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EXHIBIT 10.3
MASTER DEVELOPMENT AGREEMENT
This Master Development Agreement (the "Agreement") is between
WorldTravel Partners I, L.L.C., with its principal place of business at ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("WTP") and WorldTravel
Technologies, L.L.C., with its principal place of business at ▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("WTT"). WTP may require from time to time certain
professional services from WTT related to software development ("Services") and
this Agreement sets forth the general terms and conditions, which apply to the
provision of such services. WTT agrees to provide to WTP the services described
herein, or in any Delivery Order referencing this Agreement, in accordance with
the terms and conditions of this Agreement. In the event of any conflict between
any Delivery Order and this Agreement, the terms of this Agreement shall
control.
1. DEFINITIONS
1.1. "APPLICATION SOFTWARE" shall mean 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.
1.2. "CONFIDENTIAL INFORMATION" shall mean any data or information, other
than Trade Secrets, that is of value to a party to this Agreement and is not
generally known outside of such party. To the extent consistent with the
foregoing, Confidential Information includes, but is not limited to, information
about the parties' employees, the parties' business methods, and contracts and
contractual relations with the parties' vendors. Confidential Information also
includes any information described in this paragraph which either party obtains
from another party which the receiving party treats as proprietary or designates
as confidential information, whether or not owned or developed by the receiving
party.
1.3. "CUSTOM SOFTWARE" shall mean the Application Software and the
Documentation.
1.4. "CUSTOMERS" shall mean an entity doing business, relating to travel
services, with a given party on the date in question. For corporate entities,
only those divisions or portions of a corporation doing business with such party
on the date in question are considered to be included in the definition of
Customer.
1.5. "DESIGN SPECIFICATIONS" shall mean, 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.
1.6. "DOCUMENTATION" shall mean all operator and user manuals, training
materials, guides, listings, specifications and other materials necessary for
the complete understanding and utilization 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.
1.7. "END USER AGREEMENT" shall mean that agreement between the parties
executed concurrently with this Agreement under which WTT licenses the use of
certain WTT software and products to WTP.
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1.8. "LICENSED PRODUCTS" shall mean those WTT products licensed to WTP under
separate license agreements between the parties.
1.9 "NEWCO" shall mean a company organized under the laws of England and
Wales, which is equally owned by ▇▇▇▇ ▇▇▇▇▇▇▇▇, plc and WTT UK.
1.10 "OFS SERVICE BUREAU/OUTSOURCING AGREEMENT" shall mean that agreement
between the parties executed concurrently with this Agreement under which WTT
provides Online Fulfillment Services (OFS) to WTP.
1.11 "TTG SERVICE BUREAU AGREEMENT" shall mean that agreement between the
parties executed concurrently with this Agreement under which WTT, through its
Travel Technologies Group, provides certain services and data information to
WTP.
1.12 "TRADE SCRETS" shall mean any information of either party , including
but not limited to technical or non-technical data, a formula, a pattern, a
compilation, a program, a device, a method, a technique, a drawing, a process,
financial data, financial plans, product plans, or a list of actual or potential
customers or suppliers, which (i) derives economic value, actual or potential,
from not being generally known to and not being readily ascertainable by proper
means by other persons who can obtain economic value from its disclosure or use
and (ii) is the subject of efforts that are reasonable under the circumstances
to maintain its secrecy.
1.13 "WTP CUSTOM SOFTWARE" shall mean all software for which WTP pays market
rate for development.
1.14 "USERS" shall mean entities and individuals who use WTT products and/or
service bureau offerings. Users shall not include WTP.
2. SERVICES TO BE PROVIDED BY WTT
2.1. SERVICES
The parties acknowledge and agree that WTP may from time to time desire
the development of Custom Software. WTP agrees that WTT shall have the right of
first refusal to perform such development services for WTP on the term and
conditions set forth herein. The terms and conditions of this Agreement, as
applicable, shall apply to each assignment proposed by WTP, which is accepted by
WTT. Each assignment will generally be in the form of a Delivery Order, in a
form substantially similar to that of Exhibit A, which will describe the work to
be performed, the period within which the work is to be completed and the amount
or method of payment therefor. WTT is not obligated to bid on Customer-specific
or non-generic products, which are not related to the service bureau or other
business lines of WTT. In the event that WTT does not bid or refuses to do the
development requested by WTP hereunder, WTT shall give WTP access to relevant
interface definitions or source code as reasonably necessary for WTP to perform
such development, subject to WTP's agreement to appropriate confidentiality
provisions for such definitions and source code.
