Exhibit 10.4
EXECUTION COPY
FIRST AMENDMENT
TO THE
AMENDED AND RESTATED AGREEMENT
FOR CRS ACCESS AND RELATED SERVICES
This FIRST AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT FOR CRS ACCESS AND
RELATED SERVICES (this "Amendment"), dated as of December 13, 2002 ("Amendment
Effective Date"), is between Worldspan, L.P., a Delaware limited partnership,
("Worldspan") and Orbitz, LLC, a Delaware limited liability company ("Orbitz").
WHEREAS, Orbitz and Worldspan entered into that certain Amended and Restated
Agreement for CRS Access and Related Services dated as of November 1, 2001 (the
"Agreement"); and
WHEREAS, Orbitz and Worldspan desire to amend the Agreement as set forth herein;
NOW, THEREFORE, Orbitz and Worldspan hereby agree to amend the Agreement as
follows:
1. The "WHEREAS" clauses are hereby restated in their entirety to provide as
follows:
"WHEREAS, Orbitz operates various businesses offering travel-related
products and services to the end-user community as well as to the travel
industry;
WHEREAS, among its other businesses, Orbitz provides travel end-users with
a consumer-oriented Internet travel portal under the "Xxxxxx.xxx" domain
name through which they can complete the booking of air travel, hotel
accommodations, car rentals, and other travel products (such portal, and
any related, private labeled or successor Internet sites, such as "Orbitz
for Business," that are controlled by Orbitz, the "Orbitz Website");
WHEREAS, Orbitz also provides or may in the future provide to travel
professionals in the travel industry certain travel-related products and
services that are not oriented to a consumer end-user and that do not use
or access the Orbitz Website, including, without limitation, travel agent
desktop tools and other products and services intended for use by travel
agents, corporate travel managers and other travel professionals,
("Industry Services");
WHEREAS, in connection with its Orbitz Website business, Orbitz has
selected Worldspan to provide access to and use of the computer
reservations systems operated by Worldspan 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 the
Orbitz Website;
WHEREAS, it is the intent of the parties that this Agreement shall govern
the provision of such services to Orbitz and the use of the Worldspan
System, but only in connection with the Orbitz Website business, and not in
connection with Industry Services or any other business that Orbitz
operates or may operate."
2. Section 2.1 is hereby restated in its entirety to provide as follows:
"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, ITA 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 (including,
without limitation, Availability Data Services) for the purposes of the
operation of the Orbitz Website and in accordance with the provisions of
this Agreement. Orbitz is authorized to access Availability Data Services,
for the purposes of processing any Supplier Link Segments as set forth in
Sections 2.10 and 4.7 herein and as otherwise in a manner that is
consistent with this Agreement."
3. A new Section 2.10 is hereby added to the Agreement to provide as follows:
"2.10 AUTHORIZATION TO USE THE AVAILABILITY DATA SERVICES FOR SUPPLIER LINK
SEGMENTS.
(a) During the Term of this Agreement and subject to Section 4.7,
Worldspan will provide Orbitz, as well as the Booking Engine Provider, the
Customer Service Center Provider, the Fulfillment Provider, ITA and any
other third parties that may be engaged by Orbitz to provide products or
services for the operation of the Orbitz Website, access to the
Availability Data Services in connection with an Orbitz offering made to
any User using the Orbitz Website; provided, however, that Orbitz is not
authorized to access the Worldspan System or the Availability Data Services
in connection with any contract or agreement with a Worldspan Customer for
the purpose of providing such Worldspan Customer access to the Orbitz
Website, unless Orbitz has obtained Worldspan's prior written consent. For
the avoidance of doubt, the license in the previous sentence does not
authorize the use or remarketing of Availability Data Services other than
for the Orbitz Website.
(b) Orbitz may terminate use of the Availability Data Services upon 60
days' prior written notice to Worldspan. Worldspan may terminate provision
of the Availability Data Services to or on behalf of Orbitz upon the
earlier of (i) termination of use of such services by Orbitz or ITA, or
(ii) the end of any period specified in an Orbitz notice electing to use
such services."
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4. Section 3.2 is hereby restated in its entirety to provide as follows:
"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. For the avoidance of doubt,
the foregoing sentence shall not impair or restrict Orbitz' right to
encourage Users to book travel through Supplier Link Segments, provided
that such bookings are consistent with Orbitz' obligations under this
Agreement.
