Preview of our top selling Website Promotion Agreement
Northwest / Getthere - Flight Reservation Agreement
INTERNET TRAVEL NETWORK
GET THERE.COM FLIGHTREZ AGREEMENT
This Agreement is made as of August ___, 1999 ("Effective Date") between GetThere.com, Inc., a California corporation with its principal place of business at 445 Sherman Avenue, Palo Alto, CA 94306 ("GT") and Northwest Airlines, Inc., a Minnesota corporation with its principal place of business at 5101 Northwest Drive, St. Paul, MN 55111 ("Company"). GT and Company are sometimes referred to herein as a "Party" or collectively referred to as the Parties
BACKGROUND: GT develops and markets travel-related technology and services for use in connection with the World Wide Web. The GT Reservation System permits customers to access real-time Computer Reservation System ("CRS") inventory and make travel reservations via the World Wide Web. Company wishes to provide its customers with access to the GT Reservation System via screens displaying Air Outlet Consolidator's logos.
GT is in the business of developing web sites and Company wishes to jointly develop with GT the Air Outlet Center web site ("Air Outlet Center Site" as defined herein). GT is in the business of hosting web sites and Company wishes to have GT host the Air Outlet Center Site. GT is in the business of providing e-mail delivery of confirmation of travel plans made through the GT CRS and Company wishes to have GT provide such e-mail confirmation to Company's customers.
GT presented Company with a proposal, attached as Attachment G and Company relied on such proposal in determining GT's ability and statements contained therein formed the basis of the decision to award this contract to GT.
Now, Therefore, in consideration of the mutual agreements herein contained, and other valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
1. Definitions.
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1.1 "Acceptance" means as set forth in Section 4.5.
1.2 "Additional Services" means any additional services which may be acquired by Company under the terms of this Agreement and pursuant to a mutually acceptable Statement of Work for Additional Services.
1.3 "ARC" means the Airline Reporting Commission.
1.4 "Booking" means the creation of a PNR within the database of the applicable CRS and all changes and cancellations relating to such PNR.
1.5 "Co-Branded" means GT's logo and the phrase "Powered by Get There.com" will be prominently displayed on every page of the Private Label Site.
1.6 "Content" means the Company specific content as set forth in Attachment A ("Company Content") delivered by Company to GT for use in the Private Label Site.
1.7 "CRS" means a computer reservation system implemented by the GT Reservation System.
1.8 "Company Client" means a customer of Company's that utilizes the Private Label Site.
1.9 "Defaulting Party" means as set forth in Section 21.1
1.10 "Event of Default" means as set forth in Section 21.1
1.11 "FlightREZ Product" means the GT Booking engine that enable airlines to serve travelers directly.
1.12 "Fulfillment" means as set forth in Exhibit F.
1.13 "ISP" means the Internet Service Provider chosen solely by GT to provide them the System.
1.14 "GT Reservation System" means GT's proprietary booking engine that provides access to a real time CRS in order to make travel reservations via the world wide web.
1.15 "Non-Defaulting Party" means as set forth in Section 21.1.
1.16 "Order" means Company's standard Purchase Order or any other document referencing and incorporating the terms and conditions of this Agreement and describing any Additional Services being ordered. Any preprinted terms and conditions on Company's standard Purchase Order or other documents will be replaced and superseded in entirety by the terms and conditions of this Agreement. Notwithstanding the foregoing sentence, an Order may set forth modifications and additions to the terms and conditions of this Agreement provided, however, that such modifications and additions will only be effective if agreed upon in writing by GT and Company set forth as an addendum to the Order.
1.17 "PNR" means a single passenger name record containing sufficient information to process a travel reservation.
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
1.18 "Price List" means a schedule of Service Fees as set forth in Attachment C hereby incorporated by into this Agreement by this reference.
1.19 "Private Label Site" means the set of world wide web pages, also referred to herein as the Air Outlet Center Site, hosted by GT through which a Company Client may access the GT Reservation System via screens displaying the Company Content and incorporating product features as set forth in Attachment B.