Any newly developed WTT products or service bureau offerings shall be
made available to WTP before such products or offerings are made available to
other Users, unless such products were funded by a third party who paid for such
development. All new products and service bureau offerings made
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available to Users will be made available to WTP pursuant to WTT's then-current
rate or less, at WTT's discretion.
3. PROJECT MANAGEMENT; DELIVERY
3.1. DESIGNATION OF PROJECT COORDINATORS
WTT shall designate a project manager for the work hereunder (the "WTT
Project Coordinator"), who shall be assigned by WTT to supervise the work
hereunder, and shall serve as WTP's point of contact for the resolution of
problems. WTP shall also designate an employee who shall be assigned by WTP to
coordinate WTP's involvement in the work hereunder (the "WTP Project
Coordinator"), and shall serve as WTT's point of contact for the resolution of
problems. Either party may change its Project Coordinator from time to time and
shall immediately notify the other party of any such change. For purposes of any
Delivery Order, the WTT Project Coordinator and the WTP Project Coordinator
shall also coordinate the services provided by WTT under a Delivery Order,
unless otherwise agreed.
3.2. PERIODIC PROGRESS REPORTS
WTT shall provide periodic progress reports as required in any
applicable Delivery Order.
3.3. CHANGE ORDER PROCEDURE
All changes to the mutually agreed upon Design Specifications or to any
Delivery Order must be requested in writing and require mutual agreement, in
accordance with the procedure set forth in Exhibit B 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 (hereinafter defined) or other terms of this Agreement.
WTT assumes the risk of any work performed or action taken by WTT based upon
oral statements, or on documents or notations, not in accordance with the Design
Specifications, this Section 3.3, any Delivery Order and Exhibit B hereto.
4. IMPLEMENTATION AND ACCEPTANCE OF SPECIFICATIONS AND CUSTOM SOFTWARE
4.1. IMPLEMENTATION SCHEDULE
The Implementation Schedule, as contained in any Delivery Order, sets
forth the expectations of the parties as to the timing of the various stages of
any project undertaken in a Delivery Order. WTT recognizes that time and timely
performance are of the essence in this Agreement. In the event any milestone set
forth in the Implementation Schedule is not met due to any delay caused by WTT's
acts or omissions, WTP shall not be required to remit the payment except for
actual out of pocket expenses, as evidenced by appropriate written
documentation, which is associated with such milestone until such milestone is
met. Additionally, WTT shall use commercially reasonable efforts to ensure that
such delay does not result in slippage of later milestones.
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4.2. DESIGN SPECIFICATIONS
On execution of a Delivery Order hereunder, WTT shall, with WTP's
cooperation, gather the necessary detailed requirements and develop and deliver
to WTP a set of Design Specifications meeting WTP's requirements as set out in
such Delivery Order. An authorized representative of WTT shall certify to WTP in
writing that the Design Specifications are fully capable of meeting WTP's
requirements as contained in the Delivery Order, except as expressly agreed to
otherwise in writing by WTP. If such Design Specifications are prepared by WTT
at WTP's request and initiation under such a Delivery Order, the Delivery Order
shall provide for WTP to pay for the preparation of such Design Specifications
at cost. The Design Specifications shall be delivered to WTP 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 WTP, WTP
shall notify WTT in writing of its acceptance or rejection of the Design
Specifications. If the Design Specifications are rejected, WTP will specify the
reasons for such rejection and WTT shall revise and re-deliver amended Design
Specifications to WTP for acceptance. If WTP rejects the amended Design
Specifications, WTP shall have the right to terminate that project pursuant to
Section 9.2 herein. If WTP 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 WTP.
