Booking Issues. (i) If in the second Agreement Year or in any subsequent Agreement Year, Orbitz reasonably demonstrates to ITA that systemic problems have arisen with the quality of ITA’s availability data, or QPX pricing logic (any such systemic problem, a “Booking Issue”), with respect to a particular carrier with which ITA has not implemented a “DACS” availability infrastructure, then Orbitz will have the right to obtain data on such carrier(s) from another source, if such source is able to offer materially better bookability than ITA), until 30 days after the date that ITA has remedied the situation so that the bookability on such carrier(s) has achieve an error rate of less than (***)%, where bookability is defined as specified in the quarterly bookability reports delivered by ITA to Orbitz in Q4 2006. (For the avoidance of doubt, ITA will not be obligated to integrate any data provided by a third party into QPX; any such integration will be Orbitz’s sole responsibility; moreover, if Orbitz is treating a carrier’s PNRs as Non-QPX-Powered PNRs as a result of a Booking Issue, then Orbitz may not use QPX to generate any itineraries on such carrier.) For the purposes hereof, a Booking Issue will not be deemed to exist unless ITA’s bookability error rate on a carrier exceeds (***)%, and another source will not be deemed to offer materially better bookability than ITA unless its bookability error rate is less than (***)% of ITA’s bookability error rate. During the period Orbitz is using data from another source as a result of Booking Issues, it will be excused from the Annual Minimum during any Agreement Year if and to the extent a shortfall in such Agreement Year’s Annual Minimum arises from Non-QPX Powered PNRs on such carrier(s) that would otherwise have been QPX-Powered PNRs. The shortfall from a carrier’s PNRs during any period of time that Orbitz is receiving data on such carrier from a source other than ITA shall be deemed to be equal to the number of Non-QPX-Powered PNRs created on such carrier during the period that Orbitz is receiving availability data for such carrier from a source other than ITA, and shall be calculated separately with respect to each Agreement Year. However, in no event shall the Annual Minimum be less than $(***). The following is an illustration of the provisions of this Section 8(c)(i): If in a particular Agreement Year Orbitz were able to demonstrate that systemic problems arose with the quality of availability data on Air France through QPX, such that QPX’s bookability error rate on Air France was (***)%, and another source was able to provide Orbitz with sufficiently better availability data on Air France that the bookability error rate was less than (***)%, Orbitz could obtain availability data for Air France from such other source. If such situation continued for three months of an Agreement Year, during which three-month period Orbitz created 100,000 PNRs on Air France, and continued further for the first six months of the following Agreement Year, during which six-month period Orbitz created 200,000 PNRs on Air France; and at the end of such nine-month period ITA had developed a solution for Air France data that enabled Orbitz to experience a bookability error rate of less than (***)% on Air France, then Orbitz would resume using QPX for Air France within 30 days after such nine-month period. If in the Agreement Year in which occurred the first three-month period that the Booking Issue was in effect, Orbitz created a total of (***) QPX-Powered PNRs, then Orbitz will have met the Annual Minimum for such Agreement Year notwithstanding the existing of the Booking Issue, and no adjustment would be necessary as a result of this Section 8(c). If, however, in the next Agreement Year, in which occurred the next six-month period that the Booking Issue was in effect, Orbitz created (***) QPX-Powered PNRs, then the Annual Minimum for such Agreement Year would be deemed to be reduced by 200,000 PNRs (i.e., to (***)), and Orbitz would be obligated to pay for (***) QPX-Powered PNRs at a Per-PNR Fee of $(***).
Appears in 2 contracts
Samples: Software License Agreement (Orbitz Worldwide, Inc.), Software License Agreement (Orbitz Worldwide, Inc.)
