Exhibit 10.3
AMENDED AND RESTATED AGREEMENT
FOR
CRS ACCESS AND RELATED SERVICES
between
ORBITZ, LLC
and
WORLDSPAN, L.P.
TABLE OF CONTENTS
PAGE
----
ARTICLE I AGREEMENT, TERM, AND DEFINITIONS.................................. 1
1.1 Agreement......................................................... 1
1.2 Term.............................................................. 1
1.3 Definitions....................................................... 2
ARTICLE II WORLDSPAN SERVICES................................................ 2
2.1 CRS Access........................................................ 2
2.2. Service Levels.................................................... 2
2.3 Customer Service and Fulfillment Interface........................ 2
2.4 Relationships with Travel Suppliers............................... 2
2.5 Enhancements to WORLDSPAN System.................................. 2
2.6 Continuing Integration Services................................... 3
2.7 Ticket Printers................................................... 3
2.8 Worldspan Support Services........................................ 3
2.9 DIR Gap Analysis.................................................. 4
ARTICLE III ORBITZ RESPONSIBILITIES............................................. 4
3.1 Orbitz Website ................................................... 4
3.2 Use of WORLDSPAN System........................................... 4
3.3 Capacity Planning................................................. 5
3.4 Third Party Coordination.......................................... 6
3.5 Use of the Internet............................................... 7
ARTICLE IV PAYMENTS.......................................................... 7
4.1 Cost Reimbursement................................................ 7
4.2 Excess Weighted Message Unit Charges.............................. 7
4.3 Segment Fees...................................................... 8
4.4 ITA Subscription Fee.............................................. 9
4.5 Time of Payment................................................... 9
4.6 Taxes ......................................................... 10
ARTICLE V CONTRACT ADMINISTRATION........................................... 10
5.1 Contract Managers................................................. 10
5.2 Periodic Meetings................................................. 10
5.3 Management Reports................................................ 10
ARTICLE VI SECURITY, CONFIDENTIALITY, AND PROPRIETARY RIGHTS................. 10
6.1 Security ......................................................... 10
6.2 Confidentiality................................................... 11
i
6.3 Proprietary Rights................................................ 11
6.4 Orbitz Information................................................ 11
ARTICLE VII TERMINATION....................................................... 12
7.1 Termination for Cause............................................. 12
7.2 Termination for Nonpayment........................................ 12
7.3 Termination for Insolvency........................................ 12
7.4 Termination for Material Service Level Failure.................... 12
7.5 Termination Upon a Change-in-Control.............................. 12
7.6 Termination Assistance............................................ 13
ARTICLE VIII ALLOCATION OF RISKS AND RESOLUTION OF DISPUTES.................... 13
8.1 Mutual Indemnities................................................ 13
8.2 Indemnification Procedures........................................ 14
8.3 Disclaimer........................................................ 14
8.4 Limitations on Liability.......................................... 14
8.5 Resolution of Disputes............................................ 15
ARTICLE IX MISCELLANEOUS..................................................... 16
9.1 Assignment........................................................ 16
9.2 Notices ......................................................... 16
9.3 Force Majeure..................................................... 17
9.4 Further Assurances................................................ 17
9.5 Press Releases.................................................... 18
9.6 Non-Solicitation.................................................. 18
9.7 Third Party Beneficiaries......................................... 18
9.8 No Waiver; Cumulative Remedies.................................... 18
9.9 Construction...................................................... 18
9.10 Severability...................................................... 18
9.11 Counterparts...................................................... 18
9.12 Governing Law..................................................... 19
9.13 Amendments........................................................ 19
9.14 Entire
Agreement.................................................. 19
9.15 Audit Rights...................................................... 19
ii
SCHEDULES
SCHEDULE A DEFINITIONS
SCHEDULE B SERVICE LEVELS
SCHEDULE C MESSAGE WEIGHTS
SCHEDULE D CHARTER AIRLINES
iii
AMENDED AND RESTATED
AGREEMENT
FOR
CRS ACCESS AND RELATED SERVICES
THIS AMENDED AND RESTATED
AGREEMENT (this "
Agreement"), dated as of November 1,
2001, is between Orbitz, LLC, a Delaware limited liability company, ("Orbitz")
and Worldspan, L.P., a Delaware limited partnership, ("WORLDSPAN").
WHEREAS, Orbitz has been formed by United Air Lines, Inc., American Airlines,
Inc., Delta Air Lines, Inc., Northwest Airlines, Inc., and Continental Airlines,
Inc. to develop, own, and operate a consumer-oriented Internet travel portal
through which consumers can shop for and book air travel, hotel accommodations,
car rentals, cruises, tours, and other travel-related services;
WHEREAS, Orbitz has selected WORLDSPAN to provide, for this Internet portal,
access to and use of the computer reservations systems operated by WORLDSPAN and
certain related services, as provided in this
Agreement, and has selected other
companies to provide the booking engine, fulfillment services, customer service
center, and other products and services required by Orbitz for this Internet
portal;
WHEREAS, Orbitz and Worldspan entered into an
Agreement for CRS Access and
Related Services dated August 1, 2000 (the "Original
Agreement"); and
WHEREAS, Orbitz and Worldspan desire to amend and restate the Original Agreement
under the terms and conditions of this Agreement;
NOW, THEREFORE, Orbitz and WORLDSPAN (each, a "Party") hereby agree as follows:
ARTICLE I
AGREEMENT, TERM, AND DEFINITIONS
1.1 AGREEMENT. During the Term of this Agreement and in accordance with the
provisions hereof, WORLDSPAN will provide, and Orbitz will obtain, the CRS
access and related services described in this Agreement.
1.2 TERM. The term of this Agreement will commence on November 1, 2001 (the
"Effective Date") and will end on (i) October 31, 2011, or (ii) such
earlier date upon which this Agreement may be terminated in accordance
with the provisions of this Agreement ("Term").
1
1.3 DEFINITIONS. As used in this Agreement, the terms set forth in Schedule A
will have the respective meanings specified in Schedule A. Other terms
used in this Agreement are defined in the context in which they are used
and will have the respective meanings there specified.
ARTICLE II
WORLDSPAN SERVICES
2.1 CRS ACCESS. During the Term of this Agreement, WORLDSPAN will provide
Orbitz, as well as the Booking Engine Provider, the Customer Service
Center Provider, the Fulfillment Provider, and any other third parties
that may be engaged by Orbitz to provide products or services for the
operation of the Orbitz Website and that require such access in order to
provide those products or services, with access to the WORLDSPAN System
for purposes of the operation of the Orbitz Website and in accordance with
the provisions of this Agreement.
2.2 SERVICE LEVELS. During the Term of this Agreement, WORLDSPAN will operate
the WORLDSPAN System in accordance with the Service Levels as set forth on
Schedule B.
2.3 CUSTOMER SERVICE AND FULFILLMENT INTERFACE. During the Term of this
Agreement and subject to the charges set forth in Section 2.7, WORLDSPAN
will (i) provide the Fulfillment Provider, at its facilities, with
sufficient ticket printers to fulfill the travel services booked by means
of the Orbitz Website through the WORLDSPAN System, and (ii) provide, at
WORLDSPAN Actual Cost, the communication lines necessary to connect the
Fulfillment and Customer Service Center Provider(s) with the WORLDSPAN
data center.
2.4 RELATIONSHIPS WITH TRAVEL SUPPLIERS. WORLDSPAN will be responsible for
managing the relationships that it has established with travel suppliers
throughout the world pursuant to which the travel suppliers pay WORLDSPAN
fees for transactions booked through the WORLDSPAN System. Although Orbitz
may establish its own, independent relationships with travel suppliers,
WORLDSPAN will retain exclusive control over the identity of and the terms
of its agreements with travel suppliers. The Parties agree to comply with
the reasonable directions of the travel suppliers with respect to control
of their respective inventories and related matters.
2.5 ENHANCEMENTS TO WORLDSPAN SYSTEM. WORLDSPAN from time to time may enhance
or modify the WORLDSPAN System and may change the hardware and/or software
comprising the WORLDSPAN System and migrate processing for or on behalf of
Orbitz to such new hardware and/or software. In addition, WORLDSPAN from
time to time shall offer optional functions, services or equipment to
Orbitz on or before the time WORLDSPAN generally offers such functions,
services or equipment to any of its other actual or potential customers at
such fees, terms and conditions as may be mutually
2
agreed upon. Orbitz's use of any such optional function, service or
equipment will constitute agreement to such agreed upon fees, terms and
conditions. WORLDSPAN will use reasonable business efforts to ensure that
the services provided by WORLDSPAN to Orbitz are not materially adversely
affected by any such enhancements, modifications or changes or by any such
optional functions, services or equipment.
2.6 CONTINUING INTEGRATION SERVICES. Throughout the Term of the Agreement,
Worldspan shall use commercially reasonable efforts to resolve technical
issues regarding the operation of the Worldspan System, including, without
limitation, technical issues or suspected errors in the Worldspan System
that cause travel suppliers to experience problems with fare display,
availability or sales confirmation on the Orbitz Website (each, a
"Technical Issue"). Each party shall appoint an employee who shall serve
as the primary point of contact for the other party with respect to
Technical Issues (each, a "Technical Contact"). Either party may change
its Technical Contact at any time upon notice to the other party. In
addition, the parties agree to participate jointly in communications with
travel suppliers regarding the status of any Technical Issue.
2.7 TICKET PRINTERS. Subject to availability, Orbitz may purchase Worldspan's
excess and reconditioned TI1600 ATB printers at a cost equal to market
value not to exceed $3,000 per printer plus shipping and handling. New
printers may be purchased by Orbitz from Worldspan at Worldspan's cost
plus shipping and handling and subject to availability. If requested by
Orbitz, Worldspan shall provide maintenance on such printers and charge
Orbitz Worldspan's cost. Notwithstanding the foregoing, any printers
provided by Worldspan to Orbitz prior to the Effective Date may continue
to be used by Orbitz or its Fulfillment Provider during the Term of this
Agreement at no charge except for any maintenance charges as provided
herein. Orbitz may use any of the printers acquired from Worldspan to
connect with other third parties. All other equipment provided by
Worldspan must be connected to the Worldspan network and may not be used
with any other third party. With respect to any printers that are not
connected to the Worldspan network, Worldspan will provide maintenance
relating to hardware issues and Orbitz shall be responsible for all other
maintenance issues impacting such equipment.