4.3. WTP ACCEPTANCE TESTING OF CUSTOM SOFTWARE
4.3.1 ALPHA TESTING
After WTT has certified to WTP in writing that the Custom Software has
been delivered and installed, that WTT testing of the Custom Software is
completed, and that the Custom Software is fully operational, fully integrated
with any and all pre-existing software or equipment in the WTP environment in
which it must operate and ready for acceptance testing by WTP, WTP shall
conduct WTP Alpha Tests as set forth in the Design Specifications (the "WTP
Alpha Testing"). WTT personnel will be present at such WTP Alpha Testing, if
requested by WTP, at cost. All WTP Alpha Testing will be conducted in accordance
with the Implementation Schedule of any relevant Delivery Order.
If the Custom Software fails to pass WTP Alpha Testing, WTP shall so
notify WTT in writing specifying the nature of such failure, and WTT shall use
all reasonable effort to correct such failure after which WTP shall repeat WTP
Alpha Testing. In the event of termination, WTP shall pay WTT for all work
performed through the date of termination, provided that such payment shall not
be greater than the payment that would have been due if the work had been
completed.
4.3.2 BETA TESTING
Upon completion of Alpha Testing, WTP shall utilize the Custom Software
for an initial thirty (30) day period, as set forth in the relevant
Implementation Schedule, for the processing of WTP's data in a production-like
environment (the "Beta Test"). The Beta Test shall be successfully completed
upon notice from WTP to WTT that WTP 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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If the Custom Software fails to pass the Beta Test, WTP shall so notify
WTT in writing specifying the nature of such failure(s) in reasonable detail and
WTT shall use all reasonable efforts to correct the specified failure(s) after
which WTP shall commence another Beta Test. In the event of termination, WTP
shall pay WTT for all work performed through the date of termination, provided
that such payment shall not be greater than the payment that would have been due
if the work had been completed.
5. COMPENSATION
5.1. INSTALLMENT PAYMENTS FOR DEVELOPMENT
As consideration for the development of the Design Specifications and
the discharge of all of WTT's obligations under this Agreement, WTP agrees to
pay WTT a fee as follows (the "Development Fee"):
(a) For developments related to the service bureau or other
business lines of WTT, as requested by WTP, the Development Fee shall be WTT's
actual costs of development. WTT shall share with WTP twenty percent (20%) of
the profits generated by WTT in licensing such products to offset, but not to
exceed, the development costs;
(b) For development of WTP Customer-specific products or
non-generic products the Development Fee shall be equal to WTT's market rates;
(c) For developments related to MeetingsAssist, WTP shall pay
one-third of the research and development costs associated with the
MeetingsAssist development for the next two (2) years. By January 1, 2002, WTT
shall either: i) assign all right, title and interest in and to MeetingsAssist
and all developments related thereto to WTP, in which event WTP shall pay WTT
market rate for any further development related to MeetingsAssist, or ii) retain
title to MeetingsAssist and provide support and hosting for MeetingsAssist at
cost plus twenty percent (20%), in which event WTP's obligation to pay any
portion of the Meeting Assist research and development costs shall terminate.
(d) Notwithstanding the foregoing or anything to the contrary
contained elsewhere in this Agreement, all development services provided by WTT
to WTP from the Effective Date through December 31, 1999 shall be at no cost to
WTP. All development from January 1, 2000 shall be paid for by WTP in accordance
with (a) through (c) above.
The Development Fee will be paid in installments in accordance with
the payment schedule set forth in the Delivery Order, and each installment shall
be payable upon completion of each milestone by WTT and acceptance by WTP in
accordance with Section 4 hereof. The Development Fees payable hereunder shall
be effective for the first five (5) years of the Agreement and shall be
renegotiated by the parties prior to the end of year five (5) of the Agreement.
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5.2. REVIEW OF FEES
WTT will submit the charges to be invoiced for services performed and
the applicable time reports or documentation required hereunder to the WTP
Project Coordinator for review and approval prior to actual invoicing. The
charges and/or expenses invoiced in accordance with this Article V, except for
any amounts disputed by WTP, shall be payable by WTP within thirty (30) days of
WTP'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.
5.3. RECORDS
WTT shall maintain complete and accurate accounting records, in a form
in accordance with generally accepted accounting principles, to substantiate
WTT's charges hereunder and WTT shall retain such records for a period of three
(3) years from the date of final payment hereunder.
