EXHIBIT 10.72
AMENDMENT TO THE WORLDSPAN SUBSCRIBER ENTITY AGREEMENT
Page 1
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS
OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
AMENDMENT TO THE WORLDSPAN SUBSCRIBER ENTITY AGREEMENT
THIS Amendment to the Worldspan Subscriber Entity Agreement dated the 1st
of October, 2001 ("Amendment"), is by and between Worldspan, L.P. ("Worldspan"),
a Delaware limited partnership with principal place of business located at 000
Xxxxxxxx Xxxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000, for itself and its subsidiaries,
and xxxxxxxxx.xxx Incorporated ("Customer"), a Delaware corporation with
principal place of business located at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxxxxx 00000, for itself and its Affiliates.
WHEREAS, Worldspan and Customer entered into the Worldspan Subscriber
Entity Agreement dated the 1st of October, 2001 (the "Subscriber Entity
Agreement") with an effective date of October 1, 2001 (the "Effective Date").
WHEREAS, Worldspan and Customer now desire to amend the Subscriber Entity
Agreement.
NOW, THEREFORE, it is agreed:
1. Worldspan and Customer acknowledge that they have been parties to the
Worldspan Subscriber Entity Agreement dated the 1st of January 1999, as amended
by Amendments to the Worldspan Subscriber Entity Agreement dated the 1st of
January 1999, the 5th of January 2000, and the 5th of July 2000 (collectively,
the "Prior Subscriber Agreement"). The parties acknowledge that (i) Customer
generated thirty-five million six-hundred forty-two thousand seven hundred and
forty six (35,642,746) Bookings from January 1, 1999 to June 30, 2001, and (ii)
Worldspan provided services and paid various incentives to Customer, all under
the terms of the Prior Subscriber Agreement. The Subscriber Entity Agreement as
amended by this Amendment replaces and supersedes the Prior Subscriber
Agreement, subject to paragraph 46 of this Amendment.
2. "Booking Evaluation Period" shall mean each of the time periods defined
below:
BOOKING
EVALUATION
PERIOD TIME PERIOD
-------------------------------------------------------
1 October 1, 2001 to December 31, 2002
2 January 1, 2003 to December 31, 2003
3 January 1, 2004 to December 31, 2004
4 January 1, 2005 to December 31, 2005
5 January 1, 2006 to December 31, 2006
3. Customer and/or the Affiliates shall generate a minimum of ninety
million (90,000,000) Bookings through the Worldspan GDS during the Term. At the
end of the Term, in the event that the combined total of Worldspan Bookings by
Customer and the Affiliates is less than ninety million (90,000,000) Bookings,
Customer shall not be deemed to be in breach of its obligation under this
paragraph provided that (i) Customer executes an amendment extending the Term by
an additional twelve (12) months (the "Additional Booking Evaluation Period")
and preserving all other terms and conditions of the Subscriber Entity Agreement
except the obligation set forth in this paragraph, and (ii) Customer has
performed all other material obligations under the Subscriber Entity Agreement.
Upon Customer's execution of such an amendment, Worldspan agrees that the
failure to generate ninety million (90,000,000) Bookings shall not (i)
constitute a breach of the Subscriber Entity Agreement, (ii) constitute the
default of any obligation of the Subscriber Entity Agreement, or (iii) give rise
to any cause of action or claim against, or liability on the part of, Customer
for any losses or damages of any kind. The parties acknowledge that the
foregoing provision has been negotiated at arms length between Worldspan and
Customer and represents a reasonable compromise in the event of Customer's
failure to complete the specified obligation.
Page 2
4. Customer shall generate a minimum of sixty-five percent (65%) of
Customer's Bookings in the United States of America and Canada (USA/Canada)
through the Worldspan GDS in each Booking Evaluation Period.