1.20 "Services" means and duties or work including labor, consulting, training implementation, Fulfillment, support, maintenance,, and other miscellaneous services as may be provided by GT or any of GT's subcontractors or agents to Company under this Agreement.
1.21 "Service Fee" means as set forth in Attachment C.
1.22 "Service Level" means the mutually agreed upon, quantifiable criteria for assessing performance of the Private Label Site as set forth in Attachment D.
1.23 "Service Level Compliance" means, as applicable, GT's successful performance in accordance with the Service Level as measured against the quantifiable criteria set forth in Attachment D. The calculation of Service Level Compliance will exclude downtime related to Company's databases, any utilized CRS, internet backbone or mapping software vendors and any of the causes set forth in Section 28 or caused by any act or omission of Company.
1.24 "Statement of Work" means GT's description of work as and attached here to as Attachment E.
1.25 "Statement of Work for Additional Services" means a document describing the specifications of Additional Services as may be attached to an Order pursuant to the mutual agreement of the parties. The Statement or Work will include a detailed description of Additional Services, a performance schedule (including all major deliverables and milestones), GT and Company responsibilities in conjunction with the performance of the Additional Services. In addition, the Statement of Work may include items such as account and project management requirements, performance reporting and any other special provisions or requirements related to Additional Services.
1.26 "System" means Private Label Site, the GT Reservation System and/or ISP provided by GT hereunder.
1.27 "Ticket" means the issuance of ARC documents by GT as required for each PNR. Such issuance may be in the form of an email confirmation (for air, car or hotel), electronic confirmation (e.g. E-Ticket) or authorized ARC paper collateral (for air travel).
1.28 "Update" means any related updates of Company Content as defined herein.
1.29 "Upgrade" means any GT FlightREZ product enhancements developed by GT during the Initial Term or any successive six month renewal periods of this Agreement.
2. Rules of Construction.
2.1 The following rules of construction apply to this Agreement:
2.2 The singular includes the plural and the plural includes the singular;
2.3 "include" and "including" are not limiting;
2.4 "hereby", "herein", "hereof", "hereunder", "the Agreement", "this Agreement" or any like words refer to this Agreement;
2.5 A reference to a law includes any amendment or modification to such law and any rules or regulations issued there under or any law enacted in substitution or replacement therefore;
2.6 A reference herein to a Section, Exhibit, Attachment, Appendix or Schedule without further reference is a reference to the relevant Section, Exhibit, Attachment, Appendix or Schedule of this Agreement;
2.7 Any right may be exercised at any time and from time to time unless specified otherwise herein;
2.8 The headings of the Sections and portions thereof are for convenience only and will not affect the meaning of this Agreement; and
2.9 Any reference to days will mean calendar days unless specifically noted otherwise.
3. Content and License Rights.
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3.1 GT grants to Company a world-wide, non-exclusive, non-transferable, non- sublicensable, royalty-free license during the term of this Agreement to use the FlightREZ Product in connection with the Private Label Site. Company acknowledges GT's proprietary rights set forth in Section 16.
3.2 Company will provide GT with the Content necessary to implement the Private Label Site. Company grants to GT a world-wide, non-exclusive, royalty-free license during the term of this Agreement to use, reproduce, electronically distribute, publicly display, and publicly perform the Content delivered to GT by Company only in connection with the Private Label Site. GT acknowledges that Company owns all right, title and interest in and to the Content.
4. Functionality and Implementation.
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4.1 Other than the Design and Set-up fee set forth in Exhibit C, the Private Label Site will implement, at no additional cost to Company, GT's airline product features as described in Attachment B ("AIRLINE PRIVATE LABEL PRODUCT FEATURES") including searching and retrieving airline travel information and booking airline Tickets.
4.2 GT and Company will use diligent efforts to mutually develop the Private Label Site to meet the requirements set forth in Attachment B.
4.3 GT will host the Private Label Site. GT acknowledges that Company relies on GT's ability and discretion in choosing an ISP.
