TO SOFTWARE LICENSE AND SERVICES AGREEMENT AND TO MAINTENANCE, DATA AND OPERATIONS SERVICE LEVEL AGREEMENT
Exhibit 10.29
FIRST AMENDMENT
TO
SOFTWARE LICENSE AND SERVICES AGREEMENT
AND TO
MAINTENANCE, DATA AND OPERATIONS SERVICE LEVEL AGREEMENT
FIRST AMENDMENT TO SOFTWARE LICENSE AGREEMENT AND TO MAINTENANCE, DATA AND OPERATIONS SERVICE LEVEL AGREEMENT by and between Galileo International, L.L.C. (“Galileo”) and ITA Software, Inc. (“ITA”).
WHEREAS, the parties have entered into a Software License Agreement (the “Agreement”), and a Maintenance, Data and Operations Service Level Agreement (the “SLA”), both dated as of October 3, 2002;
WHEREAS, the Agreement and the SLA provide that they may be modified by written agreement;
WHEREAS, the parties wish to amend certain provisions of the Agreement and the SLA;
NOW, THEREFORE, in consideration of the foregoing the parties hereby agree as follows:
1. Capitalized Terms. Capitalized terms used but not defined herein shall have the respective meanings set forth in the Agreement and the SLA, as applicable.
Amendments to the Agreement
2. Definitions. The following definitions are hereby added to Section 1 of the Agreement:
“Domestic PNR” means a PNR that is not an International PNR.
“International Location” means a location that is not within the United States (including Hawaii, Puerto Rico and the US Virgin Islands) or Canada.
“International PNR” means a PNR that includes an origin, stop or destination in, or is based upon a point of sale in, an International Location.
“International Shopping Query” means a “LowFareSearch”, as defined in the Documentation, that includes an origin, stop or destination in, or is based upon a point of sale in, an International Location.
“International Other Query” means either a “FareSearch” or a “ScheduleSearch”, both as defined in the Documentation, that includes an origin, stop or destination in, or (in the case of FareSearch) is based upon a point of sale in, an International Location.
3. Definition of (***). The definition of “(***)” contained in Section 1(d) of the Agreement is hereby deleted in its entirety and replaced with the following:
(d) (***)
4. License Restrictions. Section 2(b)(i) of the Agreement is hereby deleted in its entirety and replaced with the following:
(i) Except as provided in Section 16(g), Galileo shall not have the right to sublicense or transfer the Licensed Software; provided that in the event Galileo elects to operate the Licensed Software, Galileo may permit the Licensed Software to be used or operated on its behalf by an Affiliate or a subcontractor engaged in the business of providing computer operations services.
5. Pricing. Sections 6(a) through 6(d) of the Agreement are hereby deleted in their entirety and replaced with the following:
6. FEES AND EXPENSES
(a) Per-PNR Online License Fee.
(i) Per-PNR Online License Fee. Beginning April 1, 2004, Galileo shall pay ITA a basic license fee for the Online Use (the “Per-PNR Online License Fee”) which will be an amount equal to the product of (A) the number of PNRs created within the Galileo System resulting from the use of the Licensed Software by Online Users, and (B) the applicable per-PNR price specified in Section 6(a)(ii) below. The per-PNR prices will be established separately for each successive six-month period beginning on July 1 and January 1 of each year (each of which is referred to as a “License Fee Determination Period”), as follows: Galileo will notify ITA of the Minimum Payment Commitment (as defined in Section 6(d)) it has elected on or prior to the commencement of each License Fee Determination Period. (For the License Fee Determination Period commencing January 1, 2004, the Minimum Payment Commitment shall be (***).) The Per-PNR prices in effect for such License Fee Determination Period will be the amounts specified in Section 6(a)(ii) below for the relevant License Fee Determination Period and the Minimum Payment Commitment elected by Galileo for such License Fee Determination Period, and will remain in effect until the beginning of the following License Fee Determination Period.
(ii) Per-PNR Prices. The prices for Domestic PNRs and International PNRs are as follows:
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(iii) Payment Terms. Galileo shall pay the Per-PNR Online License Fee on a monthly basis in arrears, as follows: Within 25 days after the end of each License Month, Galileo will certify to ITA the number of Domestic PNRs and International PNRs generated by Online Users during such License Month, and the amount of the Per-PNR Online License Fee owed for such License Month, which shall be determined in accordance with this Section 6(a). Galileo will pay ITA, simultaneously with each such certification, an amount equal to the Per-PNR Online License Fee due for such License Month.