5. If Customer fails to comply with its obligations under paragraph 4 in
Booking Evaluation Periods 1, 2, 3, or 4, then Worldspan may give Customer
written notice that such an event has occurred and that Worldspan is terminating
the Subscriber Entity Agreement, effective thirty (30) days from Customer's
receipt of such notice.
a) Upon a termination pursuant to this paragraph following Booking
Evaluation Periods 1, 2, or 3, Customer shall be liable to Worldspan for
liquidated damages calculated according to the formula set forth below:
Liquidated Damages = The lesser of (i) the number of Expected Bookings,
multiplied by One Dollar Twenty Seven Cents ($1.27), or
(ii) the amount, if any, that the number of actual Bookings
generated by Customer through the Worldspan GDS from the
beginning of the Term until the effective termination date
is less than ninety million (90,000,000) Bookings,
multiplied by One Dollar Twenty Seven Cents ($1.27). For
purposes of this Amendment, "Expected Bookings" shall mean
the average number of Bookings generated by Customer
through the Worldspan GDS per month in the twelve (12)
months preceding the event of default, multiplied by 36
months.
b) Upon a termination pursuant to this paragraph following Booking
Evaluation Period 4, Customer shall be liable to Worldspan for liquidated
damages calculated according to the formula set forth below:
Liquidated Damages = The amount, if any, that the number of actual Bookings
generated by Customer through the Worldspan GDS from the
beginning of the Term until the effective termination date
is less than ninety million (90,000,000) Bookings,
multiplied by One Dollar Twenty Seven Cents ($1.27).
The parties acknowledge that the foregoing provision has been negotiated at arms
length between Worldspan and Customer and represents a reasonable measure of
liquidated damages in the event of Customer's default of the specified
obligations.
6. If Customer fails to comply with its obligations under paragraph 4 in
Booking Evaluation Period 5 or the Additional Booking Evaluation Period,
Customer shall be liable to Worldspan for liquidated damages calculated
according to the formula set forth below:
Liquidated Damages = The amount, if any, that the number of actual Bookings
generated by Customer through the Worldspan GDS during the
Term is less than ninety million (90,000,000) Bookings,
multiplied by One Dollar Twenty Seven Cents ($1.27).
The parties acknowledge that the foregoing provision has been negotiated at arms
length between Worldspan and Customer and represents a reasonable measure of
liquidated damages in the event of Customer's default of the specified
obligations.
7. Customer shall use good-faith efforts to cause the Affiliates, as a
whole, to generate a minimum of fifty-five percent (55%) of the Affiliates'
aggregate Bookings globally through the Worldspan GDS in each Booking Evaluation
Period. This obligation is subject to Worldspan's geographic and vendor-specific
connectivity capabilities. Customer shall give Worldspan the opportunity to
develop new technological capabilities in order to serve the Affiliates'
international needs. Worldspan agrees that the failure of Customer to meet its
obligations under this paragraph shall not (i) constitute a breach of the
Subscriber Entity Agreement, (ii) constitute the default of any obligation of
the Subscriber Entity Agreement, or (iii) give rise to any cause of action or
claim against, or liability on the part of, Customer for any losses or damages
of any kind. The parties acknowledge that the foregoing provision has been
negotiated at arms length between Worldspan and Customer and represents a
reasonable compromise in the event of Customer's failure to complete the
specified obligation.
8. In each Booking Evaluation Period, Customer agrees to use good-faith
efforts to cause the Affiliates, as a whole, to complete one hundred percent
(100%) of their non-air Bookings originating in countries other than
Page 3
USA/Canada through the Worldspan GDS. This obligation is subject to Worldspan's
geographic and vendor-specific connectivity capabilities. Customer shall give
Worldspan the opportunity to develop new technological capabilities in order to
serve the Affiliates' international needs. Worldspan agrees that the failure of
Customer to meet its obligations under this paragraph shall not (i) constitute a
breach of the Subscriber Entity Agreement, (ii) constitute the default of any
obligation of the Subscriber Entity Agreement, or (iii) give rise to any cause
of action or claim against, or liability on the part of, Customer for any losses
or damages of any kind. The parties acknowledge that the foregoing provision has
been negotiated at arms length between Worldspan and Customer and represents a
reasonable compromise in the event of Customer's failure to complete the
specified obligation.