5.4. AUDIT RIGHTS
WTP shall have the right to audit or have audited the books and records
of WTT relating to the amounts invoiced to WTP hereunder for the purpose of
verifying the amounts due and payable hereunder, upon at least five (5) business
days' notice to WTT. The cost of such audit shall normally be at WTP's expense;
provided, however, that WTT 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.
6. WARRANTIES AND REPRESENTATIONS
WTT hereby warrants and represents to WTP as follows:
6.1. The work to be performed hereunder shall be of professional quality and
will conform to generally accepted standards for software in the software
development field. Any services performed by WTT which are determined by WTP to
be of less than professional quality or which contain errors or defects shall be
corrected by WTT without charge.
6.2. The Design Specifications and Custom Software will contain only (i)
original material created by WTT or (ii) material which has been properly
licensed from third parties and has been used by WTT in accordance with the
licenses for such materials, provided that the inclusion of all such third party
materials shall have been agreed to by WTP.
6.3. Neither the Design Specifications nor WTP-Custom Software has been or
will be assigned, transferred or otherwise encumbered, and neither the Design
Specifications nor WTP-Custom Software nor any portion thereof, infringes any
patents, copyrights, trade secrets, or other proprietary rights of any third
party, and WTT has no reason to believe that any such infringement or claims
thereof could be made by third parties.
6.4. WTT has obtained or will obtain all necessary rights and licenses to
third party materials included in the Design Specifications and Custom Software
to enable WTP to use the Design Specifications and Custom Software for the
purposes allowed hereunder and has provided to WTP copies of all documents
granting all such rights and licenses.
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6.5. Unless expressly agreed otherwise by the parties and excepting those
time bombs or disabling devices that will be resident in the Application
Software until such time as final payment for any such Software has been
received by WTT from WTP, to the best of WTT's knowledge the Application
Software, upon acceptance by WTP, shall be free of any and all "time bombs,"
disabling mechanisms and copy protect mechanisms which may disable the
Application Software or such other software, and WTT agrees to ensure against
any data lost as a result of same that was present in the Application Software
when accepted by WTP. In addition, WTT warrants that its quality assurance
procedures include testing the Custom Software for viruses to the extent that
virus testing utilities are commercially available.
6.6. The Custom Software shall function properly and in substantial
conformity with any specifications contained within the applicable Delivery
Order for a period of six (6) months after WTP's acceptance of such software.
During such warranty period, WTT shall correct any defects identified by WTT or
by WTP at no cost.
6.7. NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE
CUSTOM SOFTWARE, OTHER SOFTWARE OR SERVICES TO BE SUPPLIED HEREUNDER, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
7. CONFIDENTIALITY, OWNERSHIP AND NON-SOLICITATION
7.1. CONFIDENTIALITY
7.1.1. The parties acknowledge that the Design Specifications and Custom
Software developed hereunder will constitute either WTT's or WTP's Trade Secrets
depending on which party owns such Design Specifications and Custom Software in
accordance with Paragraph 7.2 below. Additionally, the parties acknowledge that
in the course of developing the Design Specifications and Custom Software each
party may have access to other Trade Secrets and Confidential Information of the
other party. The parties agree that they will only make their Trade Secrets and
Confidential Information available to the other on an as needed basis. The
receiving party agrees to make such Confidential Information and Trade Secrets
available only to those employees, agents, or authorized third parties who have
signed appropriate confidentiality agreements covering such Trade Secrets and
Confidential Information. The parties agree that they will not discuss or
otherwise make available such information to any third parties without the prior
written consent of the other, and will use such information only in accordance
with the provisions of this Agreement. Accordingly, the parties agree that (i)
during the term of this Agreement and after the termination or expiration
hereof, the parties will not, except as expressly authorized or directed by the
other, use, copy, or disclose, or permit any unauthorized person access to, any
Trade Secrets; and (ii) during the term hereof and for a period of two (2) years
after the termination or expiration of this Agreement, the parties will not use,
copy, or disclose, or permit any unauthorized person access to, any Confidential
Information.
7.1.2. Except as otherwise provided in this Agreement, upon the termination or
expiration of this Agreement, both parties shall deliver to each other all
memoranda, notes, records, tapes, documentation, disks, manuals, files or other
documents, and all copies thereof, concerning or containing Confidential
Information or Trade Secrets that are in either party's possession. Further,
both parties shall ensure that upon the termination or expiration of this
Agreement all Trade Secrets and Confidential Information belonging to the other
party are purged from the receiving party's computer memory.