2.8 WORLDSPAN SUPPORT SERVICES. Worldspan shall provide to Orbitz at no cost a
technical sales specialist and Contract Manager to facilitate bookings
made from the Orbitz Website through the Worldspan System. Worldspan
acknowledges that the foregoing obligations are intended to reflect the
support services currently provided to similarly situated Worldspan
customers with materially similar booking volumes, commitment levels and
contractual obligations ("Similar Customers"), and that at such time as
Worldspan offers increased or enhanced support services to Similar
Customers, equivalent support services shall be offered to Orbitz on terms
and conditions substantially similar as those offered to Similar
Customers.
2.9 DIR GAP ANALYSIS. Worldspan shall provide Orbitz with a DIR GAP analysis
based on the functionality requested by Orbitz. Worldspan shall use
reasonable commercial efforts to deliver such functionality and usage
requirements according to the priority lists mutually agreed upon by the
parties.
3
ARTICLE III
ORBITZ RESPONSIBILITIES
3.1 ORBITZ WEBSITE. Orbitz will establish and maintain the Orbitz Website,
including performing, or causing third parties to perform, the applicable
tasks that are the responsibility of Orbitz or such third parties.
3.2 USE OF WORLDSPAN SYSTEM. Orbitz has incorporated the Worldspan System into
the Orbitz Website and will use reasonable business efforts to encourage
Users to book travel by means of the Orbitz Website so as to generate Net
Segments booked through the Worldspan System. Orbitz will use reasonable
business efforts to negotiate with Worldspan for the Worldspan System to
be the primary CRS for Corporate Users. Orbitz shall use Worldspan as the
primary CRS for any Corporate User that does not have a preference for a
CRS. Orbitz agrees that from the Effective Date through July 31, 2003, at
least [***] percent ([***]%) of the CRS Segments booked on behalf of all
Users, including Corporate Users, by means of the Orbitz Website through a
CRS will be booked through the Worldspan System. Commencing on August 1,
2003 and continuing throughout the remainder of the Term, Orbitz agrees
that at least (i) [***] percent ([***]%) of the CRS Segments booked on
behalf of Users other than Corporate Users by means of the Orbitz Website
through a CRS will be booked through the Worldspan System and (ii) [***]
percent ([***]%) of the CRS Segments booked on behalf of Corporate Users
by means of the Orbitz Website through a CRS will be booked through the
Worldspan System. Orbitz will use reasonable business efforts to prevent
unauthorized or improper use of the Worldspan System and to ensure that
its employees, agents and Users access and use the Worldspan System in
compliance with all reasonable instructions provided by Worldspan,
including the following:
(a) The WORLDSPAN System may not be used to transmit personal messages,
make speculative or improper bookings, train anyone other than
Orbitz employees, agents, or Users, or publish or disseminate a
compilation of air carrier service or other information.
(b) Proper use of the WORLDSPAN System consists of making proper and
legitimate reservations, issuing travel related documents, and
performing normal accounting and record keeping functions. Improper
use of the WORLDSPAN System includes, without limitation, making
speculative bookings, reserving space in anticipation of demand, and
improper creation or modification of records.
(c) Orbitz's employees, agents, and Users may not enter passive bookings
(e.g., GC, HK, MK or BK codes) into the WORLDSPAN System when no
corresponding
----------
*** 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.
4
space has been reserved with the corresponding travel supplier's
internal reservations system. Any passive bookings will be removed
from the WORLDSPAN System if the corresponding space is cancelled.
(d) The material and information supplied by WORLDSPAN will not be
manipulated in a manner that would lead to inaccurate, misleading,
or discriminatory presentation of information to consumers.
(e) Orbitz will promptly report to WORLDSPAN any incidents of suspected
unauthorized access to or use of the WORLDSPAN System and will use
reasonable commercial efforts to curtail access to or use of the
WORLDSPAN System by any User upon WORLDSPAN's reasonable request.
3.3 CAPACITY PLANNING. By the end of each calendar month throughout the Term,
Orbitz will provide to WORLDSPAN, for purposes of WORLDSPAN's capacity and
resource planning, a written notice of Orbitz's best estimate of the
number of Net Air Segments, Net Car Segments, and Net Hotel Segments that
will be booked by means of the Orbitz Website through the WORLDSPAN
System, and the number of any other Message types the Parties may mutually
agree to be included in WORLDSPAN's capacity and resource planning, during
each of the next twelve (12) months. Except as provided in the next
sentence, the notices are provided for informational purposes only and
shall not be binding upon Orbitz. With respect to each such notice,
Orbitz's estimate for each of the first three (3) months covered by the
notice will be considered binding and, except as set forth below, may not
be modified in any subsequent such notice or otherwise without the consent
of both Parties. Commencing at the beginning of the Term of this
Agreement, in the event that the number of Net Air Segments, Net Car
Segments, or Net Hotel Segments actually booked by means of the Orbitz
Website through the WORLDSPAN System during any month is less than [***]
of Orbitz's binding estimate thereof, then Orbitz will reimburse WORLDSPAN
for any WORLDSPAN Actual Costs that (i) were actually incurred by
WORLDSPAN, and (ii) would have been reasonably incurred by WORLDSPAN in
acquiring or dedicating the capacity and resources necessary to
accommodate [***] of Orbitz's binding estimate for such month, but (iii)
would not have been so incurred to accommodate only the number of such
Segments that were actually booked during such month. In the event that
WORLDSPAN plans to incur an expense or cost of one million dollars
($1,000,000) or more due to Orbitz's estimate and for which Orbitz might
become obligated to reimburse WORLDSPAN pursuant to this Section 3.3, then
WORLDSPAN shall promptly notify Orbitz of such planned expense or cost and
provide Orbitz with a reasonably detailed explanation of the reasons for
such cost or expense, and Orbitz shall have fourteen (14) days to resubmit
a forecast with modified binding and non-binding estimates. WORLDSPAN's
failure to so notify Orbitz will relieve Orbitz of any liability to
reimburse WORLDSPAN for such expense or cost. WORLDSPAN shall use
commercially reasonable efforts to avoid and/or mitigate any
Orbitz-reimbursable costs or expenses.
----------
*** 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.
5
3.4 THIRD PARTY COORDINATION. Orbitz will manage its relationships with the
Booking Engine Providers, the Customer Service Center Providers, the
Fulfillment Providers, and any other applicable third parties involved in
the implementation or operation of the Orbitz Website and will be
responsible for the timely performance of their respective obligations
relating to WORLDSPAN's performance under this Agreement. In connection
therewith, Orbitz acknowledges and agrees that:
(a) Orbitz or its Booking Engine Providers will be responsible for
providing the booking engine utilized by the Orbitz Website.
(b) Orbitz or its Customer Service Center Providers will be responsible
for customer support relating to the Orbitz Website. Except to the
extent otherwise mutually agreed, WORLDSPAN will not be responsible
for providing any "help desk" or similar support or assistance with
respect to any hardware, software, product, or service that is not
provided by WORLDSPAN hereunder. Upon WORLDSPAN's reasonable request
from time to time, Orbitz will notify its employees, agents, and
Users of the appropriate places to obtain such support and
assistance and that WORLDSPAN is not responsible for providing the
same.
(c) Orbitz or its Fulfillment Providers will be responsible for
fulfillment of all travel services booked by means of the Orbitz
Website.
(d) Unless and until WORLDSPAN is requested to provide such services as
provided below, Orbitz or its Domestic Fares Providers will be
responsible for providing fares and pricing information relating to
Domestic Air Travel for the Orbitz Website. Upon Orbitz's request,
WORLDSPAN will commence providing Domestic Air Travel fares and
pricing information for the Orbitz Website and will use reasonable
business efforts to do so on the schedule reasonably requested by
Orbitz and in compliance with the Service Levels. However, if
WORLDSPAN is given less than ninety (90) days prior notice that it
is to begin providing Domestic Air Travel fares and pricing
information for the Orbitz Website, then, for the period ending
ninety (90) days after WORLDSPAN is given such notice, WORLDSPAN
will be excused from and not held accountable for any failure to
meet any Service Level to the extent that such failure results from
WORLDSPAN's provision of Domestic Air Travel fares and pricing
information for the Orbitz Website.
(e) With respect to the booking engine and any other component of, or
used by, the Orbitz Website that directly interfaces with the
WORLDSPAN System, Orbitz will use reasonable business efforts to
ensure that (i) the component uses the highest participation level
in the WORLDSPAN System that is available to the component, (ii) the
component's interface to the WORLDSPAN System results in a
reasonably efficient use of the WORLDSPAN System, as periodically
confirmed by WORLDSPAN's audit, (iii) any software included in the
component meets commercially reasonable standards for stability,
acceptability, documentation, and integrity and has been
sufficiently stress tested to ensure that it will meet
6
anticipated volume requirements, and (iv) any hardware used by the
component meets WORLDSPAN's reasonable requirements for
compatibility.
(f) Each Party will cooperate with the other Party, and will cause each
third party under such Party's control or direction to cooperate
with the other Party, in the performance of the other Party's
obligations hereunder by, among other things, making available such
information, data, access to premises, management decisions,
approvals, and acceptances as may be reasonably requested by the
other Party.
3.5 USE OF THE INTERNET. Since the Orbitz Website will primarily utilize the
Internet, which is not managed or controlled by either Party, both Parties
acknowledge and agree that:
(a) Any views or comments expressed by either Party in electronic
communications sent through the WORLDSPAN System over the Internet
will not reflect any review, approval, or endorsement of the other
Party.
(b) Each Party reserves the right upon the written approval of the other
Party, to access the other Party's configuration/system in order to
investigate and resolve system errors or service-related problems.
ARTICLE IV
PAYMENTS
4.1 COST REIMBURSEMENT. Orbitz will reimburse WORLDSPAN for the WORLDSPAN
Actual Costs incurred by WORLDSPAN in connection with the following:
(a) Any telecommunication lines and related equipment and services
associated with communication between WORLDSPAN and Orbitz or Orbitz
systems.
