Exhibit 10.14
THE MARKED PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED
AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT
Master Agreement
This Master Agreement (this "Agreement") is made as of the 20th day of
February, 2001 (the "Effective Date") by and between Allin Interactive
Corporation ("Allin") with its principal business address located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Carnival
Corporation ("Customer") with its principal business address located at ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Recitals
WHEREAS, Allin is in the business of, among other things, designing,
developing, licensing and supporting computer software products and providing
custom software development, system planning and migration, training and other
consulting services; and
WHEREAS, Customer desires to engage Allin to design, develop and install
an interactive television system on certain cruise ships that are owned and
operated by Customer, its subsidiaries or affiliates (each subsidiary or
affiliate of Customer that will install a System (as defined below) on any of
its cruise ships shall individually be referred to as a "Customer Affiliate" and
are collectively referred to as "Customer's Affiliates"). The design,
development and installation of the System shall be collectively referred to as
the "Project"; and
WHEREAS, Allin and Customer desire to enter into this Agreement to set
forth the terms and conditions which will govern the relationship between the
parties in connection with the design, development and installation of the
System.
NOW, THEREFORE, intending to be legally bound and in consideration of the
mutual premises and obligations set forth herein, Allin and Customer agree as
follows:
1. Definitions.
-----------
In addition to the initially capitalized terms elsewhere defined in this
Agreement, the following initially capitalized terms shall have the meanings as
set forth in this Section 1:
1.1 Acceptance means acceptance of the System in accordance with the
----------
Customer Affiliate Agreement and acceptance of the Application in accordance
with the Software Development Agreement.
1.2 Agreement means this agreement and the exhibits hereto, as
---------
amended from time to time by mutual written agreement of the parties.
1.3 Application means the computer application software that Allin
-----------
will develop for Customer pursuant to the Software Development Agreement (as
defined below). The terms "Application", "Application Deliverables",
"Application Documentation" and the "Application Software" shall have the same
meanings herein as such terms are defined in the Software Development Agreement.
1.4 Customer Affiliate Agreement means the Interactive Television
----------------------------
System agreement that Customer shall cause each Customer Affiliate to separately
enter into with Allin that will set forth the specific parameters for delivery,
installation and Support Services for the System on those Customer Affiliate's
cruise ships which are set forth on the Installation Schedule. The Customer
Affiliate Agreement will be substantially in the form of Exhibit A attached
hereto.
1.5 Custom Programming means specific or customized programming,
------------------
interfaces and file conversions for the Application at the request of such
Customer Affiliate, pursuant to the terms of their Customer Affiliate Agreement.
1.6 Deliverables means any and all items to be delivered by Allin to
------------
Customer or a Customer Affiliate under this Agreement, the Software Development
Agreement and the Customer Affiliate Agreements.
1.7 Equipment means collectively the hardware and equipment
---------
purchased by a Customer Affiliate from Allin in accordance with the Customer
Affiliate Agreements.
1.8 Installation Schedule means the schedule that sets forth the
---------------------
time line for the delivery and installation of the System and its components on
the specific cruise ships of Customer's Affiliates in accordance with Exhibit B
attached hereto.
1.9 Software Development Agreement means the Software Development
------------------------------
Agreement executed by the parties concurrently herewith pursuant to which
Customer is purchasing the Application Deliverables from Allin.
1.10 Support Services means the support and maintenance services for
----------------
the System that Allin will provide to each of Customer's Affiliates that accept
the System in accordance with the terms set forth in a Customer Affiliate
Agreement. Allin agrees that the Support Services fees for Affiliates other than
Carnival Cruise Lines shall be no higher than the comparable fee charged to
Carnival Cruise Lines under its Customer Affiliate Agreement.
1.11 System has the meaning set forth in Exhibit C.
------ ---------
1.12 Termination Agreement means the agreement attached as Exhibit D
--------------------- ---------
hereto.
2. System Development and Installation. The System, and all portions
-----------------------------------
thereof shall be designed, developed and/or installed in accordance with the
terms of this Agreement and the Customer Affiliate Agreements.
Allin shall provide to Customer the Application and to Customer's
Affiliates the System in accordance with the Allin Solution Framework
methodology (ASF) employed by Allin. ASF has 4 distinct stages which will be
utilized by Allin (each a "Phase" and collectively, the "Phases"). The Phases
are as follows:
a. Solution Vision -- This Phase delivers the vision document
that articulates the ultimate goals for the modules and provides clear
direction to measure success as well as defining the scope of the solution
that identifies the boundaries of the Project and includes the functional
specifications for the Application. The parties acknowledge that this
Phase is complete.
b. Solution Design -- This Phase culminates in the delivery
and acceptance of the technical design specifications of the System.
c. Solution Development -- The Solution Development Phase
culminates in the initial delivery of the System, ready for pilot usage.
d. Solution Deployment -- This Phase begins with a pilot and
culminates in the production release of the Application under the Software
Development Agreement and the System, under the Customer Affiliate
Agreement.
The parties acknowledge and agree that the Solution Vision and Solution
Design for the System are addressed in the Software Development Agreement. The
applicability of these two phases to installations on Customer Affiliate cruise
ships shall apply only to the extent of any Custom Programming.
3. Software Development Agreement. Allin and Customer acknowledge that
------------------------------
contemporaneous with the execution of this Agreement the parties are executing
the Software Development Agreement, pursuant to which Allin will design, develop
and install the Application in the Customer Environment (as that term is defined
therein). Except as provided in the respective Customer Affiliate Agreements,
the rights and obligations of Allin, Customer and Customer's Affiliates with
respect to all Application Deliverables will be governed by the terms and
conditions of the Software Development Agreement. Customer hereby agrees that it
will grant Customer's Affiliates a license to use the Application as
contemplated in this Agreement and the Customer Affiliate Agreement.
4. Termination Agreement. Allin and Customer acknowledge that
---------------------
contemporaneous with the execution of this Agreement Allin Corporation and
Customer are executing the Termination Agreement, and that the effectiveness of
this Agreement is conditioned upon the execution and delivery of the Termination
Agreement.
5. Customer Affiliate Agreements. Customer will cause each of Customer's
-----------------------------
Affiliates to enter into separate Customer Affiliate Agreements with Allin
within 90 days following the Effective Date of this Agreement.
6. System Delivery and Installation.
--------------------------------
6.1 The System and its components will be delivered and installed on
the specific cruise ships of Customer's Affiliates pursuant to the Installation
Schedule, as may be modified from time to time by mutual agreement of Allin and
either Customer or a Customer Affiliate.
6.2 The initial installation, testing and Acceptance of the
Application and of the System will occur in accordance with the terms and
conditions of the Software Development Agreement. Subject to Acceptance of the
Application and System under the Software Development Agreement, Customer agrees
that it will install or cause to be installed the System on a minimum of six (6)
Customer Affiliate cruise vessels. Customer has the right prior to March 21 to
add two (2) vessels for 2001 deployment and prior to June 21 to add four (4)
vessels for 2002 deployment without impacting the pricing outlined in Section 7
below.
6.3 Installation, testing and Acceptance for the System by
Customer's Affiliates will be governed by the terms and conditions of the
Customer Affiliate Agreement.
7. System Price and Payment. Customer and Allin agree that the purchase
------------------------
price and payment schedule for the System are set forth on Schedule 7.1 (the
------------
"Payment Schedule"). Allin agrees to ▇▇▇▇ each Customer Affiliate directly for
its relevant cruise vessels in accordance with the Payment Schedule. Customer
will cause the Customer Affiliates to pay Allin in accordance with the terms of
their respective Customer Affiliate Agreement on the dates specified in the
Payment Schedule and therein.
8. Custom Programming. If any of Customer's Affiliates desire to obtain
------------------
any Custom Programming for the Application or the System, it shall follow the
procedure set forth in their Customer Affiliate Agreement.
9. Support Services and Warranties. Allin shall provide each of Customer's
-------------------------------
Affiliates with warranties and support services pursuant to the respective
Customer Affiliate Agreements.
10. New Technology. If new or improved technology relating to the System
--------------
becomes generally available to consumers that would enhance or improve the
System, Allin shall proceed to implement such technology on all Customer
Affiliate vessels that operate, or have been contracted to operate, the System
subject to a written agreement between the parties as to the purchase price,
payment terms and implementation schedule. Allin agrees that the purchase price
shall be reasonable and negotiated in good faith.
11. Termination.
-----------
11.1 Without prejudice to any other remedy, either party may
terminate this Agreement at any time upon ten (10) days prior written notice to
the other party in the event that the other party shall have breached any of its
material obligations under this Agreement and shall not have cured such default
prior to the expiration of the ten (10) day period.
11.2 Either party shall have the right to immediately terminate this
Agreement by giving written notice to the other party in the event:
(i) of the bankruptcy or assignment for the benefit of
creditors of the other party; or
(ii) that the other party ceases its on-going business
operations; or,
(iii) in the case of Customer, if Allin defaults or breaches
the Software Development Agreement or any Affiliate
Agreement; and in the case of Allin, if Customer default
or breaches the Software Development Agreement or any
Customer Affiliates breaches their respective Customer
Affiliate Agreement
11.3 The parties' may also terminate this Agreement at any time upon
mutual written agreement of the parties.
11.4 The parties' rights of termination under this Section are
without prejudice to any other remedies available to either party.
12. Non-Solicitation/Restriction on Hiring. In recognizing the high cost
--------------------------------------
of attracting, training, and retaining qualified technical personnel, each party
agrees not to recruit for employment or hire any employee of the other party or
any of its affiliates, or anyone who has been an employee of the other party or
any of its affiliates during the term of this Agreement and for six (6) months
following the termination of this Agreement, without, in each instance,
receiving the prior written consent of the other party.
13. Confidentiality. Allin agrees that all information which relates in
---------------
any way to Customer's business or operations, whether tangible or intangible and
in whatever form or medium, including, but not limited to, information relating
to Customer's current or contemplated operations; identity of suppliers of goods
and/or services; trade secrets (including any improvements thereto), whether in
development, prototype or finished form and whether patentable or not; computer
programs and computer aided designs; vendor pricing to Customer; all financial,
personnel, and other business data of Customer; and unpublished or published
copyrighted materials, including any improvements, modifications, or additions
to any of the above information, and other information identified as
confidential by the Customer, are confidential information of Customer
("Customer Confidential Information"). Customer agrees that Allin's proprietary
software, tools and other methodologies, pricing information and any other
information identified as confidential by Allin, are confidential information of
Allin ("Allin Confidential Information"). Customer Confidential Information and
Allin Confidential Information are collectively referred to as "Confidential
Information." Except as otherwise provided herein each party shall use
Confidential Information of the other party which is disclosed to it only for
purposes of this Agreement and shall not disclose such Confidential Information
to any third party, without the other party's written consent, other than to
each other's employees on a need-to-know basis. Each party agrees to take
measures to protect the confidentiality of the other's Confidential Information
that, in the aggregate, are no less protective than those measures it uses to
protect the confidentiality of its own Confidential Information, but at a
minimum, each party shall take reasonable steps to advise their employees of the
confidential nature of the Confidential Information and the prohibitions on
copying or revealing such Confidential Information contained herein.
