriptions, file layouts, database structures, report layouts
and screen layouts, interface requirements and layouts, conversion
requirements and layouts, refined equipment requirements, acceptance
criteria and acceptance test scripts for improvements or enhancements
to the Licensed Products or for new products related to the Licensed
Products.
"DEVELOPER" means the party carrying out the development under this
Agreement;
"DOCUMENTATION" shall mean all operator and user manuals, training
materials, guides, listings, specifications and other materials
necessary for the complete understanding and use of the functionality
of the Application Software, including materials useful for design
(e.g., logic manuals, flow diagrams and principles of operation) and
machine-readable text of graphic files subject to display or print-out;
"EFFECTIVE DATE" means the date hereof, unless otherwise agreed in
writing between the parties;
"END USER LICENCE" means a licence of any Custom Software to an end
user Customer of Client, in the form attached as a Schedule to the
Software Licence Agreement;
"INTELLECTUAL PROPERTY" means all letters patent, trade marks and
service marks, registered designs, utility models, applications for any
of the foregoing and the right to apply therefor in any part of the
world; design rights, copyrights, topography rights, brand names, trade
names, logos and business names and all or any similar or equivalent
rights arising or subsisting in any country in the world;
"NEWCO PROJECT CO-ORDINATOR" means the person from time to time
assigned by NEWCO to co-ordinate NEWCO's involvement in the work
performed hereunder and whose name shall be notified to WTT by NEWCO;
"IMPLEMENTATION SCHEDULE" means the Custom Software implementation
schedule in any Delivery Order;
"INTELLECTUAL PROPERTY RIGHTS" means any intellectual property rights
anywhere in the world whether registrable or not, including, without
limitation, patent, trade marks, service marks, trade names, business
names, designs, copyright and related rights, topography rights,
know-how as well as applications for such rights;
"JOC" means the joint oversight committee as defined in Clause 15;
"JOC MEMBER" means a member of the JOC;
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"LICENSED PRODUCTS" shall mean those products listed in Schedule A of
the Software Licence Agreement;
"MANAGEMENT REPRESENTATIVES" means the persons nominated to represent
each party from time to time and initially as set out in Clause 15;
"MILESTONE" means a progress milestone referred to in any
Implementation Schedule;
"PERMITTED SUBLICENSEE" means a party who is a Customer of Client and
who has signed an End User Licence with Client;
"PROJECT" means any project for the development and delivery of Custom
Software under this Agreement.
"SHAREHOLDERS AGREEMENT" means the Shareholders Agreement of on or
about even date entered into between WTT Inc, WTT, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and
NEWCO for the establishment and operation of NEWCO as a joint venture
company;
"SOFTWARE DEVELOPMENT AGREEMENT" means this Agreement;
"SOFTWARE LICENCE AGREEMENT" means the agreement of on or about even
date between WTT 2 and NEWCO in terms of which WTT 2 licenses to NEWCO
the Licensed Products (as defined herein) on the terms and conditions
therein;
"SUPPORT AND MAINTENANCE AGREEMENT" means an agreement between Client
and a Permitted Sub-licensee in the form attached at Schedule B to the
Software Licence Agreement;
"TERM" means the term of this Agreement as set out in Clause 14.
"WTT INC" means WT Technologies Inc, a company formed under the laws of
Georgia, whose principal place of business is at ▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇;
"WTT PROJECT CO-ORDINATOR" means the person from time to time assigned
by WTT to supervise the performance of any work hereunder and whose name
shall be notified to NEWCO;
"WTT 2" means Technology Licensing Company, LLC, a company formed under
the laws of Georgia, whose principal place of business is at ▇ ▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇;
1.2 In this Agreement, a reference to:
1.2.1 a "SUBSIDIARY" or "HOLDING COMPANY" is to be construed in
accordance with Section 736 of the UK Companies ▇▇▇ ▇▇▇▇ and a
"SUBSIDIARY UNDERTAKING" or
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"PARENT UNDERTAKING" is to be construed in accordance with
Section 258 of the UK Companies ▇▇▇ ▇▇▇▇;
1.2.2 a statutory provision includes a reference to the statutory
provision as modified or re-enacted or both from time to time
before the date of this Agreement and any subordinate
legislation made or other thing done under the statutory
provisions before the date of this Agreement;
1.2.3 a document is a reference to that document as modified from
time to time;
1.2.4 a person includes a reference to a government, state, state
agency, corporation, body corporate, association or
partnership;
1.2.5 a person includes a reference to that person's legal personal
representatives, successors and permitted assigns;
1.2.6 the singular includes the plural and vice versa unless the
context otherwise requires;
1.2.7 a clause or schedule, unless the context otherwise requires,
is a reference to a clause or a schedule of this Agreement.
1.3 The headings in this Agreement do not affect its interpretation.
2. DEVELOPMENT SERVICES TO BE PROVIDED BY DEVELOPER
2.1 Where Client wishes to enter an agreement for the provision of any
Custom Software related to Licensed Products, Developer shall have the
right of first refusal to perform any work required on such a Project.
Developer is not obligated to bid on development of Client-specific,
Customer-specific, or non-generic products;
2.2 Client shall deliver a Delivery Order for each Project to Developer. If
Developer wishes to perform the work as set out in the Delivery Order,
Developer shall countersign the Delivery Order and send it to Client to
be received by Client within a reasonable period from receipt of the
original Delivery Order by Developer. The Delivery Order shall include
an Implementation Schedule, and may be varied by written agreement
between the parties to reflect the terms on which the parties agree
Developer shall undertake the work.