Booking Issues. (i) If in the second Agreement Year or in any subsequent Agreement Year, Orbitz reasonably demonstrates to ITA that systemic problems have arisen with the quality of ITA’s 's availability data, or QPX the ITA Technology pricing logic (any such systemic problem, a “Booking Issue”), with respect to a particular carrier with which ITA has not implemented a “DACS” availability infrastructure, then Orbitz will have the right to obtain data on such carrier(s) from another source, if such source is able to offer materially better bookability than ITA), until 30 days after the date that ITA has remedied the situation so that the bookability on such carrier(s) has achieve achieved an error rate of less than (***)%, where bookability is defined as specified in the quarterly bookability reports delivered generated by ITA the bookability tool provided by Orbitz to Orbitz in Q4 2006ITA. (For the avoidance of doubt, ITA will not be obligated to integrate any data provided by a third party into QPXthe ITA Technology; any such integration will be Orbitz’s 's sole responsibility; moreover, if Orbitz is treating a carrier’s 's PNRs as Non-QPX-Powered PNRs as a result of a Booking Issue, then Orbitz may not use QPX the ITA Technology to generate any itineraries on such carrier.) For the purposes hereof, a Booking Issue will not be deemed to exist unless ITA’s 's bookability error rate on a carrier exceeds (***)%, and another source will not be deemed to offer materially better bookability than ITA unless its bookability error rate is less than (***)% of ITA’s 's 8 bookability error rate. During the period Orbitz is using data from another source as a result of Booking Issues, it will be excused from the Annual Minimum during any Agreement Year if and to the extent a shortfall in such Agreement Year’s 's Annual Minimum arises from Non-QPX ITA Technology Powered PNRs on such carrier(s) that would otherwise have been QPX-Powered PNRs. The shortfall from a carrier’s 's PNRs during any period of time that Orbitz is receiving data on such carrier from a source other than ITA shall be deemed to be equal to the number of Non-QPX-Powered PNRs created on such carrier during the period that Orbitz is receiving availability data for such carrier from a source other than ITA, and shall be calculated separately with respect to each Agreement Year. However, in no event shall the Annual Minimum be less than $(***). The following is an illustration of the provisions of this Section 8(c)(i): If in a particular Agreement Year Orbitz were able to demonstrate that systemic problems arose with the quality of availability data on Air France through QPXthe ITA Technology, such that QPX’s the ITA Technology's bookability error rate on Air France was (***)%, and another source was able to provide Orbitz with sufficiently better availability data on Air France that the bookability error rate was less than (***)%, Orbitz could obtain availability data for Air France from such other source. If such situation continued for three months of an Agreement Year, during which three-month period Orbitz created 100,000 (***) PNRs on Air France, and continued further for the first six months of the following Agreement Year, during which six-month period Orbitz created 200,000 (***) PNRs on Air France; and at the end of such nine-month period ITA had developed a solution for Air France data that enabled Orbitz to experience a bookability error rate of less than (***)% on Air France, then Orbitz would resume using QPX the ITA Technology for Air France within 30 days after such nine-month period. If in the Agreement Year in which occurred the first three-month period that the Booking Issue was in effect, Orbitz created a total of (***) QPX-Powered PNRs, then Orbitz will have met the Annual Minimum for such Agreement Year notwithstanding the existing of the Booking Issue, and no adjustment would be necessary as a result of this Section 8(c). If, however, in the next Agreement Year, in which occurred the next six-month period that the Booking Issue was in effect, Orbitz created (***) QPX-Powered PNRs, then the Annual Minimum for such Agreement Year would be deemed to be reduced by 200,000 an amount equal to the Per-PNR Fee for (***) PNRs (i.e., to by $(***), to$(***)) , and Orbitz would be obligated to pay for (***) )QPX-Powered PNRs at a Per-PNR Fee of $(***).. (ii) In the event that, upon expiration of ITA's agreement with (***) to provide availability data, ITA is not able to obtain availability data on any carriers for which data is currently provided by (***), Orbitz will have the right to treat ITA's lack of data on such carrier(s) as a Booking Issue, and such Booking Issue will be deemed to have been resolved for purposes of the first Agreement Year when ITA secures a source of data for such carrier(s). (iii) Orbitz has or may obtain access