9. Worldspan shall pay the following USA/CANADA BOOKING INCENTIVE to
Customer for each Booking generated by the Affiliates in each Booking Evaluation
Period through the Worldspan GDS in USA/Canada:
AIR HOTEL AND CAR
BOOKINGS INCENTIVE INCENTIVE
--------------------------------------------------------
14,000,001 or More $ 1.10 $ 1.60
12,000,001 - 14,000,000 $ 1.05 $ 1.60
11,000,001 - 12,000,000 $ 0.99 $ 1.60
10,000,001 - 11,000,000 $ 0.92 $ 1.60
10,000,000 or less $ 0.85 $ 1.23
Payment shall be made no later than forty-five (45) days following the end of
each calendar quarter, with any reconciliation, if necessary, completed upon the
end of the Booking Evaluation Period. The determination of the number of
Bookings shall be made solely by Worldspan from its books and records, subject
to paragraph 14 of this Amendment.
10. Notwithstanding the foregoing paragraph, if Customer fails to comply
with its obligations under paragraph 4 of this Amendment, the USA/CANADA BOOKING
INCENTIVE shall be reduced to Forty Two and One-Half Cents ($0.425) per air
Booking and Sixty One and One-Half Cents ($0.615) per hotel and car Booking for
the Booking Evaluation Period in which Customer fails to comply. No later than
thirty (30) days following the end of the Booking Evaluation Period in which
Customer fails to comply with its obligations under paragraph 4 of this
Amendment, Worldspan shall conduct a reconciliation of the payments made to
Customer in the initial calendar quarters of the Booking Evaluation Period, the
amount owed to Customer for the final calendar quarter of the Booking Evaluation
Period, and the amount overpaid to Customer as a result of the higher
per-Booking incentives initially anticipated. No later than fifteen (15) days
after the completion of such reconciliation, Worldspan shall notify Customer of
the payment due to or from Customer. The applicable party shall make such
payment no later than thirty (30) days following the completion of the
reconciliation. The determination of the number of Bookings shall be made solely
by Worldspan from its books and records, subject to paragraph 14 of this
Amendment.
11. The following incentives shall be determined solely by Bookings
generated by the Affiliates through the Worldspan GDS in countries other than
USA/Canada:
a) INTERNATIONAL BASE AIR INCENTIVE. Worldspan shall pay Two Dollars
($2.00) per air Booking to Customer for air Bookings generated by the Affiliates
through the Worldspan GDS in countries other than USA/Canada.
b) INTERNATIONAL CAR AND HOTEL INCENTIVE. Worldspan shall pay One
Dollar Seventy Five Cents ($1.75) per car or hotel Booking to Customer for car
and hotel Bookings generated by the Affiliates through the Worldspan GDS in
countries other than USA/Canada.
Payment shall be made no later than forty-five (45) days following the end of
each calendar quarter. Customer shall provide documentation to Worldspan on a
quarterly basis, which in Worldspan's sole opinion, substantiates Customer's
international car and hotel Bookings. The determination of the number of
Bookings shall be made solely by Worldspan from its books and records, subject
to paragraph 14 of this Amendment.
12. Provided that Customer complies with its obligations under paragraph 4
of this Amendment, each of the following bonus incentives will apply.
Page 4
a) In the event the Affiliates (as a whole) generate more than fifteen
million (15,000,000) Bookings through the Worldspan GDS in any Booking
Evaluation Period, Worldspan shall pay Customer an additional bonus of Six
Hundred and Fifty Thousand Dollars ($650,000.00) no later than forty-five (45)
days following the end of the Booking Evaluation Period.
b) In the event the Affiliates (as a whole) generate more than twenty
million (20,000,000) Bookings through the Worldspan GDS in any Booking
Evaluation Period, Worldspan shall pay Customer an additional bonus of Eight
Hundred Fifty Thousand Dollars ($850,000.00) no later than forty-five (45) days
following the end of the Booking Evaluation Period.
c) In the event the Affiliates (as a whole) generate more than
twenty-five million (25,000,000) Bookings through the Worldspan GDS in any
Booking Evaluation Period, Worldspan shall pay Customer an additional bonus of
Eight Hundred Fifty Thousand Dollars ($850,000.00) no later than forty-five (45)
days following the end of the Booking Evaluation Period.
d) In the event the Affiliates (as a whole) generate more than thirty
million (30,000,000) Bookings through the Worldspan GDS in any Booking
Evaluation Period, Worldspan shall pay Customer an additional bonus of One
Million Dollars ($1,000,000.00) no later than forty-five (45) days following the
end of the Booking Evaluation Period.