4.4 Company and GT will use commercially reasonable efforts to implement the Private Label Site in accordance with the Statement of Work within the time frames set forth on Attachment C. Implementation is understood to mean providing the Private Label Site to Company in order for testing to occur (and in turn -- acceptance) as set forth in Section 4.5 below. If GT does not implement the Private Label Site within such time frame through no fault of Company, Company may either (i) extend the time frame for implementation or (ii) terminate this Agreement with no amount owing to GT (which will be Company's sole and exclusive remedy).
4.5 Acceptance of the Private Label Site will be deemed to have occurred within thirty (30) days of release of the site by GT to Company, unless otherwise communicated by Company to GT in writing. In the event that Company communicates any nonconformance in the Private Label Site to GT in writing, GT will use reasonable commercial efforts to promptly correct or remedy such nonconformance and retender the Private Label Site for further testing. If Company fails to provide GT with notice of nonconformance within fifteen (15) business days of retender or any subsequent retender, the Private Label Site will be deemed Accepted and the last day will be deemed the "Date of Acceptance." If the Date of Acceptance has not occurred by the date sixty (60) days from the date of implementation as set forth in Section 4.4 above Company will within ten (10) calendar days thereafter to, notify GT in writing of its election to do either of the following: a) instruct GT to correct any deficiencies and retender the Private Label Site for testing as often as necessary to achieve Acceptance or b) terminate this Agreement in its entirety as Company's sole and exclusive remedy. Notwithstanding the above, release of the Private Label Site to its Company Clients to perform live bookings will be considered Acceptance of the Private Label Site by the Company. Failure to object prior to the Date of Acceptance will not limit GT's obligations to correct material non-conforming conditions later discovered pursuant to this Agreement The Design and Set Up Fee as stated in Attachment C will be due and owing to GT on the Date of Acceptance. The acceptance processes set forth within this Section 4.5 will also govern the acceptance procedure for Additional Services, Section 4.9.
4.6 After initial implementation to incorporate Content, GT will have no obligation to perform further development or customization, other than as set forth herein. Any look and feel modifications to the Private Label Site will be made as mutually agreed upon by GT and the Company at no cost to Company. Such look and feel modifications will be completed within five (5) days after GT and Company agree. GT will deliver to Company at no cost, annually up to two (2) revisions to or additions of the Airline Private Label Product Features as defined in Section 4.1.. Such revisions are more than the look and feel modifications as described above.
4.7 Company may provide GT Updates for the Private Label Site. GT agrees to use diligent efforts to implement such Updates within twenty-four (24) hours of receipt of the Content, provided however, the Content required for such Updates will be substantially in the format mutually agreed upon between GT and Company and as reflected on Attachment A. GT will implement such Updates at no additional cost to Company.
4.8 GT will provide, general maintenance to the Private Label Site and GT Reservation System during the terms of this Agreement, which shall be performed during off-peak hours, as determined by GT in its sole discretion. GT will notify Company in writing, via e-mail or other method as mutually agreed upon, so that from the time of Company's receipt of such notification at least twenty- four (24) hours passes before performance of any maintenance that will materially interferes with the Company Client's Private Label Site experience. Not withstanding the aforementioned, GT will not perform maintenance work during time periods as provided in writing by Company to GT.
4.9 In the event Company requests Additional Services from GT and such Additional Services does not relate to the timeliness of the Content Update as set forth above in Section 4.7, or look and feel Private Label Site modifications or the two (2) Private Label Site revisions as set forth in Section 4.6 above, Company and GT will follow procedures as set forth in Section 4.5 above. Fees for Additional Services will be as set forth in Attachment C and due and owing to GT upon the Date of Acceptance.
4.10 During the term of this Agreement, GT agrees to use reasonable commercial efforts to provide to Company, , Upgrades to the Private Label Site, at the same or no cost to Company as generally made available to customers using the GT FlightREZ Product.
5. Service Level Compliance.
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5.1 GT will comply with the Service Levels as set forth in Attachment D so as to achieve Service Level Compliance. In the event GT falls below the Service Levels set forth in Attachment D Company may (i) agree to discuss an alternate remedy, or (ii) terminate this
Agreement in accordance with Section 20.6 and such termination is Company's sole and exclusive remedy for breach of this Section.