Notwithstanding anything to the contrary contained in this Agreement, neither
party shall be obligated to treat as confidential, or otherwise be subject to
the restrictions on use, disclosure or treatment contained in this Agreement
for, any information disclosed by the other party (the "Disclosing Party")
which: (i) is rightfully known to the recipient prior to its disclosure by the
Disclosing Party; (ii) is generally known or easily ascertainable by non-parties
of ordinary skill in computer or process design or programming or in the
business of Customer; (iii) is released by the Disclosing Party to any other
person, firm or entity (including governmental agencies or bureaus) without
restriction; (iv) is independently developed by the recipient without any
reliance on Confidential Information; or (v) is or later becomes publicly
available without violation of this Agreement or may be lawfully obtained by a
party form any nonparty. Customer and Allin agree that neither party may
disclose the fact that the parties are engaged in the Project with the other
party, the details related to the type and scope of the Project or the existence
of this Agreement or the terms hereof without the prior written approval of the
other party and the parties agree that the financial terms of this Agreement are
to be treated as Confidential Information.
Notwithstanding anything to the contrary herein, either party or any
affiliate or designated agent of such party may make any public disclosure which
it believes in good faith to be required by law or by the terms of any listing
arrangement with a securities exchange or securities trading system. No party
may issue a press release regarding this Agreement or the association of the
parties without the prior review by, and written approval of, the other party.
Each party acknowledges that a violation of the restrictions contained in
this Section 13 will likely result in irreparable harm to the other party which
cannot be adequately compensated by money damages. Accordingly, each party
agrees that, in the event of an actual or threatened violation of this Section
13, the other party will be entitled to temporary and permanent injunctive
relief without the necessity of posting a bond or other security. In any event,
whether or not injunctive relief is sought or granted, the parties seeking
relief may recover monetary damages and any and all other relief to which they
may be entitled.
14. Limitation of Liability. EXCEPT FOR (i) EACH PARTY'S RESPECTIVE
-----------------------
EXPRESS INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, AND (ii) DAMAGES RESULTING
FROM A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT:
(a) NEITHER PARTY NOR THEIR AFFILIATES SHALL HAVE ANY LIABILITY FOR
CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR SPECIAL
DAMAGES OF ANY NATURE OR TYPE WHATSOEVER, OR FOR ANY MALFUNCTIONS,
DELAYS, LOSS OF DATA, LOSS OF PROFIT, INTERRUPTION OF SERVICE OR
LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
(b) NOR SHALL ALLIN OR ITS AFFILIATES, UNDER ANY CIRCUMSTANCES, BE
LIABLE TO CUSTOMER OR ITS AFFILIATES FOR ANY CLAIM BASED UPON ANY
THIRD PARTY CLAIM, AND
(c) THE COLLECTIVE AND ENTIRE LIABILITY OF EITHER PARTY AND ITS
AFFILIATES FOR ANY REASONS AND UPON ANY CAUSE OF ACTION OR CLAIM IN
CONTRACT, STATUTE, WARRANTY, TORT, NEGLIGENCE, MISREPRESENTATION,
FAILURE TO EXERCISE DUE CARE, STRICT LIABILITY, OR OTHERWISE SHALL
BE LIMITED, TO SIX MILLION DOLLARS ($6,000,000).
NO CAUSE OF ACTION WHICH ACCRUED FOR MORE THAN TWO YEARS PRIOR TO THE
FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST EITHER
PARTY OR ITS AFFILIATES.
THE PARTIES TO THIS AGREEMENT UNDERSTAND AND AGREE THAT THE LIMITATIONS
AND EXCLUSIONS SET FORTH HEREIN REPRESENT THE PARTIES' AGREEMENT AS TO THE
ALLOCATION OF RISK LIMITATIONS AND EXCLUSIONS BETWEEN THE PARTIES IN CONNECTION
WITH THIS AGREEMENT. THE FEES PAYABLE TO ALLIN HEREUNDER REFLECT, AND ARE SET IN
RELIANCE UPON, THE ALLOCATION OF RISK SET FORTH HEREIN AND THE EXCLUSION OF
CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
15. General Indemnification. Each party (an "Indemnifying Party") agrees
-----------------------
to indemnify and hold harmless the other, its affiliates and its and their
partners, principals, officers, directors, agents and employees (collectively,
the "Indemnified Parties"), from and against any and all actions, damages,
claims, liabilities, costs, expenses, or loses (including, without limitation,
reasonable legal fees and expenses) brought against, incurred by, or paid by any
of the Indemnified Parties, for bodily injury, death, or damage to tangible
personal property at Customer's facilities during the term of this Agreement
(collectively, the "Injury Claims") to the extent caused by the negligent acts
or omissions or tortious misconduct of the Indemnifying Party or any of its
employees or agents in the performance of this Agreement (but expressly
excluding Injury Claims actually or alleged to have resulted from Customer's use
of or reliance upon any Application Deliverable(s) or other materials provided
by Allin under this Agreement) or either party's breach of any material
obligation, representation, warranty, covenant or agreement under this
Agreement.
16. Intellectual Property Indemnification. In addition to Allin's general
-------------------------------------
indemnification obligations set forth above, Allin shall defend Customer from
and against any allegation that any Deliverable or part thereof infringes or
misappropriates any copyright, patent, trade ▇▇▇▇, trade secret or other
intellectual property or proprietary right of an unaffiliated third party, and
shall indemnify and hold harmless Customer from and against, and shall pay all
losses, damages, liabilities, claims and actions and all related expenses
(including, but not limited to, reasonable attorneys' fees and expenses and the
actual costs of litigation) incurred in connection therewith Allin's actions
under this Section shall constitute Customer's exclusive remedy related to
infringement.
17. Indemnity Procedures. The indemnities in the foregoing Sections are
--------------------
contingent upon: (i) the indemnified party promptly notifying the indemnifying
party in writing of any claim which may give rise to a claim for indemnification
hereunder, (ii) the indemnifying party being allowed to control the defense and
settlement of such claim, and (iii) the indemnified party cooperating with all
reasonable requests of the indemnifying party (at the indemnifying party's
expense) in defending or settling such claim. The indemnified party shall have
the right, at its option and expense, to participate in the defense of any
action, suit or proceeding relating to such a claim through a counsel of its own
choosing.
18. Dispute Resolution. In the event that any dispute arises relating to
------------------
this Agreement, the parties shall provide written notice to a senior executive
of the other party describing the dispute. If within twenty (20) business days
following receipt of such written notice the dispute cannot be resolved by the
parties, then the parties hereto may seek any and all legal remedies to which
they may be entitled, without any limitation.
19. Notices. Unless otherwise provided herein, any notice required to be
-------
given by one party to the other shall be in writing and shall be deemed given
when delivered personally or mailed by certified or registered mail, postage
prepaid (such mailed notice to be effective on the date which is three (3)
business days after the date of mailing), or sent by nationally recognized
overnight courier (such notice sent by courier to be effective one (1) business
day after it is deposited with such courier), or sent by telefax (such notice
sent by telefax to be effective when sent, if confirmed by certified or
registered mail or overnight courier as aforesaid) to the person and address set
forth below or to such other person and/or address as any party may designate
for itself by written notice to the other party in accordance with this Section:
If to Allin: Allin Interactive Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC
USX Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Customer: Carnival Corporation
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Giora Israel
With a copy to: Carnival Legal Department at the same address as
above
20. Force Majeure. Neither party shall be liable for any failure or delay
-------------
in performing its obligations under this Agreement or for any loss or damage
resulting therefrom, due to causes beyond its reasonable control, including, but
not limited to, acts of God, public enemy or government, riots, fires, natural
catastrophes, strikes or epidemics (collectively, "Force Majeure"). In the event
of such failure or delay, the date of delivery or performance shall be extended
for a period not to exceed the time lost by reason of the failure or delay;
provided that either party may terminate this Agreement if the period of failure
or delay exceeds thirty (30) days. Each party shall notify the other promptly of
any failure or delay and the effect on its performance. Nothing in this Section
shall be interpreted as implying any increased obligation or liability on the
part of either party.
21. Governing Law/Jurisdiction. This Agreement shall be governed by and
--------------------------
interpreted in accordance with the substantive laws of the State of Florida. Any
litigation shall be filed and pursued in either state or federal court in
Broward or Miami-Dade County, Florida.
22. Severability. If any provision of this Agreement is found by a court
------------
of competent jurisdiction to be illegal or otherwise unenforceable, that finding
shall not invalidate this whole Agreement and the remaining provisions shall
remain in full force and effect.
23. Survival. The obligations and rights of the parties under Sections 12
--------
through 18 inclusive, and Sections 21 through 23 inclusive, shall survive the
expiration or early termination of this Agreement.
24. Binding Effect; Assignment. This Agreement shall be binding upon and
---------------------------
shall inure to the benefit of the parties and their respective representatives,
successors, and permitted assigns, in
accordance with the terms hereof. Neither party may assign this Agreement
without the prior written consent of the other party except that either party
may, at its sole expense, assign its rights under this Agreement to a
wholly-owned subsidiary or the parent corporation of the assigning party,
provided, however, that no assignment shall in any way affect a party's
obligations or liabilities under this Agreement.
25. Modification Any amendment, change or modification to this Agreement
------------
shall be void unless in writing and signed by all parties hereto.
26. Non-Waivers No failure or delay by a party hereto in exercising any
right, power or privilege hereunder, and no course of dealing between or among
any of the parties, shall operate as a waiver of any such right, power or
privilege. No waiver of any default on any one occasion shall constitute a
waiver of any subsequent or other default. No single or partial exercise of any
such right, power or privilege shall preclude the further or full exercise
thereof.
27. Counterparts; Facsimile Transmission This Agreement and all amendments
hereto may be executed in several counterparts and each counterpart shall
constitute a duplicate original of the same instrument. Signatures sent to the
other party by facsimile transmission shall be binding as evidence of acceptance
of the terms hereof by such signatory party.
28. Entire Agreement This Agreement (including any Exhibits) constitutes
the entire understanding of the parties with respect to its subject matter and
supersedes any and all prior oral or written agreements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the first date above written.