(a) Effective January 1, 2003, Orbitz agrees (i) to cause not less than
one hundred percent (100%) of all Non-Direct Connect Car Segments and (ii)
to cause not less than one hundred percent (100%) of all Airline Non-Direct
Connect Segments booked on behalf of all Users, including Corporate Users,
by means of the Orbitz Website to be booked through the Worldspan System.
(b) In the event the number of Adjusted Quarterly Net Segments booked
through the Worldspan System falls below the Applicable Quarterly Minimum
set forth below in any calendar quarter commencing with the calendar
quarter beginning January 1, 0000, Xxxxxx shall pay Worldspan the Minimum
Segment Fee set forth in Section 4.8(a) in accordance with the payment
terms set forth therein.
APPLICABLE QUARTERLY
CALENDAR QUARTER MINIMUM
---------------------------------------------------
Quarter ending March 31 [***]
Quarter ending June 30 [***]
Quarter ending September 30 [***]
Quarter ending December 31 [***]
For purposes of the foregoing calculation, the number of Net Segments (if
any) by which the Applicable Quarterly Minimum is exceeded in a particular
calendar quarter shall be carried forward and applied to the next
subsequent calendar quarter in such calendar year. The number of Net
Segments in a particular calendar quarter plus the number of excess Net
Segments, if any, carried forward from the previous calendar quarter(s) in
such calendar year shall be referred to as the "Adjusted Quarterly Net
Segments." With respect to the calendar quarter ending March 31, the
Adjusted Quarterly Minimum shall equal the number of actual Net Segments
booked through the Worldspan System during such calendar quarter. For
illustration, if the number of Net Segments achieved in the calendar
quarter ending March 31 is [***], thus exceeding the Applicable Quarterly
Minimum for such quarter by 1,000,000, then the Adjusted Quarterly Net
Segments for the quarter ending June 30 shall be the number of Net Segments
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actually achieved in such quarter, plus 1,000,000, and to the extent this
Adjusted Quarterly Net Segments value exceeds the Applicable Quarterly
Minimum of [***] Net Segments for the quarter ending June 30, such excess
shall be applied toward the Adjusted Quarterly Net Segment calculation for
the quarter ending September 30. No such excess shall be carried forward
into a subsequent calendar year or backwards to a previous calendar year.
Notwithstanding the foregoing, no Minimum Segment Fee shall be payable by
Orbitz for a given calendar quarter, even if the total number of Adjusted
Net Segments in such calendar quarter does not equal or exceed the
Applicable Quarterly Minimum, if, either (i) Orbitz has not booked any
Airline Direct Connect Segments or Direct Connect Car Segments in such
calendar quarter and processes 100% of Orbitz' air and car bookings through
Worldspan, or (ii) (A) a Safe Harbor Event has occurred, (B) Orbitz has
provided notice to Worldspan of such Safe Harbor Event within 20 days
following its occurrence, (C) Orbitz has not provided notice to Worldspan
of a prior Safe Harbor Event during such calendar year, and (D) beginning
on the fifth business day following Orbitz' provision of such notice to
Worldspan, for the remainder of the calendar quarter and until the end of
the calendar year (or such earlier time as Orbitz declares, by written
notice to Worldspan, the conclusion of the Safe Harbor Event), Orbitz has
eliminated all Airline Direct Connect Segments and all Direct Connect Car
Segments and processes 100% of Orbitz' air and car bookings through
Worldspan.
(c) Orbitz agrees that it will not directly or indirectly acquire or use
any products or services from a CRS other than Worldspan to support or use
with the Orbitz Website for Airline Direct Connect Customers or Direct
Connect Car Customers. Notwithstanding the foregoing, if Worldspan
eliminates a product or service used by Orbitz and does not replace it with
a comparable product or service on commercial terms no less favorable to
Orbitz, Orbitz may obtain a replacement product or service from another
CRS. Orbitz will use reasonable business efforts to prevent unauthorized or
improper use of or access to the Worldspan System and to ensure that its
employees, agents, third parties that may be engaged by Orbitz to provide
products or services for the operation of the Orbitz Website, and Users
access and use the Worldspan System in compliance with all reasonable
instructions provided by Worldspan, including the following:
(i) 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.
Proper and permitted use of the Worldspan System, including data and
services provided through such system, consists of (i) using the
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Availability Data Services with respect to one or more Airline
Direct Connect Customers for purposes of and consistent with this
Agreement, (ii) making proper and legitimate reservations and
booking Segments, (iii) issuing travel documents related to such
Segments, and (iv) performing normal accounting and record keeping
functions, all of the foregoing only in accordance with rules and
regulations issued from time to time by Worldspan and subject to the
terms and conditions of this Agreement. Improper use of the
Worldspan System includes, without limitation, making speculative or
improper bookings, reserving space in anticipation of demand, and
improper creation or modification of records.
