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EXHIBIT 10.4
WORLDTRAVEL TECHNOLOGIES, L.L.C.
END USER SOFTWARE LICENSE AGREEMENT
This End User Software License Agreement (this "Agreement") is made and entered
into this first day of November, 1999 by and between WORLDTRAVEL TECHNOLOGIES,
L.L.C., a Georgia limited liability company located at 0 X. Xxxxx Xxxxx Xxxxx,
Xxxxxxx, XX 00000 (hereinafter "WTT") and WORLDTRAVEL PARTNERS I, L.L.C.,
located at 0000 Xxxxx Xxxx Xxxx., Xxxxxxx, XX 00000 (hereinafter "WTP").
Subject to the following terms and conditions, WTT hereby grants WTP a
non-exclusive license to use the WTT software product(s) and related manuals and
documentation specified on Exhibit A attached hereto.
1. DEFINITIONS
1.1 Customer - Customer shall mean an entity doing business,
relating to travel agency services, with a given party on the
date in question. For corporate entities, only those divisions
or portions of a corporation doing business with such party on
the date in question are considered to be included in the
definition of Customer.
1.2 Enhancement - Changes to the Product that provide additional
features and/or functionality, expanding the capabilities of
the Product, or so significantly expands a function as to be
considered a new function.
1.3 Improvements - New functionality that addresses areas that
were not covered in the Initial Software Release for the
Product, or so significantly expands a function as to be
considered a new function.
1.4 Master Development Agreement - That agreement between the
parties executed concurrently with this Agreement under which
WTT shall perform certain software development services for
WTP.
1.5 Modification - Changes to the Product that affect existing
functionality. Normally this includes streamlining processes,
revising screens for clarity, etc.
1.6 OFS Service Bureau/Outsourcing Agreement - That agreement
between the parties executed concurrently with this Agreement
under which WTT provides Online Fulfillment Services (OFS) to
WTP.
1.7 Product - A logical grouping of WTT software which is sold by
a specific product name. The Product(s) which are licensed
under this Agreement are described on Exhibit A.
[*] The redacted portions indicated by this symbol are the subject of a
confidential treatment request and have been filed separately with the
Securities and Exchange Commission.
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1.8 Software Release - A complete or partial delivery of one or
more WTT Products. Normally on magnetic media, but may be
transmitted electronically, at WTT's discretion. There are
several kinds of Software Releases, determined by their own
reason, as listed below.
1.8.1 Initial Software Release - The initial delivery of
the Product(s) licensed from WTT.
1.8.2 Upgrade Release (Upgrade) - Changes to the Product
delivered after the Initial Software Release. WTT
reserves the right to charge an additional fee for
Upgrades which add Enhancements or Improvements to
the Initial Software Release.
1.8.3 Corrective Release (Fix) - Changes to the Product
delivered to correct a bug that impairs the normal
operation of the Product. May be inclined as part of
an Upgrade Release, or covered under a support
agreement.
1.9 Software - Means, collectively, all of the Software Releases
provided by WTT from time to time, with respect to the
Product(s) licensed under this Agreement.
1.10 TTG Service Bureau Agreement - That agreement between the
parties executed concurrently with this Agreement under which
WTT, through its Travel Technologies Group, provides certain
services and data information to WTP.
1.11 Users - Entities and individuals who use the services bureau
offering. Users shall not include WTP.
2. SCOPE OF LICENSE
2.1 WTT hereby licenses to WTP the Software under the terms and
conditions outlined herein. WTP may sublicense such Software
in certain limited situations. Any and all right to sublicense
a particular Product shall be listed on Exhibit A hereto. In
any event, WTP is prohibited from, and shall prohibit its
sublicensees from, using the Products for service bureau use
or for use on behalf of other travel agencies or corporations
who are not WTP Customers.
2.2 The Software and its related documentation cannot be
transferred, sold, or otherwise made available by WTP to
another party without WTT's express written consent. As a
condition to any such consent, WTT may require the execution
of a new License Agreement and payment of a fee equal to the
difference between the license fee paid for the Initial
Software Release and the then-current Product Price as
specified in the applicable WTT price list.