Allin Interactive Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------
Carnival Corporation
By: s/ GIORA ISRAEL
---------------------------------------
Name: Giora Israel
-------------------------------------
Title: Vice President
------------------------------------
ATTACHMENTS
Exhibit A -- Form Customer Affiliate Agreement
Exhibit B -- Installation Schedule
Exhibit C -- System Description
Exhibit D -- Termination Agreement
Schedule 7.1 -- Purchase Price and Payment Schedule
EXHIBIT A
FORM CUSTOMER AFFILIATE AGREEMENT
THE MARKED PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED
AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT
Interactive Television System Agreement
This Interactive Television System Agreement (this "Agreement") is made as
of the 20th day of February, 2001 (the "Effective Date") by and between Allin
Interactive Corporation ("Allin") with its principal business address located at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Carnival
Cruise Lines ("CCL"), a division of Carnival Corporation with its principal
business address located at ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Recitals
WHEREAS, Allin is in the business of, among other things, designing,
developing, licensing and supporting computer software products and providing
custom software development, system planning and migration, training and other
consulting services; and
WHEREAS, Carnival Corporation ("CC") has engaged Allin to design, develop
and install an interactive television system on certain cruise vessels that are
owned and operated by CC, its subsidiaries or affiliates, which includes,
without limitation, CCL. The design, development and installation of the System
(as defined below) shall be collectively referred to as the "Project"; and
WHEREAS, Allin and CCL desire to enter into this Agreement to set forth
the terms and conditions which will govern the relationship between the parties
in connection with the delivery, installation and maintenance of the System.
NOW, THEREFORE, intending to be legally bound and in consideration of the
mutual premises and obligations set forth herein, Allin and CCL agree as
follows:
1. Definitions.
-----------
In addition to the initially capitalized terms elsewhere defined in this
Agreement, the following initially capitalized terms shall have the meanings as
set forth in this Section 1:
1.1 Acceptance means acceptance of the System pursuant to Section
----------
4.2, 4.3(1), 4.3(2) or 4.3(3).
1.2 Acceptance Criteria means the criteria mutually agreed upon by
-------------------
the parties pursuant to which performance of the System will be measured.
1.3 Acceptance Date means the date upon which acceptance of the
---------------
System occurs in accordance with Section 4.2 herein.
1.4 Agreement means this Agreement and the exhibits hereto, as
---------
amended from time to time by mutual written agreement of the parties.
1.5 Application Software means the computer application software
--------------------
that Allin will develop for CC pursuant to the Software Development Agreement
(as defined below). The terms "Application" and "Application Documentation"
shall have the same meanings herein as such terms are defined in the Software
Development Agreement.
1.6 CCL Environment means and includes the hardware, software and
---------------
communications components, systems and other requirements required for
installation of the System on CCL's cruise vessels as set forth and described on
Schedule 1.6, as the same may from time to time hereafter be amended by the
------------
mutual agreement of CCL and Allin.
1.7 Custom Programming means specific or customized programming,
------------------
interfaces and file conversions for the Application portion of the System that
Allin provides for CCL at the request of CCL, pursuant to Section 6 herein. In
addition to the object code and source code provided with any Custom
Programming, such Custom Programming will include all specification documents,
manuals, user guides, schematics, drawings, listings and standards relating
thereto.
1.8 Deliverables means any and all items to be delivered by Allin to
------------
CCL under this Agreement, which includes, without limitation, the System and all
documents related thereto, manuals (including training manuals, tools and
documentation), user guides, schematics, drawings, listings and standards
relating to the System, or Allin's delivery and/or installation thereof, that
are provided to CCL by Allin or such other items that the parties agree Allin
will deliver to CCL under this Agreement.
1.9 Equipment means collectively the hardware and equipment
---------
purchased by CCL from Allin in connection with the System pursuant to Section 7
herein.
1.10 Installation Schedule means Schedule 1.10 to this Agreement
--------------------- -------------
that sets forth the time line for the delivery and installation of the System
and its components on the cruise vessels of CCL that are listed on the
Installation Schedule. The Installation Schedule of this Agreement shall be
consistent with the Installation Schedule contained in the Master Agreement as
the latter relates to CCL vessels.
1.11 Master Agreement means the agreement between CC and Allin that
----------------
sets forth the general agreement between CC and Allin for the delivery and
installation of the System.
1.12 Payment Schedule means Schedule 1.12 to this Agreement that
---------------- -------------
sets forth the System Price and the payment terms relating thereto. The Payment
Schedule of this Agreement shall be consistent with the Payment Schedule
contained in the Master Agreement as the latter relates to CCL vessels. To the
extent that the parties hereto agree upon any Customer Programming the Payment
Schedule shall be amended accordingly.
1.13 Software Development Agreement means the Software Development
--------------------
Agreement executed by Allin and CC pursuant to which CC is purchasing the
Application Software from Allin.
1.14 Support Services means the support and maintenance services for
----------------
the System that Allin will provide to CCL pursuant to Section 9.2 herein.
1.15 System has the meaning set forth on Exhibit A.
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1.16 System Price means the price that CCL will pay for the delivery
------------
and installation of the System as set forth in the Payment Schedule for the
cruise vessels listed on the Installation Schedule.
1.17 System Deficiency means any deficiency that (a) causes an
-----------------
abnormal termination of processing by the System or that results or is likely to
result in data corruption or any other erroneous processing of a nature that has
or that reasonably may be expected to have a material adverse effect on CCL's
normal business activities or business reputation (b) is attributable to a
defect or deficiency in the Application Software, Custom Programming or other
Deliverable, or (c) otherwise causes the System not to properly operate in
conjunction with the Application Software, Custom Programming or other
Deliverable.
2. Software Development Agreement. CC is purchasing the Application
------------------------------
Software from Allin pursuant to the Software Development Agreement, under which
Allin will design and develop the Application Software for the benefit of CC.
The obligations of the parties under this Agreement are contingent upon
acceptance of the Application by CC. Once the Application has been accepted by
CC in accordance with the Software Development Agreement, the Application will
be included as part of the System subject to this Agreement. CCL must obtain a
license from CC to use the Application within the System pursuant to a separate
license agreement.
3. Installation Schedule and Change Request Process.
------------------------------------------------
3.1 Installation Schedule. The System and its components will be
---------------------
delivered and installed on the specific vessels of CCL pursuant to the
Installation Schedule and as further described in Section 4 below. The
Installation Schedule is subject to modification based upon Custom Programming
which may be requested by CCL pursuant to the change request process described
in Section 3.2 below and further subject to CCL's obligation to ensure that
CCL's environment complies with the requirements set in Schedule 1.6.
------------
3.2 Change Requests. For any change CCL wishes to make to the
---------------
Installation Schedule or for any desired Custom Programming, CCL shall notify
Allin of the requested change specifying the change with sufficient details to
enable Allin to evaluate it ("Change Request"). Change Requests shall be in
writing either using the form attached hereto as Schedule 3.2 or otherwise
------------
providing substantially the same information. All CCL Change Requests shall be
initiated by ▇▇▇▇▇ ▇▇▇ or his designee and any responses thereto by Allin shall
be directed to ▇▇. ▇▇▇.
Any Change Requests that take less than [REDACTED - CONFIDENTIAL
TREATMENT REQUESTED] hours for Allin to evaluate will be assessed at no cost to
CCL. If a Change Request will take longer than [REDACTED - CONFIDENTIAL
TREATMENT REQUESTED] hours for Allin to evaluate, Allin will submit to CCL for
its prior written approval the costs associated with such evaluation. Allin will
thereafter only proceed if CCL has approved such evaluation costs.
Allin shall accept any Change Requests unless Allin can show that
the Change Request would be materially detrimental to the performance of the
Application, materially contrary to the Solution Vision or have a material
adverse effect on the Project Plan, or the Installation Schedule (as that term
is defined in the Master Agreement). Notwithstanding the foregoing Allin shall
have no obligation to proceed with any Change Request until the parties have
mutually agreed upon (i) the cost and payment terms associated with such Change
Request as well as, (ii) the impact that such Change Request has on the Project
Plan, Application and/or Installation Schedule, except that Allin agrees that
any cost proposals in connection with a Change Request will be reasonable and
negotiated in good faith, and will be determined in a manner consistent with the
System pricing. The provisions of this Agreement shall be deemed amended to
incorporate any mutually agreed Change Requests.
4. System Installation, Testing and Acceptance.
-------------------------------------------
4.1 Installation. In accordance with the dates set forth in the then
------------
current Installation Schedule, Allin shall (i) deliver and install the System in
the CCL Environment, and (ii) deliver all Deliverables. In each case, Allin
shall certify the completion thereof, in writing, to CCL. Subject to CC's
ownership rights in the Application Software, title to the System shall pass to
CCL upon CCL's payment of the applicable sum owed for installation on the
applicable vessel as set forth in the Payment Schedule.
4.2 Acceptance Testing. CCL shall have [REDACTED - CONFIDENTIAL
------------------
TREATMENT REQUESTED] business days following the delivery and installation of
the System (the "Acceptance Period") to test the System to ensure that it does
not contain any System Deficiencies. The Acceptance of, and the Acceptance Date
for, the System will occur upon the earlier of: (i) written notice from CCL to
Allin stating that the System meets the Acceptance Criteria, or (ii) the
expiration of the Acceptance Period without notice by CCL of nonacceptance. If
the System is not accepted, CCL shall provide written notice to Allin no later
than the last day of the Acceptance Period that describes in reasonable detail
any System Deficiency. Acceptance by CCL shall not be unreasonably withheld.
4.3 Nonacceptance. In the event that CCL does not accept the System in
-------------
accordance with Section 4.2 above, Allin shall be given a mutually agreed upon
reasonable period of time, which shall in no event exceed [REDACTED -
CONFIDENTIAL TREATMENT REQUESTED] days, to review and correct any System
Deficiency. Allin will remedy any material failure of the System and correct any
System Deficiency. In the event that Allin cannot remedy any material failure or
correct any System Deficiency after [REDACTED - CONFIDENTIAL TREATMENT
REQUESTED] days, then CCL shall allow for one additional [REDACTED -
CONFIDENTIAL TREATMENT REQUESTED] day test period, so long as Allin provides CCL
with a written plan that describes Allin's plan to remedy the deficiencies in
the upcoming [REDACTED - CONFIDENTIAL TREATMENT REQUESTED]-day period and
summarizes its efforts in the prior [REDACTED - CONFIDENTIAL TREATMENT
REQUESTED]-day period. If the System is still not acceptable because of a
material failure or a System Deficiency after the second [REDACTED -
CONFIDENTIAL TREATMENT REQUESTED] day test period, then CCL have shall one of
the following options:
(1) Deem the System to work in substantial conformity with applicable
documentation and accept the System as is; or
(2) Allow for one additional test period, by furnishing Allin with a
written list specifying the remaining deficiencies in the System.