Orbitz shall not use or access the Worldspan System, including data
and services provided through such system, without Worldspan's prior
written consent (i) to make bookings on any CRS other than
Worldspan, (ii) to make bookings on any airline or other reservation
system (except as permitted in Section 2.10), (iii) to develop or
test software applications, including without limitation, booking
engines, corporate booking programs, FLIFO-type products, fares and
pricing tools, caching products, travel agent desktop tools, and
airline hosting applications (which such prior written consent shall
not be unreasonably withheld), or (iv) in any other manner that is
not expressly permitted hereunder or is unauthorized or improper.
Orbitz' employees, agents, and Users may not enter passive bookings
(e.g., GC, HK, MK or BK codes) into the Worldspan System when no
corresponding 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.
(v) 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.
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.
Other than as described in Section 2.10, Section 4.7(c), oras may be
mutually agreed in writing by the parties, Orbitz shall not,
effective January 1, 2003, use the Worldspan System to service
Supplier Link Segments, including but not limited to, such services
as PNR storage, queues, profiles, fares and pricing systems, Auto
Re-Issues or Rapid Re-Price. Also, Orbitz shall not use the
Worldspan System to search for fares,
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rates, schedules or itineraries that involve Airline Direct Connect
Segments."
5. Section 4.4 of the Agreement is hereby restated in its entirety to provide
as follows:
"4.4 [Intentionally Deleted]"
6. A new Section 4.7 is hereby added to the Agreement to provide as follows:
"4.7 SUPPLIER LINK CONDITIONS AND PROCESSING FEE.
(a) Effective January 1, 2003, within 90 days after the Implementation
Date for an Airline Direct Connect Customer, Orbitz shall discontinue all
access, either directly or through ITA, to the Worldspan System with
respect to Supplier Link Segments for such Airline Direct Connect Customer.
In the event Orbitz or ITA, acting at the direction and on behalf of
Orbitz, as the case may be, continues to generate DIR INVQ Messages for any
Airline Direct Connect Customer more than 90 days after the Implementation
Date, Orbitz shall pay Worldspan a monthly processing fee in accordance
with Table 1 set forth on Schedule E for each such month.
(b) Orbitz will use its good faith efforts to keep Worldspan's Contract
Manager apprised of the expected Implementation Date for each Airline
Direct Connect Customer and each Direct Connect Car Customer no less than
30 days prior to the anticipated Implementation Date, and to coordinate
with the Worldspan Contract Manager during such 30 day period. Following
the actual Implementation Date for each Airline Direct Connect Customer and
each Direct Connect Car Customer, Orbitz will provide prompt and
simultaneous notice thereof to Worldspan's Contract Manager and the carrier
or car rental company, as applicable. No later than 90 days after the
Implementation Date of an Airline Direct Connect Customer, Orbitz will
reduce the total DIR INVQ Messages sent to Worldspan on Orbitz' behalf by
the amount shown on Table 2 set forth on Schedule E for each named carrier.
Upon implementation of all of the Core Airline Customers as Airline Direct
Connect Customers, Orbitz shall be permitted no more than a total of 5 DIR
INVQ Messages per second to supply the availability cache for all carriers
other than the Airline Direct Connect Customers.
(c) Notwithstanding Sections 4.7(a) and (b), Orbitz shall discontinue
all access, either directly or through ITA, to the Worldspan System with
respect to Supplier Link Segments for American Airlines no later than
January 31, 2003 and with respect to Supplier Link Segments for Continental
Airlines no later than January 1, 2003. In the event Orbitz or ITA, acting
at the direction and on behalf of Orbitz, as the case may be continues to
generate DIR INVQ Messages for American Airlines or Continental Airlines
after January 1, 0000, Xxxxxx shall pay Worldspan a monthly processing fee
in accordance with Table 1 set forth on Schedule E for each month of usage.