e) In the event the Affiliates (as a whole) generate more than forty
million (40,000,000) Bookings through the Worldspan GDS in any Booking
Evaluation Period, Worldspan shall pay Customer an additional bonus of One
Million Dollars ($1,000,000.00) no later than forty-five (45) days following the
end of the Booking Evaluation Period.
f) In the event the Affiliates (as a whole) generate more than ninety
million (90,000,000) Bookings through the Worldspan GDS in the time period from
October 1, 2001 to December 31, 2006, Worldspan shall pay Customer an additional
bonus of Three Million Three Hundred Thousand Dollars ($3,300,000.00) no later
than February 15, 2007.
13. Worldspan and Customer acknowledge that the incentives provided in the
foregoing paragraphs are dependent on Worldspan's booking fee rates charged to
travel suppliers remaining at levels comparable to the rates charged to travel
suppliers as of the Effective Date. In the event that (i) the booking fee rates
charged by Worldspan should decrease by twenty percent (20%) or more compared to
the rates charged to airlines or to car/hotel suppliers as of the Effective Date
due to causes beyond the direct control of Worldspan or (ii) Worldspan,
Customer, and a travel supplier agree to implement a substantially modified
pricing structure with respect to that travel supplier, then Worldspan and
Customer agree to negotiate in good faith to revise the Subscriber Entity
Agreement to conform with the new industry practice. In the event that such
negotiations do not result in a modification to the Subscriber Entity Agreement,
then Worldspan reserves the right (i) to eliminate the Customer incentives
provided for in paragraphs 9, 10, 11, and 12 of this Amendment with respect to
such Bookings, or (ii) to immediately terminate the Subscriber Entity Agreement
in its entirety, notwithstanding any provision of the Subscriber Entity
Agreement to the contrary; provided, however, that in the event that Worldspan
eliminates any such incentives, Customer shall have the right to immediately
terminate the Subscriber Entity Agreement.
14. Either party may, upon reasonable prior written notice to the other
party, request a meeting for the purpose of documenting and verifying Booking
records with respect to Customer. Each party shall be solely responsible for its
costs incurred with respect to this meeting. Each party shall make available to
the other party the documentation or records reasonably requested by the other
party to document and verify Customer's Bookings. In the event of any material
disagreement on Booking counts, Customer shall have the right to appoint an
independent third party acceptable to both parties to audit the books and
records used by Worldspan in determining Booking counts.
15. Worldspan shall provide up to one hundred fifty (150) hours of
consulting and development services to assist Customer with design of MIDT
reports and other issues relating to the GDS, Customer's operations, and
back-office functions. In the event that Customer requires additional consulting
and development services beyond the
Page 5
hours provided in this paragraph, upon Customer's request, Worldspan shall
provide qualified individuals to provide other technical services. These
services shall be charged to Customer at the rate of One Hundred Twenty Five
Dollars ($125.00) per hour or Worldspan's then current standard rate for
consulting services, whichever is higher.
16. Worldspan shall provide MIDT reports to Customer in conformity with
Customer's reasonable design requirements. Worldspan shall discount by one
hundred percent (100%) its fees of Forty-Seven Thousand Dollars ($47,000.00) per
month for this service.
17. Worldspan shall discount its then current standard fees one hundred
percent (100%) for ten thousand (10,000) hours of annual mainframe or
distributed systems development resources for Worldspan system enhancements
requested by Customer, subject to timelines as agreed by the parties. Customer
acknowledges that these resources have a value of One Million Two Hundred Fifty
Thousand Dollars ($1,250,000.00) per year.
18. Worldspan shall make available its Executive Support Help Desk and
Message Support Team to Customer. These groups will provide consultation
relating to programming interface development and usage.
19. Should Customer choose Worldspan to host its application and web
servers at Worldspan's data center pursuant to a separate Hosting Agreement,
Worldspan shall discount its then current monthly fee for this service one
hundred percent (100%), subject to a maximum monthly discount of Ten Thousand
Dollars ($10,000.00).