Allin shall provide CCL with another written plan describing Allin's
plan to remedy the deficiencies in the upcoming [REDACTED -
CONFIDENTIAL TREATMENT REQUESTED]-day period and summarizing its
efforts in the prior [REDACTED - CONFIDENTIAL TREATMENT
REQUESTED]-day periods. Allin shall then have up to [REDACTED -
CONFIDENTIAL TREATMENT REQUESTED] days from the receipt of such
notice to attempt to remedy such defects, which, if resolved, shall
cause CCL to accept the System in writing; or
(3) CCL may accept the System except for the non-conforming portions and
receive a mutually-agreed price credit for the reasonable value of
the non-conforming portion; or
(4) If the System failure is considered "catastrophic", such that the
basic functionality of the System does not work, then CCL can
terminate the Agreement and receive a refund of all sums paid to
Allin, less a reasonable fee for time and materials.
If CCL terminates in accordance with (4) above, CCL shall, within 30 days
of such termination, return the System and all Deliverables, and there shall be
no further obligation or liability on the part of either party under this
Agreement, except for obligations which have theretofore accrued and obligations
which survive termination of this Agreement.
5. System Price and Payment.
------------------------
5.1 System Price. In consideration of Allin's delivery and
------------
installation of the System and subject to Section 5.4 below, CCL shall pay to
Allin the System Price as set forth in, and in accordance with, the Payment
Schedule.
5.2 Other Fees. In addition to payment for the System in accordance
----------
with the Payment Schedule, CCL shall pay Allin for (i) any Custom Programming at
the price mutually agreed upon for each Change Request, and/or (ii) any
additional fees assessed by Allin in evaluating Change Requests in accordance
with Section 3.2.
5.3 Taxes. CCL shall pay any and all taxes arising out of or
-----
relating to the transactions contemplated in this Agreement, excluding all taxes
(i) imposed on or measured by Allin's net income, taxable income, capital gains;
(ii) imposed for the privilege or on the exercise of Allin's franchise for doing
business; (iii) imposed or measured by Allin's capital, net worth, loans or
investments; or (iv) imposed or measured by Allin's gross income or gross
receipts.
5.4 Payments. Allin will send CCL an invoice for each applicable
--------
vessel upon Allin's completion of an appropriate milestone that triggers a
payment owed under this Agreement in accordance with the
Payment Schedule. Each of the amounts payable by CCL to Allin under this
Agreement shall be due thirty (30) days after receipt of invoice. CCL's
obligation to pay for any System is contingent upon the System's acceptance by
CCL in accordance with the terms of this Agreement. CCL will not be deemed in
breach or default of this Agreement on amounts disputed in good faith by CCL if
CCL provides Allin with a detailed written description of any disputed amounts
in a timely manner.
5.5 Expenses. CCL shall reimburse Allin for reasonable and
--------
documented out of pocket business expenses (travel, food, lodging, etc.)
incurred by Allin personnel when they are working on the delivery and
installation or for Allin personnel who are based outside of the South Florida
area when attending meetings that are called at the request of CCL. CCL must
approve in advance any Allin personnel who will provide services or attend any
meeting. Allin will submit any proposed travel requests to CCL and CCL may at
its discretion make travel arrangements on behalf of Allin (air, lodging and car
rental) or at its discretion will provide reasonably suitable onboard
accommodations on the applicable cruise vessel during installation of the System
as required to install the System. Additional travel expenses will be presented
to CCL with supporting documentation for reimbursement.
6. Custom Programming.
------------------
6.1 If CCL desires to obtain any Custom Programming for the System,
CCL shall follow the Change Request Process set forth in Section 3.2 above.
6.2 Notwithstanding the foregoing, any Custom Programming, including
but not limited to, all object code and source code shall be deemed work for
hire and shall belong exclusively to CCL in accordance with Section 10.
6.3 Any Custom Programming will be subject to all of the terms and
conditions of this Agreement, including, without limitation, the provisions of
Acceptance Testing and Warranties.
7. Equipment.
---------
7.1 Purchase of Equipment. In connection with the System, CCL shall
---------------------
purchase from Allin the Equipment set forth in Schedule 7.1 (as such schedule
------------
may be modified from time to time by mutual written agreement of the parties).
The purchase price of such Equipment is included within the System Price.
7.2 Title. Allin shall sell and pass title to the Equipment to CCL
-----
proportionately upon payment of the System Price from time to time pursuant to
Section 10.2 herein. Allin shall deliver title to Equipment free and clear of
all liens and encumbrances, excepting those of parties claiming through CCL.
7.3 Shipping. CCL shall pay for the transportation charges for the
--------
Equipment (including but not limited to freight, rigging, and transit insurance)
and the installation charges invoiced to Allin by suppliers of the Equipment.
8. Delivery and Site Responsibilities. CCL shall be responsible for
----------------------------------
preparing and maintaining the location of the CCL Environment and ensuring the
CCL Environment is ready for the System at the time of installation. Except as
set forth in Section 7.1 above, any equipment, cable, software, devices or other
items necessary for the installation and operation of the System in the CCL
Environment shall be purchased and installed by CCL. CCL is solely responsible
for its use of the System and for the accuracy and adequacy of information and
data furnished for processing.
9. Support Services and Warranties.
-------------------------------
9.1 Warranty of Performance.
-----------------------
(a) Allin warrants for a period of ninety (90) days following
date that CCL accepts the System in accordance with this Agreement (the
"Warranty Period"), that the System and any Custom Programming
when operated on properly functioning Equipment and in the proper environment
shall perform substantially in accordance with applicable documentation and
without any System Deficiencies. During the Warranty Period, Allin shall correct
failures of the System to perform as specified above.
(b) For all Equipment, Allin shall pass through to CCL all
assignable warranties received from the Equipment manufacturers.
9.2 Support Services.
----------------
(a) During the Warranty Period, for support services which are
not covered by the warranty of performance pursuant to in Section 9.1 above, CCL
will pay Allin for any such support services on a time and materials basis.
(b) Commencing on the first day following the expiration of
the Warranty Period and continuing for a period of six (6) months (the "Initial
Support Period") CCL shall pay to Allin $[REDACTED - CONFIDENTIAL TREATMENT
REQUESTED] per month per cruise ship (the "Monthly Support Payment"). Payment by
CCL of each Monthly Support Payment shall entitle CCL to [REDACTED -
CONFIDENTIAL TREATMENT REQUESTED] hours of support services from Allin to be
used by CCL as it deems appropriate for support of the System on its cruise
lines. Subject to CCL's payment of the monthly Support Payment and any
additional amounts due under this Section 9.2(b), Allin will provide the level
of support services set forth on Schedule 9.2(b). CCL agrees to pay to Allin on
---------------
a time and materials basis at an hourly rate of $[REDACTED- CONFIDENTIAL
TREATMENT REQUESTED] for support services provided by Allin in excess of the
aggregate number of monthly hours CCL is entitled to receive for its Monthly
Support Payment(s).
Prior to the expiration of the Initial Support Period, the
parties agree to meet and discuss in good faith the then current levels and
prices of Support Services to determine whether CCL desires that the level of
Support Services be revised and the appropriate fee changes relating thereto.
Notwithstanding the foregoing, Customer shall have the right at the end of the
Initial Support Period to terminate support services by providing Allin with
thirty (30) days prior written notice.
9.3 Further Warranties.
------------------
(a) All services to be provided by Allin under this Agreement
shall be performed in a competent and workmanlike manner by employees or
contractors that have the proper skills, training and background to perform such
services.
(b) Allin will deliver all Deliverables to CCL free and clear
of any liens, charges, encumbrances, and no other person or entity shall have
any claim or ownership with respect to the Deliverables. CCL will be able to use
the Deliverables without restriction, subject to CCL's payment in full of all
amounts payable by CCL to Allin for the Deliverables.
(c) Allin warrants that is has not purposely placed, nor is it
aware of, any disabling code in the System or Custom Programming which would,
without CCL's intervention, alter, destroy, adversely affect or inhibit the
System or Custom Programming or CCL's use thereof.
(d) To the best of Allin's knowledge, no existing or
threatened proceedings against Allin will have a material adverse effect upon
its ability to perform its obligations under this Agreement.
(e) Allin warrants it is duly authorized by all requisite
action to execute, deliver and perform its obligations under this Agreement.
9.4 Warranties of CCL
-----------------
(a) CCL warrants that it will provide Allin with reasonable
access to CCL's employees, facilities and information as may be reasonably
requested by Allin in connection with the performance of Allin's services under
this Agreement.
(b) To the best of CCL's knowledge no existing or threatened
proceedings will have a material adverse effect upon its ability to perform its
obligations under this Agreement.
(c) CCL warrants it is duly authorized by all requisite action
to execute, deliver and perform its obligations under this Agreement.
THE WARRANTIES IN THIS SECTION, ALONG WITH THE WARRANTIES SET FORTH IN THE
SOFTWARE DEVELOPMENT AGREEMENT AND THE MASTER AGREEMENT, ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER ARISING BY COURSE OF DEALING OR
PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR PROFESSION OR OTHERWISE, INCLUDING,
BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. ALLIN DOES NOT WARRANT THAT THE SYSTEM OR CUSTOM PROGRAMMING
WILL BE ERROR FREE. Except for the warranties expressly set forth in this
Section, CCL acknowledges and agrees that it has relied on no other
representations or warranties and that no other representations or warranties
have formed the basis of its bargain hereunder.
10. Ownership Rights of Deliverables
--------------------------------
10.1 CCL IP. Except as specified in Section 10.2 below and subject
------
to CCL's payment of amounts due from CCL to Allin for the Deliverables, all
Deliverables including, but not limited to, all object code and source code
shall be deemed work for hire and shall belong exclusively to CCL; with vesting
of CCL's ownership occurring, from time to time, in proportion to the percentage
of the System purchase price plus other payments due to Allin hereunder paid by
Customer at any given time. Allin expressly, knowingly, voluntarily, absolutely,
unconditionally and forever waives and relinquishes in its entirety all rights
to claim authorship of the Deliverables, any portion thereof and/or any
derivative works based on the Deliverables. CCL shall have the right to apply
for and obtain patents, copyrights and other applicable formal means of
recognition of exclusive rights to the Deliverables. Whenever requested so to do
by CCL, and without further compensation or consideration, but at the expense of
CCL, Allin shall promptly execute and assign any and all applications,
assignments and other instruments which CCL shall reasonably deem necessary in
order to apply for and obtain any such desired patents, copyrights or similar
rights, or in order to assign and transfer to CCL or its nominee the
applications for patents thereof. Notwithstanding anything to the contrary in
this Agreement. Allin will not be precluded from using its pre-existing
expertise and techniques or the Residual Information (as defined below) in the
field of information technology consulting and integration for itself or for
other customers. The term "Residual Information" shall mean information relating
to ideas, concepts and techniques which are related to Allin's business
activities and which are retained in the memories of individual employees
without the aid of any document or other recorded or stored information.