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A new Section 4.8 is hereby added to the Agreement to provide as follows:
"4.8 MINIMUM SEGMENT FEES. Commencing January 1, 2003 and through the
balance of the Term of this Agreement, in the event Orbitz does not satisfy
the minimum Net Segments or minimum Net Car Segments requirements described
in subsection (a) or (b) below, Orbitz will pay Worldspan a fee ("Minimum
Segment Fee") calculated as follows:
(a) In the event Orbitz does not satisfy the requirements of Section
3.2(b) with respect to a particular calendar quarter, then, in addition to
all payments under this Agreement, Orbitz shall pay to Worldspan a Minimum
Segment Fee equal to the difference between the Applicable Quarterly
Minimum for such calendar quarter and the Adjusted Quarterly Net Segments
applicable to such calendar quarter, multiplied by $1.78.
(b) In the event Orbitz books a Direct Connect Car Segment in a
particular calendar quarter through a Direct Connect Car Customer and does
not, during such calendar quarter, book at least the minimum Net Car
Segments set forth below through the Worldspan System ("Applicable
Quarterly Minimum Net Car Segments"), then, in addition to all payments
under this Agreement, Orbitz shall pay to Worldspan a Minimum Segment Fee
equal to the difference between the Applicable Quarterly Minimum Net Car
Segments set forth below and the Adjusted Quarterly Net Car Segments (as
defined below) for such calendar quarter, multiplied by $1.78.
For purposes of the foregoing calculation, the number of Net Car Segments
(if any) by which the Applicable Quarterly Minimum Net Car Segments for a
particular calendar quarter is exceeded shall be carried forward and
applied to the next subsequent quarter in such calendar year. The number of
Net Car Segments in a particular calendar quarter plus the number of excess
Net Car Segments carried forward, if any, from the previous calendar
quarter(s) in such calendar year shall be referred to as the "Adjusted
Quarterly Net Car Segments." With respect to the calendar quarter ending
March 31, the Adjusted Quarterly Net Car Segments shall equal the number of
actual Net Car Segments booked through the Worldspan System during such
calendar year.
For illustration, if the number of Net Car Segments achieved in the
calendar quarter ending March 31, 2003 is [***], thus exceeding the
Applicable Quarterly Minimum Net Car Segments for such quarter by 100,000,
then the Adjusted Quarterly Net Car Segments for the quarter ending June
30, 2003 shall be the number of Net Car Segments actually achieved in such
quarter, plus 100,000, and to the extent this Adjusted Quarterly Net Car
Segments value exceeds the Applicable Quarterly Minimum Net Car Segments of
[***] for the quarter ending
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June 30, 2003, such excess shall be applied toward the Adjusted Quarterly
Net Car Segment calculation for the quarter ending September 30, 2003. No
such excess shall be carried forward into a subsequent calendar year or
backward into a previous calendar year.
Notwithstanding the foregoing, no Minimum Segment Fee shall be payable by
Orbitz, even if the total number of Adjusted Quarterly Net Car Segments for
a given calendar quarter does not equal or exceed the value set forth
below, if, (i) a Safe Harbor Event has occurred, (ii) Orbitz has provided
notice to Worldspan of such Safe Harbor Event within 20 days following its
occurrence, (iii) Orbitz has not provided notice to Worldspan of a prior
Safe Harbor Event during such calendar year, and (iv) beginning on the
fifth business day following Orbitz' provision of such notice to Worldspan,
for the remainder of the calendar quarter and until the end of the calendar
year (or such earlier time as Orbitz declares, by written notice to
Worldspan, the conclusion of the Safe Harbor Event), Orbitz has eliminated
all Direct Connect Car Segments and processes 100% of Orbitz' car bookings
through Worldspan.
APPLICABLE QUARTERLY
CALENDAR QUARTERS MINIMUM NET CAR
IN YEAR SEGMENTS
-------------------------------------------
2003 [***]
2004 [***]
2005 [***]
2006 [***]
2007 [***]
2008 [***]
2009 [***]
2010 [***]
2011 [***]
(c) In the event Orbitz fails to meet both subparagraphs (a) and (b),
Orbitz will pay the greater of the Minimum Segment Fee set forth in
subparagraph (a) or (b).
(d) Orbitz shall pay the Minimum Segment Fee to Worldspan within 30 days
after the end of the calendar quarter for which the minimum was not
achieved.
(e) In the event Orbitz has paid a Minimum Segment Fee pursuant to
subparagraph (a) with respect to the first, second and/or third calendar
quarter of a particular calendar year, then such Minimum Segment Fee(s)
shall be reimbursed by Worldspan to Orbitz within 30 days following the
conclusion of such calendar year if the number of Net Segments achieved
during such calendar year exceeds the sum
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of the Applicable Quarterly Minimums for the four calendar quarters
comprising such calendar year. In no event shall such reimbursement exceed
the Minimum Segment Fees actually paid by Orbitz pursuant to subparagraph
(a) with respect to such calendar year.