20. Worldspan shall offer, pursuant to a separate licensing agreement, its
customizable consumer Internet booking engine to Customer upon the product's
general release. Worldspan agrees to discount its initial license fee for this
product by one hundred percent (100%).
21. No later than October 1 of each calendar year, Customer shall provide
written documentation to Worldspan of the total number of planned, budgeted
and/or projected Bookings to be generated by the Affiliates through the
Worldspan GDS during the following calendar year.
22. In the event that (i) Hotwire commits to receive services under a
Worldspan subscriber agreement that includes service and Booking volume
commitments similar to Customer's commitments under the Subscriber Entity
Agreement, and (ii) Worldspan's subscriber agreement with Hotwire includes terms
and conditions that are more favorable, taken as a whole, than the terms and
conditions of the Subscriber Entity Agreement, then Worldspan shall notify
Customer of the execution of such agreement and offer to Customer a new
agreement that is no less favorable than the Worldspan-Hotwire agreement taken
as a whole. If Customer elects to contract with Worldspan on such more favorable
terms and conditions taken as a whole, then Customer must, insofar as possible,
obtain all such services on such terms and conditions and must undertake to
perform all the corresponding obligations.
23. Customer and Worldspan shall use their best efforts to negotiate a
mutually acceptable service level agreement applicable to the services provided
under the Subscriber Entity Agreement. In the event that an agreement cannot be
reached in such negotiations, then the Subscriber Entity Agreement shall remain
in full force and effect.
24. "Affiliates," in reference to Customer, shall mean xxx.xxxxxxxxx.xxx,
xxxxxxxxx.xxx europe Ltd., Xxxxxxxxx-Priceline Limited, and any wholly owned
subsidiaries of xxxxxxxxx.xxx Incorporated in existence as of July 1, 2001 and
any of their successor entities.
25. "Location" shall mean each of the following physical locations where
Customer or its Affiliates conduct business:
xxxxxxxxx.xxx Incorporated
000 Xxxxxxxxxxx Xxx.
Xxxxxxx, XX 00000
xxxxxxxxx.xxx europe Ltd.
Eight Grafton Street
London, England
Page 6
United Kingdom
WIS4EL
Xxxxxxxxx-Priceline Limited
Xxxxxxx Xxxxx 000
000 Xxxx'x Xxxx
Xxxx Xxxx
26. Notwithstanding any provision of the Entity Agreement to the contrary,
solely with respect services provided to Customer's Affiliates located in a
country of the European Union (the "EU Affiliates"), Customer and Worldspan may
at their respective discretion terminate services to such EU Affiliate without
penalty on giving at least ninety (90) days' prior written notice, to expire no
earlier than the end of the first year of the Term of the Entity Agreement.
27. The first sentence of Section 4.A. of the Subscriber Agreement Standard
Terms and Conditions is hereby deleted in its entirety and replaced with the
following:
Worldspan or its service representative will provide, at Worldspan's expense,
normal repairs and maintenance for the Worldspan Equipment at the Locations
during Worldspan's normal repair hours.
28. The first sentence of Section 5.C. of the Subscriber Agreement Standard
Terms and Conditions is hereby deleted in its entirety and replaced with the
following:
Customer shall give Worldspan at least thirty (30) days' prior written notice of
its request to relocate or remove the Worldspan Equipment.
29. Section 5.D. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
Worldspan reserves the right to levy an additional charge over and above the
Standard Fees for installations, relocations or removals that are requested with
less than thirty (30) days' prior written notice, or those that are requested
outside of normal business hours in accordance with the attached Table of
Services and Charges.
30. Section 5.E. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
Upon any termination of the Subscriber Agreement, Worldspan shall waive its then
current charges for deinstallation and return of the Worldspan Equipment.
31. Section 6.B. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
For the business activity of the EU Affiliates, "Bookings" shall mean the total
of net billable airline bookings, net billable rail bookings, and net billable
car, hotel, tour, cruise, and ferry bookings as further defined below.
1. Airline Bookings. "Net billable airline bookings" shall mean those ticketed
airline segments properly booked by an EU Affiliate through the GDS for
which Worldspan charges and collects a fee, less cancellations through the
GDS prior to date of departure. "Ticketed airline segments" shall mean
airline segments (i) for which an EU Affiliate has issued tickets through
the GDS or (ii) for which an EU Affiliate has systematically informed
Worldspan of valid ticket numbers associated with the segments.