(b) Any telecommunication lines and related equipment and services
associated with communication between WORLDSPAN and (i) the
Fulfillment Providers, (ii) the Customer Service Center Providers,
(iii) Orbitz's telecommunications center in Oakbrook,
Illinois, and
(iv) unless otherwise mutually agreed, any other entity for which
such communication is requested by or on behalf of Orbitz.
4.2 EXCESS WEIGHTED MESSAGE UNIT CHARGES. During the Term of this Agreement,
Orbitz will pay Worldspan for any excess Weighted Message Units in
accordance with the following:
(a) For any month in which Worldspan does not provide Domestic Air
Travel fares and pricing information for the Orbitz Website and
during which the number of Weighted Message Units for the Messages
processed by the Worldspan System is
7
greater than [***] times the number of Aggregate Segments booked by
means of the Orbitz Website through the Worldspan System during that
month, Orbitz will pay Worldspan an excess Weighted Message Unit
charge equal to (i) $[***], multiplied by (ii) the amount by which
the number of Weighted Message Units for the Messages processed by
the Worldspan System during that month exceeds [***] times the
number of Aggregate Segments booked by means of the Orbitz Website
through the Worldspan System during that month.
(b) For any month in which Worldspan does provide Domestic Air Travel
fares and pricing information for the Orbitz Website and during
which the number of Weighted Message Units for the Messages
processed by the Worldspan System is greater than [***] times the
number of Aggregate Segments booked by means of the Orbitz Website
through the Worldspan System during that month, Orbitz will pay
Worldspan an excess Weighted Message Unit charge equal to (i)
$[***], multiplied by (ii) the amount by which the number of
Weighted Message Units for the Messages processed by the Worldspan
System during that month exceeds [***] times the number of Aggregate
Segments booked by means of the Orbitz Website through the Worldspan
System during that month. For purposes of this Agreement, the
parties must consent in writing to the provision of Domestic Air
Travel fares and pricing information to the Orbitz Website by
Worldspan.
(c) For any month during which the Response Time Monitor is operational,
Orbitz will be entitled to request in writing a credit against any
excess Weighted Message Unit charge otherwise payable pursuant to
either subsection (a) or subsection (b) of this Section 4.2, which
credit shall be equal to the lesser of (i) the amount of such
charge, or (ii) $185.00.
4.3 SEGMENT FEES. During the Term of the Agreement, Worldspan will pay Orbitz
Base Segment Fees in accordance with the following:
(a) As an inducement for Orbitz to book Segments through the Worldspan
System and subject to Section 4.3(b), for each calendar month during
the period commencing on the Effective Date and continuing through
the remainder of the Term of this Agreement, Worldspan will pay
Orbitz the Adjusted Segment Fee for each Net Segment for that month.
However, since the Adjusted Segment Fees payable for each month are
based, in part, upon the total number of Net Segments for the entire
Contract Year in which that month falls, the Parties will not be
able to confirm the actual Adjusted Segment Fees payable for any
month during a Contract Year until after the end of that Contract
Year. Therefore, for each month during each Contract Year, Worldspan
will pay Orbitz, on an interim basis, Adjusted Segment Fees
determined on the basis of an assumption that the Net Segments for
that Contract Year will be equal to 12 times the Net Segments for
that month. Promptly after the end of each Contract Year, the
Parties will confirm
----------
*** 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.
8
the actual Adjusted Segment Fees payable for each month during that
Contract Year and each Party will issue any additional payments or
credits that may be necessary to reconcile the amounts previously
paid for those months with the actual amounts payable for those
months.
(b) Retroactive to June 4, 2001 and continuing until July 31, 2003, this
Section shall apply to Net Air Segments and Booking Fees of Charter
Airlines. In determining the number of Net Air Segments of Charter
Airlines, Worldspan will include ninety-five percent (95%) of the
Net Air Segments booked by Orbitz users on Charter Airlines. The
remaining five percent (5%) of the Net Air Segments booked by Orbitz
users on Charter Airlines will not be taken into consideration in
determining the Adjusted Segment Fee payable to Orbitz. In addition,
Worldspan will pay Orbitz a fee equal to five percent (5%) of the
Booking Fees paid by Charter Airlines to Worldspan for Net Air
Segments. This Section 4.3(b) shall not apply to the following: (i)
any Net Air Segments or Booking Fees from a Charter Airline that
implements a direct connection to Orbitz; (ii) any Charter Airline
that ceases to be a Charter Airline; (iii) any Charter Airline that
Orbitz is not contractually obligated to pay air segment rebates;
(iv) any Net Air Segments or Booking Fees from Charter Airlines
after September 30, 2003; or (v) as otherwise agreed by Orbitz and
Worldspan.
4.4 ITA SUBSCRIPTION FEE. The parties agree to use their diligent best efforts
to reach a definitive agreement by December 31, 2001 whereby Orbitz shall
pay Worldspan a subscription fee in exchange for access to Worldspan's
availability information on air carrier seat inventory.
4.5 TIME OF PAYMENT. Promptly after the end of each calendar month during the
Term of this Agreement, WORLDSPAN will submit to Orbitz:
(a) An invoice for all amounts that are payable to WORLDSPAN by Orbitz
hereunder for that month.
(b) A report of all amounts that are payable to Orbitz by WORLDSPAN
hereunder for that month.
All such amounts, whether payable to WORLDSPAN or Orbitz, will be due and
payable within thirty (30) days after the date of the invoice therefor or
the report thereof, as the case may be. However, the Party owing the
larger amount to the other Party may, at its discretion and after giving
the other Party at least ten (10) days' notice thereof, set-off the amount
owed to it by the other Party against the amount it owes the other Party
and pay only the net amount to the other Party. Any amount payable to
either Party that is not paid when due, and any amount that is erroneously
paid to either Party and is not repaid within thirty (30) days after that
Party receives a written request for repayment, will thereafter bear
interest until paid or repaid, as the case may be, at a rate of interest
equal to the United States prime rate that, as of the date such amount was
due, was then most recently published in the "Money Rates" section of THE
WALL STREET JOURNAL; provided,
9
however, that in no event will such rate of interest exceed the maximum
rate allowed by applicable law.
4.6 TAXES. Each Party will be responsible for, and will pay or reimburse the
other for, any sales, use, excise, value-added, or similar taxes (but not
including taxes on net income or franchise taxes) that are based upon any
services, materials or goods provided to that Party hereunder or upon any
amounts payable to the other Party hereunder. Each Party will cooperate
with the other in minimizing any applicable taxes, including providing to
the other any exemption certificates or other information reasonably
requested by the other.
ARTICLE V
CONTRACT ADMINISTRATION
5.1 CONTRACT MANAGERS. Each Party will from time to time appoint, and give the
other written notice of the appointment of, an individual (the "Contract
Manager" for that Party) who will oversee and manage the performance of
that Party's obligations under this Agreement, will serve as that Party's
primary point of contact with the other Party, and will be authorized to
act for and on behalf of that Party with respect to all matters relating
to this Agreement.
5.2 PERIODIC MEETINGS. In order to facilitate and enhance on-going
communications, the Contract Managers will meet on a mutually agreed
periodic basis, and at such other times as may be reasonably requested by
either of them, to review the Parties' performance of their obligations
under this Agreement and to discuss technical plans, financial matters,
system performance, service levels and any other matters related to this
Agreement that may be reasonably requested by either Party.
5.3 MANAGEMENT REPORTS. On at least a calendar monthly basis, WORLDSPAN will
provide to Orbitz reports of WORLDSPAN's performance of its obligations
pursuant to this Agreement, including information regarding WORLDSPAN's
performance with respect to the Service Levels and such other information
upon which the Parties may mutually agree from time to time.
ARTICLE VI
SECURITY, CONFIDENTIALITY, AND PROPRIETARY RIGHTS
6.1 SECURITY. Each Party will implement and maintain appropriate security
measures for its operations in accordance with technological developments
and its evolving security needs. Those appropriate security measures for
each Party will include, without limitation, establishing a security
policy for its computer network, preventing unauthorized access to its
computer systems, implementing administrative security controls for its
computing operations, installing firewalls in its communications network,
10
protecting its computer resources from insider abuse, having appropriate
administrative procedures to ensure that system access capability to its
computer systems is given to only authorized users and is promptly
withdrawn from terminated employees or other persons who are no longer
authorized, establishing a single point of control for responses to
incidents involving its security, and monitoring the effectiveness of the
security of its computer network. Neither Party will, or will assist
others in efforts to, subvert, compromise, or otherwise interfere with the
operations or security of any communications network or computing facility
of the other. Each Party will cooperate with the other in investigating
and prosecuting any security breaches that affect or threaten the security
of the other.
6.2 CONFIDENTIALITY. Each Party agrees that all Confidential Information
disclosed to it by the other, whether before or after the Effective Date,
will be held in strict confidence, will be used only for purposes of this
Agreement, will be kept in as secure a location and with as stringent
precautions as the receiving Party uses for its own similar information,
will be provided only to those employees and agents of the receiving Party
who require such access for purposes of this Agreement, and will not be
disclosed to any unauthorized person by the receiving Party or any of its
employees or agents except with the prior written consent of the
disclosing Party or as may be required by legal or regulatory requirements
beyond the control of the receiving Party.
6.3 PROPRIETARY RIGHTS. Orbitz acknowledges and agrees that, as between the
Parties, the WORLDSPAN System will be and remain the property of WORLDSPAN
and that the WORLDSPAN System constitutes and includes trade secrets and
proprietary and confidential information of WORLDSPAN. Orbitz will, and
will allow its employees, agents, and Users to, access and use the
WORLDSPAN System only for the purposes contemplated by this Agreement. In
addition, Orbitz will not, and will not allow its employees, agents, or
Users to, copy, duplicate, reproduce, de-compile, reverse engineer,
re-engineer, modify, or disclose in any form the WORLDSPAN System or any
portion thereof. Upon termination of this Agreement for any reason, Orbitz
will promptly return to WORLDSPAN any material relating to the WORLDSPAN
System that may be in Orbitz's possession or control.