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7.2. OWNERSHIP
7.2.1. WTP agrees that any and all intellectual property which is conceived,
first reduced to practice, made or developed in the course of work performed
under this Agreement by WTT or by one or more of WTT's employees, consultants,
representatives or agents, including, but not limited to, all software and
documentation, and all copyrights subsisting therein, except as provided in
Paragraph 7.2.2, are and shall remain the exclusive property of WTT, and WTP
agrees to assign to WTT all rights and title to such intellectual property,
provided, however, WTT hereby grants WTP a non-exclusive, perpetual, paid-up
non-transferable license to such intellectual property with no right to
sublicense without WTT consent. WTP shall use such intellectual property only
for the purpose of providing services to its Customers. In no event shall WTP
use such intellectual property for service bureau use absent a separate written
agreement explicitly providing for such use. All use of the intellectual
property by WTP shall be consistent with the provisions of this Agreement, and
such other terms and conditions on which the parties may mutually agree,
including the End User Agreement.
7.2.2. WTT agrees that any and all intellectual property which is conceived,
first reduced to practice, made or developed in the course of work performed
under this Agreement by WTT or by one or more of WTT's employees, consultants,
representatives or agents, including, but not limited to, all software and
documentation, and all copyrights subsisting therein, which is WTP Custom
Software, shall be considered a "work for hire" and shall be the exclusive
property of WTP. WTT agrees to assign to WTP all rights and title to such
intellectual property.
7.2.3. 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 Paragraph 7.2, 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.
7.3 NON-SOLICITATION
7.3.1 During the term of this Agreement and for any individual employee for
six months following termination or resignation of such employee, neither party
shall employ, solicit or make any offers to employ any employees of the other
party used by the original employing party in the performance of the Services or
additional services, without the prior written consent of the original employer.
The original employer shall be entitled, in addition to any other remedies it
may have at law or in equity, to a payment from the hiring party in an amount
equal to one year's salary of any employee the hiring party employs, solicits or
offers to employ in violation of this Section.
8. INDEMNIFICATION
8.1. INFRINGEMENT INDEMNITY
WTT shall indemnify, defend and hold WTP 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 WTP or any of
its officers, directors, agents or employees, arising out of a claim that any
Custom Software, or any portion thereof, infringes or misappropriates any United
States or foreign patent, copyright, trade secret or other proprietary right.
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8.2. GENERAL INDEMNITY BY WTT
WTT shall indemnify, defend and hold WTP 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 WTP 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 of third parties arising out of the performance of this
Agreement and/or any breach of this Agreement by WTT, its officers, directors,
agents, employees and subcontractors.
8.3. LITIGATION
Promptly after receipt by WTP of a threat of any action, or a notice of
the commencement or filing of any action against which WTP may be indemnified
hereunder, WTP shall give notice thereof to WTT, provided that failure to give
or delay in giving such notice to WTT shall not relieve WTT of any liability it
may have to WTP hereunder except to the extent that WTT's defense of such action
is prejudiced thereby. WTT shall have sole control of the defense and of all
negotiations for settlement of such action, except that no compromise or
settlement thereof may be effected or committed to by WTT without WTP's
consent. WTP agrees to reasonably cooperate with WTT in the defense or
settlement of any such claim. If all or any part of the Custom Software is, or
in the opinion of WTT may become, the subject of any claim or suit for
infringement of any intellectual property rights, WTT may, and in the event of
any adjudication that the Custom Software or any part thereof does infringe, or
if the use of the Custom Software or any part thereof is enjoined, WTT shall, at
its expense do one of the following things: (1) procure for WTP the right to use
the Custom Software or the affected part thereof; (2) replace the Custom
Software or affected part with other suitable programs; or (3) modify the Custom
Software or affected part to make it non-infringing.