2.3 Where Developer does not accept the Delivery Order strictly by the
procedure as set out in clause 2.2 above, Client may enter a contract
with a third party for the provision of such Custom Software.
2.4 Likewise, if Client considers that Developer's quotation for the
provision of Custom Software is not competitive, Client's required
timescales cannot be accommodated, or the Custom Software does not
otherwise meet Client's requirements, Client is entitled to commission
such Custom Software from a third party and Developer shall not
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unreasonably refuse Client access to relevant interface definitions or
source code as reasonably necessary for Client to perform such
development, subject to Client's agreement to appropriate
confidentiality provisions for such definitions and source code. In no
circumstances shall the Developer's consent be considered to be
unreasonably withheld if it is withheld in circumstances where Developer
considers such access may result in Developer's interface definitions
and source code being made available to a competitor.
2.5 In the event that Developer does not bid or refuses to do the
development requested by Client hereunder, Developer shall give Client
access to relevant interface definitions or source code as reasonably
necessary for Client to perform such development, subject to Client's
agreement to appropriate confidentiality provisions for such definitions
and source code.
3. IMPLEMENTATION AND ACCEPTANCE OF DESIGN SPECIFICATIONS AND CUSTOM
SOFTWARE
3.1 On execution of a Delivery Order hereunder, Developer shall, with
Client's cooperation, gather the necessary detailed requirements and
develop and deliver to Client a set of Design Specifications meeting
Client's requirements as set out in such Delivery Order. An authorised
representative of Developer shall certify to Client in writing that the
Design Specifications are fully capable of meeting Client's requirements
as contained in the Delivery Order, except as expressly agreed to
otherwise in writing by Client. If such Design Specifications are
prepared by Developer at Client's request and initiation under such a
Delivery Order, the Delivery Order shall provide for Client to pay for
the preparation of such Design Specifications at cost. The Design
Specifications shall be delivered to Client on or before the specified
time set forth in the Implementation Schedule. Within a mutually agreed
upon date after the delivery of the Design Specifications to Client ,
Developer shall notify Client in writing of its acceptance or rejection
of the Design Specifications. If the Design Specifications are rejected,
Client will specify the reasons for such rejection and Developer shall
revise and re-deliver amended Design Specifications to Client for
acceptance. If Client rejects the amended Design Specifications, Client
shall have the right to terminate that Project pursuant to this
Agreement. If Client has neither accepted nor rejected the Design
Specifications within a reasonable amount of time after the delivery
thereof, the Design Specifications shall be deemed to have been accepted
by Client.
3.2 Developer shall ensure that the Design Specifications:
3.2.1 adequately and accurately provide for the implementation of
the functions to be performed by the Custom Software as
described in the Delivery Order;
3.2.2 are written in a language readily comprehensible to Client's
employees and consultants involved in work which relates to
the Project (and likewise all reference portions of other
documents);
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3.2.3 do not refer to any document not provided to or in the
possession of Client; and
3.2.4 include a module overview, definition or logical and data
processing flows, module processing logic, module inputs,
module outputs, file/database structure, module interfaces and
module processing components.
3.3 Developer will ensure that as far as reasonably possible the Design
Specifications include provision for necessary third party software and
compatible operating and infrastructure environment. Client will use
reasonable endeavours to raise with Developer any issues which it
believes are relevant to the operating environment and infrastructure
relating to the Custom Software.
4. PROJECT MANAGEMENT; DELIVERY
4.1 Project Co-ordinators
The parties shall both designate, upon commencement of this Agreement a
Project Co-ordinator to be assigned to supervise the work hereunder:
4.1.1 The first point of contact shall be NEWCO Project Co-ordinator
for WTT and shall be WTT Project Co-ordinator for NEWCO.
4.1.2 Either party may change its Project Co-ordinator from time to
time and shall immediately notify the other party of any such
change.
4.1.3 For purposes of any Delivery Order, WTT Project Co-ordinator
and NEWCO Project Co-ordinator shall also co-ordinate the
services provided under a Delivery Order, unless otherwise
agreed.
4.2 Periodic Progress Reports
Developer shall provide periodic progress reports as agreed in any
applicable Delivery Order accepted by Developer.
4.3 Change Order Procedure
All changes to the Design Specifications or to any Delivery Order must be
requested in writing and require mutual agreement, in accordance with the
procedure set forth in Schedule 2 attached hereto and incorporated herein
by reference. Evaluation and/or implementation of requested changes may
or may not result in any modification to the Development Fee,
Implementation Schedule or other terms of this Agreement. Developer
assumes the risk of any work performed or action taken by Developer based
upon oral statements, or on documents or notations, not in accordance
with the Design Specifications, this clause 4.3, any Delivery Order and
Schedule 2.
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5. PERFORMANCE
5.1 Performance of work associated with the development of Custom Software
shall be carried out in accordance with the relevant Delivery Order,
subject to any changes agreed under Clause 4.3.
5.2 Developer shall use all due skill and care in carrying out the Project
work and in developing the Custom Software.
5.3 Time shall be of the essence of the performance of the work under a
Delivery Order, which shall also mean in relation to any Milestone.
5.4 In the event any Milestone is not met due to any delay caused by
Developer's acts or omissions, and subject to any changes in the
Implementation Schedule agreed in writing under Clause 4.3 or otherwise,
Client shall not be required to remit the relevant payment except for
properly incurred actual out of pocket expenses, as evidenced by
appropriate written documentation, which is associated with such
Milestone, until such Milestone is met.