6.4 ORBITZ INFORMATION. WORLDSPAN acknowledges and agrees that, as between the
Parties, the Orbitz Information shall be deemed the confidential and
proprietary information of Orbitz and shall be considered as
work-made-for-hire. To the extent the Orbitz Information is not considered
work-made-for-hire, WORLDSPAN hereby assigns upon creation all ownership
rights that WORLDSPAN may have or hereafter acquires in the Orbitz
Information to Orbitz. WORLDSPAN shall cooperate with Orbitz in securing,
enforcing and otherwise protecting Orbitz's interest in the Orbitz
Information, including, without limitation, by signing all documents
reasonably requested by Orbitz. Upon request by Orbitz, WORLDSPAN shall
provide all Orbitz Information in the form, format and manner as may be
reasonably requested by Orbitz. However, notwithstanding the foregoing,
WORLDSPAN may disclose Orbitz Information if and to the extent required by
legal or regulatory requirements and may use aggregate information and
statistics reflecting the use of the WORLDSPAN System by means of the
Orbitz Website as long as
11
such use is in accordance with applicable legal or regulatory requirements
and in accordance with WORLDSPAN's ordinary and customary business
practices.
ARTICLE VII
TERMINATION
7.1 TERMINATION FOR CAUSE. In the event that either Party materially defaults
in the performance of any of its duties or obligations hereunder and does
not substantially cure the default within thirty (30) days after being
given written notice specifying the default, or, with respect to any
default that cannot reasonably be cured within thirty (30) days, if the
defaulting Party fails to proceed promptly after being given such notice
to commence curing the default and thereafter to proceed with all due
diligence to substantially cure the same, then the Party not in default
may, by giving written notice of termination to the defaulting Party at
any time thereafter and before the default is substantially cured,
terminate this Agreement as of a date specified in the notice of
termination.
7.2 TERMINATION FOR NONPAYMENT. In the event that either Party defaults in the
payment when due of any amount due to the other Party hereunder and does
not cure the default within thirty (30) days after being given written
notice specifying the default, then the Party not in default may, by
giving written notice of termination to the defaulting Party at any time
thereafter and before the default is cured, terminate this Agreement as of
a date specified in the notice of termination.
7.3 TERMINATION FOR INSOLVENCY. In the event that either Party becomes or is
declared insolvent or bankrupt, is the subject of any proceedings relating
to its reorganization, liquidation, insolvency or for the appointment of a
receiver or similar officer for it, makes an assignment for the benefit of
all or substantially all of its creditors, or enters into an agreement for
the composition, extension, or readjustment of all or substantially all of
its obligations, then the other Party may, by giving written notice of
termination to such Party, terminate this Agreement as of a date specified
in the notice of termination.
7.4 TERMINATION FOR MATERIAL SERVICE LEVEL FAILURE. In the event that a
Material Service Level Failure occurs, then Orbitz may, by giving written
notice of termination to WORLDSPAN within six (6) months thereafter,
terminate this Agreement without any liability as of a date specified in
the notice of termination.
7.5 TERMINATION UPON A CHANGE-IN-CONTROL. In the event there is a
Change-in-Control of Worldspan, then Worldspan, or any successor in
interest to Worldspan (the "Successor"), in its sole discretion within one
(1) year from the date of the Change-in-Control, either (i) shall provide
for the migration of Orbitz's operations to a computer reservation system
operated by the Successor but other than the Worldspan System operated by
Worldspan immediately prior to the Change-in-Control (the "Successor
System"), provided that the functionality available in the Successor
System shall be competitive on an overall basis with the functionality in
other global distribution systems, and shall pay for all Migration Costs
associated with such migration, or (ii) in the event Worldspan or its
Successor
12
elects not to migrate Orbitz's operations to the Successor System, then
the Successor shall use reasonable commercial efforts to offer equivalent
functionality, enhancements and modifications to Orbitz through the
Worldspan System as are available to other comparable users of the
Successor System throughout the Term of this Agreement. Any failure by
Worldspan or a Successor to comply with the foregoing obligations shall
constitute a material breach of this Agreement and in such event, not more
than 60 days following such breach, Orbitz shall have the right to
terminate this Agreement pursuant to this Section 7.5 by providing
Worldspan with written notice of the termination 3 months prior to the
effective date of termination specified in the notice. Such termination is
at the sole discretion of Orbitz and is in lieu of any other remedy
available at law or in equity.
7.6 TERMINATION ASSISTANCE. Upon the expiration or termination of this
Agreement for any reason, WORLDSPAN will provide to Orbitz, during any
applicable notice period and for up to three (3) months after the
expiration or termination, such termination assistance as may be
reasonably requested by Orbitz to facilitate the orderly transition of
responsibility for the services provided by WORLDSPAN hereunder to Orbitz
or its designee. If and to the extent that the termination assistance is
provided after the expiration or termination of this Agreement or
otherwise requires resources in addition to those resources then being
regularly utilized in performing services hereunder, Orbitz will pay
WORLDSPAN for the termination assistance at WORLDSPAN's then current rates
for the resources used therefor or on such other basis as WORLDSPAN and
Orbitz may agree upon at that time. However, if this Agreement is
terminated by WORLDSPAN pursuant to Section 7.1, 7.2 or 7.3 hereof, then
WORLDSPAN may, as a condition to WORLDSPAN's obligation to provide any
termination assistance for Orbitz during any month, require Orbitz to pay
to WORLDSPAN, prior to the first day of that month, an amount equal to
WORLDSPAN's reasonable estimate of the total amount payable to WORLDSPAN
for termination assistance during that month.
ARTICLE VIII
ALLOCATION OF RISKS AND RESOLUTION OF DISPUTES
8.1 MUTUAL INDEMNITIES. Each Party agrees to indemnify, defend, and hold
harmless the other Party and its successors, assigns, affiliates,
officers, employees, and agents from and against any and all claims,
actions, damages, liabilities, costs and expenses, including reasonable
attorneys' fees and expenses, arising out of any third party claim related
to:
(a) Any death or personal injury, or any destruction of or damage to any
real or tangible personal property, alleged to have been caused by
or on behalf of the indemnifying Party or its employees or agents.
(b) Any infringement of a United States letters patent, a trade secret,
or any copyright, trademark, service xxxx, trade name or similar
proprietary rights conferred by statute, by common law, or by
contract alleged to have occurred as a result of rights conveyed,
materials provided, or work performed by or on behalf of the
indemnifying Party.
13
8.2 INDEMNIFICATION PROCEDURES. Any Party claiming indemnification pursuant to
this Agreement will give the indemnifying Party prompt written notice of
any matters with respect to which this indemnity may apply, will give the
indemnifying Party full opportunity to control the response thereto and
the defense thereof, and will provide reasonable cooperation and
assistance in connection with the defense and/or settlement of the claim.
However, the indemnified Party may, at its own expense, participate in
such defense and in any settlement discussions, either directly or through
counsel of its choice.
8.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY
MAKES, AND EACH PARTY HEREBY DISCLAIMS, ANY INDEMNITIES, WARRANTIES,
INDEMNIFICATIONS, GUARANTEES, OR REPRESENTATIONS OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
8.4 LIMITATIONS ON LIABILITY. ANY LIABILITY OF EITHER PARTY ARISING FROM OR
RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE,
INTENDED CONDUCT, STRICT LIABILITY, OR OTHERWISE, WILL BE LIMITED TO THE
OTHER PARTY'S ACTUAL, DIRECT DAMAGES AND WILL BE SUBJECT TO THE FOLLOWING:
(a) EXCEPT FOR DAMAGES RESULTING FROM THE LIABLE PARTY'S GROSS
NEGLIGENCE, WILLFUL MISCONDUCT, OR FAILURE TO PERFORM ANY OF ITS
CONFIDENTIALITY, INDEMNIFICATION, OR PAYMENT OBLIGATIONS HEREUNDER,
THE AMOUNT OF DAMAGES RECOVERABLE AGAINST THE LIABLE PARTY FOR ALL
EVENTS, ACTS, AND OMISSIONS WILL NOT EXCEED, IN THE AGGREGATE, THE
SUM OF TWENTY MILLION DOLLARS ($20,000,000).
(b) IN NO EVENT WILL THE LIABLE PARTY BE LIABLE FOR (I) ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, EXCEPTING
DAMAGES ARISING OUT OF THE LIABLE PARTY'S INDEMNIFICATION
OBLIGATIONS SET FORTH IN THIS ARTICLE VIII, OR (II) ANY DAMAGES THAT
COULD HAVE BEEN PREVENTED OR MITIGATED BY THE OTHER PARTY'S TAKING
REASONABLE PRECAUTIONS OR FOLLOWING REASONABLE PROCEDURES.
8.5 RESOLUTION OF DISPUTES. In the event of any dispute between the Parties
arising from or relating to this Agreement, the Parties will resolve the
dispute by using the following procedures:
(a) Upon the request of either Party, the Contract Managers will meet to
discuss the dispute, will exchange any information that they
mutually agree is relevant to the
14
issues in dispute, and will use all reasonable efforts to resolve
the dispute without the need for further proceedings.
(b) If the Contract Managers fail to resolve the dispute within ten (10)
business days after the initial request that they meet to resolve
the dispute in accordance with subsection (a) above, or mutually
conclude in good faith that they are unlikely to resolve the
dispute, then, upon the request of either Party, each of the Parties
will designate a senior executive, who may be supported by legal and
technical advisers, to meet with the senior executive designated by
the other Party and negotiate in good faith to resolve the dispute
on an amicable basis.
(c) If the designated senior executives fail to resolve the dispute
within ten (10) business days after the initial request that they
meet to resolve the dispute in accordance with subsection (b) above,
or mutually conclude in good faith that resolution through such
negotiations does not appear likely, then, upon the request of
either Party, the dispute will be submitted to non-binding mediation
as set forth herein. In the mediation process, the Parties will try
to resolve their differences voluntarily with the aid of an
impartial mediator, who will attempt to facilitate negotiations. The
mediator will be selected by agreement of the Parties. If the
Parties cannot agree on a mediator, a mediator will be designated by
the American Arbitration Association or JAMS/Endispute, or other
mutually acceptable reputable dispute resolution firm, at the
request of either Party. Any mediator so designated must be
acceptable to both Parties. The mediation will be conducted as
specified by the mediator and agreed upon by the Parties. The
Parties agree to discuss their differences in good faith and to
attempt, with the assistance of the mediator, to reach an amicable
resolution of the dispute. The mediation will be treated as a
settlement discussion and therefore will be confidential. The
mediator may not testify for either Party in any later proceeding
relating to the dispute. No recording or transcript shall be made of
the mediation proceedings. The mediation shall be conducted in
Chicago,
Illinois. Each Party shall, except as otherwise provided
herein, be responsible for its own expenses, including legal fees,
incurred in the course of the dispute resolution period and
mediation. The fees of the mediator shall be divided evenly between
the Parties.