9. TERM AND TERMINATION
9.1. TERM
The term of this Agreement will begin on November 1, 1999 (the
"Effective Date") and will continue until the latter of (a) the tenth
anniversary of the Effective Date, (b) the date that this Agreement expires
following the extension of its term (unless terminated sooner in accordance with
this Agreement), or (c) the termination of any one of the End User License
Agreement, the OFS Service Bureau/Outsourcing Agreement, or the TTG Service
Bureau Agreement.
9.2 TERMINATION
(A) TERMINATION FOR BREACH
Either party may terminate this Agreement at any time in the event of a
material breach of the terms hereof by the other party if such party shall fail
to cure such material breach within thirty (30) days of receipt of written
notice thereof.
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(B) TERMINATION BY WTP
WTP may terminate projects upon written notice to WTT in the event
that: (A) WTP rejects any amended Design Specifications pursuant to
Section 4.2 hereof or (B) the Custom Software fails to pass Acceptance
Testing as more particularly described in Section 4.3 hereof.
9.3. WTP OBLIGATIONS UPON TERMINATION
In the event of termination of this Agreement by WTT, WTT will work
together with WTP or a designated third party to identify the
information, materials and resources WTP is entitled to receive and to
develop an overall plan for transitioning such items to WTP in
accordance with the following provisions (collectively, "Termination
Assistance"). The terms of this Agreement as they relate to Termination
Assistance shall remain in effect until WTP has completed its
Termination Assistance. WTT will provide the Termination Assistance
described below for a period of no less than ninety (90) days and no
more than six (6) months per WTP's written request, except as provided
in this Section. WTT's obligation to provide Termination Assistance
will be conditioned upon WTP paying to WTT all outstanding invoices
prior to the commencement of any Termination Assistance and will be
conditioned upon WTP continuing to pay when due any and all fees due
hereunder during the Termination Assistance period. WTP shall pay WTT's
standard hourly rates and reasonable expenses for any Termination
Assistance provided by WTT. This fee is in addition to any other
payments required under this Agreement. Notwithstanding the termination
or expiration of this Agreement, the terms and conditions of this
Agreement will apply to all services provided by WTT during such
period. If WTP requests Termination Assistance beyond the available
capacity of the WTT on-site staff, such request will be treated as a
request for additional services and WTT will pay the agreed upon charge
for such additional services. The provisions of this Section will
survive the expiration or termination of this Agreement for any reason.
WTP and WTT will jointly develop a plan (the "Transition Plan") to
effect the orderly transition and migration to WTP or a designated
third party from WTT of all services then being performed or managed by
WTT under this Agreement (the "Termination Transition"). The Transition
Plan will indicate the schedule on which WTT will turn over
responsibility for each service to WTP. The Transition Plan will set
forth the tasks to be performed by WTP and WTT, the time for completing
such tasks and the criteria for declaring the transition "completed".
The parties and their employees and agents will cooperate in good faith
to execute the plan and each party agrees to perform those tasks
assigned to it in the Transition Plan. WTT will direct the execution of
the Transition Plan. The Transition Plan will include the following
tasks and such other tasks as may be agreed upon by WTP and WTT:
(i) Providing WTP access to necessary data files and
programs, certain non-proprietary operational
procedures and data and documentation in WTT's
possession related to the Services.
(ii) Returning all WTP confidential and proprietary
information in WTT's possession, except for one copy
which WTT may retain, subject to its confidentiality
obligations, for internal recordkeeping purposes and
for compliance with applicable professional
standards.
(iii) Returning all WTP software to WTP with data and
documentation. WTT will deliver to WTP all WTP data
in a format applicable for use by WTP and will
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seek to minimize the amount of manual data entry or
re-keying necessary in connection with the transfer
of such data to WTP.
9.4. OBLIGATION TO MINIMIZE DAMAGES.
Both parties shall have an obligation to take such steps as may be
reasonably necessary to minimize damages to the parties on termination,
including, but not limited to, minimizing all contractual obligations
that but for the existence of this Agreement, neither party would have
entered into.
10. DESIGNEES.
10.1. 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 input on
design direction and development, product direction, review and analyze changes
in the market, prioritize resources to effectuate performance of the parties
obligations hereunder, and review and analyze the performance of the parties in
accordance with the applicable statements of work and milestones.
WTT Designee: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
WTP Designee: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Newco Designee:
-----------------------------
If a JOC Member resigns or leaves its employer, the party with a vacancy will
promptly appoint a replacement.
