Exhibit 10.38
ALLIANCE AGREEMENT
This alliance agreement (“
Alliance Agreement ”) is made and entered into as of
February 9, 2006 (“ Effective Date ”), by
and between TRX, Inc., a Georgia corporation (“ TRX
”) and E2E SerWiz Solutions Limited, a corporation formed
under the laws of India (“ SWS ”).
WHEREAS, TRX, Inc. and its wholly
owned subsidiary, TRX Fulfillment Services, LLC, entered into that
certain Shared Services Agreement with SWS, effective as of
November 1, 2005, which relates to certain services provided
to [*] by TRX and SWS (the “ Shared Services Agreement
”).
WHEREAS, TRX and SWS enter into this
agreement to memorialize an alliance agreement between TRX and SWS
related to future business opportunities of the parties.
Capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Shared Services
Agreement.
NOW, THEREFORE, for and in
consideration of the agreements set forth below, TRX and SWS agrees
as follows:
1. TRX Referrals to SWS
.
(a) During the Term (as defined
below), so long as SWS has not breached the provisions of either
the Shared Services Agreement or the SWS/[*] Agreement (which
breach has not been cured in accordance with the terms of the
applicable agreement), TRX and its subsidiaries and affiliates
shall use their commercially reasonable efforts to encourage
TRX’s present or prospective clients (the “ TRX
Referred Clients ”) to utilize SWS for services that are
the same as or substantially similar to the TRX/[*] Services.
Further, if TRX solicits any entity, or if any entity approaches
TRX, to provide services that are the same as or substantially
similar to the TRX/[*] Services, then TRX shall [*] refer such
entity to SWS, and for a period of [*] days thereafter, TRX shall
not directly or indirectly assist or refer such entity to any other
party. SWS shall not communicate information relating to TRX
Referred Client, including, but not limited to, the identity of
such TRX Referred Client or the fact that such TRX Referred Client
was referred by TRX to SWS, to any of its affiliates; provided,
however, SWS shall not be prevented from sharing any information
about any TRX Referred Client to any of its affiliates which are
subsidiaries.
(b) To the extent that SWS or any
subsidiary thereof enters into an agreement to perform services or
provide products for any TRX Referred Client (each a “ TRX
Referral Agreement ”), SWS shall pay to TRX a referral
fee (the “ TRX Referral Fee ”) for all TRX
Referred Clients as follows:
(i) SWS shall pay to TRX a TRX
Referral Fee equal to [*] of [*] received by SWS and its
subsidiaries on account of services performed and products provided
for such TRX Referred Client during the [*] of the TRX Referral
Agreement;
(ii) SWS shall pay to TRX a TRX
Referral Fee equal to [*] of [*] received by SWS and its
subsidiaries on account of services performed and products provided
for such TRX Referred Client during the [*] of the TRX Referral
Agreement; and
[*] - Confidential Treatment
Requested
(iii) SWS shall pay to TRX a TRX
Referral Fee equal to [*] of [*] received by SWS and its
subsidiaries on account of services performed and products provided
for such TRX Referred Client during the [*] of the TRX Referral
Agreement.
(c) Notwithstanding the provisions
of Section l(b) above, (i) no TRX Referral Fee shall be due
with respect to services performed and products provided by SWS and
its subsidiaries for the [*] of [*]; and (ii) with respect to
any TRX Referral Agreement with [*] for the [*], (A) no TRX
Referral Fee shall be due with respect to services performed and
products provided by SWS and its subsidiaries during the first [*]
of the term of such TRX Referral Agreement, and (B) a TRX
Referral Fee shall be due with respect to such services performed
and products provided on or after the first [*] of the term of such
TRX Referral Agreement, with the [*] period being treated as the
[*] of such agreement for purposes of Section l(b), the [*] period
being treated as the “[*]” of such agreement for
purposes of Section l(b), and so forth through the [*] period of
such agreement, which shall be treated as the “[*]” of
such agreement for purposes of Section l(b).
(d) In addition to the TRX Referral
Fee, for each of the [*] of each TRX Referral Agreement (including
any TRX Referral Agreement with [*] for the [*]), SWS shall pay to
TRX an additional referral fee (the “ TRX Additional
Fee ”) equal to [*] of [*] received by SWS and its
subsidiaries on account of services performed and products provided
for such TRX Referred Client [*] by SWS and its subsidiaries. For
purposes of clarification, in the calculation of the applicable
fees due with respect to any TRX Referral Agreement, if, for
example, the TRX Referral Agreement is in its [*] and [*] of the
[*] are due to services provided by SWS [*], SWS would pay TRX the
TRX Referral Fee (which would be equal to [*] of [*] received by
SWS and its subsidiaries on account of all services performed and
products provided for such TRX Referred Client during the [*] of
the TRX Referral Agreement) plus the TRX Additional Fee
(which would be equal to [*] of the [*]).
(e) No additional TRX Referral Fee
or TRX Additional Fee shall be due with respect to services
performed and products provided for any TRX Referred Client during
the period after the [*] anniversary of the TRX Referral Agreement
with such TRX Referred Client (or, in the case of a TRX Referral
Agreement with [*] for the [*], the [*] anniversary).
(f) Any TRX Referral Fee and TRX
Additional Fee due from SWS to TRX hereunder shall be payable [*]
in arrears with respect to the preceding [*] of the applicable TRX
Referral Agreement (or such shorter period as is remaining in the
term of such TRX Referral Agreement). Payments shall be due within
thirty (30) days after the end of the applicable [*] (or such
shorter period as is remaining in the term of such TRX Referral
Agreement).
[*] - Confidential Treatment
Requested
(g) The TRX Referral Fee and TRX
Additional Fee shall continue to be due and payable with respect to
any extension or renewal term of any TRX Referral Agreement as well
as with respect to new or additional agreements entered into
between SWS and/or its subsidiaries and the TRX Referred Client.
For purposes of clarification, in the calculation of the applicable
TRX Referral Fee and TRX Additional Fee due with respect to any TRX
Referral Agreement, extension or renewal periods and new or
additional agreements shall be treated as having started on the
first day of the initial term of the applicable TRX Referral
Agreement.
(h) No TRX Referral Fee or TRX
Additional Fee shall be due with respect to any TRX Referral
Agreement with a stated term