5.5 Additionally, Developer shall use commercially reasonable efforts to
ensure that such delay does not result in slippage of later Milestones.
5.6 In the event that the parties agree that, in respect of any individual
Project, Client has a right of termination at any milestone, then in the
event that Client exercises such right of termination, Client shall have
the option:
5.6.1 [to pay to the Developer the full amount due to the Developer,
up to and including the last achieved milestone, (including
any percentage of the Milestone Payment currently withheld by
the Client under the agreed payment structure) in which case
the Developer shall assign to the Client all the Intellectual
Property Rights in and, unless agreed otherwise, the
corresponding source code for, such partially completed
Software, unless such Software is generic and non-Client
specific in which case, the Developer shall grant to the
Client a non-exclusive licence to such software and access to
its source code for purposes of completion of the Software,
using its own resources or those of a third party contractor];
5.6.2 in the case where a percentage which is less than the full
payment amount associated with the completion of each achieved
Milestone has been made by the Client, the Client has the
option to pay no further amounts to the Developer, in which
case, the Client shall have no title, to interest in or right
to use the Software.
6. ACCEPTANCE TESTING
6.1 After Developer has certified to Client in writing that the Custom
Software has been delivered and installed, that Developer has tested the
Custom Software and that the Custom Software is fully operational and
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fully integrated with any and all pre-existing software or equipment in
Client environment in which the Custom Software must operate and is
ready for acceptance testing by Client; Client shall conduct Client
Alpha Testing, as set out in the Design Specifications ("CLIENT ALPHA
TESTING") at a time which is convenient for both parties and in
accordance with the relevant Implementation Schedule.
6.2 Developer personnel will be entitled to be present for the Acceptance
Tests.
6.3 If, the Custom Software fails the Alpha Testing, Client shall so notify
Developer in writing within a reasonable period following such failure
specifying the nature of the failure, and Developer shall use all
reasonable efforts to correct the failure after which Client shall
repeat the Alpha Testing, using the same procedure.
6.4 If the Custom Software again fails to pass the Alpha Testing, Client
shall have the option to terminate, in whole or in part, the applicable
Delivery Order.
6.5 In the event of termination under clause 6.4 above, Client shall
have the option:
6.5.1 to pay to the Developer the full amount due to the Developer,
up to and including the last achieved milestone, (including
any percentage of the Milestone Payment currently withheld by
the Client under the agreed payment structure) in which case
the Developer shall assign to the Client all the Intellectual
Property Rights in and, unless agreed otherwise, the
corresponding source code for, such partially completed
Software, unless such Software is generic and non-Client
specific in which case, the Developer shall grant to the
Client a non-exclusive licence to such software and access to
its source code for purposes of completion of the Software,
using its own resources or those of a third party contractor;
6.5.2 in the case where a percentage which is less than the full
payment amount associated with the completion of each achieved
Milestone has been made by the Client, the Client has the
option to pay no further amounts to the Developer, in which
case, the Client shall have no title, to interest in or right
to use the Software.
7. BETA TESTING
7.1 Upon successful completion of Alpha Testing, Client shall use the Custom
Software for an initial thirty (30) day period or as otherwise agreed in
writing, as set forth in the relevant Implementation Schedule, for the
processing of Client's data in a production-like environment (the "BETA
TEST"). The Beta Test shall be successfully completed upon notice from
Client to Developer that Client is satisfied, in its reasonable
discretion, that for a mutually agreed-upon period, (i) all of the
functions of the Custom Software have been provided and perform in
accordance with this Agreement and the Design Specifications, and (ii)
all reliability and performance standards have been met or exceeded (the
"FINAL CUSTOM SOFTWARE ACCEPTANCE").
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7.2 If the Custom Software fails to pass the Beta Test, Client shall so
notify Developer in writing specifying the nature of such failure(s) in
reasonable detail and Developer shall use all reasonable efforts to
correct the specified failure(s) after which Client shall commence a
second Beta Test.
7.3 If the Custom Software fails to pass this second Beta Test, Developer
acknowledges that Client shall have, upon written notice to Developer,
the option to terminate, in whole or in part, the applicable Delivery
Order. In the event of such termination, Client shall have the option:
7.3.1 to pay to the Developer the full amount due to the Developer,
up to and including the last achieved milestone, (including
any percentage of the Milestone Payment currently withheld by
the Client under the agreed payment structure) in which case
the Developer shall assign to the Client all the Intellectual
Property Rights in and, unless agreed otherwise, the
corresponding source code for, such partially completed
Software, unless such Software is generic and non-Client
specific in which case, the Developer shall grant to the
Client a non-exclusive licence to such software and access to
its source code for purposes of completion of the Software,
using its own resources or those of a third party contractor;
7.3.2 in the case where a percentage which is less than the full
payment amount associated with the completion of each achieved
Milestone has been made by the Client, the Client has the
option to pay no further amounts to the Developer, in which
case, the Client shall have no title, to interest in or right
to use the Software.
8. PRICE AND PAYMENT
8.1 In consideration for the development of the Design Specifications and
the discharge of Developer's obligations under this Agreement, Client
shall pay to Developer a fee (the "Development Fee"). The Development
Fee for each item of Custom Software shall be as agreed under each
Delivery Order on the principles set out in this Clause, or as
subsequently varied by written agreement between the parties from time
to time.