(d) Neither Party may commence any legal action arising out of this
Agreement until thirty (30) days after the commencement of the
mediation as set forth above, or such shorter period as the Parties
may mutually agree in writing. Notwithstanding the foregoing
provisions of this Section 8.5, either Party may seek interim
judicial relief, including injunctions, specific performance, and
other equitable remedies, to the extent necessary to preserve the
status quo or prevent irreparable injury until any related dispute
can be resolved as provided in this Section 8.5.
(e) Any action or proceeding seeking to enforce any provision of, or
based on any right arising out of, this Agreement may be brought
against either Party only in the appropriate state or federal courts
located in Xxxx County,
Illinois. Each Party consents to the
exclusive jurisdiction of such courts (and of the appropriate
15
appellate courts) in any such action or proceeding and waives any
objection to venue laid therein.
ARTICLE IX
MISCELLANEOUS
9.1 ASSIGNMENT. This Agreement will be binding upon, and inure to the benefit
of, the Parties and their respective successors and assigns. However,
neither Party may, without the prior written consent of the other, assign
or transfer this Agreement, or any of its rights or obligations under this
Agreement, to any person or entity other than one who (i) merges,
consolidates, or otherwise combines with that Party or otherwise acquires
all or substantially all of the operating assets of that Party, and (ii)
agrees or otherwise becomes legally obligated to comply with and be bound
by the provisions of this Agreement to the same extent as that Party.
9.2 NOTICES. Any notice required or permitted by this Agreement will be deemed
given (i) when delivered, if delivered by hand or by facsimile
(transmission confirmed), (ii) on the next business day, if sent by
overnight courier service for next business day delivery, or (iii) on the
third business day, if sent by prepaid United States mail, return receipt
requested, in each case to the applicable Party at the address or
facsimile number specified as follows:
If to Orbitz:
Orbitz, LLC
000 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile No.: 000-000-0000
with a copy to:
Orbitz, LLC
000 Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
Facsimile No.: 000-000-0000
If to WORLDSPAN:
Worldspan, L.P.
000 Xxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: President and Chief Executive Officer
Facsimile No.: 000-000-0000
16
with a copy to:
Worldspan, L.P.
000 Xxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
Facsimile No.: 000-000-0000
Either Party may change its address or facsimile number for notice
purposes by giving the other Party prior written notice of the new address
and/or facsimile number and the date upon which the change will be
effective.
9.3 FORCE MAJEURE. Neither Party will be responsible or liable for, and that
Party will be excused from, any non-performance or delay in the
performance of any of its non-monetary obligations under this Agreement if
and to the extent that such non-performance or delay (i) is caused by an
act of God, natural disaster, civil disturbance, or any other factor
beyond the control of that Party, whether or not foreseeable, and (ii)
could not have been prevented by that Party's taking normal and customary
precautions. In the event that either Party is excused from the
performance of its obligations pursuant to this Section, then that Party
will use all efforts that are practicable under the circumstances to
resume performance of its obligations as soon as feasible.
9.4 FURTHER ASSURANCES. Each Party agrees to execute, acknowledge, and deliver
such further instruments and documents, and to do such other acts and
things, as may be required by law or reasonably requested by the other
Party to carry out the full intent and purposes of this Agreement.
9.5 PRESS RELEASES. Neither Party will issue any press release or other public
communication that mentions the other, or uses any copyright, trademark,
service xxxx, or trade name of the other, without the prior approval of
the other, except that each Party may make announcements intended solely
for internal distribution at that Party and may make any disclosure
required by legal, accounting, or regulatory requirements beyond the
reasonable control of that Party.
9.6 NON-SOLICITATION. Each Party agrees that, during the Term of this
Agreement and for one (1) year thereafter, neither it nor any affiliate of
it will, except with the prior written consent of the other Party, solicit
for employment any individual employed then or within the preceding twelve
(12) months by the other Party or any affiliate of the other Party if that
individual was involved in the performance of this Agreement. The
foregoing shall not restrict the general solicitation or recruiting
activities by either Party.
9.7 THIRD PARTY BENEFICIARIES. This Agreement is for the benefit of the
Parties and is not intended to confer any rights or benefits on any third
party, including any employee or creditor of either Party.
17
9.8 NO WAIVER; CUMULATIVE REMEDIES. No delay on the part of either Party in
exercising any right, power or privilege hereunder will operate as a
waiver thereof. No waiver on the part of either Party of any such right,
power or privilege will preclude any further exercise thereof or the
exercise of any other such right, power or privilege. All remedies
provided for in this Agreement shall be cumulative and in addition to and
not in lieu of any other remedies available to either Party at law, in
equity or otherwise.
9.9 CONSTRUCTION. The Article, Section and similar headings used in this
Agreement are for reference purposes only and are to be given no effect in
the construction or interpretation of this Agreement. Any references in
this Agreement to an Article, Section, or Schedule is to that Article or
Section of, or that Schedule to, this Agreement, unless otherwise
specified. As used in this Agreement, the words "hereof" or "hereunder" or
other words of similar import refer to this entire Agreement and not any
separate portion hereof, unless otherwise specified.
9.10 SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
either invalidating the remaining provisions hereof, to the extent that
such remaining provisions are capable of substantial performance, or
affecting the validity or enforceability of such provision in any other
jurisdiction.
9.11 COUNTERPARTS. This Agreement may be executed in multiple counterparts,
each of which will be an original and all of which will together
constitute one single agreement between the Parties.
9.12 GOVERNING LAW. This Agreement will be governed by, and will be construed
and enforced in accordance with, the laws, other than choice of law rules,
of the State of
Illinois.
9.13 AMENDMENTS. This Agreement may be amended only by a written document
signed by an authorized representative of each of the Parties. No waiver
or discharge hereof will be valid unless in writing and signed by an
authorized representative of the Party against which the waiver or
discharge is sought to be enforced.
9.14 ENTIRE AGREEMENT. This Agreement, including the Schedules hereto, each of
which is incorporated herein for all purposes, constitutes the entire
agreement and understanding of the Parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between the Parties with respect to the subject matter
hereof.
9.15 AUDIT RIGHTS. During the Term of this Agreement and for one (1) year
thereafter, WORLDSPAN agrees to keep all usual and proper records and
books of account relating to the products and services provided by
WORLDSPAN and operation of the WORLDSPAN System pursuant this Agreement.
Once each calendar quarter during the Term of the Agreement, and upon
thirty (30) days prior written notice to WORLDSPAN, Orbitz may have
18
an auditor inspect the records and other information collected, generated
or maintained by WORLDSPAN arising out of or in connection with the
provision of the services pursuant to this Agreement, during WORLDSPAN's
normal business hours, for the purpose of determining the accuracy of the
charges, expenses, costs, fees, service levels, and otherwise determining
WORLDSPAN's compliance with this Agreement. Orbitz shall pay for all the
costs of such inspection, including all reports and any other information
supplied. Information disclosed to Orbitz or to its auditing
representative in the course of such inspection shall be subject to the
confidentiality requirements of this Agreement.
IN WITNESS WHEREOF, each of Orbitz and WORLDSPAN has caused this Agreement to be
executed by its duly authorized representative.
ORBITZ, LLC WORLDSPAN, L.P.
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxxx X. Xxxxxx
Title: VP - Business Development Title: SVO-E-Commerce
19
SCHEDULE A
DEFINITIONS
1. "Adjusted Segment Fee" means, for any Net Segment and any month, (i) the
product of (x) the Base Segment Fee for that Net Segment and that month,
multiplied by (y) the PowerShopper Percentage for that month, plus (ii) if
any Performance-Based Segment Fee is applicable to that Net Segment for
that month in accordance with the provisions of Schedule B, the amount of
that Performance-Based Segment Fee.
2. "Aggregate Segments" means, for any applicable time period, the sum of (i)
the Net Segments for that period, plus (ii) the number of direct or
through flights booked during that period by means of the Orbitz Website
through the WORLDSPAN System for which WORLDSPAN does not receive discrete
payments from the applicable air carrier, as determined by the WORLDSPAN
System, plus (iii) any other segments mutually agreed upon by Orbitz and
Worldspan.
3. "Air Segment" means each direct or through flight booked by means of the
Orbitz Website through the WORLDSPAN System for which WORLDSPAN receives a
discrete payment from the applicable air carrier, as determined by the
WORLDSPAN System.
4. "Airline Direct Connect Segment" means an Air Segment that is designated
by an air carrier, Worldspanand Orbitz as constituting an Airline Direct
Connect Segment.
5. "Available" means, with respect to the WORLDSPAN System, that the central
site hardware and software of the WORLDSPAN System is capable of
performing its intended functions and of processing at least [***] of the
normally expected daily message volumes, as determined from the previous
month's statistics.
6. "Base Segment Fee" means, for any calendar month, (i) for a Net Car
Segment or a Net Hotel Segment, $[***], and (ii) for a Net Air Segment,
the amount set forth in the following table for the number of Net Segments
for the Contract Year in which that month falls (which number for any
partial Contract Year in the Term of this Agreement will be annualized).