(b) (***)
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(c) (***)
(d) Minimum Payment Commitment.
(i) Determination of Minimum Payment Commitment. As used herein, “Minimum Payment Commitment” means the total amount that Galileo commits to pay ITA during each License Fee Determination Period. All amounts payable to ITA by Galileo hereunder or under the SLA, other than services billed pursuant to Section 6(f), will be credited toward fulfillment of the Minimum Payment Commitment. For the purpose of determining the amount that should be credited toward the Minimum Payment Commitment for a particular License Fee Determination Period: (1) Per-PNR Online License Fees will be applied to the License Fee Determination Period in which the relevant PNRs were created; (2) (***) will be applied to the License Fee Determination Period in which the relevant Queries were performed; and (3) (***) and all other fees will
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be applied to the License Fee Determination Period with respect to which the fee was incurred (i.e., fees incurred “for the period June 1, 2004 to June 30, 2004” will be applied to the License Fee Determination Period of January through June, 2004, regardless of when the fees are invoiced by ITA or paid by Galileo).
(ii) Payment Terms. Within 30 days after the end of each License Fee Determination Period, ITA shall calculate the amount creditable toward the Minimum Payment Commitment with respect to such License Fee Determination Period, and if such amount is less than the Minimum Payment Commitment in effect for such License Fee Determination Period, then ITA will invoice Galileo for the shortfall. Galileo will pay such invoice within 30 days of receipt.”
6. (***)
7. Term. Section 7(a) is hereby deleted and replaced with the following: “The term of this Agreement and the license granted to Galileo hereunder shall commence on the date hereof and shall end on December 31, 2006, unless terminated sooner or renewed, each as provided herein. Upon the expiration of the initial term and each subsequent renewal term (if any), the term of this Agreement shall be automatically extended for a period of one year unless, on or before the date that is 90 days prior to the date of expiration of the initial term or the renewal term, as applicable, Galileo notifies ITA that it does not intend to renew the Agreement.”
Amendments to the SLA
8. Governing Law. Section 7.8(e) of the SLA is hereby amended by changing the word “Delaware” to “New York”.
9. New Sections. The following new sections are hereby added to the SLA:
“7.9 Duty to Notify. ITA shall promptly notify Galileo (and its designated Affiliates) upon becoming aware of any of the following, if ITA reasonably believes that such event is likely to have an adverse impact on Galileo’s use of the Licensed Software: (i) material problems with the Licensed Software or any systems or infrastructure used in connection with the Licensed Software; (ii) materially defective data provided via the Licensed Software; (iii) material deviations from ITA’s Standard Operating Procedures; (iv) unscheduled Maintenance, and (v) any other occurrences that could result in a material degradation of fare quality or response times. In addition, ITA shall give Galileo notice as far in advance as reasonably possible of (a) installations of Upgrade Releases; (b) scheduled maintenance, (c) any changes to the Licensed Software, the Hardware, and/or the systems or infrastructure used in connection with the Licensed Software that ITA reasonably believes are likely to result in a degradation of fare quality or response times.
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7.10 Parity. ITA shall maintain parity between Galileo and other licensees of the Licensed Software with respect to (A) problem classification, reporting, and resolution; (B) the timing, frequency, and quality of communications regarding: (i) changes to or problems with the Licensed Software, or the Hardware, systems, data, or infrastructure used in connection with the Licensed Software; or (ii) ways to optimize the quality of fares generated by the Licensed Software.”
10. Survival of Provisions. Except as specifically amended hereby, the Agreement and the SLA will remain in all respects in full force and effect.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of June 2, 2004.
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ITA SOFTWARE, INC. |
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By: |
/s/ S. Xxxxxxx Xxxx |
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By: |
/s/ Xxxxxx Xxxxxxxxxx |
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S. Xxxxxxx Xxxx |
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Xxxxxx Xxxxxxxxxx |
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Senior Vice President & |
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President |
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Chief Information Officer |
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