8.2 If non-generic or Client specific Custom Software is developed by
Developer, Client shall pay Developer at Developer's prevailing market
rates for such development, as agreed in the Delivery Order;
8.3 If Client requests Developer to develop Custom Software which relates to
the services bureau or other business lines of Developer, it shall pay
an agreed proportion of Developer's actual costs of development (which
shall not be more than the total cost of such development). In such case
Developer shall be liable to repay such development cost to Client as
and to the extent that it is able to do so (such ability to be
determined only by the amount of royalties and/or transaction fees it
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receives from commercialisation of the Custom Software) by paying to
Client 20% of all profits it earns on the licensing or commercialisation
of such Custom Software to third parties, the aggregate payment to
Client not to exceed the share of development costs paid by Client. The
repayment provisions in this clause will apply mutatis mutandis where
Developer grants to Client pursuant to Clauses 5.6.1, 6.5.1 and 7.3.1 a
non-exclusive licence to use the Software, as provided for therein.
8.4 Notwithstanding the foregoing or anything to the contrary contained
elsewhere in this Agreement, all development services provided by WTT to
NEWCO in order to complete and deliver, to successful, Beta-tested
standard, those versions or releases of the Software listed in Schedule
A of the Software Licence Agreement (the "Initial Software Releases")
shall be provided at no cost to NEWCO until at least the earlier of
8.4.1 the passing of Beta testing by such Initial Software Releases;
8.4.2 the date specified for delivery of such Software in Schedule A
(the "Delivery Date")
8.5 If any Initial Software Release has not passed Beta Test by its Delivery
Date, the Management Representatives shall meet to review the reasons
for the delay in delivery. Taking into account such reasons and the
extent of each party's responsibility for such delay, the Management
Representatives shall agree on whether the development of that initial
Software Release should continue and, if so, on what basis. In
particular the Management Representatives shall agree whether it is
equitable and appropriate for such development to continue on a no-cost
basis and, if not, the basis of any charge to be made by WTT in respect
of such development.
8.6 The provisions of Clause 8.5 are without prejudice to NEWCO's rights
generally under this Agreement and elsewhere, including pursuant to the
Shareholders' Agreement.
8.7 Payment, in respect of all Custom Software, will be made by Client in
accordance with the payment provisions of the relevant Implementation
Schedule, in default of which each instalment shall be payable upon
completion of each related Milestone by Developer and Acceptance by
Client in accordance with the relevant Delivery Order
8.8 Developer shall provide defect correction on all Custom Software during
the warranty period at no cost to Client.
8.9 Developer will submit the charges to be invoiced for services performed
in accordance with the Implementation Schedule, together with related
documentation, to the Client Project Co-ordinator for review and
approval prior to actual invoicing. The charges and/or expenses invoiced
in accordance with this clause 8, except for any amounts disputed by
Client, shall be payable by Client within thirty (30) days of Client's
receipt of each invoice. Any disputed charges shall not affect payment
of non-disputed charges and/or expenses, in accordance with the terms of
this Agreement. Disputed charges shall be dealt with under Clause 16.
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8.10 Developer shall maintain complete and accurate accounting records, in a
form in accordance with generally accepted accounting principles, to
substantiate Developer charges hereunder and Developer shall retain such
records for a period of three (3) years from the date of final payment
hereunder.
8.11 Client shall have the right to audit or have audited the books and
records of Developer relating to the amounts invoiced to Client
hereunder for the purpose of verifying the amounts due and payable
hereunder, upon at least five (5) business days' notice to Developer.
Developer shall afford access to Client's representatives for the
purpose of carrying out such audits. The cost of such audit shall be at
Client's expense; provided, however, that Developer will bear the cost
of the audit if the audit reveals any overpayment which, in the
aggregate, is greater than three percent (3%) of the amount which was
actually due for the period being audited.
9. WARRANTIES AND REPRESENTATIONS
9.1 Each party hereby represents and warrants to the other that:
9.1.1 such party has all requisite power and authority to execute
this Agreement and to perform its obligations thereunder. The
execution, delivery and performance of this Agreement and the
transactions contemplated thereby have been duly authorised
and approved by such party;
9.1.2 the execution and delivery of this Agreement by such party,
and the consummation by such party of the transactions
contemplated therein, will not breach or violate the
organisational documents or any material contract, agreement,
instrument, judgement, law or licence which is applicable to
such party, or to which such party is bound; and
9.1.3 it shall be responsible for obtaining any consent, approval or
authorisation of, or notice to, any governmental or regulatory
authority or agency which is required to be obtained by such
party in connection with its execution, delivery and
performance of this Agreement.
9.2 Except as expressly provided in this Clause , no express or implied
warranty is made by Developer with respect to any service, product,
software release, data compilation or any other matter, including,
without limitation, any implied warranties or conditions of
merchantability, satisfactory quality or fitness for a particular
purpose.
9.3 Developer hereby warrants and represents to Client as follows:
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9.3.1 The Custom Software to be developed hereunder shall be of
professional quality and will conform to generally accepted
standards for software in the software development field. Any
services performed by Developer which are determined by Client
to be to be of less than professional quality or which contain
errors or defects shall be corrected by Developer without
charge.
9.3.2 The Design Specifications and Custom Software will contain
only (i) original material created by Developer or (ii)
material which has been properly licensed from third parties
and has been used by Developer in accordance with the licenses
for such materials, provided that the inclusion of all such
third party materials shall have been agreed to by Client.