CONTRACT YEAR NET AIR SEGMENT
NET SEGMENTS BASE SEGMENT FEE
----------------------------------------
[***] or more $ [***]
[***] to [***] $ [***]
[***] or less $ [***]
----------
*** 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.
A - 1
Effective as of August 1, 2003, "Base Segment Fee" means, for any calendar
month, (i) for a Net Car Segment, the amount set forth in Table 1 for the
number of Net Car Segments for the Contract Year in which that month falls
(which number for any partial Contract Year in the Term of this Agreement
will be annualized, and (ii) for a Net Air Segment, the amount set forth
in Table 2 for the number of Net Air Segments for the Contract Year in
which that month falls (which number for any partial Contract Year in the
Term of this Agreement will be annualized), and (iii) for a Net Hotel
Segment, the amount set forth in Table 3 for the number of Net Hotel
Segments for the Contract Year in which that month falls (which number for
any partial Contract Year in the Term of this Agreement will be
annualized):
Table 1
NET CAR SEGMENT BASE SEGMENT
CONTRACT YEAR NET CAR SEGMENTS FEE
----------------------------------------------------------------------------
[***] or more $ [***]
[***] to [***] $ [***]
[***] or less $ [***]
Table 2
CONTRACT YEAR NET AIR SEGMENTS NET AIR SEGMENT BASE SEGMENT FEE
----------------------------------------------------------------------------
[***] or more $ [***]
[***] to [***] $ [***]
[***] to [***] $ [***]
[***] or less $ [***]
----------
*** 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.
A - 2
Table 3
NET HOTEL SEGMENT BASE SEGMENT
CONTRACT YEAR NET HOTEL SEGMENTS FEE
----------------------------------------------------------------------------
[***] or more $ [***]
[***] to [***] $ [***]
[***] to [***] $ [***]
[***] to [***] $ [***]
[***] or less $ [***]
Notwithstanding the Base Segment Fees set forth in Table 2, in the event
Worldspan increases Booking Fees payable to Worldspan by air carriers for Air
Segments booked in the United States via the Orbitz Website above the Booking
Fees in effect as of December 31, 2003 then the revenue share for Net Air
Segments set forth in Table 2 shall be increased by [***] by which such Booking
Fees have increased above the Booking Fees payable as of December 31, 2003. For
example, assume Worldspan increases Booking Fees for Air Segments booked in the
United States via the Orbitz Website on January 1, 2004 by 4%, the Net Air
Segment Base Segment Fee set forth in Table 2 shall be increased by [***]%
([***] of 4%).
In the event Worldspan decreases by ten percent (10%) or more on a cumulative
basis, the Booking Fees payable to Worldspan by air carriers for Air Segments
booked in the United States via the Orbitz Website based on market conditions or
for competitive purposes below the Booking Fees in effect as of December 31,
2003, then the parties will renegotiate the revenue share payable to Orbitz for
Air Segments. If the parties are unable to agree on a new revenue share within
twelve (12) months following the decrease in Booking Fees that triggers the
renegotiation, then the revenue share set forth in Table 2 shall be decreased by
[***] by which such rate has decreased below the rate payable as of December 31,
2003. For example, assume Worldspan decreases Booking Fees in 2004 and 2005 and
such decreases result in a cumulative 10% decrease in the Booking Fees for Air
Segments that were in effect as of December 31, 2003 and the parties are unable
to agree to a new revenue share after twelve (12) months of negotiation, the
Base Segment Fees set forth in Table 2 shall be decreased by [***]% ([***] of
10%).
Notwithstanding the foregoing, in the event Worldspan calculates charges for
services rendered to participating carriers based upon units of measure other
than Booking Fees, the parties shall have the right to renegotiate the revenue
share in Table 2 for Air Segments generated by Orbitz Users.
7. "Booking Engine Providers" means Datalex Limited or any other company that
Orbitz may engage from time to time to provide the booking engine for the
Orbitz Website.
----------
*** 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.
A - 3
8. "Booking Fees" means the rates charged by Worldspan to participating air
carriers for airline passenger segments booked through the Worldspan
System based on the participating carriers' service levels and as
published by Worldspan from time to time. Booking Fees do not include
usage fees, fees for special services, or other ancillary fees.
9. "Car Segment" means each car rental booked by means of the Orbitz Website
through the WORLDSPAN System for which WORLDSPAN receives a discrete
payment from the applicable car rental company, as determined by the
WORLDSPAN System.
10. "Change-in-Control" shall be deemed to exist if affiliates of Delta Air
Lines, Inc. ("Delta"), Northwest Airlines, Inc. ("Northwest") or American
Airlines, Inc. ("American") collectively no longer hold more than fifty
percent (50%) of the voting interest in Worldspan or if Worldspan is
combined with another entity of which affiliates of Delta, Northwest
and/or American collectively do not hold more than fifty percent (50%) of
the voting interests of the combined entity. In addition, a
"Change-in-Control will be deemed to exist if more than fifty percent
(50%) of the voting interest of Worldspan is acquired by another CRS.
Notwithstanding any of the foregoing, an initial public offering of
Worldspan shall not constitute a "Change-in-Control."
11. "Charter Airline" means the air carrier set forth in Schedule D for the
period set forth in Schedule D.
12. "Contract Manager" has the meaning specified in Section 5.1.
13. "Contract Year" means a 12-month period of time commencing on the January
1 or any anniversary thereof, provided that the initial Contract Year
shall be a partial year commencing on the Effective Date and continuing
through December 31, 2001. Notwithstanding the foregoing, for purposes of
Section 4.3(a), the initial Contract Year shall be a partial year
retroactive to June 4, 2001 and continuing through December 31, 2001.
14. "Confidential Information" means, with respect to either Party, any
proprietary business or technical information of that Party, including any
know-how, data, drawings, specifications, software, listings, source code,
object code, customer lists, financial information, business plans,
marketing concepts, and business relationships, including the terms of
this Agreement, regardless of the form in which such information is
communicated or maintained and whether or not such information constitutes
a trade secret. However, Confidential Information will not include any
information that (i) at the time of disclosure by the disclosing Party was
already rightfully known by the receiving Party without any obligation of
confidentiality, (ii) is or becomes generally available to the public
other than through any wrongful act or omission by the receiving Party,
(iii) is developed by the receiving Party independently of any
Confidential Information it may have received from the disclosing Party,
or (iv) the receiving Party receives from a third party free to make such
disclosure without breach of any legal obligation.
A - 4
15. "CRS" means a computer reservations system operated by WORLDSPAN, Sabre,
Galileo, Amadeus, Abacus, Infini, Axxess, or any other company that
operates such a system in order to provide information about the
schedules, fares, rates, and availability of the products and services of
travel suppliers and to enable the making of reservations and the issuance
of tickets for such products and services, but excluding a travel
supplier's own systems to the extent such travel supplier's own systems
are used to provide information and enable the making of reservations and
the issuance of tickets of that particular travel supplier.
16. "CRS Segment" means each (a) direct or through flight, (b) car rental or
(c) hotel stay, to the extent any of the foregoing is booked by means of
the Orbitz Website through a CRS. "CRS Segment" does not include an
Airline Direct Connect Segment.
17. "Corporate User" means any corporation, partnership, limited liability
company or other business entity to whom Orbitz provides travel related
services for such entity's own internal use via a corporate
travel-oriented micro site of the Orbitz Website developed, owned and
operated by Orbitz.
18. "Customer Service Center Provider(s)" means Precision Response Corporation
or any other company or companies that Orbitz may engage from time to time
to provide customer service center services for the Orbitz Website.
19. "Daily Average Internal Response Time" means, for each day, (i) for
Standard Messages, the average of the Internal Response Times for all
Standard Messages received by the WORLDSPAN System during the Peak Period
for that day, and (ii) for PowerShopper Messages, the average of the
Internal Response Times for all PowerShopper Messages received by the
WORLDSPAN System during the Peak Period for that day.
20. "Domestic Air Travel" means air travel for which both the departing and
arriving locations, as well as any intermediate stops, are within the 00
xxxxxxxxxx xxxxxx xx xxx xxxxxxxxxxx Xxxxxx Xxxxxx.
21. "Domestic Fares Provider(s)" means ITA Software, Inc. or any other company
or companies that Orbitz may engage from time to time to provide Domestic
Air Travel fares and pricing information for the Orbitz Website.
22. "Effective Date" has the meaning specified in Section 1.2.
23. "Fulfillment Provider(s)" means e-Travel Experts, Inc. or any other
company or companies that Orbitz may engage from time to time to provide
fulfillment services for the Orbitz Website.
24. "Hotel Segment" means each hotel stay booked by means of the Orbitz
Website through the WORLDSPAN System for which WORLDSPAN receives a
discrete payment from the applicable hotel company, as determined by the
WORLDSPAN System.
A - 5
25. "Internal Response Time" means, for a given Message, the elapsed time from
the time that the last character of the incoming Message is received by a
network terminating device at WORLDSPAN's data center until the time that
the first character of the reply is received by a network terminating
device at WORLDSPAN's data center.
26. "Material Service Level Failure" means any of the following:
(a) The Monthly System Availability of the WORLDSPAN System is below
[***]% for any [***] calendar months in any period of [***]
consecutive calendar months during the Term of this Agreement.
(b) The Monthly System Availability of the WORLDSPAN System is below
[***]% for any calendar month during the Term of this Agreement and
has been below [**]% for one or more previous calendar months during
the Term of this Agreement.
(c) The Monthly Average Internal Response Time for Standard Messages is
greater than [***] seconds for any calendar month during the Term of
this Agreement and has been greater than [***] seconds for ten or
more previous calendar months during the Term of this Agreement.
(d) The Monthly Average Internal Response Time for PowerShopper Messages
is greater than [***] seconds for any calendar month during the Term
of this Agreement and has been greater than [***] seconds for ten or
more previous calendar months during the Term of this Agreement.
(e) WORLDSPAN fails to substantially comply with any applicable Service
Level set forth in Section 3 of Schedule B more than [***] times
during any period of [***] consecutive calendar months during the
Term of this Agreement.
27. "Message" means each electronic transmission to the WORLDSPAN System
generated by the Response Time Monitor, Orbitz, the Orbitz Website, any
employee, agent, or contractor of Orbitz, or any User, and the associated
response. The types of Messages as of the Effective Date are set forth on
Schedule C.
28. "Migration Costs" mean the increased costs incurred by Orbitz for hardware
and software necessitated by the migration from the system and platform
operated by Worldspan immediately prior to a Change-in-Control to
Worldspan's successor system and platform. Migration Costs also include
applications development efforts incurred by Orbitz and required to
migrate the then existing Orbitz product to Worldspan's successor computer
reservation system.