2.3 An Upgrade Release, if provided by WTT and accepted by WTP,
replaces part or all of the Software for the Product
previously licensed. This Agreement applies to
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the Initial Software Release and all subsequent Software
Releases, whether supplied under this Agreement or otherwise.
2.4 WTT shall provide WTP with support services for the software
Products licensed in Section 2.1 above. Such services shall be
provided through WTT under the terms and conditions listed in
Exhibit B.
2.5 Any new WTT Products, Enhancements and Improvements, shall be
made available to WTP before such Products are made available
to other Users, unless such Products were funded by a third
party who paid for such development. All new Products,
Enhancements and Improvements offered to Users will be made
available to WTP pursuant to WTT's then-current rates or less,
at WTT's discretion.
3. WTT'S PROPRIETARY RIGHTS; WTP RESTRICTIONS
3.1 WTP acknowledges that the Software and its related
documentation are proprietary to WTT and are protected by
United States copyright law and international treaty. By
virtue of this Agreement, WTP acquires only the non-exclusive
right to use the Software and related user documentation and
does not acquire any rights of ownership in such materials.
WTT, or its licensor, shall at all times retain all rights,
title and interest in the Software, related documentation, and
any derivatives thereof.
3.2 WTP agrees not to cause or permit the reverse engineering,
disassembly, copying or recompilation of the Software, except
to reproduce machine-readable object code portions for back-up
purposes and installation of new Software Releases, under
penalty of termination but not exclusive of any other
remedies.
3.3 WTP may copy the Software for installation, back-up or other
purposes as described in the documentation. WTP may not copy,
or permit others to copy the Software or any Software Release
for any other purpose.
3.4 WTP agrees not to remove, alter, or conceal any product
identification, copyright notices, or proprietary restrictions
from the Software, the media on which it is delivered, or
related user documentation and to reproduce all such notices
on any copies of the Product and user documentation created by
WTP.
3.5 WTP may not copy or allow others to copy any part of the user
documentation or other printed material provided with the
Product or Software Release by any means, including data
transmission or translation.
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4. PRICING AND PAYMENT
4.1 The license fees for the Product(s) licensed pursuant to this
Agreement are set forth on Exhibit A hereto. Prices are quoted
and payments must be made in US dollars. Payments are due in
accordance with the terms set forth in Exhibit A. Any payment
not received within thirty (30) days of the date due shall
bear interest, at the rate of one and one-half percent (1.5%)
per month, on the amount over thirty days past due. Payment
for additional Products licensed from WTT shall be due on the
same terms, unless otherwise agreed in writing by WTT.
4.2 The license fees do not include any charge for taxes and WTP
is solely responsible for paying any and all federal, state
and local taxes attributable to its purchase, possession or
use of the Product(s) or any services rendered by WTT in
connection with this Agreement, excluding only taxes based
upon the net income of WTT.
5. LIMITED WARRANTY
5.1 WTT represents and warrants to WTP that it has the right to
license the Software as provided herein. WTT further warrants
to WTP that for a period of three months from the date of
delivery of the Initial Software Release (the "Warranty
Period"), the Software shall operate substantially in
accordance with its then-current functional specifications as
published by WTT, including any subsequent modifications to
such specifications mutually accepted by WTP and WTT. If
during the Warranty Period WTP determines that this software
is unfit for WTP's intended purpose for any reason and
provided WTT is unwilling or unable to correct all identified
deficiencies, incompatibilities, defects or errors identified
in the Software with a new copy of the Software that does not
contain all identified deficiencies, incompatibilities,
defects or errors within reasonable time frame acceptable to
both parties, WTP may terminate this Agreement. WTP may obtain
from WTT a refund of the related license fee paid for the
Software.