9.3.3 Neither any Design Specifications nor any Custom Software
developed by Developer under any Delivery Order has been or
will be assigned, transferred or otherwise encumbered, and
neither any Design Specifications nor any Custom Software nor
any portion thereof, infringes any patents, copyrights, trade
secrets, or other proprietary rights of any third party, and
Developer has no reason to believe that any such infringement
or claims thereof could be made by third parties.
9.3.4 Developer has obtained or will obtain all necessary rights and
licences to third party materials included in the Design
Specifications or Custom Software to enable Client to use the
Design Specifications and Custom Software for the purposes
allowed hereunder and has provided or will provide to Client
copies of all documents granting all such rights and licences.
9.3.5 To the best of Developer's knowledge the Custom Software, upon
Acceptance by Client, shall be free of any and all "time
bombs," disabling mechanisms and (as agreed) copy protect
mechanisms which may disable the Custom Software or such other
software, and Developer agrees to ensure that no data is lost
as a result of same that was present in the Custom Software
when accepted by Client. In addition, Developer warrants that
its quality assurance procedures include testing the Custom
Software for viruses using such virus testing utilities as are
agreed from time to time between the parties.
9.3.6 The Custom Software shall function properly and in substantial
conformity with the relevant Design Specifications and/or
Delivery Order for a period of six months after the relevant
Final Custom Software Acceptance ("the Warranty Period").
During such Warranty Period, Developer shall correct any
defects identified by Developer or by Client at no cost.
9.4 No other representation, condition or warranty, express or implied, is
made with respect to the Custom Software or any other software or
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services provided under this Agreement, including without limitation any
implied warranty of merchantability, satisfactory quality or fitness for
a particular purpose.
10. CONFIDENTIALITY
10.1 The Receiving Party shall:
10.1.1 keep the Confidential Information confidential;
10.1.2 not disclose the Confidential Information to any person, other
than in accordance with this clause 10, unless it first
obtains the Disclosing Party's written consent; and
10.1.3 not use the Confidential Information for any purpose other
than the performance of its obligations under this Agreement
or, in the case of Client, the use, management, support,
maintenance or development of the Custom Software.
10.2 Client may disclose Confidential Information to its employees, the other
members of Client Group (and their employees) and to third parties (and
their employees) contracted (or with whom Client is negotiating with a
view to contracting) to provide auditing, hardware or software
facilities management, support, maintenance or development services to
any member of Client Group, to the extent reasonably necessary for the
purposes of this Agreement.
10.3 During the term of this Agreement Developer may disclose Confidential
Information to its employees and to Developer to the extent reasonably
necessary for the purposes of this Agreement.
10.4 The Receiving Party shall ensure that each person who receives
Confidential Information pursuant to clause 10.2 (a "RECIPIENT") is made
aware of and complies with all the Receiving Party's obligations of
confidentiality under this Agreement as if the Recipient was a party to
this Agreement.
10.5 The Receiving Party may disclose Confidential Information where
disclosure is required by law, a court of competent jurisdiction or by a
regulatory body with authority over its business, provided that the
Receiving Party gives the Disclosing Party as much notice as is
reasonably possible of the disclosure.
10.6 The obligations contained in this clause 10 do not apply to
Confidential Information which:
10.6.1 is at the date of this Agreement or at any time after the date
of this Agreement comes into the public domain other than
through breach of this Agreement by the Receiving Party or any
Recipient.
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10.6.2 can be shown by the Receiving Party to the reasonable
satisfaction of the Disclosing Party to have been known by the
Receiving Party before disclosure by the Disclosing Party to
the Receiving Party; or
10.6.3 subsequently comes lawfully into the possession of the
Receiving Party from a third party.
10.7 For the purposes of this clause, "CONFIDENTIAL INFORMATION" means all
information of a confidential nature disclosed (whether in writing,
verbally or by any other means and whether directly or indirectly) by
one party (the "DISCLOSING PARTY") to the other party (the "RECEIVING
PARTY") whether before or after the date of this Agreement including,
without limitation, any information relating to the Disclosing Party's
products, operations, processes, plans or intentions, product
information, Intellectual Property Rights, market opportunities and
business affairs or those of its customers, clients or other contacts.
11. OWNERSHIP
11.1 Client agrees that any and all Intellectual Property which is related to
the service bureau or other business lines of Developer, which is
conceived, first reduced to practice, made or developed in the course of
work performed under this Agreement by Developer or by one or more of
Developer's employees, consultants, representatives or agents,
including, but not limited to, all software and documentation, and all
copyrights subsisting therein, are and shall remain the exclusive
property of Developer, and Client agrees to assign to Developer all
rights and title to such Intellectual Property, provided, however, that
if Client has totally funded the development of such Intellectual
Property Rights, Developer shall grant to Client a non-exclusive,
perpetual, paid-up license to such Intellectual Property Rights on the
terms of the Software Licence Agreement or such other terms as the
parties may agree. If the Client has partially funded the development of
such Intellectual Property Rights, the licence shall be granted on such
terms and at such cost as the parties may negotiate as part of the
development funding. Client may not use such Intellectual Property for
service bureau use unless there is an agreement in place between
Developer and Client providing specifically for such use.
11.2 Client acknowledges that the Intellectual Property referred to under
Clause 11.1 above is proprietary to Developer and that Developer is not
transferring any rights of copyright or ownership of any Intellectual
Property to Client. Developer shall at all times retain all rights,
title and interest in the Intellectual Property and related
documentation and any derivatives thereof.
