EXHIBIT 10.12
DEVELOPMENT, LICENSE AND HOSTING AGREEMENT
THIS DEVELOPMENT, LICENSE AND HOSTING AGREEMENT (this "Agreement") is
made as of March, 8, 2002 (the "Effective Date"), by and between Northwest
Airlines, Inc., a Minnesota corporation with its principal offices in Eagan,
Minnesota ("Airline"), and Orbitz LLC, a Delaware limited liability company with
offices in Chicago, Illinois ("Orbitz").
1. DEFINITIONS
The terms defined in this Section or elsewhere in this Agreement may be
used in the singular or plural, as the context requires.
1.1 "AFFILIATE" means, with respect to any entity, any other
entity directly or indirectly controlling or controlled by, or under common
control with, such entity. For purposes of this definition, "control" (including
the terms "controlled by" and "under common control with") means the power,
directly or indirectly, to direct or cause the direction of the management and
policies of such entity, whether through the ownership of voting securities, by
contract, or otherwise.
1.2 "AFFILIATE AIRLINES" means air carriers or other business
entities with which Airline has a formal Code Sharing, marketing, or other
cooperative agreement, and specifically includes KLM Royal Dutch Airlines and
Continental Airlines. "Affiliate Airlines" also includes Airline's corporate
parent and any subsidiaries of Airline or its corporate parent, and specifically
includes any commuter airline partner of Airline that carries the "Airlink"
designation.
1.3 "AIRLINE INFORMATION" means booking information and other
personally identifiable information supplied by Airline customers to Orbitz and
any other trade secret, proprietary or confidential information supplied by
Airline to Orbitz under this Agreement.
1.4 "AIRLINE-SPECIFIC SOFTWARE" means the presentation and
business logic/application layer of the Orbitz Software and user databases, as
more fully defined in Exhibit A attached hereto, that will be made available to
Airline pursuant to the terms of this Agreement. The Airline-Specific Software
will not include any booking engine functionality.
1.5 "CHANGE REQUEST" means the form set forth as Exhibit B that
will be used to request any modification of or addition to the Core Software,
the Airline-Specific Software, or the Services obligations.
1.6 "CLAIM" means a third-party claim, demand, proceeding, suit or
action.
1.7 "CODE SHARING" means the industry practice whereby the Airline
markets flights that are not operated by the Airline but which can be sold,
confirmed and ticketed under the Airline's code, which is processed in the same
way as a flight that is operated and marketed by the Airline.
1.8 "COMPETITOR" means any passenger or cargo air transportation
carrier.
1.9 "CONFIDENTIAL INFORMATION" has the meaning given to that term
in Exhibit G.
1.10 "CORE SOFTWARE" means the booking engine component of the
Orbitz Software, as more fully defined in Exhibit A attached hereto, that will
be made available to Airline pursuant to the terms of this Agreement.
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1.11 "CUSTOM MATERIAL" shall have the meaning ascribed in Section
9.3 herein.
1.12 "DEVELOPMENT COMPLETION DATE" means the mutually agreed upon
date for the completion of the Pre-Launch Development Services.
1.13 "DOCUMENTATION" means the technical materials and support
documentation that Orbitz delivers to Airline related to the use and operation
of the Orbitz Software.
1.14 "HOSTING AND SUPPORT FEE" means the fee set forth in Exhibit D
that Airline will pay to Orbitz in consideration for the Hosting and Support
Services. The Parties acknowledge and agree that the Hosting and Support Fees
for Hosting and Support Services shall not be separately billed but are included
in the transaction fees set forth in Exhibit D.
1.15 "HOSTING AND SUPPORT SERVICES" means the hosting, operation,
maintenance and support services that Orbitz will provide to Airline, either
directly or though Subcontractors, pursuant to this Agreement. Maintenance
services shall include all Updates to the Orbitz Software.
1.16 "LAUNCH DATE" means such mutually agreed upon date when the
Website will be made available to Airline customers, which will in no event be
more than 30 days following the Development Completion Date.
1.17 "LOSS" means any liability, obligation, loss, damage,
deficiency, penalty, tax, levy, fine, judgment, settlement, cost, charge,
expense, legal fee and disbursement, or accountants' fee disbursement.
1.18 "MATERIAL SERVICE LEVEL FAILURE" means the Monthly System
Availability Commitment (as defined in Exhibit F attached hereto) is missed by
five percent (5%) for any two consecutive calendar month period.
1.19 "ORBITZ SOFTWARE" means the computer programs owned by Orbitz,
including the Airline-Specific Software and the Core Software and any Updates
thereto, that Orbitz makes available to Airline during the term of this
Agreement. "Orbitz Software" is more fully defined in Exhibit A attached hereto.
1.20 "OTHER AIRLINES" means any airline other than Airline or
Affiliate Airlines.
1.21 "PRE-LAUNCH DEVELOPMENT FEE" means the fee set forth in
Exhibit D that Airline will pay to Orbitz in consideration for the Pre-Launch
Development Services.
1.22 "PRE-LAUNCH DEVELOPMENT SERVICES" means the development and
migration services that Orbitz will provide to Airline, either directly or
through Subcontractors, pursuant to this Agreement.
1.23 "PROJECT MANAGERS" means the dedicated employees of Airline
and Orbitz, or their replacements, who will manage specific projects under this
Agreement.
1.24 "RELATIONSHIP MANAGERS" means the senior-level Airline and
Orbitz employees identified in Exhibit E, or their replacements, who will manage
the relationship between Airline and Orbitz and will serve as the single point
of contact within either party responsible for communications and problem
resolution.