5.2 GT will provide a report on Fulfillment in a mutually acceptable format. GT will provide reports to Company, detailing performance in connection with Service Level Compliance objectives as stated in Attachment D.
6. Access.
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6.1 Company will assign a Universal Resource Locator (URL) for the Private Label Site.
6.2 GT will be solely responsible for all the necessary computer hardware, software, modems, connections to the internet and other items as are needed for hosting and maintaining the Private Label Site (herein referred to as "Equipment"). GT will be solely responsible for all costs associated with the aforementioned Equipment for hosting and maintaining the Private Label Site. In the event hosting and maintaining the Private Label Site requires additional communications connections to GT, the CRS or the internet, GT will be solely responsible for all costs associated with such connections for hosting and maintaining the Private Label Site. GT will maintain management control of any hardware, and costs associated with such hardware, required to support the Private Label Site within GT's data center. Company and Company Clients will be solely responsible for all necessary computer hardware, software, modems, and connections to the internet and other items as are needed for accessing the Private Label Site.
7. Technical First and Second Level Support.
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7.1 GT will provide first level end-user travel related support to Company Clients, as set forth in Attachment H.
7.2 GT will provide Company with its standard second tier technical support for the Private Label Site(s) as set forth in Attachment D at no cost. Such support will include, but not be limited to, telephone support to Company's designated support contact twenty-four (24) hours a day, seven days a week.
8. Bookings. GT will book to the applicable CRS and email a confirmation, if
-------- possible, to the Company Client for each Booking made through the Private Label Site within two (2) hours for such Booking. GT will keep records of such Bookings. GT will accumulate and invoice all Tickets fulfilled from Bookings on the Private Label Site directly to Company on a monthly basis, which will include a monthly report of such Bookings. Such report will contain the Company Client's name, the number of travelers, the PNR number and the Booking date.
9. Payments.
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9.1 Other than the Design and Set-up fee set forth in Attachment C, Company will receive at no additional cost, all the Airline Private Label Site Product Features set forth in Attachment B hereto. If Company requires the implementation of any Additional Services, including additional features not listed in Attachment B or the Statement of Work, then Company will pay the additional fees as set forth in Attachment C.
9.2 Except as otherwise stated herein, all payments undisputed in good faith due to GT hereunder (other than the initial Design and Set-up Fee) will be made within forty-five (45) days of Company's receipt of GT's invoice. Late payments will bear interest at 1.0% per month or the maximum rate permitted by law, whichever is less.
9.3 Currency. Unless specifically agreed upon otherwise and set forth in the Order, all payments hereunder will be made in United States currency.
9.4 Reimbursable Expenses. If agreed to in writing by the Parties, Company will reimburse GT for reasonable, actual, out-of-pocket expenses incurred by GT in conjunction with out of town travel required for GT to perform the Services, provided that such travel is approved in advance by Company's representative. Company will, at its option, provide GT with Coach Class space available or other Tickets for air travel on Northwest Airlines or reimburse GT for Coach Class, round trip air travel. GT will utilize Northwest Airlines air transportation unless specifically approved otherwise, on a case by case basis, by Company's representative. Other reimbursable expenses will be limited to reasonable and actual expenses for lodging, meals, local transportation, and incidentals only as are required by GT in the performance of its obligations hereunder. Unless specifically agreed upon otherwise by Company's representative, rental car expenses will only be reimbursed if the car is necessary for GT to complete its obligations hereunder. Receipts will be required for any expenditure totaling US $25.00 or more. Air travel, hotel and rental car expenses will only be reimbursed if reservations are made through Company's representative, unless Company declines to make such reservations. Notwithstanding the foregoing, the Parties may agree upon, in advance of any travel, a per diem payment in lieu of reimbursement.
10. Adjustments to Charges. The prices set forth in Attachment C will be fixed
---------------------- for the duration of the Initial Term set forth in Section 20.1. Thereafter such charges may, upon ninety (90) days prior written notice, be adjusted by GT. However any increase in any fee will be limited to five percent (5%) in any twelve (12) month period.