to seat availability data, either from airline charter associates, through supplier link agreements, from (***), or from other sources (all of which is collectively referred to as “Availability Data”). If Orbitz receives Availability Data from any source, solely to the extent permitted by the relevant agreement between Orbitz and the supplier of such Availability Data, Orbitz will promptly make such Orbitz Availability Data available to ITA, via mutually agreed methods, using mutually agreeable protocols. In the case of Availability Data that Orbitz does not receive but has the right to receive, solely to the extent permitted by the relevant agreement between Orbitz and the supplier of such Availability Data, Orbitz will, upon ITA's request, obtain such Availability Data and provide it to ITA. (d) Look-to-Book Ratio. In the event the Look-to-Book Ratio exceeds (***) (the “Allowable Ratio”), Orbitz will pay ITA an excess query fee (“Excess Query Fee”), which will not be counted toward the Annual Minimum, of $(***) per Query for all Queries in excess of such Allowable Ratio; provided, however, that (i) if any single Third Party Site has a Look-to-Book Ratio in excess of (***), then (subject to clause (iii) below) any Queries in excess of a Look-to-Book Ratio of (***) will be subject to the Excess Query Fee, and ITA and Orbitz will together agree as to the terms (including financial terms) that will govern such Third Party's use of the ITA Technology (based upon the assumption that a site with a Look-to-Book Ratio in excess of (***) does not meet the requirement of Section 2(d)(1)); (ii) any Third Party Query with respect to which Orbitz pays such Excess Query will be excluded from the calculation of the Third Party Excess License Fee; (iii) notwithstanding the foregoing, in the event that a Third Party Site has a Look-to-Book Ratio in excess of (***), then (A) if such Third Party Site is a Third Party ITA Customer (as defined in Section 2(d)(vii)), and each time such Third Party Site submits a Query to Orbitz such Third Party Site also performs a query against QPX that is covered by its own agreement with ITA, then such Third Party Site will not be subject to the Excess Query Fee, and (B) if such Third Party Site is not a Third Party ITA Customer, then ITA will offer to such Third Party Site the ability to enter into a direct agreement with ITA for use of QPX and if such Third Party Site enters into such an agreement, and each time such Third Party Site submits a Query to Orbitz such Third Party Site also performs a query against QPX that is covered by such agreement with ITA, then such Third Party Site will not be subject to the Excess 9 Query Fee. (iv) If, during any Agreement Month following the date hereof, the Look-to-Book Ratio exceeds the Allowable Ratio and the number of Non-Live Queries exceeds (***)% of the Queries on the Orbitz Sites, then the number of Non-Live Queries will not be included in the calculation of the Allowable Ratio for purposes of determining whether the Excess Query Fee applies. (v) In the event that Orbitz is using another search solution as a result of a Booking Issue (as defined in Section 8(c)(i)), Non-QPX-Powered PNRs qualify as QPX-Powered PNRs solely for the purposes of calculating the Look-to-Book Ratio. (e) Third Party Queries. For the purposes hereof, “Third Party Queries” means any Queries performed against the ITA Technology by or through Third Party Sites (including, for the avoidance of doubt, any other site to which such Third Party Sites may be providing Queries or providing information derived from Queries); provided, however, that for so long as Kayak remains a customer of ITA, Queries to Orbitz from Kayak and sites to which the ITA Technology is provided by Kayak will not be considered Third Party Queries). (i) As used herein, “Included Third Party Queries” shall be (***) annually ((***) per Agreement Month). (ii) Orbitz will pay an additional license fee to ITA (the “Third Party Base Monthly License Fee”) in the amount of $(***) per Agreement Month with respect to the Included Third Party Queries. The Third Party Base License Fee will be payable monthly in advance. Such Third Party Base Monthly License Fee will entitle Orbitz to a number of Third Party Queries less than or equal to the number of Included Third Party Queries. In the event the number of Third Party Queries during any Agreement Month exceeds the number of Included Third Party Queries (such excess is referred to as the number of “Excess Third Party Queries”), then Orbitz will pay ITA an additional license fee (the “Third Party Excess License Fee”) in the amount of $(***) for each Excess Third Party Query. The Third Party Base Monthly License Fee and the Third Party Excess License Fee are collectively referred to as the “Third Party License Fee”. For the avoidance of doubt, the Third Party License Fee will be in addition to any Per-PNR Fees resulting from PNRs created by Third Parties. Within 15 days of the end of each Agreement Month, Orbitz will inform ITA of the number of Third Party Queries during such Agreement Month, and will pay the Third Party License Fee within 30 days of ITA's invoice therefor. (f)