10.2 Non-CCL IP
----------
(a) CCL's ownership of the Deliverables shall not include (i)
the Application, as this will be owned by CC but licensed to CCL, (ii) any third
party software or other technology which is owned by any third party including,
but not limited to, software and/or technology owned by On-Command which may be
incorporated into any Deliverable ("Third Party IP") or (iii) any third party
software or other technology which is developed by Allin outside the scope of
the Project or relates to skills and knowledge of a general nature acquired by
Allin in course of its performance of the services under this Agreement or any
Residual Information (as defined above) (collectively, the "Allin IP").
(b) With respect to any Deliverables which incorporate either
Third Party IP or Allin IP, Allin will grant or will cause to be granted to CCL
a non-exclusive, perpetual license to use the Third Party IP and/or the Allin IP
in connection with the Deliverables. While the foregoing Third Party IP is
subject to such
additional terms and conditions which may reasonably be required by the third
party owning such Third Party IP, in no event will CCL be responsible to pay any
additional sums in connection therewith. Further, Allin shall inform CCL as soon
as practicable of any third party requirements. Notwithstanding the foregoing,
no right or license is granted or will be granted to CCL to use the Allin IP or
the Third Party IP as a standalone product.
11. Termination.
-----------
11.1 Without prejudice to any other remedy, either party may
terminate this Agreement at any time upon thirty (30) days prior written notice
to the other party in the event that the other party shall have breached any of
its material obligations under this Agreement and shall not have cured such
default prior to the expiration of the thirty (30) day period.
11.2 Either party shall have the right to immediately terminate this
Agreement by giving written notice to the other party in the event:
(i) of the bankruptcy or assignment for the benefit of
creditors of the other party; or
(ii) that the other party ceases its on-going business
operations; or,
(iii) in the case of CCL, in the event of breach by Allin of
the Software Development Agreement or the Master Agreement, and in the case of
Allin in the event of breach by CC of the Software Development Agreement or the
Master Agreement.
11.3 The parties' may also terminate this Agreement at any time upon
mutual written agreement of the parties.
11.4 The parties' rights of termination under this Section are
without prejudice to any other remedies available to either party.
12. Non-Solicitation/Restriction on Hiring. In recognizing the high cost
--------------------------------------
of attracting, training, and retaining qualified technical personnel, each party
agrees not to recruit for employment or hire any employee of the other party or
any of its affiliates, or anyone who has been an employee of the other party or
any of its affiliates during the term of this Agreement and for six (6) months
following the termination of this Agreement, without, in each instance,
receiving the prior written consent of the other party.
13. Independent Contractor. Allin shall operate as an independent
---------------------
contractor in the performance of this Agreement and not as an agent or employee
of CCL. Each party shall ensure that neither it nor its agents or employees
shall act or hold themselves out as agents or employees of the other party.
Allin shall have complete control of its agents and employees engaged in the
performance of services under this Agreement. As between Allin and CCL, each
party will be responsible for the supervision, direction and control of its own
personnel and the personnel of any subcontractors or other third parties engaged
by that party in connection with this Agreement.
14. Confidentiality. Allin agrees that all information which relates in
---------------
any way to CCL's business or operations, whether tangible or intangible and in
whatever form or medium, including, but not limited to, information relating to
CCL's current or contemplated operations; identity of suppliers of goods and/or
services; trade secrets (including any improvements thereto), whether in
development, prototype or finished form and whether patentable or not; computer
programs and computer aided designs; vendor pricing to CCL; all financial,
personnel, and other business data of CCL; and unpublished or published
copyrighted materials, including any improvements, modifications, or additions
to any of the above information, and other information identified as
confidential by the CCL, are confidential information of CCL ("CCL Confidential
Information"). CCL agrees that Allin's proprietary software, tools and other
methodologies, pricing information and any other information identified as
confidential by Allin, are confidential information of Allin ("Allin
Confidential Information"). CCL Confidential Information and Allin Confidential
Information are collectively referred to as "Confidential Information." Except
as otherwise provided herein each party shall use Confidential Information of
the other party which is disclosed to it only for purposes of this Agreement and
shall not disclose such Confidential Information to any third party, without the
other party's written consent, other than to each other's employees on a
need-to-know basis. Each party agrees to take
measures to protect the confidentiality of the other's Confidential Information
that, in the aggregate, are no less protective than those measures it uses to
protect the confidentiality of its own Confidential Information, but at a
minimum, each party shall take reasonable steps to advise their employees of the
confidential nature of the Confidential Information and the prohibitions on
copying or revealing such Confidential Information contained herein.
Notwithstanding anything to the contrary contained in this Agreement, neither
party shall be obligated to treat as confidential, or otherwise be subject to
the restrictions on use, disclosure or treatment contained in this Agreement
for, any information disclosed by the other party (the "Disclosing Party")
which: (i) is rightfully known to the recipient prior to its disclosure by the
Disclosing Party; (ii) is generally known or easily ascertainable by non-parties
of ordinary skill in computer or process design or programming or in the
business of CCL; (iii) is released by the Disclosing Party to any other person,
firm or entity (including governmental agencies or bureaus) without restriction;
(iv) is independently developed by the recipient without any reliance on
Confidential Information; or (v) is or later becomes publicly available without
violation of this Agreement or may be lawfully obtained by a party form any
nonparty. CCL and Allin agree that neither party may disclose the fact that the
parties are engaged in the Project with the other party, the details related to
the type and scope of the Project or the existence of this Agreement or the
terms hereof without the prior written approval of the other party and the
parties agree that the financial terms of this Agreement are to be treated as
Confidential Information.
Notwithstanding anything to the contrary herein, either party or any
affiliate or designated agent of such party may make any public disclosure which
it believes in good faith to be required by law or by the terms of any listing
arrangement with a securities exchange or securities trading system. No party
may issue a press release regarding this Agreement or the association of the
parties without the prior review by, and written approval of, the other party.
Each party acknowledges that a violation of the restrictions contained in
this Section 14 will likely result in irreparable harm to the other party which
cannot be adequately compensated by money damages. Accordingly, each party
agrees that, in the event of an actual or threatened violation of this Section
14, the other party will be entitled to temporary and permanent injunctive
relief without the necessity of posting a bond or other security. In any event,
whether or not injunctive relief is sought or granted, the parties seeking
relief may recover monetary damages and any and all other relief to which they
may be entitled.
15. Insurance. CCL and Allin each shall, at all times maintain
---------
Comprehensive General Liability Insurance against any and all claims and losses
arising out of their respective performance under this Agreement, with limits of
not less than $3,000,000 in the aggregate and of not less than $1,000,000 per
occurrence, and shall provide Workmens' Compensation Insurance in accordance
with all applicable laws and shall maintain employer's liability insurance with
limits of not less than $1,000,000 per occurrence, covering any occurrences not
covered by Workmens' Compensation Insurance.
16. Limitation of Liability. EXCEPT FOR (i) EACH PARTY'S RESPECTIVE
-----------------------
EXPRESS INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, AND (ii) GROSS NEGLIGENCE OR
DAMAGES RESULTING FROM A PARTY'S WILLFUL MISCONDUCT:
(a) NEITHER PARTY NOR THEIR AFFILIATES SHALL HAVE ANY LIABILITY FOR
CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR SPECIAL
DAMAGES OF ANY NATURE OR TYPE WHATSOEVER, OR FOR ANY MALFUNCTIONS,
DELAYS, LOSS OF DATA, LOSS OF PROFIT, INTERRUPTION OF SERVICE OR
LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF IT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
(b) NOR SHALL ALLIN OR ITS AFFILIATES, UNDER ANY CIRCUMSTANCES, BE
LIABLE TO CUSTOMER OR ITS AFFILIATES FOR ANY CLAIM BASED UPON ANY
THIRD PARTY CLAIM, AND
(c) THE COLLECTIVE AND ENTIRE LIABILITY OF EITHER PARTY AND ITS
AFFILIATES FOR ANY REASONS AND UPON ANY CAUSE OF ACTION OR CLAIM IN
CONTRACT, STATUTE, WARRANTY, TORT, NEGLIGENCE, MISREPRESENTATION,
FAILURE TO
EXERCISE DUE CARE, STRICT LIABILITY, OR OTHERWISE SHALL BE LIMITED,
TO SIX MILLION DOLLARS ($6,000,000).
NO CAUSE OF ACTION WHICH ACCRUED FOR MORE THAN TWO YEARS PRIOR TO THE
FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST EITHER
PARTY OR ITS AFFILIATES.
THE PARTIES TO THIS AGREEMENT UNDERSTAND AND AGREE THAT THE LIMITATIONS
AND EXCLUSIONS SET FORTH HEREIN REPRESENT THE PARTIES' AGREEMENT AS TO THE
ALLOCATION OF RISK LIMITATIONS AND EXCLUSIONS BETWEEN THE PARTIES IN CONNECTION
WITH THIS AGREEMENT. THE FEES PAYABLE TO ALLIN HEREUNDER REFLECT, AND ARE SET IN
RELIANCE UPON, THE ALLOCATION OF RISK SET FORTH HEREIN AND THE EXCLUSION OF
CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
17. General Indemnification. Each party (an "Indemnifying Party") agrees
-----------------------
to indemnify and hold harmless the other, its affiliates and its and their
partners, principals, officers, directors, agents and employees (collectively,
the "Indemnified Parties"), from and against any and all actions, damages,
claims, liabilities, costs, expenses, or loses (including, without limitation,
reasonable legal fees and expenses) brought against, incurred by, or paid by any
of the Indemnified Parties, for bodily injury, death, or damage to tangible
personal property at CCL's facilities during the term of this Agreement
(collectively, the "Injury Claims") to the extent caused by the negligent acts
or omissions or tortious misconduct of the Indemnifying Party or any of its
employees or agents in the performance of this Agreement (but expressly
excluding Injury Claims actually or alleged to have resulted from CCL's use of
or reliance upon any Application Deliverable(s) or other materials provided by
Allin under this Agreement) or either party's breach of any material obligation,
representation, warranty, covenant or agreement under this Agreement.