(f) In the event Orbitz has paid a Minimum Segment Fee pursuant to
subparagraph (b) with respect to the first, second and/or third calendar
quarter of a particular calendar year, then such Minimum Segment Fee(s)
shall be reimbursed by Worldspan to Orbitz within 30 days following the
conclusion of such calendar year, if the number of Net Car Segments
achieved during such calendar year exceeds the sum of the Applicable
Quarterly Minimum Net Car Segments for the four calendar quarters
comprising such calendar year. In no event shall such reimbursement exceed
the Minimum Segment Fees actually paid by Orbitz pursuant to subparagraph
(b) with respect to such calendar year.
(g) If this Agreement terminates in the middle of a calendar quarter,
then (A) the Minimum Segment Fee, if applicable, for the final quarter of
this Agreement shall be prorated on a per diem basis based on the
Applicable Quarterly Minimum requirement for Net Segments and the
Applicable Quarterly Minimum Net Car Segment requirement for Net Car
Segments for the quarter in which this Agreement terminates and (B) if the
number of Net Segments or Net Car Segments, as the case may be, achieved
during such calendar year exceeds the sum of the Applicable Quarterly
Minimums or Applicable Quarterly Minimum Net Car Segments, respectively,
for any prior calendar quarters in such calendar year PLUS the pro rated
requirement calculated pursuant to (A) above, then any Minimum Net Segment
Fees paid by Orbitz with respect to such calendar year shall be reimbursed
by Worldspan to Orbitz within 30 days following the termination of the
Agreement.
(h) Notwithstanding the foregoing, no Minimum Segment Fee shall apply in
any calendar year in which Orbitz terminates the Agreement in accordance
with Section 7.1, 7.2, 7.3, 7.4, 7.5 or 9.1."
8. Section 9.1 is amended by adding the following to the end thereof:
"Notwithstanding the foregoing, in the event (x) Orbitz merges,
consolidates, or otherwise combines with a CRS; or (y) substantially all of
the operating assets of Orbitz are acquired by a CRS; Orbitz shall not
assign or transfer this Agreement or any of its rights or obligations under
this Agreement, without the prior written consent of Worldspan. In the
event Orbitz requests a consent in connection with a proposed transaction
described in (x) or (y) above, and Worldspan fails to provide such consent
within 10 days of receipt of the request, then such consent shall be deemed
to have been denied, and either Orbitz or Worldspan shall have the right to
terminate this Agreement, by notice to the other, with such termination not
to take effect until the consummation of such proposed transaction.
9. Section 9.15 is hereby restated in its entirety to provide as follows:
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"9.15 ORBITZ 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 year during the Term of the Agreement, and upon twenty
(20) days prior written notice to Worldspan, Orbitz may have 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 sole 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 and may not be used for any purpose
whatsoever other than the determination of compliance with Worldspan's
obligations under this Agreement."
10. A new Section 9.16 is hereby added to the Agreement to provide as follows:
"9.16 WORLDSPAN'S AUDIT RIGHTS. During the Term of this Agreement and for
one (1) year thereafter, Orbitz agrees to keep all usual and proper records
and books of account relating to Net Segments and Supplier Link Segments
generated by Orbitz, the operation of the Orbitz Website, and other
activities and matters pursuant this Agreement. Once each calendar year
during the Term of the Agreement, and upon twenty (20) business days prior
written notice to Orbitz, Worldspan may have an auditor inspect the records
and other information collected, generated or maintained by Orbitz arising
out of or in connection with this Agreement, during Orbitz' normal business
hours, for the sole purpose of determining the accuracy of the calculation
of Net Segments and Supplier Link Segments, and otherwise determining
Orbitz' compliance with this Agreement. Worldspan shall pay for all of the
costs of such inspection, including all reports and any other information
supplied. Information disclosed to Worldspan or to its auditing
representative in the course of such inspection shall be subject to the
confidentiality requirements of this Agreement and may not be used for any
purpose whatsoever other than the determination of compliance with Orbitz's
obligations under this Agreement."
11. A new Section 9.17 is hereby added to the Agreement to provide as follows:
"9.17 NO CONFLICT. (a) Worldspan represents and warrants to Orbitz that
neither the execution and delivery of this Agreement nor the performance by
Worldspan of its obligations hereunder does or will constitute a breach,
default, or violation of any of Worldspan's obligations under any contract,
agreement, license, consent or permit to which it is a party.