Appears in 1 contract
Samples: Software License Agreement Software License Agreement
Booking Issues. (i) If in the second Agreement Year or in any subsequent Agreement Year, Orbitz reasonably demonstrates to ITA that systemic problems have arisen with the quality of ITA’s 's availability data, or QPX the ITA Technology pricing logic (any such systemic problem, a “Booking Issue”), with respect to a particular carrier with which ITA has not implemented a “DACS” availability infrastructure, then Orbitz will have the right to obtain data on such carrier(s) from another source, if such source is able to offer materially better bookability than ITA), until 30 days after the date that ITA has remedied the situation so that the bookability on such carrier(s) has achieve achieved an error rate of less than (***)%, where bookability is defined as specified in the quarterly bookability reports delivered generated by ITA the bookability tool provided by Orbitz to Orbitz in Q4 2006ITA. (For the avoidance of doubt, ITA will not be obligated to integrate any data provided by a third party into QPXthe ITA Technology; any such integration will be Orbitz’s 's sole responsibility; moreover, if Orbitz is treating a carrier’s 's PNRs as Non-QPX-Powered PNRs as a result of a Booking Issue, then Orbitz may not use QPX the ITA Technology to generate any itineraries on such carrier.) For the purposes hereof, a Booking Issue will not be deemed to exist unless ITA’s 's bookability error rate on a carrier exceeds (***)%, and another source will not be deemed to offer materially better bookability than ITA unless its bookability error rate is less than (***)% of ITA’s 's bookability error rate. During the period Orbitz is using data from another source as a result of Booking Issues, it will be excused from the Annual Minimum during any Agreement Year if and to the extent a shortfall in such Agreement Year’s 's Annual Minimum arises from Non-QPX ITA Technology Powered PNRs on such carrier(s) that would otherwise have been QPX-Powered PNRs. The shortfall from a carrier’s 's PNRs during any period of time that Orbitz is receiving data on such carrier from a source other than ITA shall be deemed to be equal to the number of Non-QPX-Powered PNRs created on such carrier during the period that Orbitz is receiving availability data for such carrier from a source other than ITA, and shall be calculated separately with respect to each Agreement Year. However, in no event shall the Annual Minimum be less than $(***). The following is an illustration of the provisions of this Section 8(c)(i): If in a particular Agreement Year Orbitz were able to demonstrate that systemic problems arose with the quality of availability data on Air France through QPXthe ITA Technology, such that QPX’s the ITA Technology's bookability error rate on Air France was (***)%, and another source was able to provide Orbitz with sufficiently better availability data on Air France that the bookability error rate was less than (***)%, Orbitz could obtain availability data for Air France from such other source. If such situation continued for three months of an Agreement Year, during which three-month period Orbitz created 100,000 (***) PNRs on Air France, and continued further for the first six months of the following Agreement Year, during which six-month period Orbitz created 200,000 (***) PNRs on Air France; and at the end of such nine-month period ITA had developed a solution for Air France data that enabled Orbitz to experience a bookability error rate of less than (***)% on Air France, then Orbitz would resume using QPX the ITA Technology for Air France within 30 days after such nine-month period. If in the Agreement Year in which occurred the first three-month period that the Booking Issue was in effect, Orbitz created a total of (***) QPX-Powered PNRs, then Orbitz will have met the Annual Minimum for such Agreement Year notwithstanding the existing of the Booking Issue, and no adjustment would be necessary as a result of this Section 8(c). If, however, in the next Agreement Year, in which occurred the next six-month period that the Booking Issue was in effect, Orbitz created (***) QPX-Powered PNRs, then the Annual Minimum for such Agreement Year would be deemed to be reduced by 200,000 an amount equal to the Per-PNR Fee for (***) PNRs (i.e., to by $(***), to$(***)) , and Orbitz would be obligated to pay for (***) )QPX-Powered PNRs at a Per-PNR Fee of $(***).
Appears in 1 contract
Samples: Software License Agreement (Orbitz Worldwide, Inc.)
