Exhibit 10.17
AMENDMENT NO. 2
TO THE
SERVICES AGREEMENT
THIS AMENDMENT No. 2 is made this 25th day of July 2003, by and between
▇▇▇▇▇▇▇▇▇▇ International, Inc., a Pennsylvania corporation, having its principle
place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("UPSTREAM") and
ORBITZ, LLC, a Delaware limited liability company, having its principle place of
business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("ORBITZ").
This Amendment No. 2 amends that certain Services Agreement entered into by and
between ORBITZ and UPSTREAM, on April 22, 2002, as amended by Amendment No. 1
dated January 8, 2003 (collectively, the "Agreement").
WHEREAS, ORBTIZ and UPSTREAM intend to revise or amend certain portions of
the Agreement in accordance with the terms of Section 12.4 therein;
NOW, THEREFORE, in exchange of good and valuable consideration that will
not hereinafter be challenged, the parties hereby agree as follows:
1 PRECEDENCE. To the extent a term or expression used in this Amendment No. 2
is defined in the Agreement, the term or expression will have the meaning
ascribed to it in the Agreement, unless agreed otherwise in this Amendment
No. 2. To the extent any terms or conditions of this Amendment No. 2
conflict with the terms of the Agreement, the terms of this Amendment No. 2
will prevail.
2 CONTRACTOR SERVICES. Pursuant to Section 4.4 of the Agreement, the parties
hereby memorialize UPSTREAM's and ORBITZ's mutual agreement to outsource an
average of ten percent (10%) of the inbound leisure telephone Contacts to
an overseas third-party. The foregoing notwithstanding, ORBITZ and UPSTREAM
agree that the period beginning October 5, 2003 and ending December 15,
2003 shall be deemed the "Ramp-Up Period" and ORBITZ shall during the
course of the Ramp-up Period work in good faith to increase the amount of
inbound leisure telephone contacts outsourced to such overseas third-party
so that an average of ten percent (10%) of the inbound leisure telephone
contacts are outsourced to such overseas third-party by the end of the
Ramp-Up Period. The parties hereby agree that the overseas third party will
be the entity currently known as LAWKIM UPSTREAM Contract Management
Private Limited, Chitalsar, Mapada, S.V. Road Thane 400_607, Maharashtra,
India (hereinafter, the "Contractor"). ORBITZ hereby approves of LAWKIM
UPSTREAM Contract Management Private Limited as the Contractor for inbound
telephone Contacts in accordance with this Paragraph 2. ORBITZ and UPSTREAM
may agree to (i) suspend or reduce such percentage, or (ii) modify the
applicable Upcharge Fee, or both, if it is mutually determined that the
quality or customer satisfaction expectations for such inbound leisure
telephone Contacts is at risk as a result of such outsourcing. The
percentage of inbound leisure telephone Contacts outsourced in accordance
with this Amendment No. 2 may be increased by mutual agreement of the
Parties.
3 TRIAL PERIOD. UPSTREAM will cause the Contractor to commence processing the
inbound leisure telephone Contacts on October 5, 2003 and shall continue
processing such inbound leisure telephone Contacts for a period of six (6)
months thereafter (the "Trial Period"). The Trial Period shall
automatically renew for the period beginning with the end of the Trial
Period and ending with the termination or expiration of the Agreement (the
"Renewal Period") unless either Party provides to the other Party written
notice by March 5, 2004 of its intention not to renew.
4 PRICING. [***]
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*** Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
5 UPCHARGES. [***]
6 SERVICE LEVELS. Section 3 (Service Level: Email Response Time of Exhibit B
(Service Level Requirements)) is hereby amended to state that effective
October 5, 2003, on average [***] of all email-based Contacts processed
during any calendar month must result in a Contact Handled within [***]
hours of the initiation of the Contact (the "Time Requirement") and that
the remaining email based Contacts must result in a Contact Handled within
[***] hours of the initiation of the Contact; provided however, that if
the Ticket Transactions projected in the Monthly Forecast for the most
immediate month to which such Forecast applies (e.g. for the Monthly
Forecast provided on July 31, the most immediate month would be August)
is exceeded, the Time Requirement shall be adjusted as follows:
Forecast Exceeded by: Time Requirement
3.1-5.0% [***] minutes
5.0-7.0% [***] minutes
7.0-9.9% [***] minutes
In the event the Forecast is exceeded by more than [***], UPSTREAM shall
use commercially reasonable efforts to respond to all email-based Contacts
within [***] minutes, but any failure to do so will not result in
any Service Level Credits or in material breach of this Agreement.
[***]
7 COSTS. For the avoidance of doubt, UPSTREAM is responsible for costs (such
as training, development, line charges, telecom charges) and other costs or
expenses, related to the outsourcing of inbound leisure telephone Contacts
to the Contractor, in accordance with the terms of the Agreement. UPSTREAM
must verify and ensure that the Contractor complies with and adheres to the
standards set forth in Exhibit A regarding minimum technology requirements
during the Trial Period and the Renewal Period. As between ORBITZ and
UPSTREAM, UPSTREAM is responsible for any and all costs associated with the
Contractor's compliance with such standards and requirements.
8 TERMINATION FOR CONVENIENCE. [***]
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*** Certain information on this page has been omitted and filed separately
with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
9 SECURE AREA. Section 4.4 (ix) of the Agreement shall be deleted in its
entirety and replace with the following: The Contractor Agreement shall
require that the Contractor Services shall be performed in a secure
environment, such that only those employees of Contractor performing the
Contractor Services shall have access to ORBITZ confidential information or
to the area within Contactor's facility where the Contractor Services are
being performed (the "Secure Area"). Further, Contractor shall ensure that
Contractor employees (while employed by Contractor) who provide the
Contractor Services shall not, during the Term and for a period of 12
months thereafter, provide similar services to any Competitive Entity.
10 ENTIRE AGREEMENT. This Amendment No. 2 sets forth the complete and entire
agreement between the parties with respect to the subject matter of the
Amendment and supercedes and replaces any prior agreements between the
parties, whether oral or in writing, with respect to its subject matter.
Except as otherwise set forth in this Amendment No. 2, the terms and
conditions of the Agreement will remain in full force and effect. This
Amendment will be governed by the laws of the state of New York.
IN WITNESS WHEREOF, the parties hereby cause this Amendment to be executed
by their duly authorized representatives identified below.
▇▇▇▇▇▇▇▇▇▇ INTERNATIONAL, INC. ORBITZ LLC
("UPSTREAM") ("ORBTIZ")
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: ▇▇▇▇▇ ▇▇▇▇
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Signature: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇ ▇▇▇▇
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Title: CHIEF OPERATING OFFICER Title: VP CUSTOMER EXP.
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Date: 7-25-03 Date: 8-3-03
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