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(b) Except as provided in the next sentence, Orbitz represents and
warrants to Worldspan that neither the execution and delivery of this
Agreement nor the performance by Orbitz of its obligations hereunder does
or will constitute a breach, default, or violation of any of Orbitz's
obligations under any contract, agreement, license, consent or permit to
which it is a party. In light of the complaint filed by Amadeus Global
Travel Distribution, S.A. and Amadeus s.a.s. (collectively, "Amadeus")
against Orbitz in the United States District Court for the District of
Delaware, Orbitz represents and warrants, to the best of its knowledge and
belief, that neither the execution and delivery of this Agreement nor the
performance by Orbitz of its obligations hereunder does or will constitute
a breach, default, or violation of any of Orbitz's obligations to Amadeus
under its agreements with ITA Software, Inc."
12. The definition of "Airline Direct Connect Segment" in Schedule A of the
Agreement is hereby amended to provide as follows:
"Airline Direct Connect Segment" means each nonstop or direct airline
flight booked by means of the Orbitz Website with an Airline Direct Connect
Customer using that carrier's internal airline reservation system and not
using a CRS or global distribution system."
The definition of "CRS" in Schedule A of the Agreement is hereby amended to
provide as follows:
"CRS" means a computer reservation system that is operated by Worldspan,
Sabre, Galileo, Amadeus, Abacus, Infini, Axxess, Pegasus, Wizcom or by 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 system (including where a travel supplier's own
system is, or is a partition within, a computer system that would otherwise
be a CRS hereunder) 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 for that particular travel supplier. As examples, the
internal system of Lufthansa for the issuance of airline tickets and the
internal system of Avis for the making of car reservations would not be
considered CRSs even if such systems were maintained by Amadeus and Wizcom,
respectively, within the computer reservation systems operated by Amadeus
and Wizcom.
13. Schedule A of the Agreement is hereby amended by adding the following
definitions:
"Adjusted Quarterly Direct Connect Car Segments" has the meaning set forth
in Section 4.8(b).
"Adjusted Quarterly Net Segments" has the meaning set forth in Section
3.2(b).
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"Airline Direct Connect Customer" means any airline that has a relationship
with Orbitz whereby Orbitz makes air bookings using that air carrier's
internal airline reservation system rather than using a CRS or global
distribution system.
"Airline Non-Direct Connect Segment" means each direct or through flight
booked by means of the Orbitz Website that is not an Airline Direct Connect
Segment.
"Allowable Messages" has the meaning set forth in Schedule E.
"Applicable Quarterly Minimum" has the meaning set forth in Section3.2(b).
"Applicable Quarterly Minimum Net Car Segments" has the meaning set forth
in Section 4.8(b).
"Availability Data Services" means the service and related information
provided by Worldspan through the Worldspan System whereby Worldspan
receives, processes and/or responds to the following data or requests by or
on behalf of Orbitz for availability information on airlines or otherwise
makes such availability information accessible to Orbitz: DIR INVQ, AVS
Data, and AVL Data.
"AVL Data" means data related to any request for availability information
which is received from a user of the Worldspan System other than Orbitz.
AVL Data will include all the data in such response other than data that
Worldspan reasonably deems to be sensitive (such as the identity of the
originator of the request).
"AVS Data" means data comprising flight availability status information
relating to specific flights, dates, routings and classes of service.
"Core Airline Direct Connect Customers" mean Delta Air Lines, American
Airlines, Northwest Airlines, Continental Airlines, US Airways and United
Airlines or their successors and assigns.
"Direct Connect Car Customer" means any car rental company that has a
relationship with Orbitz whereby Orbitz makes car rental bookings using
that company's internal car rental reservation system and not using a CRS
or global distribution system.
"Direct Connect Car Segment" means each car rental booked by means of the
Orbitz Website with a car rental company using that company's internal car
rental reservation system and not using a CRS, or global distribution
system.
"Direct Connect Hotel Segment" means each hotel booked by means of the
Orbitz Website with a hotel company using that company's internal hotel
reservation system and not using a CRS, or global distribution system.
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"DIR INVQ Message" means a request and/or the associated response for
availability on one or more flights of an air carrier that participates in
the Worldspan System at the Airline Source level.
"ITA" means ITA Software, Inc.
"Implementation Date" means the first date on which booking capabilities
for Direct Connect Segments on behalf of an Airline Direct Connect Customer
are first made commercially available to the general public.
"Minimum Segment Fee" has the meaning set forth in Section 4.8.