11.3 Developer agrees that subject to Clauses 5.6; 6.5 and 7.3, any and all
Intellectual Property which is Client-specific or non-generic and was
requested by Client, which is conceived, first reduced to practice, made
or developed in the course of work performed under this Agreement by
Developer or by one or more of Developer's employees, consultants,
representatives or agents, including, but not limited to, all software
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and documentation, and all copyrights subsisting therein, shall be
considered a "work for hire" and shall be the exclusive property of
Client. Developer agrees to assign to Client all rights and title to
such Intellectual Property.
11.4 Developer acknowledges that the Intellectual Property referred to under
Clause 11.3 above is proprietary to Client and that Client is not
transferring any rights of copyright or ownership of any Intellectual
Property to Developer. Client shall at all times retain all rights,
title and interest in the Intellectual Property and related
documentation and any derivatives thereof.
11.5 Each party agrees that it will promptly sign all papers and do all acts
which may be reasonably necessary to enable the party owning
Intellectual Property in accordance with this clause 11 at the owning
party's expense, to file and prosecute applications for copyrights,
patents, and/or trademarks for the intellectual property owned by such
party hereunder.
11.6 Both parties undertake not to cause or permit the reverse engineering,
disassembly, or decompilation of any Software in which the Intellectual
Property rights are owned by the other party, except to reproduce
machine-readable object code portions for backup purposes and
installation of new releases of Software and except as provided under
section 50B of the UK Copyright Designs and Patents ▇▇▇ ▇▇▇▇. Neither
party will copy or permit any of such Software or related manuals or
documentation to be copied by any means, except for bona fide, internal
security, installation or backup purposes, and except as provided under
section 50A of the Copyright, Designs and Patents ▇▇▇ ▇▇▇▇ or for
reasonable operational purposes (provided always that where copied for
such reasonable operational purposes, such copying shall be pursuant to
a reasonable operational requirement upon that party and shall be done
only where strictly necessary and in good faith). Any copies made shall
include all copyright or proprietary notices. Neither party may tamper
with or remove any proprietary or copyright notices on such Software or
documentation. The restrictions in this clause are imposed under penalty
of termination but not exclusive of the parties' other remedies.
12. INDEMNITY
12.1 Infringement Indemnity
Developer shall indemnify, defend and hold Client and its officers,
directors, agents and employees harmless from and against any and all
liabilities, damages, losses, expenses, claims, demands, suits, fines or
judgements, including reasonable legal fees, and costs and expenses
incidental thereto, which may be suffered by, accrued against, charged
to or recoverable from Client or any of its officers, directors, agents
or employees, arising out of a claim that any Custom Software, or any
portion thereof, infringes any third party's Intellectual Property
Rights.
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12.2 Developer shall have no liability under this Clause 12 for any alleged
or actual infringement arising to a material extent from:
(a) any combination of the Custom Software with any software not
supplied or approved by Developer; or
(b) the modification or alteration of the Custom Software, unless
the modification or alteration was made, supplied or approved
expressly by Developer.
12.3 Litigation
Developer's obligations under this clause 12 shall be conditional on
Client:
12.3.1 promptly notifying Developer in writing of such a claim;
12.3.2 not making any admission as to liability or agreeing to any
settlement or compromise of the claim without Developer's
prior written consent;
12.3.3 giving Developer express authority to conduct all negotiations
and litigation, and to settle litigation, arising from such
claim; and
12.3.4 providing Developer with such available information and
assistance as Developer may reasonably require.
12.4 Developer shall have sole control of the defence and of all negotiations
for settlement of such action, except that no compromise or settlement
thereof may be effected or committed to by Developer without Client's
consent, such consent not to be unreasonably withheld. Client agrees to
reasonably co-operate with Developer in the defence or settlement of any
such claim. If all or any part of the Custom Software is, or in the
opinion of Developer may become, the subject of any claim or suit for
infringement of any Intellectual Property Rights, Developer may, and in
the event of any adjudication that the Custom Software or any part
thereof does infringe any third party's Intellectual Property Rights,
Developer shall, at its expense do one of the following things: (1)
procure for Client the right to use the Custom Software or the affected
part thereof; (2) replace the Custom Software or affected part with
other functionally equivalent programs; or (3) modify the Custom
Software or affected part to make it non-infringing.
13. GENERAL INDEMNITY
13.1 Developer shall indemnify, defend and hold Client and its officers,
directors, agents and employees harmless from and against any and all
liabilities, damages, losses, expenses, claims, demands, suits, fines or
judgments, including reasonable attorneys' fees, and costs and expenses
incidental thereto, which may be suffered by, accrued against, charged
to or recoverable from Client or any of its officers, directors, agents
or employees, arising out of or resulting from claims of bodily injury,
loss, claim or damage or physical destruction of property and any claims
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of third parties arising out of the performance of this Agreement and/or
any breach of this Agreement by Developer, its officers, directors,
agents, employees and subcontractors.
13.2 Nothing in this Agreement shall operate to limit or exclude the
liability of either party in respect of death or personal injury arising
as a result of the negligence of that party.
14. TERM AND TERMINATION
14.1 The Term of this Agreement will begin on the Effective Date and expire
on the tenth anniversary of the Effective Date (the "INITIAL TERM").
Upon the expiration of the Initial Term, this Agreement shall be
automatically renewed for consecutive additional one (1) year terms,
unless either party provides the other with notice of cancellation of
this Agreement at least thirty (30) days prior to expiration of the then
current term in which case this Agreement shall expire at the end of
such current term or unless otherwise terminated under this Clause.