11. Audit. GT agrees that all of its books and records relating to the
----- Services provided hereunder will be maintained for not less than two (2) years after the delivery of Services and will, upon reasonable cause and notice, be subject to inspection and audit at Company's expense by an independent certified public accountant employed by Company solely for this purpose and reasonably acceptable to GT. As a condition to such examination, the independent public accountant selected by Company will execute a written agreement, reasonably satisfactory in form and substance to GT, to maintain in
confidence all information obtained during the course of any such examination except for disclosure to Company and GT as necessary for the above purpose and will only conduct such audit during regular business hours.
12. Expenses. Except as otherwise provided herein, each Party agrees to bear
-------- its own costs and expenses in connection with preparation, execution and delivery of this Agreement and all documents and instruments executed pursuant hereto, including, but not limited to, legal and accounting fees and expenses.
13. Collection. If GT is required to institute any proceeding to obtain
---------- payment and prevails in such proceeding, Company agrees to pay the costs and expenses (including reasonable attorney's fees) incurred by GT in connection therewith.
14. Disputes. If Company in good faith disputes any invoice rendered or amount
-------- paid, Company will remit the portion not in dispute in a timely manner and will deliver to GT a statement stating the specific basis for the dispute in detail sufficient to enable GT to evaluate Company's claim. The Parties will use all reasonable efforts to resolve such dispute expeditiously. If Company so notifies GT of a disputed amount, the time for paying the disputed portion of the invoice will be extended by a period of time equal to the time between GT's receipt of such notice from Company and the resolution of such dispute.
15. Warranties and Disclaimers.
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15.1 Each of GT and Company warrants to the other that it has the right to enter into this Agreement and perform its obligations hereunder. Without limiting the generality of foregoing, Company warrants to GT that it now has and/or will have the right to provide GT with all Content to be provided with respect to this Agreement.
15.2 If there is an error in posting fares and a Company Client purchases an incorrectly priced ticket, and Company can document that such error was caused by GT's negligence, Company will be entitled to receive the difference in the amount collected and the actual correct fare and any related taxes, including but not limited to associated passenger facility charges, sales and use taxes, stamp taxes, excise taxes, APHIS user fees, value added taxes (in the nature of a sales or use tax), gross receipt taxes (in the nature of sales or use tax) and U.S. Customs and Immigration user fees. Such a refund shall be Company's sole and exclusive remedy for such errors. GT's maximum liability to Company will be the aggregate of the amount of money paid to GT by Company for the Private Label Site during the six month period prior to the date on which the documented error caused by GT's negligence arose.
15.3 GT is and will remain a member of ARC in good standing throughout the term of this Agreement.
15.4 EXCEPT AS PROVIDED ABOVE, ALL INFORMATION, TECHNOLOGY AND SERVICES PROVIDED BY GT HEREUNDER ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, GT EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SUCH INFORMATION, TECHNOLOGY AND SERVICES.
16. Proprietary Rights.
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16.1 GT represents that GT owns all right, title, and interest in and to all components of the Private Label Site, not to include Content provide by Company, and GT Reservation System, including all derivatives of and modifications thereto and Company acknowledges this representation.
16.2 Nothing in this Agreement will give Company any right or license to use, reproduce, display or distribute (electronically or otherwise) any technology or intellectual property rights in the GT Reservation System.
16.3 GT reserves the right to display its copyright, standard trademark graphic and disclaimer on the Private Label Site in a manner and format to be mutually agreed upon by GT and Company.
16.4 Company will determine all terms and conditions of Company travel services offered through the Private Label Site.
17. Indemnity.
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17.1 Except for any third party claims addressed by Section 17.2 below, each Party will indemnify the other Party for amounts spent in defense and amounts actually awarded in third party suits arising solely out of that Party's negligence and/or willful misconduct in accordance with the activities contemplated by this Agreement, provided however that the party seeking indemnification will give the indemnifying party prompt notice in writing of such suit or proceeding, the indemnifying party will have complete control of the settlement and defense and the party seeking indemnification will provide any information and assistance reasonably requested by the indemnifying party (at the indemnifying party's expense).