"Orbitz Website" shall have the meaning set forth in the recitals to this
Agreement.
"Safe Harbor Event" means either (i) an act of God, natural disaster, civil
disturbance, strike, labor unrest, act of war (whether declared or
undeclared), act of terrorism, outbreak or escalation of hostilities, or
other calamity or crisis which has a material adverse effect on Orbitz'
business and the travel industry generally, or (ii) the first period of two
consecutive calendar months in a calendar year in which the total number of
air and car booking transactions completed by Orbitz, as measured by
Orbitz, has declined, in each such month, by more than 10% when compared to
the same calendar months in calendar year 2002.
"Supplier Link Segments" mean the total of Airline Direct Connect Segments,
Direct Connect Car Segments and Direct Connect Hotel Segments.
"Worldspan Customer" means (i) any location that, in the previous calendar
year, processed 100,000 annual segments, or more than 50% of its bookings,
on the Worldspan System or that, in the then-current calendar year, has a
contract or agreement with Worldspan and expects to achieve such booking
levels, or (ii) any Trip Manager location that has a contract or agreement
with Worldspan to use the Worldspan System.
14. Following effectiveness of this Amendment, Worldspan and Orbitz agree to
issue a joint press release substantially in the form attached hereto as
Exhibit A.
15. This Amendment shall be construed in connection with and as part of the
Agreement, and except as expressly modified above, all of the provisions of
the Agreement are hereby ratified and shall be and remain in full force and
effect.
16. This Amendment may be executed in multiple counterparts, each of which will
be an original and all of which will constitute one and the same
instrument.
17. Any and all notices, requests, orders and other instruments executed and
delivered after the execution of this Amendment may refer to the Agreement
without making specific reference to this Amendment but nevertheless all
such references shall be
13
deemed to include this Amendment unless the context otherwise requires.
IN WITNESS WHEREOF, each of Orbitz and Worldspan has caused this Amendment to be
executed by its duly authorized representative as of the date first above
written.
ORBITZ, LLC WORLDSPAN, L.P.
By: /s/: Xxxx Xxxxxxxxxxx By: /s/: Xxxxxx Kresst
--------------------- ---------------------
Title: VP & General Counsel Title: VP
-------------------- ------------------------
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SCHEDULE E
FEES AND DIR INVQ MESSAGE REDUCTIONS
In the event Orbitz or ITA acting at the direction of and on behalf of Orbitz
continues to generate DIR INVQ Messages for an Airline Direct Connect Customer
more than 90 days after the Implementation Date, Orbitz shall pay Worldspan the
following monthly processing fee (without proration for any partial month):
Table 1
AIRLINE DIRECT CONNECT
CUSTOMER MONTHLY PROCESSING FEE
--------------------------------------------------------
American Airlines $ [***]
Continental Airlines $ [***]
Delta Air Lines $ [***]
Northwest Airlines $ [***]
United Airlines $ [***]
US Airways $ [***]
America West $ [***]
Alaska Airlines $ [***]
American Trans Air $ [***]
Air Xxxx Airways $ [***]
National Airlines $ [***]
Air Canada $ [***]
Frontier Airlines $ [***]
Spirit Airlines $ [***]
Vanguard Airlines $ [***]
Mexicana Airlines $ [***]
British Airways $ [***]
Hawaiian Airlines $ [***]
Midwest Express Airlines $ [***]
Aloha Airlines $ [***]
Air France $ [***]
All other carriers $ [***]
Notwithstanding the foregoing, in the event an air carrier merges with another
air carrier, then the monthly processing fee set forth in Table 1 shall be
calculated by adding the applicable monthly processing fees for the merged
carriers. In the event that Worldspan adds new participating carriers, then the
monthly processing fee set forth in Table 1 shall be calculated by Worldspan
based on Worldspan's then current charges, but shall not be greater than the
charges applicable to similarly situated carriers of equivalent volume.
----------
*** 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.
Orbitz, or ITA acting at the direction of and on behalf of Orbitz, as the case
may be, may forward 22 DIR INVQ Messages per second ("Allowable Messages"),
subject to reduction in accordance with the following:
(i) Orbitz agrees that it will cause ITA to make such changes and
modifications as necessary in order to reduce the number of DIR INVQ
Messages per second by 4 prior to January 1, 2003, subject to
Worldspan providing such cooperation and assistance reasonably
necessary for ITA and Orbitz to achieve the foregoing.