14.2 A party (the "INITIATING PARTY") may terminate this Agreement with
immediate effect by written notice to the other party (the "BREACHING
PARTY") on or at any time after the occurrence of an event specified in
clause 14.4 in relation to the Breaching Party.
14.3 The events are:
14.3.1 the Breaching Party being in material breach of an obligation
under this Agreement and, if the breach is capable of remedy,
failing to remedy the breach within 30 days starting on the
day after receipt of written notice from the Initiating Party
giving details of the breach and requiring the Breaching Party
to remedy the breach;
14.3.2 the Breaching Party passing a resolution for its winding up or
a court of competent jurisdiction making an order for the
Breaching Party's winding up or dissolution; or
14.3.3 the making of an administration order in relation to the
Breaching Party or the appointment of a receiver over, or an
encumbrancer taking possession of or selling, an asset of the
Breaching Party.
14.4 Client may terminate work under a Delivery Order upon written notice to
Developer:
14.4.1 in the event that Client rejects any amended Design
Specifications pursuant to clause 3.1;
14.4.2 in the event that the Custom Software fails to pass Alpha
Testing as more particularly described in clause 6; or
14.4.3 in the event that the Custom Software fails to pass the Beta
Testing as more particularly described in clause 7; or
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14.4.4 for convenience, at any Milestone, as provided in Clause 5.6.
14.5 In the event of termination, each party will:
14.5.1 (i) Return all proprietary Confidential Information or
tangible property of the other party which is in its
possession to the other party.
14.6 Unless otherwise provided in this Agreement, immediately upon
termination Client shall pay to Developer all outstanding invoices and
other payments due to Developer in respect of Milestones attained by
Developer.
14.7 Both parties shall have an obligation to take such steps as may be
reasonably necessary to minimise damages to the parties on termination,
including without limitation, minimising all contractual obligations
that but for this Agreement, neither party would have entered into.
15. JOINT OVERSIGHT COMMITTEE
15.1 JOC PROCEDURES. The following representatives will comprise a joint
oversight committee (the "JOC") which will meet at least quarterly. The
functions of such committee, among other things, will be to provide
Product and Services direction, review and analyze changes in the
market, prioritize resources to improve performance of the parties'
obligations hereunder, review and analyze the performance of the
parties, and to review recommendations and suggestions to enhance the
performance of the Services.
WTT Designees (2): to be advised by WTT
Newco Designees (2): ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
15.2 If a JOC Member resigns or leaves its employer, the party with a vacancy
will promptly appoint a replacement.
15.3 JOC PROCEDURES. All actions of the JOC will be subject to the following
process. An equal number of appointed representatives from each party
must be in attendance for the JOC to conduct a meeting.
15.3.1 Each party hereby appoints the following individual as its
Management Representative for purposes of this Agreement:
WTT: Trip ▇▇▇▇▇
Newco: ▇▇▇▇▇ ▇▇▇
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15.3.2 Thirty (30) days prior to replacing its Management
Representative, Client or Developer, as the case may be, shall
notify the other in writing identifying its proposed
replacement.
15.4 REPORT CONTENTS. Developer will prepare (i) a listing of key Service
activities, and (ii) definitions of measurements of qualitative and
quantitative service performance levels for each such key Service
activity ("Service Performance Levels"), and will submit such listings
and definitions to the JOC for approval. The Service Performance Levels
will be used to measure Client's and Developer's performance of their
responsibilities under this Agreement.
15.5 Performance Levels. Developer will deliver to the JOC for each calendar
quarter (within thirty (30) days of the end of such quarter), commencing
with the calendar quarter beginning April 1, 2000, service performance
reports ("SERVICE PERFORMANCE REPORTS") that identify, for each JOC
approved key Service activity, the Performance Level for that activity.
The JOC will review the parties' performance during the relevant time
period (including but not limited to the information, contained in the
Service Performance Reports), and will provide feedback to both
Developer and Client regarding the performance of their respective
responsibilities under this Agreement. The JOC will also periodically
review the definitions and measurements used in the Service Performance
Reports and revise them as necessary to reflect the most appropriate
measures of Developer and Client performance.
16. DISPUTE RESOLUTION.
16.1 This Agreement shall be governed by and construed according to the laws
of the State of Georgia of the United States of America, without regard
to its choice of laws provisions.
16.2 Initial Procedures.
The parties shall make all reasonable efforts to resolve all disputes
without resorting to litigation. If a dispute arises between the
parties, the JOC will attempt to reach an amicable resolution. If the
JOC determines that an amicable resolution cannot be reached, the JOC
shall submit such dispute in writing to the Management Representatives
(a "DISPUTE Notice"), who shall use their best efforts to resolve it or
to negotiate an appropriate modification or amendment.
16.3 Escalation.
Except as otherwise provided in this Agreement, neither party shall be
permitted to bring any proceedings against the other (save for
injunctive relief) until the earlier of (i) the date the Management
Representatives conclude in good faith that an amicable resolution of
the dispute through continued negotiation is unlikely, or (ii) sixty
(60) days from the date of submission of a Dispute Notice by either
party.
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16.4 If the parties are unable to resolve any matter within the negotiating
procedures set out herein, either party may submit this matter to
arbitration under the rules of the American Arbitration Association. If
the parties resort to arbitration, no arbitrator shall be entitled to
award punitive damages.