5.2 WTP shall notify WTT (in writing) of failure of the Software
to operate in conformity with the functional specifications
promptly following discovery thereof. Provided that WTP
notifies WTT of such failure prior to expiration of the
Warranty Period, WTT will investigate and take corrective
action as expeditiously as is reasonably possible. If any
Software fails to operate in accordance with the related
functional specifications, WTT will use its best efforts to
correct the Software so that it will operate substantially in
accordance with the relevant functional specifications. If WTT
determines that the reported error or non-conformity is not
due to any error or defect in the Software supplied by WTT,
WTP shall compensate WTT for its services on a time and
materials basis at WTT's then-prevailing rates.
5.3 WTT shall not be liable to WTP for any claim or defect arising
from or based upon (i) any alteration or modification of any
Software not provided by WTT;
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(ii) problems with WTP's equipment or other software; or (iii)
any other cause beyond the control of WTT.
5.4 WTT further warrants to WTP that the disks on which the
Software is recorded be free from defects in materials and
workmanship under normal use and service for a period of
ninety (90) days from the last day of Meeting Partner and
Airline CRS Interface installation and training to be held at
the user site, whichever comes later.
5.5 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, NO EXPRESS OR
IMPLIED WARRANTY IS MADE BY XXXX WITH RESPECT TO ANY PRODUCT,
ANY SOFTWARE RELEASE THE DOCUMENTATION OR ANY OTHER MATTER,
INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. XXXX DOES
NOT WARRANT THAT ALL ERRORS IN THE PRODUCT CAN OR WILL BE
CORRECTED OR THAT THE FUNCTIONALITY OF THE PRODUCT WILL MEET
WTP'S REQUIREMENTS.
6. PATENT, COPYRIGHT OR TRADEMARK INFRINGEMENT
6.1 Subject to the terms of this Section 6, WTT will defend WTP
against any claim that the Software furnished hereunder
infringes any United States patent, copyright, trade secret or
trademark, and will indemnify WTP against any liability,
damage, or expense (including court costs and reasonable
attorneys' fees) arising from a final award against WTP based
on such claims, provided WTP: (i) promptly notifies WTT in
writing of any claim or judgment of infringement; (ii) permits
WTT to exclusively defend, compromise, settle or appeal any
such claim or judgment (at the expense of WTT); (iii) assists
and cooperates with WTT, as reasonably requested by WTT, to
enable WTT to defend, compromise, settle or appeal any such
claim, suit, demand or judgment; and (iv) has complied with
the terms of this Agreement. The provisions of this Section 6
shall not prohibit WTP's participation with WTT in the defense
or appeal of any such claim or judgment should WTP choose to
participate, at its own expense (such expense not being
indemnified by WTT) and with attorneys of its own choice,
provided that WTT shall have sole control and authority with
respect to any such defense, compromise, settlement, appeal or
similar action.
6.2 WTT shall have no obligation to WTP under this Section 6 if
the actual or alleged infringement is based upon (i) any
modification or alteration of the Software that was not
supplied by WTT, or (ii) the use of the Software in
combination with any other software or equipment, as such
actual or alleged infringement would not have arisen absent
such combination.
6.3 Should WTP's right to continue to use the Software pursuant
hereto be enjoined by a court because the Software is declared
to infringe a valid United States
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patent, copyright, trade secret or trademark, WTT shall not be
in breach of this Agreement if WTT either: (i) procures for
WTP the right to continue to use the Software; (ii) modifies
the Software to render it non-infringing but substantially
functionally equivalent to the Software prior to such
modification; or (iii) replaces the Software with
non-infringing software that is substantially functionally
equivalent to the Software. In the event that none of the
options set forth in this Section 6.3 are reasonably possible
or effective, WTT shall be entitled to terminate this
Agreement and the license granted herein and refund to WTP the
license fee paid for the particular Product or Software
Release found to be infringing, less 1/60 of such amount for
each month following the expiration of the Warranty Period in
which WTP maintained possession of the Product or Software
Release.
6.4 THIS SECTION 6 STATES WTT'S ENTIRE OBLIGATION TO WTP REGARDING
ANY ACTUAL OR ALLEGED INFRINGEMENT, VIOLATION OR
MISAPPROPRIATION OF ANY THIRD PARTY'S PATENT, COPYRIGHT,
TRADEMARK OR OTHER PROPRIETARY RIGHTS RELATING TO THE
SOFTWARE.