18. Intellectual Property Indemnification. In addition to Allin's general
-------------------------------------
indemnification obligations set forth above, Allin shall defend CCL from and
against any allegation that any Deliverable or part thereof infringes or
misappropriates any copyright, patent, trade ▇▇▇▇, trade secret or other
intellectual property or proprietary right of an unaffiliated third party, and
shall indemnify and hold harmless CCL from and against, and shall pay all
losses, damages, liabilities, claims and actions and all related expenses
(including, but not limited to, reasonable attorneys' fees and expenses and the
actual costs of litigation) incurred in connection therewith Allin's actions
under this Section shall constitute CCL's exclusive remedy related to
infringement.
19. Indemnity Procedures. The indemnities in the foregoing Sections are
--------------------
contingent upon: (i) the indemnified party promptly notifying the indemnifying
party in writing of any claim which may give rise to a claim for indemnification
hereunder, (ii) the indemnifying party being allowed to control the defense and
settlement of such claim, and (iii) the indemnified party cooperating with all
reasonable requests of the indemnifying party (at the indemnifying party's
expense) in defending or settling such claim. The indemnified party shall have
the right, at its option and expense, to participate in the defense of any
action, suit or proceeding relating to such a claim through a counsel of its own
choosing.
20. Dispute Resolution. In the event that any dispute arises relating to
------------------
this Agreement, the parties shall provide written notice to a senior executive
of the other party describing the dispute. If within twenty (20) business days
following receipt of such written notice the dispute cannot be resolved by the
parties, then the parties hereto may seek any and all legal remedies to which
they may be entitled, without any limitation.
21. Notices. Unless otherwise provided herein, any notice required to be
-------
given by one party to the other shall be in writing and shall be deemed given
when delivered personally or mailed by certified or registered mail, postage
prepaid (such mailed notice to be effective on the date which is three (3)
business days after the date of mailing), or sent by nationally recognized
overnight courier (such notice sent by courier to be effective one (1) business
day after it is deposited with such courier), or sent by telefax (such notice
sent by telefax to be effective when sent, if confirmed by certified or
registered mail or overnight courier as aforesaid) to the person and address set
forth below or to such other person and/or address as any party may designate
for itself by written notice to the other party in accordance with this Section:
If to Allin: Allin Interactive Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC
USX Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to CCL: Carnival Cruise Lines
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
With a copy to: Carnival Legal Department at the same address as
above
22. Force Majeure. Neither party shall be liable for any failure or delay
-------------
in performing its obligations under this Agreement or for any loss or damage
resulting therefrom, due to causes beyond its reasonable control, including, but
not limited to, acts of God, public enemy or government, riots, fires, natural
catastrophes, strikes or epidemics (collectively, "Force Majeure"). In the event
of such failure or delay, the date of delivery or performance shall be extended
for a period not to exceed the time lost by reason of the failure or delay;
provided that either party may terminate this Agreement if the period of failure
or delay exceeds thirty (30) days. Each party shall notify the other promptly of
any failure or delay and the effect on its performance. Nothing in this Section
shall be interpreted as implying any increased obligation or liability on the
part of either party.
23. Governing Law/Jurisdiction. This Agreement shall be governed by and
--------------------------
interpreted in accordance with the substantive laws of the State of Florida. Any
litigation shall be filed and pursued in either state or federal court in
Broward or Miami-Dade County, Florida.
24. Severability. If any provision of this Agreement is found by a court
------------
of competent jurisdiction to be illegal or otherwise unenforceable, that finding
shall not invalidate this whole Agreement and the remaining provisions shall
remain in full force and effect.
25. Survival. The obligations and rights of the parties under Sections
--------
10,11, 12, 14, 16, 17, 18, 19, 20, 24 and this Section 25 shall survive the
expiration or early termination of this Agreement.
26. Binding Effect; Assignment This Agreement shall be binding upon and
--------------------------
shall inure to the benefit of the parties and their respective representatives,
successors, and permitted assigns, in accordance with the terms hereof. Neither
party may assign this Agreement without the prior written consent of the other
party except that either party may, at their sole expense, assign its rights
under this Agreement to a wholly-owned subsidiary or the parent corporation of
the assigning party, provided, however, that no assignment shall in any way
affect a party's obligations or liabilities under this Agreement.
27. Modification Any amendment, change or modification to this Agreement
------------
shall be void unless in writing and signed by all parties hereto.
28. Non-Waivers No failure or delay by a party hereto in exercising any
-----------
right, power or privilege hereunder, and no course of dealing between or among
any of the parties, shall operate as a waiver of any such right, power or
privilege. No waiver of any default on any one occasion shall constitute a
waiver of any subsequent or other default. No single or partial exercise of any
such right, power or privilege shall preclude the further or full exercise
thereof.
29. Counterparts; Facsimile Transmission This Agreement and all amendments
------------------------------------
hereto may be executed in several counterparts and each counterpart shall
constitute a duplicate original of the same instrument. Signatures sent to the
other party by facsimile transmission shall be binding as evidence of acceptance
of the terms hereof by such signatory party.
30. Entire Agreement This Agreement (including any Exhibits) constitutes
----------------
the entire understanding of the parties with respect to its subject matter and
supersedes any and all prior oral or written agreements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the first date above written.
Allin Interactive Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------
Carnival Cruise Lines, a division of
Carnival Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------
Title: President
------------------------------------
ATTACHMENTS
Exhibit A -- System Description
Schedules:
Schedule 1.5 -- CCL Environment
Schedule 1.9 -- Installation Schedule
Schedule 1.11 -- Payment Schedule
Schedule 3.2 -- Change Request Form
Schedule 7.1 -- Equipment to be Purchased from Allin
Schedule 9.2(b) -- Support Services
EXHIBIT A
System Description:
The System is an in cabin interactive television system that allows
users to do things such as purchase movies, buy shore excursions, order room
service and many more services depending on the functionality desired (in this
case as outlined in the Solution Vision). The System is currently based on
hardware utilizing the On Command OCX system architecture. The System utilizes
an existing RF cable plant that is outfitted to support a passive return path to
communicate the keystrokes from the end user (the television located in a cabin)
to the head end. These keystrokes are picked up by the IR receiver of smart set
televisions and passed to our TVCommander II control box (plugged into the smart
port of the television) and communicates back to the head end. The system passes
key strokes from the ITV remote control (standard with the system) or ITV
wireless keyboard (an optional piece of equipment used for internet browsing and
e-mail applications).
Inside the head end, several independent rack systems support the
various RF trunks feeding the RF distribution plant. Each rack system can
support 2 or more RF trunks assuming no trunk or combination of trunks exceeds
230 ITV end users per trunk or combined trunk. The rack system is made up of a
series of client PC's which deliver the interactive applications. The video and
audio output of each client is modulated to an NTSC channel to allow broadcast
over the RF network. Each rack system also contains a server that acts as the
host/proxy server containing the database allowing all the hardware to interact
and process the commands issued from the web applications viewed by the end
user. The rack system also has VCP's for delivering movie content from VHS tape.
At the discretion of CCL, through the change order process, the VCP's can be
replaced with a Digital Video Server that is already incorporated into the OCX
system. There will be no material cost difference between the VCP based system
or the digital video server based system assuming the type of system is
specified prior to system order. For those systems installed with VCP's, CCL
will have the option of removing the VCP's and installing the digital video
server for the cost of the digital video server and any associated labor. Allin
will design all software such that no material change to the software will be
required to switch between the digital video server and the VCP based system.
SCHEDULE 1.5
------------
CCL ENVIRONMENT
All televisions that will be used for the System will be smart set
televisions.
Allin will not be responsible for blocking channels from televisions on
the MATV network that are not a part of the System.
Allin must have the use of 40 contiguous channels above channel 30.
All channels will be modulated NTSC.
No more than 230 rooms will exist on any single RF trunk going to the
headend.
All rooms will have an available 110 Volt AC outlet within several feet of
the television for the ITV box.
Passive loss between every room and the HE must be no greater than 60dBmV.
All amplifiers in the system must be outfitted with passive return
modules.
Average room to client ratio will be 20 to 1.
Adequate electrical power in the Head End. Adequate electrical
requirements in the headend room is defined as 1 - 30amp dedicated electrical
circuit of conditioned and UPS protected power to be supplied per rack installed
as part of the system.
Adequate air conditioning. Adequate air conditioning requirements in the
headend room is defined as keeping the room in which the ITV equipment is housed
between 65 to 68 degrees ▇▇▇▇▇▇▇▇▇▇ ▇▇ hours a day assuming each rack creates
8,000 BTUs of heat.
Adequate space. Adequate space in the headend room is defined as each pair
of racks having at minimum a rectangle of open floor space of 90 inches by 120
inches with a minimum ceiling height of 90 inches (ceiling being defined by the
lowest hanging objects from the ceiling).
Adequate provisions for cable runs. Adequate provisions for cable runs is
defined as cable trays or conduit running between each of the racks and the head
end RF combiner in which the cable trays or conduit are free from other wiring
and the cable run is no longer than 30 feet.
Adequate RF network. Adequate RF network is defined as the RF cable plant
being wired such that all passive devices pass at minimum 5 to 750MHz and all
active devices (specifically amplifiers) be fitted with passive return modules
allowing 5 to 40 MHz to pass on the return path. No more than 230 rooms will be
placed on any one physical RF trunk. The total passive loss across the RF cable
plant from any given location to the head end shall not exceed 60dBmV.
SCHEDULE 1.9
------------
INSTALLATION SCHEDULE
Several assumptions are being made with this schedule. They are the following:
. All cruise line specific development will have occurred prior to a
cruise line being put into one of the slots (i.e., Property
Management System Interface & Shore Excursions Interface).
. All shipboard responsibilities will be taken care of prior to the
arrival of the Allin team (RF plant, Air Conditioning, power, space,
etc.).
. No time has been accounted for in the schedule should television
modification be required.
The Schedule: (Please Note the dates are the completion dates of the
installation of the hardware. Software can/may be loaded on at separate times
depending on the schedule of software development.)