17.2 Infringement Indemnity. As of the Effective Date, GT warrants and agrees that it will defend any suit or proceeding that may arise against Company for alleged infringement of any U.S. copyright or patent relating to the use of the GT Reservation System, and that GT will indemnify and hold harmless the Company against any loss, including damages, costs and expenses (including attorney fees) that may be incurred by the assertion of any such patent or copyright claims by a third party; provided however that Company will give GT prompt notice in writing of such suit or proceeding, GT will have complete control of the settlement and defense and Company will provide any information and assistance reasonably requested by GT (at GT's expense) GT will obtain
Company's consent for any settlement that would result in direct liability to the Company. The foregoing obligation does not apply with respect to services not supplied by GT (e.g. third party software, services, telecommunications or technology) but does include any and all third party software that may be embedded in the GT Reservation System. In the event such a claim by a third party causes Company's quiet enjoyment and use of the GT Reservation System to be seriously endangered or disrupted, GT will, at GT's option: (a) replace the GT Reservation System, without additional charge, with a compatible, functionally equivalent and non-infringing system; (b) modify the GT Reservation System to avoid the infringement; (c) obtain a license to continue use of the GT Reservation System for the term of this Agreement and pay any additional fees required for such a license; or (d) if none of the foregoing alternatives are practical even after GT's best efforts, GT will refund to the Company all amounts for Design and Set-up Fees and the Additional Services paid by the Company to GT (up to [*]), and both parties will have the right to immediately terminate the Agreement.
17.3 As of the Effective Date, GT has no knowledge of any existing infringement of its rights to provide the GT Reservation System or Services, nor of any dispute as to the ownership or any other matter that might affect the validity, continuance, ownership or value thereof or GT's ability to enter into this Agreement.
17.4 Company's sole and exclusive remedy for any liability to Company resulting from any infringement is indemnification and or termination as set forth herein.
18. Insurance.
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18.1 GT will maintain insurance, with an insurance company satisfactory to Company, in the following amounts:
(i) Worker's Compensation - Statutory Limit
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(ii) Employers Liability - $500,000
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(iii) Commercial General Liability - $2,000,000 Combined Single Limit
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Insurance per occurrence. (This is a minimum amount. Airport requirements
or the nature of the work may necessitate higher limits, but in no event
to exceed $5,000,000.) Commercial General Liability insurance will include
policies for: personal injury; insured contractual liability; completed
operations/product liability; naming Company as an additional insured; and
provide severability of interest, cross liability and independent
contractor's coverage.
(iv) Business Auto Policy - $1,000,000 Combined Single Limit. Such insurance
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to cover owned, non-owned and hired vehicles when doing work on Company's
18.2 GT agrees to insure (or self-insure) all losses to its owned or leased tools and equipment used in the provision of the Services and agrees to obtain an endorsement from its insurance carrier waiving its right of subrogation against Company.
18.3 If requested by Company, Certificates of Insurance will be delivered to Company evidencing compliance with the insurance terms of this Agreement. All of the above insurance will be written through a company or companies satisfactory to Company, and the Certificates of Insurance will be of a type that unconditionally obligates the insurer to notify Company in writing at least thirty (30) days in advance of the effective date of any material change in or cancellation of such insurance. GT's failure to provide or to maintain the insurance required during the term of this Agreement will be deemed an Event of Default in accordance with Section 21.1.
19. Limitation on Damages. Except as stated in Section 17.2 above, not
--------------------- withstanding any other provisions in this Agreement, GT's maximum liability to Company will be the aggregate of the amount of money paid to GT by Company for the Private Label Site during the six month period prior to the date on which the cause of action arose. Except as stated in Section 17.2 above, in no event will either Party be liable to the other under contract, negligence, strict liability or any other legal or equitable theory for any cost of procurement of substitute goods, technology, services or rights, for loss or corruption of data, for any incidental, indirect, special, or consequential damages.
20. Term and Termination of Agreement.
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20.1 Unless terminated earlier as provided herein, this Agreement will begin on the Effective Date and continue for an initial period of one year from the Date of Acceptance (the "Initial Term"). Thereafter, this Agreement will automatically renew for successive periods of six (6) months unless either Party gives written notice of its intent not to renew to the other Party no later than ninety (90) days prior to the end of the Initial Term or any such six (6) month renewal period.