29. "Monthly Average Internal Response Time" means, for each calendar month,
(i) for Standard Messages, the average of the Daily Average Internal
Response Times for Standard Messages for all days in that month, and (ii)
for PowerShopper Messages, the
----------
*** 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.
A - 6
average of the Daily Average Internal Response Times for PowerShopper
Messages for all days in that month.
30. "Monthly System Availability" means, for each calendar month, the
percentage obtained by dividing (i) the aggregate time that the WORLDSPAN
System is Available during that month, by (ii) the total time during that
month less any Scheduled Downtime during that month and any time during
that month that the WORLDSPAN System was not Available as a result of
unplanned telecommunication outages or other causes outside of WORLDSPAN's
control.
31. "Net Air Segments" means, for any applicable time period, the number of
Air Segments booked during that period less the number of Air Segments
cancelled during that period, as determined by the WORLDSPAN System. "Net
Air Segments" shall not include Airline Direct Connect Segments.
32. "Net Car Segments" means, for any applicable time period, the number of
Car Segments booked during that period less the number of Car Segments
canceled during that period, as determined by the WORLDSPAN System.
33. "Net Hotel Segments" means, for any applicable time period, the number of
Hotel Segments booked during that period less the number of Hotel Segments
cancelled during that period, as determined by the WORLDSPAN System.
34. "Net Segments" means, for any applicable time period, all of the Net Air
Segments, Net Car Segments, and Net Hotel Segments for that period.
35. "Orbitz" has the meaning specified in the introductory paragraph of this
Agreement.
36. "Orbitz Information" means any and all information accumulated or
otherwise obtained by WORLDSPAN arising out of or in connection with and
reflecting an individual User's use of the Orbitz Website, including,
without limitation, User contact and profile information, User usage
patterns, and User preferences, and all information identifiable to Orbitz
arising out of the usage and operation of the WORLDSPAN System in
conjunction with the Orbitz Website, including any associated response
time or performance monitoring information that is specific to Orbitz, but
not including more comprehensive information reflecting the overall usage
and operation of the WORLDSPAN System, which information may include, but
shall not be limited to, such usage and operation in conjunction with the
Orbitz Website.
37. "Orbitz Website" means the consumer-oriented Internet travel portal to be
developed, owned, and operated by Orbitz, including any related or
successor Internet sites.
38. "Party" has the meaning specified in the preamble of this Agreement.
39. "Peak Period" means, for each 24 hour day, the period of two consecutive
hours during that day when the WORLDSPAN System processes the most
messages.
A - 7
40. "Performance-Based Segment Fee" means any amount determined as such in
accordance with the applicable provisions of Schedule B.
41. "PowerShopper Average" means, for any calendar month, the number obtained
by dividing (i) the number of PowerShopper Messages received by the
WORLDSPAN System during that month, by (ii) the number of Net Air Segments
booked through the WORLDSPAN System during that month.
42. "PowerShopper Message" means a Message received by the WORLDSPAN System
that accesses or initiates PowerShopper, Power Pricing, Low Fare Finder,
or any similar functionality that finds the lowest or most suitable fare
within the WORLDSPAN System.
43. "PowerShopper Percentage" means, with respect to a given calendar month,
(i) for each month until the beginning of the Term of this Agreement,
100%, and (ii) for each month thereafter, the percentage set forth in the
following table for the PowerShopper Average for that month.
POWERSHOPPER AVERAGE POWERSHOPPER PERCENTAGE
-----------------------------------------------------------------------
[***] or less [***]%
more than [***], but no more than [***] [***]%
more than [***], but less than [***] [***]%
[***] or more [***]%
44. "Response Time Monitor" has the meaning specified in Section 2(d) of
Schedule B.
45. "Scheduled Downtime" means any periods of time when the WORLDSPAN System
is scheduled to not be Available; provided, however, that Scheduled
Downtime may not include more than 6 periods during any calendar year,
each of which periods can be no longer than 20 minutes in duration
starting at 2300 hours, Eastern time, on a Saturday.
46. "Segment" means an Air Segment, Car Segment, or Hotel Segment.
47. "Service Level" means any Service Level set forth in Schedule B.
48. "Standard Message" means any Message other than a PowerShopper Message.
49. "Term" has the meaning set forth in Section 1.2.
50. "User" means any person who uses the Orbitz Website.
----------
*** 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.
A - 8
51. "Weighted Message Unit" means a unit of measurement for Messages that
reflects the respective average amount of computer and related resources
required for the WORLDSPAN System to process Messages of various types, as
determined in accordance with the methodology used by WORLDSPAN in the
ordinary course of its business for that purpose. The number of Weighted
Message Units for a given Message is determined by the Message Weight for
that type of Message. Unless and until the Parties otherwise mutually
agree, the Message Weight for each of the types of Messages set forth on
Schedule C will be as set forth on Schedule C. However, as WORLDSPAN adds
new functionality to the WORLDSPAN System, it may establish new types and
categories of Messages and, for each new type or category of Message,
determine a Message Weight that is reasonably based on the average amount
of computer and related resources required for the WORLDSPAN System to
process that type of Message, as compared to other types of Messages.
52. "WORLDSPAN" has the meaning specified in the introductory paragraph of
this Agreement.
53. "WORLDSPAN Actual Cost" means, for any resource, expense, or activity, the
actual cost or out-of-pocket expense reasonably incurred by WORLDSPAN for
that resource, expense, or activity, all as determined on the basis of the
cost collection and allocation methodology that WORLDSPAN uses to
determine its actual costs for purposes of its applicable transactions
with its best customers or airline owners, including Delta Air Lines, Inc.
and Northwest Airlines, Inc., whichever results in the lowest charge to
Orbitz, and shall not include any markup or other profit.
54. "WORLDSPAN System" means the computer reservations systems operated by
WORLDSPAN and containing the following functionality:
(a) Mainframe transaction processing and electronic distribution of
travel information, such as schedules, availability, fares, pricing,
and negotiated rates for various travel suppliers.
(b) Providing booking capability for air, car, and hotel reservations
and other travel-related services.
(c) Enabling the issuance of paper and electronic tickets and other
travel-related documents.
A - 9
SCHEDULE B
SERVICE LEVELS
1. SYSTEM AVAILABILITY.
The Service Level for System Availability is for the Monthly System
Availability of the Worldspan System to be at least [***]% during each
calendar month during the Term of this Agreement.
In the event that the Monthly System Availability of the Worldspan System
is less than [***]% during any calendar month during the Term of this
Agreement, the Parties agree that Orbitz will be damaged in an amount
that, as of the date hereof, is difficult to determine with certainty.
Therefore, as liquidated damages, and not as a penalty, Worldspan will pay
to Orbitz, for each Net Segment for that month, a Performance-Based
Segment Fee determined in accordance with the following:
MONTHLY PERFORMANCE-BASED
SYSTEM AVAILABILITY SEGMENT FEE
-------------------------------------------------------------
[***]% and above None
Below [***]% but no lower than [***]% $ [***]
below [***]%, but no lower than [***]% $ [***]
below [***]% $ [***]
2. INTERNAL RESPONSE TIME.
(a) STANDARD MESSAGES. The Service Level for Internal Response Time for
Standard Messages is for the Monthly Average Internal Response Time
for Standard Messages for each calendar month during the Term of
this Agreement to be no more than [***] seconds.
In the event that the Monthly Average Internal Response Time for
Standard Messages for any calendar month during the Term of this
Agreement is greater than [***] seconds, the Parties agree that
Orbitz will be damaged in an amount that, as of the date hereof, is
difficult to determine with certainty. Therefore, as liquidated
damages, and not as a penalty, WORLDSPAN will pay Orbitz, for each
Net Segment for each day during that month for which the Daily
Average Internal Response Time for Standard Messages is greater than
[***] seconds, a Performance-Based Segment Fee determined in
accordance with the following:
----------
*** 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.
B - 1
DAILY AVERAGE PERFORMANCE-BASED
INTERNAL RESPONSE TIME SEGMENT FEE
-------------------------------------------------------------
[***] seconds and below None
more than [***] seconds, but no more $ [***]
than [***] seconds
more than [***] seconds, but no more $ [***]
than [***] seconds
more than [***] seconds $ [***]
(b) POWERSHOPPER MESSAGE. The Service Level for Internal Response Time
for PowerShopper Messages is as follows:
(1) For each calendar month during the Term of this Agreement
during which WORLDSPAN does not provide Domestic Air Travel
fares and pricing information for the Orbitz Website, the
Monthly Average Internal Response Time for PowerShopper
Messages will be no more than [***] seconds.
In the event that the Monthly Average Internal Response Time
for PowerShopper Messages for any such calendar month during
the Term of this Agreement is greater than [***] seconds, the
Parties agree that Orbitz will be damaged in an amount that,
as of the date hereof, is difficult to determine with
certainty. Therefore, as liquidated damages, and not as a
penalty, WORLDSPAN will pay Orbitz, for each Net Segment for
each day during that month for which the Daily Average
Internal Response Time for PowerShopper Messages is greater
than [***] seconds, a Performance-Based Segment Fee determined
in accordance with the following:
DAILY AVERAGE PERFORMANCE-BASED
INTERNAL RESPONSE TIME SEGMENT FEE
----------------------------------------------------------------------
[***] seconds and below None
more than [***] seconds, but no $ [***]
more than [***] seconds
more than [***] seconds, but no $ [***]
more than [***] seconds
more than [***] seconds $ [***]
(2) For each calendar month during the Term of this Agreement
during which WORLDSPAN does provide Domestic Air Travel fares
and pricing information for the Orbitz Website, the Monthly
Average Internal Response Time for PowerShopper Messages will
be no more than [***] seconds.