10.2. MANAGEMENT REPRESENTATIVES. Each party hereby appoints the following
individual as its Management Representative for purposes of this Agreement:
WTT: President or CEO
WTP: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
If a Management Representative resigns or leaves its employer, the party with a
vacancy will promptly appoint a replacement.
11. DISPUTE RESOLUTION.
11.1. 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 Representatives will attempt to reach an amicable
resolution. If either JOC Representative determines that an amicable resolution
cannot be reached, such JOC Representative shall submit such dispute in writing
to the Management Representatives, who shall use their best efforts to resolve
it or to negotiate an appropriate modification or amendment.
11.2. ESCALATION. Except as otherwise provided in the termination provisions
hereof, neither party shall be permitted to exercise any other remedies until
the later of (i) the date that either Management Representative concludes in
good faith that an amicable resolution of the dispute through continued
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negotiation is unlikely, or (ii) sixty (60) days following the date that both
parties have notified a Management Representative pursuant to Section 11.1. If
either party fails to designate a Management Representative at its own
initiative, it shall do so within three business days of a request from the
other party to do so.
11.3. ARBITRATION. If the parties are unable to reach a resolution of any
matter within the negotiation procedures outlined herein, the parties may submit
such 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.
12. GENERAL TERMS
12.1. GOVERNING LAW - 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.
12.2. NOTICES - All notices required to be sent under this Agreement,
including notices of address change, shall be sent by registered or certified
mail, return receipt requested, by nationally recognized overnight delivery
service or courier, or by facsimile. Notice so sent shall be deemed to have been
given when mailed or transmitted to the following addresses:
if to WTP : ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
WorldTravel Partners I, L.L.C.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
if to WTT: ▇▇▇▇▇ ▇▇▇▇▇▇▇
General Counsel
WorldTravel Technologies, L.L.C.
▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12.3. SEVERABILITY - In the event that any one or more of the provisions of
this Agreement is determined by a court of competent jurisdiction to be invalid,
unenforceable or illegal, such invalidity, unenforceability or illegality shall
not affect any other provisions of this Agreement and the Agreement shall be
construed as if the challenged provision had never been contained herein. The
parties further agree that in the event such provision is an essential part of
this Agreement, they will immediately begin negotiations for a suitable
replacement provision.
12.4. NO WAIVER - The failure of either party at any time to require
performance by the other party of any provision of this Agreement shall in no
way affect that party's right to enforce such provisions, nor shall the waiver
by either party of any breach of any provision of this Agreement be taken or
held to be a waiver of any further breach of the same provision.
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12.5. ASSIGNMENT - It is understood and agreed by the parties that the
services of WTT are unique and personal in nature and WTT shall not assign its
required performance to any other individual, firm or entity without the express
written consent of WTP, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, WTT may assign its required performance to Newco
or a WTT subsidiary or affilite without such written consent.
12.6. SURVIVAL - The provisions of Sections 5.3 and 5.4 and Sections 6, 7, 8,
9, 11 and 12 of this Agreement shall survive the expiration or other termination
of this Agreement.
12.7. TIME OF THE ESSENCE - Time shall be of the essence with respect to the
duties, obligations and performance of the parties under this Agreement.
12.8. REMEDIES - The rights and remedies of the parties set forth in this
Agreement are not exclusive and are in addition to any other rights and remedies
available to it at law or in equity.
12.9. MULTIPLE COUNTERPARTS - This Agreement may be executed in several
counterparts, all of which taken together shall constitute one single agreement
between the parties.
12.10. RELATIONSHIP BETWEEN THE PARTIES - The relationship of WTT to WTP is
that of an independent contractor. Under no circumstances shall any employees of
one party be deemed to be the employees of the other for any purpose. Each party
shall pay all compensation and benefits due its respective employees relative to
this Agreement and shall be responsible for all obligations respecting them
relating to income tax withholdings, unemployment insurance premiums, pension
plan contributions, and other similar responsibilities. Nothing contained herein
shall be construed as implying a joint venture or partnership or franchise
relationship between the parties hereto. Neither party has the right or
authority to assume or to create any obligation or responsibility on behalf of
the other party, except as may from time to time be provided by written
instrument signed by both parties.