17. FORCE MAJEURE
17.1 If a party (the "AFFECTED PARTY") is prevented, hindered or delayed from
or in performing any of its obligations under this Agreement by a Force
Majeure Event:
17.1.1 the Affected Party's obligations under this Agreement are
suspended while the Force Majeure Event continues and to the
extent that it is prevented, hindered or delayed;
17.1.2 as soon as reasonably possible after the start of the Force
Majeure Event the Affected Party shall notify the other party
in writing of the Force Majeure Event, the date on which the
Force Majeure Event started and the effects of the Force
Majeure Event on its ability to perform its obligations under
this Agreement;
17.1.3 the Affected Party shall make all reasonable efforts to
mitigate the effects of the Force Majeure Event on the
performance of its obligations under this Agreement; and
17.1.4 as soon as reasonably possible after the end of the Force
Majeure Event the Affected Party shall notify the other party
in writing that the Force Majeure Event has ended and resume
performance of its obligations under this Agreement.
17.2 If the Force Majeure Event continues for more than three months starting
on the day the Force Majeure Event starts, a party may terminate this
Agreement by giving not less than 30 days' written notice to the other
party.
17.3 In this clause, "FORCE MAJEURE EVENT" means an event beyond the
reasonable control of the Affected Party including, without limitation,
act of God, war, riot, civil commotion, malicious damage, compliance
with a law or governmental order, rule, or regulation , an accidentor
breakdown of plant or machinery not due to the negligence of the
Affected Party, fire, flood and storm.
18. NON-SOLICITATION
During the Term and for six months following its termination, neither
party shall employ, solicit or make any offers to employ any employees
used by the other in connection with the performance of the Services,
without the prior written consent of the other, which consent shall not
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be unreasonably withheld. The non-breaching party shall be entitled, in
addition to any other remedies it may have at law or in equity, to a
payment from the party in breach of this Clause in an amount equal to
three months' salary of any employee that party employs, solicits or
offers to employ in breach of this Clause.
19. MISCELLANEOUS
19.1 Binding Nature and Assignment;
19.2 Neither party may assign or delegate its rights or obligations under
this Agreement without the prior written consent of the other, save that
a party shall not unreasonably withhold its consent to the assignment or
delegation by the other of its rights and/or obligations to a
majority-owned subsidiary of that party, provided that it is satisfied
that such subsidiary has the financial and other resources in order
properly to perform that party's obligations hereunder. Subject to the
foregoing limitation on assignment, this Agreement is binding upon and
inures to the benefit of the successors and assigns of the respective
parties hereto.
19.3 Notices
Notices under this Agreement shall be deemed given when delivered by
hand, on the fifth business day after such notice is deposited in the
mail, registered or certified, return receipt requested, postage
prepaid, or sent via facsimile to the following address:
WORLDTRAVEL TECHNOLOGIES LLC
▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LIMITED (or such name by
Atlanta which the company is later known)
▇▇▇▇▇▇▇ ▇▇▇▇▇ Abbey House
USA ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇
------------------------- -------------------------
------------------------- -------------------------
Attention: Trip ▇▇▇▇▇ Attention: COMPANY SECRETARY
Copied to ▇▇▇▇▇ ▇▇▇▇▇▇▇
Either party may change its address by giving the other written notice
of the new address.
19.4 Relationship of Parties
Developer is acting as an independent contractor in providing its
services. Developer's personnel shall remain Developer's employees for
all purposes including, but not limited to, determining responsibility
for all payroll-related obligations. Developer shall at all times be
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responsible for supervising, directing and co-ordinating the
professional responsibilities and duties of all Developer's personnel in
respect of their performance of work carried out under this Agreement.
Except as otherwise expressly provided in this Agreement, Developer does
not undertake to perform any obligations of Client, whether regulatory
or contractual, or to assume any responsibility for the management of
Client's business.
19.5 Severability
19.6 If any provision of this Agreement is found to be prohibited by or
invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this
Agreement which shall remain in force.
19.7 Waiver
No delay or omission by either party to exercise any right or power
under this Agreement or pursuant to applicable law shall impair such
right or power to be construed as a waiver thereof. A waiver by any
party of any covenant or breach shall not be construed to be a waiver of
any other covenant or succeeding breach.
19.8 Publicity
All media releases, public announcements and public disclosures by
either party relating to this Agreement, including, without limitation,
promotional or marketing material, but not including any disclosure
required by legal, accounting or regulatory requirements, shall be
approved by both parties prior to such release.
19.9 Entire Agreement
This Agreement constitutes the entire agreement between the parties
regarding the Custom Software and supersedes all prior agreements and
understandings. No amendment, modification, waiver or discharge of this
Agreement shall be valid unless in writing and signed by authorised
representatives of both parties.
19.10 Multiple Counterparts
This Agreement may be executed in a number of identical counterparts,
each of which shall be deemed an original for all purposes and all of
which constitute, collectively, one agreement.
19.11 Third Party Claims
This Agreement has been entered into for the sole benefit of WTT and
NEWCO, and in no event shall any third-party beneficiaries be created
thereby.
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19.12 Survival
Such provisions of this Agreement as are required to survive its
termination or expiry in order to give full force and effect to the
rights and obligations of the parties hereunder shall be deemed to so
survive.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts, which
shall together constitute one Agreement.
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SCHEDULE 1
Delivery Order
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SCHEDULE 2: CHANGE ORDER PROCEDURE
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
WORLDTRAVEL TECHNOLOGIES LLC FORTDOVE LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
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