7. LIMITATIONS OF LIABILITY
7.1 EXCEPT AS PROVIDED IN SECTION 6, NEITHER WTT OR ITS OFFICERS,
DIRECTORS, EMPLOYEES OR AGENTS, WILL BE LIABLE TO WTP FOR ANY
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF
THIS AGREEMENT OR THE BREACH THEREOF, OR ARISING OUT OF WTP'S
POSSESSION OF, USE OF OR INABILITY TO USE THE SOFTWARE, OR ANY
PORTION THEREOF. SUCH EXCLUDED DAMAGES INCLUDE, WITHOUT
LIMITATION, DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF
TIME, LOSS OF DATA OR LOSS OF PROFITS THAT MAY ARISE IN
CONNECTION WITH THE USE OF OR INABILITY TO USE THE SOFTWARE,
REGARDLESS OF WHETHER SUCH DAMAGES OR CLAIMS ARE BASED ON
BREACH OF WARRANTY OR CONTRACT, NEGLIGENCE, STRICT LIABILITY,
TORT, PRODUCTS LIABILITY OR OTHERWISE.
7.2 WTT WILL NOT BE LIABLE FOR ANY CLAIM AGAINST WTP BY ANY THIRD
PARTY, INCLUDING TIMESHARING CUSTOMERS.
7.3 EXCEPT AS PROVIDED IN SECTION 6, IN NO EVENT WILL WTT'S
LIABILITY FOR ANY DAMAGES OR INJURIES TO WTP EVER EXCEED THE
LICENSE FEE PAID BY WTP FOR THE PRODUCT, REGARDLESS OF THE
FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE, STRICT
LIABILITY, TORT, PRODUCTS LIABILITY OR OTHERWISE.
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8. TERM AND TERMINATION
8.1 This Agreement shall be effective on the date above written
and shall continue indefinitely unless terminated as provided
herein.
8.2 Either party may terminate this Agreement and the license and
right granted herein if the other party breaches any of the
provisions of this Agreement and (i) fails to remedy such
breach within thirty (30) days after receiving written notice
thereof; or (ii) provided the breach does not relate to a
monetary obligation, fails to (a) commence a good faith action
to remedy such breach within thirty (30) days after receiving
written notice thereof, and (b) diligently pursue such action
to conclusion. This Agreement shall automatically and
immediately terminate on the termination or expiration of any
one of the OFS Service Bureau/Outsourcing Agreement, the TTG
Service Bureau Agreement or the Master Development Agreement.
Termination of this Agreement shall not constitute WTT's
exclusive remedy breach or non-performance by WTP and WTT
shall be entitled to seek all other available remedies, both
legal and equitable, including injunctive relief.
8.3 Upon termination of this Agreement for any reason, WTP shall
immediately cease all use of the Software, remove all copies
of the Product from its computers and return to WTT all
Software Releases and related documentation.
8.4 The provisions of Sections 3, 5, 6, 7 and 10 hereof shall
survive the termination of this Agreement.
9. NON-SOLICITATION
9.1 The Parties agree that the education, training and retention
of their respective employees are essential, and each party
agrees that during the term of this Agreement and, in the case
of any individual employee for a period of six months, after
termination or resignation of such employee, neither party
shall, directly or indirectly, recruit, solicit or hire any
employee of the other without prior written consent of the
other party. In the event either party shall violate the terms
of this paragraph, the soliciting or hiring party shall pay
the other party, upon receipt of written demand, an amount
equal to the greater of one (1) year's compensation for such
employee at the rate paid immediately prior to such hiring.
10. GENERAL
10.1 This Agreement, including Exhibits A and B attached hereto,
represents the entire understanding and agreement between the
parties, and supersedes any and all previous discussions and
communications. Any subsequent amendments and/or additions
hereto shall be effective only if in writing and signed by
both parties. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the respective
parties hereto.