2. Rail Bookings. "Net billable rail bookings" shall mean those ticketed rail
segments properly booked by an EU Affiliate through the GDS for which
Worldspan charges and collects a fee, less cancellations through the GDS
prior to date of departure, adjusted by any applicable correction ratios to
reflect the value of those bookings to Worldspan. "Ticketed rail segments"
shall mean rail segments (i) for which an EU Affiliate has issued tickets
through the GDS, (ii) for which an EU Affiliate has systematically informed
Worldspan of
Page 7
valid travel documentation associated with the segments, or (iii) which are
not sold through the principal display of the GDS.
3. Car, Hotel, Tour, Cruise, and Ferry Bookings. "Net billable car, hotel,
tour, cruise, and ferry bookings" shall mean bookings for car, hotel, tour,
cruise, and ferry services for which Worldspan charges and collects a fee,
which are not cancelled and which do not result in "no-shows," adjusted by
any applicable correction ratios to reflect the value of those bookings to
Worldspan. Bookings of car rentals or hotels for a continuous period (e.g.,
one hotel client for five continuous nights or one car client for five
continuous days) shall be treated as one Booking.
For Bookings made by the Affiliates in countries not included in the European
Union, net billable airline bookings mean those segments properly booked by such
Affiliates through the GDS for which Worldspan charges a fee less cancellations
through the Worldspan GDS prior to date of departure, excluding unticketed
passive bookings. Net billable car, hotel, Tour Source, Cruise Line Source,
CruiseMatch and Worldspan Travel Suppliers bookings mean those segments properly
booked by such Affiliates through the GDS for which Worldspan charges a fee,
which are not canceled and which do not result in "no-shows." Bookings of car
rentals or hotels for a continuous period (e.g., one hotel client for five
continuous nights or one car client for five continuous days) shall be treated
as one Booking. Customer consents to any retroactive adjustment by Worldspan of
incorrect Booking counts. The determination of the number of Bookings shall be
made solely by Worldspan from its books and records, subject to paragraph 14 of
this Amendment.
32. Section 6.D. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
Worldspan may enhance or modify the GDS at its discretion at any time; provided,
however, that any such enhancement or modification does not materially adversely
affect the services provided to Customer pursuant to the Subscriber Agreement.
Worldspan reserves the right to migrate Customer to new computer reservation
systems used by Worldspan.
33. Section 6.H.i. of the Subscriber Entity Agreement is hereby amended to
add the following:
"Power Shopper" means a fares-and-pricing productivity tool that provides
Customer the ability to retrieve up to four (4) low-fare itinerary alternatives
and confirm flights with a single keystroke.
34. Section 6.H.ii. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
Message Limit: The "Message Limit" is two hundred twenty five (225) Messages per
Booking. The total monthly permitted Messages ("Allowable Messages") is
calculated by multiplying the 225 Messages per Booking by the number of Bookings
for that month.
35. Section 6.H.iii. of the Subscriber Agreement Standard Terms and
Conditions is hereby amended to add the following:
Worldspan agrees to discount its then current standard Power Shopper message fee
per PNR one hundred percent (100%) for one (1) Power Shopper message per PNR. In
the event Customer generates an average of more than one (1) Power Shopper
Message per PNR in any calendar month, Customer shall be charged for each
additional Power Shopper Message at the rate of Six Cents ($0.06) per Power
Shopper message in excess of the agreed level.
36. Section 8.D. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
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, protecting its computer resources from
insider abuse, having appropriate
Page 8
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.
37. Section 9.A.iv. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
it will use its best efforts to maintain the uptime of the GDS.
38. Section 11.D. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
Any reduction, waiver or discounting of any fee in the Subscriber Agreement by
Worldspan is specifically conditioned upon Customer's generation of Bookings
sufficient to meet the Booking Goal to qualify for a one hundred percent (100%)
Productivity Discount under Article III.A. of the Subscriber Entity Agreement.
39. Section 12. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
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.