(ii) In addition, as each of the following air carriers (i) becomes an
Airline Direct Connect Customer, (ii) ceases participation in the
Worldspan System at the Airline Source level, or (iii) ceases
operations, the number of Allowable Messages shall be reduced as set
forth in the following table:
Table 2
NUMBER OF DIR INVQ
MESSAGES PER SECOND
AIRLINE DIRECT CONNECT CUSTOMER TO BE REDUCED*
-----------------------------------------------------
American Airlines [***]
Continental Airlines [***]
Delta Air Lines [***]
Northwest Airlines [***]
United Airlines [***]
US Airways [***]
*EXCEPT THAT, WITH RESPECT TO ANY PERIOD FOR WHICH ORBITZ HAS PAID
TO WORLDSPAN THE RELEVANT PROCESSING FEE FOR A NAMED CARRIER AS SET
FORTH IN TABLE 1 ABOVE, NO REDUCTION IN DIR INVQ MESSAGES FOR SUCH
CARRIER SHALL BE REQUIRED.
Notwithstanding the foregoing, in the event any Core Airline Direct Connect
Customer merges with another Core Airline Direct Connect Customer, then the
number of DIR INVQ Messages set forth in Table 2 shall be subject to adjustment
by Worldspan but in no event will the adjustment be more than the sum of the
number of DIR INVQ Messages per second in Table 2 for each carrier involved in
the merger.
----------
*** 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.
2
EXHIBIT A
FORM OF JOINT PRESS RELEASE
WORLDSPAN AND ORBITZ CONFIRM TECHNOLOGY PARTNERSHIP
ATLANTA, CHICAGO, XXXXXXX, 2002--Worldspan and Orbitz today announced a new
long-term technology partnership agreement to support Orbitz' domestic airline
bookings. Both parties confirmed that Worldspan remains Orbitz' preferred
technology partner and they have finalized their long-term contract that
includes an agreement for Orbitz to purchase a broad range of technology
services. This relationship is an important joint step in reengineering the
distribution industry's business model.
Worldspan, which has been instrumental in changing the industry's dynamics, will
continue to supply Orbitz with the technology needed to maintain Availability
Processing, Flight Information (FLIFO) via XML and booking for international,
interline, and paper tickets and for all other airlines who do not choose to
subscribe to the Supplier Link booking service.
"Worldspan remains committed to the efficiency of the industry," said Xxxx
Xxxxxxxx, Worldspan's president and chief executive officer. "Our partnership
with Orbitz is a strong commitment by both companies to do what it takes to
provide valuable innovations to the traveling public. We pride ourselves on our
inventive technology, innovative solutions and customer support and look forward
to continuing to be Orbitz' technology partner."
"Worldspan's reliability and innovation has been a contributing factor to
Orbitz's success," said Xxxx Xxxx, Orbitz President and CEO. "We look forward to
continuing our successful technology partnership as Orbitz grows its business as
a leader in online travel."
-more-
WORLDSPAN(R) AND ORBITZ ANNOUNCE JOINT AGREEMENT ON SUPPLIER LINK
TECHNOLOGY--PAGE 2
ABOUT WORLDSPAN
Worldspan provides global electronic distribution of travel information,
Internet products and connectivity, and electronic commerce capabilities for
travel agencies, travel service providers and corporations worldwide. The
company's three lines of business are travel supplier services, e-commerce, and
global distribution systems for the worldwide travel industry. The Worldspan
reservations system provides nearly 20,000 travel agencies and other users
worldwide with travel data and booking capabilities for hundreds of the world's
leading travel supplier services. Worldspan is the market leader in e-commerce
for the travel industry, processing more than 50 percent of all online travel
agency bookings. The company maintains world headquarters in Atlanta, Georgia.
Additional information is available at xxx.xxxxxxxxx.xxx.
ABOUT ORBITZ
Orbitz is a leading online travel company offering consumers the largest
selection of low airfares, as well as deals on lodging, car rentals, cruises,
vacation packages and other travel. Orbitz' state-of the-art flight search
engine searches more than 455 airlines - up to 2 billion flight and fare options
- offering an unbiased and comprehensive list of airfares and schedules. Orbitz
also offers consumers a large collection of discounted web-only air fares. For
more information, visit xxx.xxxxxx.xxx.
###
CONTACT: Xxxxx Xxxxxxxxxx, Worldspan, 000-000-0000,
email: xxxxx.xxxxxxxxxx@xxxxxxxxx.xxx
Xxxxx Xxxxxxxxx, Orbitz, 000-000-0000, email: xxxxx@xxxxxx.xxx
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