----------
*** 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.
B - 2
In the event that the Monthly Average Internal Response Time
for PowerShopper Messages for any such calendar month during
the Term of this Agreement is greater than [***] seconds, the
Parties agree that Orbitz will be damaged in an amount that,
as of the date hereof, is difficult to determine with
certainty. Therefore, as liquidated damages, and not as a
penalty, WORLDSPAN will pay Orbitz, for each Net Segment for
each day during that month for which the Daily Average
Internal Response Time for PowerShopper Messages is greater
than [***] seconds, a Performance-Based Segment Fee determined
in accordance with the following:
DAILY AVERAGE PERFORMANCE-BASED
INTERNAL RESPONSE TIME SEGMENT FEE
----------------------------------------------------------------------
[***] seconds and below None
more than [***] seconds, but no $ [***]
more than [***] seconds
more than [***] seconds, but no $ [***]
more than [***] seconds
more than [***] seconds $ [***]
(c) UNFORECAST DEMAND. Notwithstanding anything to the contrary, if the
number of Net Segments booked by means of the Orbitz Website through
the WORLDSPAN System during any calendar month exceeds by [***]% or
more the number of Net Segments forecast for that month by Orbitz in
accordance with the capacity planning process described in Section
3.3 of this Agreement, then the foregoing provisions of this Section
2 will not be applicable, any failure to meet the Service Level for
Internal Response Time for Standard Messages and/or PowerShopper
Messages for that month will not be considered for determining the
occurrence of a Material Service Level Failure, and WORLDSPAN will
not be required to pay any Performance-Based Segment Fees based on
Internal Response Times during that month.
(d) RESPONSE TIME MONITOR. The Parties acknowledge that, as of the
Effective Date, WORLDSPAN measures Internal Response Time through
the use of monitoring tools internal to the WORLDSPAN System. In
order to augment, not replace, WORLDSPAN's internal system for
measuring Internal Response Time, ORBITZ, its supplier or
contractors, will develop a system (the "Response Time Monitor") for
measuring Internal Response Time external to the WORLDSPAN System,
all in accordance with the following:
(1) The Response Time Monitor will be designed to measure Internal
Response Time external to the WORLDSPAN System by simulating a
----------
*** 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.
B - 3
request from the Orbitz Website booking engine for five or
more common customer queries.
(2) WORLDSPAN will have the right to validate the operability of
the Response Time Monitor prior to implementation and to
approve the testing procedures as well as the format of the
results. The measurements performed by the Response Time
Monitor shall be made on a continuous basis, twenty-four hours
per day, seven days per week, so long as that can be done
without compromising the performance of the WORLDSPAN System.
The Internal Response Time shall be determined during the Peak
Period for each twenty-four hour day. Each Party will have
unlimited access to the data produced by the Response Time
Monitor.
(3) Once the Response Time Monitor is operational, the Parties
will mutually agree upon the Service Levels that will be
applicable with respect to Internal Response Time as measured
by the Response Time Monitor, which will not exceed 110% of
the corresponding Service Levels for Internal Response Time as
measured by WORLDSPAN's internal system, and upon the
appropriate application of the Performance-Based Segment Fees
specified above.
3. ESCALATION PROCEDURES. The Service Level for WORLDSPAN's response to
reported problems with the WORLDSPAN System will be based on the severity
of the problem, as reasonably determined by Orbitz, in accordance with the
following:
SEVERITY
LEVEL DESCRIPTION SERVICE LEVEL
--------------------------------------------------------------------------------------------
0 WORLDSPAN System down 30 minute response time; commitment
to fix in 2 hours.
1 Serious business impact, e.g., message 1 hour response time; commitment to
response times materially exceeding fix in 4 hours, with hourly updates
Service Levels
2 Less serious business impact, e.g., flight 2 hour response time; commitment to
information unavailable fix in 8 hours, with updates every 2
hours
3 Nuisance, e.g., unable to retrieve 24 hour response time; commitment to
non-critical backup information resolve in one week, with daily
updates.
4. CHANGE MANAGEMENT. The Parties will develop and mutually agree upon a
change management process that will, among other things, provide for the
following:
(a) WORLDSPAN will notify Orbitz of any scheduled changes to the
WORLDSPAN System that are reasonably anticipated to materially
affect Orbitz at least three days prior to the change and will
consult with Orbitz's operations staff as to the timeframe for the
change.
B - 4
(b) Orbitz will notify WORLDSPAN of any scheduled changes to Orbitz's
systems or business operations (e.g., promotions) that are
reasonably anticipated to materially affect WORLDSPAN at least three
days prior to the change and will consult with WORLDSPAN's
operations staff as to the timeframe for the changes.
(c) Notwithstanding the foregoing, the Parties may make emergency
changes that are required to protect the integrity of their
respective systems without giving the notice described above, but
each Party will use reasonable business efforts to notify the other
of any such emergency change as soon as practicable.
5. FUNCTIONALITY. WORLDSPAN agrees to use reasonable business efforts so that
the functionality included within the WORLDSPAN System that is necessary
for Orbitz's business operations continues to be fully functional. In
particular, WORLDSPAN agrees to work with Orbitz to ensure that a viable
method for private faring (web-fares) can be properly run on the WORLDSPAN
System.
6. EQUIVALENT SERVICES. In addition to the specific Service Levels specified
above, during the Term of this Agreement:
(a) WORLDSPAN will provide Orbitz with Monthly System Availability that
is equivalent to or better than that provided to any other WORLDSPAN
customer using the WORLDSPAN System via the Internet. Subject to
confidentiality restrictions, Orbitz will have access to all Monthly
System Availability metrics and Monthly System Availability
measurement tools available to WORLDSPAN.
(b) WORLDSPAN will provide Orbitz with Internal Response Time that is
equivalent to or better than that provided to any other WORLDSPAN
customer using the WORLDSPAN System via the Internet. Subject to
confidentiality restrictions, Orbitz will have access to all
Internal Response Time measurement tools and Internal Response Time
data that WORLDSPAN makes available to any other customer.
B - 5
SCHEDULE C
MESSAGE WEIGHTS
MESSAGE TYPE MESSAGE WEIGHT
------------ --------------
CATEGORY 1 [***]
International PowerShopper Message
CATEGORY 2 [***]
Domestic PowerShopper Message
CATEGORY 3 [***]
Availability Schedule Display Message
End Transaction Message
Ticketing Fare Quotation Message
Hotels Message
Cars Message
CATEGORY 4 [***]
Passenger Data Entries Message
Sell From Availability / Change Segment Status Message
Flight Information Message
Display Record Message
File Record Message
Ignore Transaction Message
CRC Functions Message
Special Functions List Message
Move Scroll Message
Queue Functions Message
Program Activation By Agent Set / Misc. Testing Message
Teletype Reject Line Correction Message
Inventory Manipulation Message
Agent Adjustment Message
Repeat Display Message
Message Switching Message
Tours Message
AAA Initialization / Maintenance Message
----------
*** 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.
C - 1
Divide Party Message
Manual Segment Entry Message
Unsolicited Message
Training Entries Message
Getaway / Credit / Cash Message
Direct Reference System Message
Weather Commands / Flight Type Record Message
Schedule Change Message
PARS Commercial Bridge Message
Transmit Function Message
Seat Assignment Message
Message Switching Utilities Message
Profile Transactions / Worldfile Transactions Message
Direct Access Message
Credit Fraud System Message
Direct Sell Link Message
Mail System Message
Timatic Message
Answerbacks Message
Invalid Input Function Message
TVL Segments Message
Help / Info Message
Previous Entry In Progress Message
Type B Inbound Message
Total Direct Access Messages Sent Message
Total Direct Link Messages Sent Message
Total Positive Acknowledgments Received Message
Total Direct Link AAA Comps Received Message
C - 2
SCHEDULE D
Charter Airlines
EFFECTIVE EXPIRATION
AIRLINE DATE DATE
----------------------- ----------- ----------
AEROMEXICO 18-JUN-01 17-JUN-04
AIR FRANCE 21-MAY-01 21-MAY-02
AIR JAMAICA 12-MAY-00 12-MAY-01
AIR NEW ZEALAND 00-XXX-00 00-XXX-00
XXXXXX AIR GROUP 8-AUG-01 8-AUG-02
ALOHA 5-JAN-01 5-JAN-04
ALL NIPPON 13-AUG-01 13-AUG-02
AMERICAN 19-MAY-01 17-MAY-11
ANSETT 20-APR-01 20-APR-02
ASIANA 2-APR-01 2-APR-02
CANADA 3000 1-FEB-01 1-FEB-04
CATHAY PACIFIC 00-XXX-00 00-XXX-00
XXXXX AIRLINES 16-JUL-01 16-JUL-02
CONTINENTAL 19-MAY-01 17-MAY-11
COPA 00-XXX-00 00-XXX-00
XXX XXXXX 00-XXX-00 22-MAY-02
DELTA 19-MAY-01 17-MAY-11
EL AL 1-AUG-01 1-AUG-02
EVA 15-NOV-00 15-NOV-01
HAWAIIAN 00-XXX-00 00-XXX-00
XXXXXX 0-XXX-00 0-XXX-00
XXXXX AIRLINES 26-JUL-01 26-JUL-02
KLM (SAME AS NW)
KOREAN AIR 00-XXX-00 00-XXX-00
XXX XXXXX 18-DEC-00 18-DEC-01
LAN PERU 21-MAY-01 21-MAY-02
LOT POLISH 1-JUN-01 1-JUN-02
LUFTHANSA 15-MAR-01 15-MAR-02
MEXICANA 15-MAY-00 15-MAY-03
MIDWAY 1-APR-01 31-MAR-04
MIDWEST EXPRESS 1-JUN-01 31-MAY-04
NATIONAL 7-MAY-01 6-MAY-04
NORTHWEST 19-MAY-01 17-MAY-11
D - 1
QANTAS 13-AUG-01 13-AUG-02
SABENA 1-JUN-01 0-XXX-00
XXX 0-XXX-00 0-XXX-00
XXXXXXXXX 29-JAN-01 29-JAN-02
SOUTH AFRICAN AIRWAYS 13-JUN-01 13-JUN-02
SPIRIT 8-JAN-01 8-JAN-04
SWISSAIR 1-JUN-01 1-JUN-02
TWA 19-MAY-01 17-MAY-11
UNITED 19-MAY-01 17-MAY-11
US AIRWAYS 27-JUN-00 27-JUN-03
UZBEKISTAN AIRWAYS 22-DEC-00 22-DEC-01
VANGUARD 5-JUN-00 5-JUN-03
VARIG 22-MAY-00 22-MAY-01
VIRGIN 16-JUL-01 16-JUL-02
D - 2