Installation Schedule
Date Vessel
Installation Ship Company Date Installed Operational Deployment Comments
---------------------------------------------------------------------------------------------
1 Victory CCL 5/15/01 7/31/01 Miami
---------------------------------------------------------------------------------------------
2 Triumph CCL 10/15/01 12/31/01 Miami
---------------------------------------------------------------------------------------------
3 Pride CCL 9/1/01 10/31/01 newbuild
---------------------------------------------------------------------------------------------
4 Spirit CCL 10/15/01 12/31/01 Miami
---------------------------------------------------------------------------------------------
5 Legend CCL 5/15/02 7/14/02 newbuild
---------------------------------------------------------------------------------------------
6 Conquest CCL 8/15/02 10/14/02 newbuild
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
SCHEDULE 1.11
-------------
PURCHASE PRICE AND PAYMENT SCHEDULE
A. Purchase Price
--------------
--------------------------------------------------------------------------------
NAME LINE CLASS CABINS PRICE
--------------------------------------------------------------------------------
Carnival Victory CCL Destiny 1,379 $[REDACTED--
CONFIDENTIAL
TREATMENT
REQUESTED]
--------------------------------------------------------------------------------
Carnival Triumph CCL Destiny 1,379 $[REDACTED--
CONFIDENTIAL
TREATMENT
REQUESTED]
--------------------------------------------------------------------------------
Carnival Pride CCL Spirit 1,062 $[REDACTED--
CONFIDENTIAL
TREATMENT
REQUESTED]
--------------------------------------------------------------------------------
Carnival Spirit CCL Spirit 1,062 $[REDACTED--
CONFIDENTIAL
TREATMENT
REQUESTED]
--------------------------------------------------------------------------------
Legend CCL Spirit 1,062 $[REDACTED--
CONFIDENTIAL
TREATMENT
REQUESTED]
--------------------------------------------------------------------------------
Conquest CCL Glory 1,487 $[REDACTED--
CONFIDENTIAL
TREATMENT
REQUESTED]
--------------------------------------------------------------------------------
. The Contract Price is based on the following assumptions: Smart Set
televisions in use in all cabins Room ration is 20 to 1 The Systems
are VCP (video cassette player) based
. To the extent the foregoing assumptions are incorrect, the purchase
price may vary.
B. Payment Schedule
----------------
Due 120 days prior to commencement of installation for each ship
installation:
[REDACTED - CONFIDENTIAL TREATMENT REQUESTED]% of the Purchase
Price listed above for the respective ship
Due upon notification of shipment of equipment to Customer or Customer
Affiliate:
[REDACTED - CONFIDENTIAL TREATMENT REQUESTED]% of the Purchase
Price listed above for the respective ship
Due upon Completion of Installation:
[REDACTED - CONFIDENTIAL TREATMENT REQUESTED]% of the Purchase
Price listed above for the respective ship
Due upon Acceptance:
[REDACTED - CONFIDENTIAL TREATMENT REQUESTED]% of the Purchase
Price listed above for the respective ship
Schedule 3.2
-------------------------------------------------------------------------------
CHANGE REQUEST FORM
-------------------------------------------------------------------------------
Request Date:
Title:
--------------------------- -------
Requestor Requestor e- Requestor
-------------------------- mail -------- Phone: ---------
Type of
Change
------------------- Importance o High o Medium o Low
Description
--------------------------------------------------------------------
Allin Info
Solution Technical
Manager: Architect:
------------------------- ----------------------
Authorized
by:
-----------------------
Design Development
Hours Hours
--------------------------- ---------------------
Testing Development
Hours Hours
--------------------------- ---------------------
Comments
SCHEDULE 7.1
------------
EQUIPMENT TO BE PURCHASED FROM ALLIN
Equipment Description:
HeadEnd:
-------
All HeadEnd equipment is divided among "rack systems". Each rack
system generally supports between 200 to 500 cabins depending on the population
of equipment in the rack system. While the rack system configuration will at
times change slightly, Allin will commit to delivering equipment that can
materially be shown to be consistent with equipment Allin is then installing in
similar environments. As an example, a current rack system configuration would
include the following equipment:
2 24" racks
2 Rack Power Supplies (AC, conditioner, DC)
1 Host/Proxy server
20 Client PC's
1 A/V router switch
2 Video Modulator Banks
60 VCP's
1 RF router/diplexer
1 Network switch
The CCL ratio of cabins to interactive clients is 20 to 1. Using
this ratio, Allin will determine the number of rack systems each ship requires.
Operator Station:
----------------
The operator station will consist of a rack where the operator will
do most of their work. This rack will also contain the RF combining network in
which Allin will connect to the shipboard headend.
1 Application/database server
1 Test television setup
1 Operator PC
RF equipment required to connect to appropriately prepared shipboard
▇▇ ▇▇▇▇▇▇▇.
In-Room:
-------
Based on an assumption of 1 smart television per cabin, Allin will
supply the following equipment.
1 TVCommander II (smart port)
1 ITV remote control (no logo)
1 18" RF lead
1 Smart port com cable
Any changes to this system that a cruise line desires will be handled through
the Change Order Process.
SCHEDULE 9.2(b)
---------------
Support Service Level
A. Tracking of Support Issues
Support issues will be tracked in CCL's problem management system
(Clarify). Remote access to Clarify will be granted to Allin. CCL will provide
the necessary software licenses and procedures for Allin to access and use
Clarify as contemplated herein. Notwithstanding that Allin will be granted
access to Clarify, CCL will be solely responsible for notifying Allin of support
issues and any change with respect to any support issue.
B. Priority Levels
Each support issue will be assigned a priority code based on the nature of
the failure. Refer to Table 1. For purposes of this Schedule 9.2(b), a failure
is a system condition or event that leaves the system in a state where it is
performing a level lower than the performance level at the time of system
acceptance. Performance is defined primarily by stability, responsiveness, and
usability.
Prioritization is driven by the nature of the incident as it relates to
stability, responsiveness, and usability. For the purposes of this Schedule
9.2(b), these key terms are defined as follows:
Stability - the availability of the system and all of its functions
Responsiveness - the timeliness with which the system responds to user
requests Usability - the degree to which the system is easy for the user
to navigate and interact with the system
C. Response Time Expectation
Given the 24x7 operation of the system and the ship, target resolution
times are expressed in clock hours (not business hours). The Target Resolution
Timeframe is based upon the start time which is the time Allin is notified by
CCL of the support issue.
The expectation target (e.g. 90%) is calculated by determining the
percentage of incidents that are resolved within the target resolution time for
a given priority code. The 90% threshold is designed to drive superior
performance while allowing for the occasion where, despite the best efforts of
all parties, a given incident might not be resolved within the specified time
due to complexity or other external factors that are outside the control of the
support organization.
Monthly reports will be generated from the Clarify system detailing
performance. If service levels targets are not achieved for any given month,
representatives from Allin and CCL will meet to review the data, address root
cause, and put a plan in place to improve service levels moving forward.
----------------------------------------------------------------------------------------------------------------------------
Priority Target Resolution
Code Description/Criteria Timeframe Expectation
----------------------------------------------------------------------------------------------------------------------------
P1 . Head end issue affecting system stability or responsiveness [REDACTED-CONFIDENTIAL
(except for failure of RF components), or; TREATMENT REQUESTED]
hours
. Issue affecting stability of an entire deck or equivalent
number of cabins. 90%
----------------------------------------------------------------------------------------------------------------------------
P2 . Stability issue affecting 25 or more cabins, or; [REDACTED-CONFIDENTIAL
TREATMENT REQUESTED]
. Responsiveness issue affecting an entire deck (or equivalent hours
number of cabins). 90%
----------------------------------------------------------------------------------------------------------------------------
P3 . Usability issue impacting all users of a given module(s), or; [REDACTED-CONFIDENTIAL
TREATMENT REQUESTED]
. Stability or responsiveness issue affecting less than 24 hours
cabins. 90%
----------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
P4 . System operation not impacted, or; [REDACTED-CONFIDENTIAL 90%
TREATMENT REQUESTED]
. Information requests, or; hours
. User questions / "how-to".
---------------------------------------------------------------------------------------------------------------------------
P5 . Non break/fix requests, enhancements [REDACTED-CONFIDENTIAL Not applicable
TREATMENT REQUESTED]
hours
---------------------------------------------------------------------------------------------------------------------------
The resolution timeframe assumes:
1. Allin will have full remote control capabilities to all System
servers;
2. Allin will have dedicated email access for ship personnel
responsible for the System;
3. Allin will have phone access to ship personal via CCL's data center
or another designated support department which is available 24
hours, 7 days per week; and
4. Support levels and resolution time frames will not apply to hardware
problems..
In addition, the support levels described herein do not apply to:
1. RF components of the Head End; or
2. Support issues related to changes made to the System by anyone other
than Allin.
D. Additional Support
CCL may also encounter system performance characteristics that require
modification, despite the fact that the system is performing as designed and
accepted. Those issues are not subject to SLA and will be subject to the change
order process. For example if, subsequent to acceptance, a navigational feature
proves to be confusing to the users, the remediation of that feature is not
subject to SLA.
The foregoing support terms are intended to convey the spirit of the support
agreement, and do not address the detailed process steps and responsibilities
associated with the delivery of support. The parties agree to define and
document the support process within 90 days of the Effective Date.
EXHIBIT B
INSTALLATION SCHEDULE
Several assumptions are being made with this schedule. They are the following:
. All cruise line specific development will have occurred prior to a
cruise line being put into one of the slots (i.e., Property
Management System Interface & Shore Excursions Interface).
. All shipboard responsibilities will be taken care of prior to the
arrival of the Allin team (RF plant, Air Conditioning, power, space,
etc.).
. No time has been accounted for in the schedule should television
modification be required.
The Schedule: (Please Note the dates are the completion dates of the
installation of the hardware. Software can/may be loaded on at separate times
depending on the schedule of software development.)
IATV Installation Schedule
Version II -- 2/08/01
Installation Ship Company Date Installed Date Vessel Comments
Operational Deployment
---------------------------------------------------------------------------------------------
1 Victory CCL 5/15/01 7/31/01 Miami
---------------------------------------------------------------------------------------------
2 Triumph CCL 10/15/01 12/31/01 Miami
---------------------------------------------------------------------------------------------
3 Pride CCL 9/1/01 10/31/01 newbuild
---------------------------------------------------------------------------------------------
4 Spirit CCL 10/15/01 12/31/01 Miami
---------------------------------------------------------------------------------------------
5 Legend CCL 5/15/02 7/14/02 newbuild
---------------------------------------------------------------------------------------------
6 Conquest CCL 8/15/02 10/14/02 newbuild
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
Exhibit C
SYSTEM DESCRIPTION
System Description:
The System is an in cabin interactive television system that allows
users to do things such as purchase movies, buy shore excursions, order room
service and many more services depending on the functionality desired (in this
case as outlined in the Solution Vision). The System is currently based on
hardware utilizing the On Command OCX system architecture. The System utilizes
an existing RF cable plant that is outfitted to support a passive return path to
communicate the keystrokes from the end user (the television located in a cabin)
to the head end. These keystrokes are picked up by the IR receiver of smart set
televisions and passed to our TVCommander II control box (plugged into the smart
port of the television) and communicates back to the head end. The system passes
key strokes from the ITV remote control (standard with the system) or ITV
wireless keyboard (an optional piece of equipment used for internet browsing and
e-mail applications).