40. Section 14.A.iv. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
Customer commits any material violation(s) of any laws, ordinances or
regulations related to the products or services provided under the Subscriber
Entity Agreement;
41. Section 14.E. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
Upon any termination of the Subscriber Entity Agreement pursuant to this Section
14, as a consequence of any default as set forth herein, the non-defaulting
party shall be entitled to recover its damages at law from the defaulting party,
in addition to any other rights or remedies that the non-defaulting party may
have at law, equity, or otherwise.
42. Section 14.F. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
The parties acknowledge that the provisions of this Section 14 shall not apply
to any failure by Customer to comply with the obligations of paragraph 3 or
paragraph 4 of this Amendment.
43. Section 14. of the Subscriber Agreement Standard Terms and Conditions
is hereby amended to include the following new Section 14.G.:
Notwithstanding anything in the Subscriber Entity Agreement to the contrary,
Customer's liability under this Agreement shall not exceed the lesser of (i) the
number of Expected Bookings, multiplied by One Dollar Twenty Seven Cents
($1.27), or (ii) Twenty Five Million Dollars ($25,000,000.00).
44. Section 17.B. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
Page 9
Customer and Worldspan agree not to disclose the terms and conditions of the
Subscriber Agreement without the prior written consent of the other except as
required by law. Notwithstanding the foregoing, either party may disclose the
terms and conditions of the Subscriber Agreement to its attorneys and
accountants who have a need to know and who are advised of such party's
obligation contained in this Section 17.B. In addition, in the event that
Customer determines that public disclosure of the Subscriber Agreement is
required by the securities laws of the United States, Customer shall so notify
Worldspan immediately and the parties shall confer to determine the legally
permissible means to protect the competitively sensitive material set forth
herein. Notwithstanding the foregoing, the parties agree to issue a joint press
release announcing the existence of the Subscriber Entity Agreement and the
parties' expanded global relationship. The content of such release shall be
subject to mutual agreement.
45. Section 17.E. of the Subscriber Entity Agreement is hereby amended to
add the following:
Worldspan shall use reasonable business efforts to ensure that notices and
communications to be served by Worldspan to Customer shall be sent to the
attention of the Chief Information Officer, with a copy to the attention of
Senior Vice President of Development.
46. Section 17.H. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
The Subscriber Agreement constitutes the full and final agreement between the
parties with respect to the subject matter hereof, and unless otherwise
provided, any prior agreements and understandings, whether written or oral, are
hereby superseded upon the beginning of the Term of the Subscriber Agreement.
The parties agree that all prior obligations contained in any prior agreements
between Worldspan and Customer are deemed, as of the date hereof, satisfied.
Worldspan agrees that all prior thresholds pertaining to Customer incentives
contained in any prior agreements between Worldspan and Customer are deemed met,
as of the date hereof. Except as provided herein, the Subscriber Agreement may
not be modified, altered or amended except by agreement and/or consent by
authorized representatives of both parties; provided however that the Table of
Services and Charges may be modified, altered or amended by Worldspan upon
thirty (30) days' prior notice to Customer; and further provided that the
Customer Equipment Support Responsibility may be modified, altered or amended by
Worldspan upon notice to Customer.
47. Except to the extent the Subscriber Entity Agreement is amended herein,
the Subscriber Entity Agreement remains in full force and effect. To the extent
the terms of this Amendment are inconsistent with the terms of the Subscriber
Entity Agreement, for purposes of this Amendment the terms of this Amendment
shall apply.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized undersigned representatives as of the day and
year first above written.
CUSTOMER, WORLDSPAN, L.P.,
FOR ITSELF AND ITS AFFILIATES: FOR ITSELF AND ITS SUBSIDIARIES:
xxxxxxxxx.xxx Incorporated
--------------------------------------
(Customer Legal Name)
--------------------------------------
(dba)
By: By:
-------------------------------------- -------------------------------------
(Signature) (Signature)
Xxxx Xxxx Xxxxx X. Xxxxxx
-------------------------------------- -------------------------------------
(Print Name) (Print Name)
Senior Vice President, Worldwide
President E-Commerce
-------------------------------------- -------------------------------------
(Title) (Title)
-------------------------------------
Page 10
-------------------------------------- -------------------------------------
-------------------------------------- -------------------------------------
(Date) (Date)
Page 11