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10.2 This Agreement shall be interpreted under the laws of the
State of Georgia, and any legal action resulting from it shall
be held within the jurisdiction of the State of Georgia. It is
understood that the parties shall use their best endeavors to
amicably resolve any dispute or difference arising from this
Agreement.
10.3 Headings of paragraphs in this Agreement are inserted for
convenience only, and are in no way intended to limit or
define the scope and/or interpretation of this Agreement.
10.4 This Agreement does not include any professional services or
on-going maintenance and support that may be needed to
install, implement, train, support or otherwise make
operational the Product on WTP's hardware platform.
10.5 WTP shall be entitled to a copy of and shall have the right to
use the source code for the Product(s) licensed hereunder if:
i) WTT becomes insolvent or a party to any bankruptcy or
receivership proceedings or makes an assignment for the
benefit of creditors; or ii) WTT is in material default of
performance under this Agreement or of any software support
agreement then in effect between the parties relating to the
Product(s); or iii) WTT ceases to market or support the
Product(s) and such marketing/support is not continued by
another corporation or entity, or is continued by another
corporation or entity, which WTP for reasonable cause deems
unsatisfactory.
10.6 Any notice given pursuant to this Agreement is to be in
writing and delivered personally or sent by certified mail,
return receipt requested, or by air express, return receipt
requested to the individuals shown below, or to such other
persons or addresses as the parties may designate in a notice
conforming with the requirements of this Section. Any such
notice, when delivered in the manner aforesaid, shall be
deemed given on the date of receipt.
For WTP: Xxxxxxx X. Xxxxxx
WorldTravel Partners, I, L.L.C.
0000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxx, XX 00000
For WTT: Xxxxx Xxxxxxx
General Counsel
WorldTravel Technologies, L.L.C.
0 X. Xxxxx Xxxxx Xxxx
Xxxxxxx, XX 00000
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IN WITNESS WHEREOF, the undersigned duly authorized representatives of
the parties hereto made and entered in this Agreement as of the date
first above written.
WORLDTRAVEL TECHNOLOGIES, L.L.C. WORLDTRAVEL PARTNERS I, L.L.C.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxx X. Xxxxxxxxx
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Xxxxx Xxxxxxx Xxxx X. Xxxxxxxxx
President President
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EXHIBIT A: PRODUCTS
1. The parties understand and agree that the fees outlined in the TTG
Service Bureau Agreement, include payment for the licenses granted
hereunder. Should the OFS Service Bureau/Outsourcing Agreement, the
TTG Service Bureau Agreement or the Master Development Agreement
terminate, the parties shall negotiate an appropriate license fee for
the Product(s) licensed hereunder in the event that the parties decide
to allow the terms and conditions of this Agreement to continue in
full force and effect.
2. Listed below are the licensed Products and any applicable license fees:
Licensed Products Initial License Fees
CRS Screen Highlighter 4.2 Covered under the TTG Service
SW Direct Bureau Agreement
MeetingsAssist 2.1 See below*
3. WTP shall have the right to sublicense to Customers for Customers'
internal use only, and only on the prior written approval of WTT, the
following products: Highlighter, SWDirect, and MeetingsAssist. WTP
shall require such sublicensees to sign a support and maintenance
agreement consistent with the agreement attached hereto as Exhibit B,
which is incorporated herein by reference.
* WTP shall pay [*] per Qualified Transaction, as defined in the TTG
Service Bureau Agreement, commencing on January 1, 2000 until December 31, 2001,
plus [*] of the research and development costs associated with the
MeetingsAssist development for the next two (2) years in accordance with the
Master Development Agreement. As provided in the Master Development agreement,
by January 1, 2002, WTT shall either assign all right, title and interest in and
to MeetingsAssist to WTP or retain title to MeetingsAssist and provide support
and hosting for MeetingsAssist at cost plus [*], in which event WTP's obligation
to pay a fee per transaction and a portion of the research and development costs
shall terminate and WTP's license shall continue at no cost, but otherwise in
accordance with the terms and conditions of this Agreement