Inside the head end, several independent rack systems support the
various RF trunks feeding the RF distribution plant. Each rack system can
support 2 or more RF trunks assuming no trunk or combination of trunks exceeds
230 ITV end users per trunk or combined trunk. The rack system is made up of a
series of client PC's which deliver the interactive applications. The video and
audio output of each client is modulated to an NTSC channel to allow broadcast
over the RF network. Each rack system also contains a server that acts as the
host/proxy server containing the database allowing all the hardware to interact
and process the commands issued from the web applications viewed by the end
user. The rack system also has VCP's for delivering movie content from VHS tape.
At the discretion of CCL, through the change order process, the VCP's can be
replaced with a Digital Video Server that is already incorporated into the OCX
system. There will be no material cost difference between the VCP based system
or the digital video server based system assuming the type of system is
specified prior to system order. For those systems installed with VCP's, CCL
will have the option of removing the VCP's and installing the digital video
server for the cost of the digital video server and any associated labor. Allin
will design all software such that no material change to the software will be
required to switch between the digital video server and the VCP based system.
EXHIBIT D
THE MARKED PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED
AND FILED SEPARATELY WITH THE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT
Termination Agreement
This Termination Agreement (this "Agreement") is made and entered into as
of February 20, 2001 by and between Allin Interactive Corporation, f/k/a
SeaVision, Inc. ("Allin") with its principal business address located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and Carnival
Corporation ("Carnival") with its principal business address located at ▇▇▇▇ ▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Recitals
--------
WHEREAS, Allin and Carnival entered into that certain Agreement dated
February 6, 1996, as amended by letters dated May 23, 1996 and August 26, 1999,
pursuant to which Allin agreed to provide certain interactive television
services for certain cruise ships owned or operated by Carnival or its
affiliates (the "Original ITV Agreement"); and
WHEREAS, Allin and Carnival desire to terminate the Original ITV Agreement
in accordance with the terms and conditions set forth below.
NOW, THEREFORE, intending to be legally bound and in consideration of the
mutual premises and obligations set forth herein, Allin and Carnival agree as
follows:
1. Termination Effective Date. Carnival shall have the right to terminate
--------------------------
the Original ITV Agreement at any time following the execution of this Agreement
by providing Allin with written notice specifying its desire to terminate the
Original ITV Agreement and specifying the date upon which the termination shall
be effective (the "Termination Effective Date").
2. Title to System. Effective on the Termination Effective Date, Allin
---------------
agrees execute and deliver to Carnival a ▇▇▇▇ of sale in substantially the form
attached hereto as Exhibit A (the "▇▇▇▇ of Sale") pursuant to which Allin shall
transfer all of its rights, title and interest in and to the System (as that
term is defined in the Original ITV Agreement) "AS IS, WHERE IS" to Carnival.
3. Release of Liability. As of the Termination Effective Date, Allin and
--------------------
Carnival each agree to fully and unconditionally release and discharge the other
from its respective obligations that, but for this Agreement, would have arisen
out of or under the Original ITV Agreement after the Termination Effective Date.
4. Support and Maintenance of the System. As of the Termination Effective
-------------------------------------
Date, support and maintenance of the System shall be provided by Allin in
accordance with the terms and conditions of support pursuant to that certain
Interactive Television System Agreement between Allin and Carnival Cruise Lines
dated of even date herewith.
5. Consideration. As consideration for Allin entering into this Agreement,
-------------
Carnival agrees to pay to Allin in cash [REDACTED - CONFIDENTIAL TREATMENT
REQUESTED] payable upon the execution of this Agreement.
6. Further Assurances. From and after the date hereof, the parties agree
------------------
to execute and deliver to the other party upon such party's request such other
documents as may be necessary to effectuate the purposes of this Agreement.
7. Miscellaneous.
-------------
7.1 Notices. Unless otherwise provided herein, any notice required
-------
to be given by one party to the other shall be in writing and shall be deemed
given when delivered personally or mailed by certified or registered mail,
postage prepaid (such mailed notice to be effective on the date which is three
(3) business days after the date of mailing), or sent by nationally recognized
overnight courier (such notice sent by courier to be effective one (1) business
day after it is deposited with such courier), or sent by telefax (such notice
sent by telefax to be effective when sent, if confirmed by certified or
registered mail or overnight courier as aforesaid) to the person and address set
forth below or to such other person and/or address as any party may designate
for itself by written notice to the other party in accordance with this Section:
If to Allin: Allin Interactive Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chief Executive Officer
with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLC
USX Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to CCL: Carnival Corporation
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
With a copy to: Carnival Legal Department at the same address as
above
7.2 Force Majeure. Neither party shall be liable for any failure or
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delay in performing its obligations under this Agreement or for any loss or
damage resulting therefrom, due to causes beyond its reasonable control,
including, but not limited to, acts of God, public enemy or government, riots,
fires, natural catastrophes, strikes or epidemics (collectively, "Force
Majeure").
7.3 Governing Law/Jurisdiction. This Agreement shall be governed by
--------------------------
and interpreted in accordance with the substantive laws of the State of Florida.
Any litigation shall be filed and pursued in either state or federal court in
Broward or Miami-Dade County, Florida.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
7.4 Severability. If any provision of this Agreement is found by a
------------
court of competent jurisdiction to be illegal or otherwise unenforceable, that
finding shall not invalidate this whole Agreement and the remaining provisions
shall remain in full force and effect.
7.5 Binding Effect; Assignment. This Agreement shall be binding upon
--------------------------
and shall inure to the benefit of the parties and their respective
representatives, successors, and permitted assigns, in accordance with the terms
hereof. Neither party may assign this Agreement without the prior written
consent of the other party except that either party may, at their sole expense,
assign its rights under this Agreement to a wholly-owned subsidiary or the
parent corporation of the assigning party, provided, however, that no assignment
shall in any way affect a party's obligations or liabilities under this
Agreement.
7.6 Modification Any amendment, change or modification to this
------------
Agreement shall be void unless in writing and signed by all parties hereto.
7.7 Non-Waivers No failure or delay by a party hereto in exercising
-----------
any right, power or privilege hereunder, and no course of dealing between or
among any of the parties, shall operate as a waiver of any such right, power or
privilege. No waiver of any default on any one occasion shall constitute a
waiver of any subsequent or other default. No single or partial exercise of any
such right, power or privilege shall preclude the further or full exercise
thereof.
7.8 Counterparts; Facsimile Transmission This Agreement and all
------------------------------------
amendments hereto may be executed in several counterparts and each counterpart
shall constitute a duplicate original of the same instrument. Signatures sent to
the other party by facsimile transmission shall be binding as evidence of
acceptance of the terms hereof by such signatory party.
7.9 Entire Agreement This Agreement (including any Exhibits)
constitutes the entire understanding of the parties with respect to its subject
matter and supersedes any and all prior oral or written agreements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the first date above written.
Allin Interactive Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------
Carnival Corporation
By: s/ GIORA ISRAEL
---------------------------------------
Name: Giora Israel
-------------------------------------
Title: Vice President
-------------------------------------
Exhibit A
▇▇▇▇ of Sale
This ▇▇▇▇ of Sale (this "▇▇▇▇ of Sale") is made as of the ____ day of
_________, 200_ by Allin Interactive Corporation ("Seller") for the benefit of
Carnival Corporation ("Purchaser").
In consideration of Purchaser's payment of the sum of [REDACTED -
CONFIDENTIAL TREATMENT REQUESTED], the receipt and sufficiency of which are
hereby acknowledged, Seller, for itself and its successors and assigns, hereby
forever conveys, transfers, assigns and delivers to Purchaser and Purchaser's
successors and assigns, "AS IS, WHERE IS," without any representation or
warranties whatsoever except as expressly set forth herein, all of Seller's
rights, title and interest, in and to the following assets (the "Purchased
Assets"):
(i) All of that certain equipment and hardware listed and described
on the attached Exhibit A-1 to this ▇▇▇▇ of Sale; and
(ii) All of Seller's rights, title and interest, if any, in any and
all of the computer software and firmware installed on the computer equipment
described in (i) above.
Seller hereby represents and warrant to Purchaser that Seller has good and
marketable title to the Purchased Assets, free and clear of any lien, claim or
encumbrance, and that Seller has the power and authority to transfer ownership
of the Purchased Assets in accordance with the terms of this ▇▇▇▇ of Sale.
Seller hereby agrees that, from time to time after delivery of this ▇▇▇▇
of Sale, at Purchaser's request and without further consideration, Seller shall
do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, any and all such further acts, instruments and other
things or writings reasonably requested by Purchaser in order to evidence and
effectuate the consummation of any of the transactions contemplated by this ▇▇▇▇
of Sale.
This ▇▇▇▇ of Sale shall be governed by and construed in accordance with
the laws of the State of Florida, without giving effect to its conflict of laws
provisions.
IN WITNESS WHEREOF, Seller, intending to be legally bound hereby has
caused this ▇▇▇▇ of Sale to be executed as of the day and year first above
written.
Allin Interactive Corporation
By:_____________________________________
Its:____________________________________
SCHEDULE 7.1
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PURCHASE PRICE AND PAYMENT SCHEDULE
A. Purchase Price
--------------
The purchase price for a particular vessel as designated by Customer or
Customer Affiliate from time to time is based upon the class of ship and the
number of cabins set forth next to the class below. In the event that the number
of cabins is greater than the specified number, the purchase price will
increase.
Class of Ship Size Purchase Price
------------- ---- --------------
Statendam 633 $ [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
Volendam 720 [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
Amsterdam 658 [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
Atlantica 1,056 [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
Victoria 975 [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
QE2 779 [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
Celebration 743 [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
Fantasy 1,028 [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
Triumph 1,379 [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
Glory 1,487 [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
Victory 1,379 [REDACTED -- CONFIDENTIAL
TREATMENT REQUESTED]
. The Contract Price is based on the following assumptions:
Smart Set televisions in use in all cabins
Room ration is 20 to 1
The Systems are VCP (video cassette player) based
. To the extent the foregoing assumptions are incorrect, the purchase
price may vary.
B. Payment Schedule
----------------
Due 120 days prior to commencement of installation for each ship
installation:
[REDACTED -- CONFIDENTIAL TREATMENT REQUESTED]% of the
Purchase Price listed above for the respective ship
Due upon notification of shipment of equipment to Customer or Customer
Affiliate:
[REDACTED -- CONFIDENTIAL TREATMENT REQUESTED]% of the
Purchase Price listed above for the respective ship
Due upon Completion of Installation:
[REDACTED -- CONFIDENTIAL TREATMENT REQUESTED]% of the
Purchase Price listed above for the respective ship
Due upon Acceptance:
[REDACTED -- CONFIDENTIAL TREATMENT REQUESTED]% of the
Purchase Price listed above for the respective ship