20.2 Either Party may terminate this Agreement upon sixty (60) days written notice in the event the other Party breaches any material term (such material term will not include Service Level failures for purposes of this Section 20.2. Termination for Service Level failure are provide in Section 20.6) of this Agreement and such breach continues without cure for a period of sixty (60) days following specific written notice by the Non-Defaulting Party to the Defaulting Party of such breach and request for termination.
20.3 This Agreement may also be terminated by either Party without cause by giving ninety (90) days prior written notice to the other Party.
20.4 Company may terminate any Additional Service under any Order, in whole or in part, for convenience upon
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
RESPECT TO THE OMITTED PORTIONS.
giving at least thirty (30) days prior written notice. In such event, Company will reimburse GT on a time basis for all work performed by GT up to the effective date of termination. Payment of all outstanding invoices will be made up to and including the last day of the Additional Service. Company will not be liable for any costs incurred by GT in connection with the termination of Additional Services other than payment for Additional Services provided prior to the effective date of termination.
20.5 Exercise by either Party of its right to terminate this Agreement under this Section 20 or under any other provision of this Agreement will not affect or impair such Party's right to enforce its other rights or remedies under this Agreement. All obligations of each Party that have accrued before termination or that are of a continuing nature will survive termination.
20.6 In the event GT falls below the Service Level standards set forth in Attachment D twice in a quarter (a quarter being three consecutive calendar months), Company may terminate this Agreement with thirty (30) days prior written notice to GT.
20.7 .Sections 13, 15, 16, 17, 19 through 22, 28, and 31 through 46 will survive any termination or expiration of this Agreement. Any payment obligations which exist as of the termination or expiration of this Agreement will remain in effect.Post-Termination Obligations. In the event Company provides GT with notice that Company intends to terminate this Agreement, GT agrees to provide Services, as requested by Company, in a good faith and business like manner, under the terms and conditions of this Agreement for a minimum of ninety (90) days from the date such termination is effective. GT will in good faith and in a business like manner provide Services and work with another supplier and Company to structure a smooth changeover during any transition period from GT provided Services to any other supplier of services. The obligations of GT under this Section 20.8 are subject to the timely payment by Company of all accrued fees and expenses under this Agreement, including, without limitation, the fees and expenses due GT pursuant to this Section 20.8. GT will be paid its then current rates for work performed after termination.
21. Default; Remedies.
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21.1 Events of Default. Each of the situations set forth below will constitute an event of default (an "Event of Default") hereunder. The term "Defaulting Party" will be defined as the Party responsible for the Event of Default and the term "Non-Defaulting Party" will be defined as the Party not responsible for the Event of Default:
(i) Either Party will fail to make any payment required under this Agreement
when due and such failure will continue uncured for a period of sixty
(60) days after receipt of written notice of such non-payment;
(ii) Either Party will default in the performance of any other material
covenant contained herein and such default will continue uncured for a
period of sixty (60) days after receipt of written notice thereof;
(iii) Any representation or warranty made by either Party herein will prove to
have been false or misleading in any material respect when made and has
materially harmed the Non-Defaulting Party; and
(iv) In the event that either of the Parties become insolvent or bankrupt or
make an assignment for the benefit of creditors, if an order of
sequestration or liquidation is made against the Parties or if the Parties
try to take advantage of a statute relating to insolvency, bankruptcy or
arrangements with creditors.
21.2 Remedies. If an Event of Default occurs under this Agreement, the Non- Defaulting Party may proceed by appropriate court action to recover reasonable damages for the breach against the Defaulting Party.
22. Confidentiality. Both Parties to this Agreement acknowledge that it or its
--------------- employees may be exposed to or acquire information in connection with this Agreement that is proprietary or confidential to the other Party or third parties to whom either Party has a duty of confidentiality. Except as set forth below, any and all information relating to the business of either party or its clients or customers and other information obtained by either Par...
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