12.11. FORCE MAJEURE - No delay or default in performance of any obligation by
either party, excepting all obligations to make payments hereunder, shall
constitute a breach of this Agreement to the extent caused by force majeure.
12.12. TAXES - In addition to the other charges payable under this Agreement,
WTT shall be solely responsible for the payment of any taxes and duties based
upon the facilities, assets, and Services, any additional services and/or
products provided by WTT, exclusive of any taxes based upon WTT's income. Both
parties agree to take all reasonable steps to minimize all taxes, which might be
assessed on either party based on the parties' performance hereunder.
12.13. ENTIRE AGREEMENT - This Agreement, together with any Delivery Order
executed by the parties, constitutes the complete understanding between the
parties with regard to the subject matter herein and supersedes all previous and
contemporaneous agreements and representations, whether written or oral. This
Agreement may not be modified, supplemented, or amended except in a writing
signed by an authorized representative of each party.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their duly authorized representatives, as of the date first
written above.
WORLDTRAVEL TECHNOLOGIES, L.L.C. WORLDTRAVEL PARTNERS I, L.P.
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇ ▇▇▇▇
----------------------------- --------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
President President
ATTACHMENTS TO THIS AGREEMENT:
Exhibit A - Delivery Order Form
Exhibit B - Change Order Procedure
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EXHIBIT A
DELIVERY ORDER #_________
TO LICENSE AND DEVELOPMENT AGREEMENT
BETWEEN WORLDTRAVEL TECHNOLOGIES, L.L.C.
AND WORLDTRAVEL PARTNERS I, L.L.C.
I. STATEMENT OF WORK
II. DELIVERABLES
III. IMPLEMENTATION SCHEDULE AND PAYMENT
IV. PERSONNEL
IN WITNESS WHEREOF, the parties hereto have caused this Delivery Order to be
executed and delivered by their duly authorized representatives, as of the date
first written above, and such Delivery Order is hereby incorporated into the
above-referenced Agreement.
WORLDTRAVEL TECHNOLOGIES, L.L.C. WORLDTRAVEL PARTNERS I, L.L.C.
By: By:
----------------------------- ---------------------------
Authorized Signature Authorized Signature
Name: Name:
--------------------------- ------------------------
Title: Title:
--------------------------- ------------------------
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EXHIBIT B
CHANGE ORDER PROCEDURE
Step 1. Change Identification
WTP will identify the need for a change in the Design Specifications. This
request shall be in writing, authorized by the WTP Project Coordinator, and
submitted to the WTT Project Coordinator.
Step 2. Analysis
The WTT Project Coordinator will handle all initial requests submitted by WTP,
and will assign the appropriate level of technical support personnel to review
each such request. WTT personnel will review each request and produce a proposal
with initial designs addressing the parameters specified by WTP. The proposal
will also address the effect, if any, of the change on the Implementation
Schedule and/or other terms and conditions of the Software Development
Agreement. The WTT Project Coordinator will submit the proposal to WTP for its
review and approval.
Step 3. Analysis Review.
WTP will review WTT 's proposal and will authorize WTT in writing to perform one
of the following actions:
A. cancel initial request (no charges incurred, no change to the
Design Specifications)
B. perform change at rates and upon terms specified in the
proposal submitted by WTT pursuant to Step 2 above
C. enter negotiations as to rates and/or terms which will apply
to the change
Step 4. Implementation
WTT will respond to the corresponding WTP authorization (as set forth in Step 3
above) as follows:
A. cancel all efforts
B. begin implementation of change
C. negotiate rates quoted and/or terms and conditions specified
in the proposal submitted by WTT pursuant to Step 2 (results
of negotiation to be reflected in a revised proposal by WTT
pursuant to Step 2)
Step 5. Delivery/Acceptance
If the proposed change does not provide for an acceptance procedure, then upon
completion of any change undertaken by WTT pursuant to Step 4, item B above, WTT
will deliver the completed products to WTP for its review and acceptance in
accordance with WTT's proposal. WTP will notify WTT in writing if the products
delivered do not meet the specifications contained within WTT's proposal in
accordance with the terms and conditions of this Agreement and/or the amendment
pertaining to the change.