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1.25 "SCHEDULE" means the timetable for performing and completing
the Pre-Launch Development Services, as set forth in Exhibit C.
1.26 "SERVICES" means the Pre-Launch Development Services, the
Hosting and Support Services and any other services that Orbitz agrees to
provide to Airline under this Agreement (including any Change Request
hereunder).
1.27 "SPECIFICATIONS" means the functional and technical
specifications of the Orbitz Software, as set forth in Exhibit A. The
Specifications will include a detailed description of the Services and Orbitz
Software, a performance schedule (including all major deliverables and
milestones), Airline and Orbitz responsibilities in conjunction with the
performance of the Services and delivery of the Orbitz Software, and any
applicable Service Acceptance Criteria or Service Levels. In addition, the
Specifications may include items such as account and project management
requirements, performance reporting and any other special provisions or
requirements related to the Services and/or Orbitz Software.
1.28 "SUBCONTRACTORS" means the subcontractors that Orbitz engages
to provide Services under this Agreement.
1.29 "TERM" has the meaning given to that term in Section 16.
1.30 "THIRD PARTY COMPONENTS" means any third party software or
hardware that Orbitz may use to provide the Services.
1.31 "TICKET" means an airline passenger itinerary (in the
itinerary portion of a passenger name record (PNR)) ticketed to a customer of
Airline, an Affiliate Airline, and/or Other Airlines and associated with a
reservation made through the Website for air transportation on Airline's flights
or Code Sharing flights or Other Airline flights, but not including any refunded
or exchanged Tickets. All Tickets shall be in electronic form except as
expressly agreed by the parties in writing. For clarification purposes: (i) one
passenger on a one-way or round-trip direct flight shall be counted as one
issued Ticket, (ii) one passenger on a one-way or round-trip connecting flight
shall be counted as one issued Ticket, (iii) one passenger on a one-way or
round-trip combination of direct and or connecting flights shall be counted as
one issued Ticket and (iv) multiple passengers within the same PNR constitute
multiple Tickets.
1.32 "UPDATES" means any fix, correction, modification, upgrade,
enhancement or other change to the Orbitz Software that Orbitz makes generally
available, from time to time, during the Term.
1.33 "WEBSITE" means a website operating in conjunction with the
Orbitz Software that conforms with the requirements set forth in the
Specifications and which is used primarily for the specific purpose of selling
Airline's, Airline Affiliate's and/or Other Airline inventory to the public.
2. GENERAL
2.1 ENGAGEMENT. Orbitz hereby agrees to provide Airline, and
Airline hereby agrees to receive from Orbitz, the Pre-Launch Development
Services and the Hosting and Support Services, pursuant to the terms and
conditions of this Agreement. Orbitz will use its commercially reasonable
efforts to provide Airline with dedicated resources to provide the Pre-Launch
Development Services upon the Effective Date of this Agreement. Orbitz will
commence performance of the Hosting and Support Services upon the Launch Date.
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2.2 SUBCONTRACTORS. Orbitz may subcontract its performance of the
Services to one or more Subcontractors, upon thirty (30) days' prior written
notice to Airline. Airline may object to use of such Subcontractor by providing
written notice to Orbitz within ten (10) days of receipt of notice from Orbitz
that it intends to use such Subcontractor. In such event, the Relationship
Managers will meet to resolve any issue related to such Subcontractor. Should
the Relationship Managers be unable to resolve any issue related to such
Subcontractor, Orbitz shall either perform the Services itself or select a
different Subcontractor to perform the Services. Prior to performing any
Services, each Subcontractor must execute a written agreement with Orbitz
containing protections for the Airline Information the terms of which are at
least as protective as the terms and conditions set forth in this Agreement.
Orbitz shall remain primarily liable for work performed by any Subcontractor.
2.3 SCHEDULE. Orbitz will use its commercially reasonable efforts
to perform the Pre-Launch Development Services in accordance with the Schedule.
During the course of performance of the Pre-Launch Development Services, Airline
and Orbitz may periodically modify the Schedule for mutual convenience upon the
mutual written agreement of the parties. Any such modification will be effective
only if expressly approved in writing by both Relationship Managers pursuant to
Section 7. Airline acknowledges that modifications to the Schedule may result in
additional costs or charges for any agreed upon modifications to the Pre-Launch
Development Services.
2.4 ANTICIPATED DELAYS. Airline and Orbitz will immediately notify
each other if either party anticipates a delay in completing the Pre-Launch
Development Services according to the Schedule. Any such notice will identify
the source and expected length of the delay and its potential impact on the
Pre-Launch Development Services. Upon receipt of such notice, the Relationship
Managers will promptly seek in good faith to determine the potential impact and
take the steps that may be available to avoid or minimize the anticipated delay
and its impact on the Schedule.
2.5 FACILITIES. Airline will provide Orbitz with access to those
portions of Airline's facilities that Orbitz may reasonably require to perform
the Services. Such access will be provided at mutually convenient times during
Airline's normal business hours, unless otherwise agreed by the Relationship
Managers. While working at Airline offices, the Orbitz employees and
Subcontractors will adhere to Airline's internal rules and regulations; provided
such rules and regulations have been communicated to Orbitz.
2.6 COMPLIANCE. Airline agrees not to use and will take reasonable
measures to prevent its end users from using the Orbitz Software or the Services
(i) to disseminate (A) unsolicited, unlawful, harassing, defamatory, abusive,
threatening, obscene, harmful, tortious, or libelous messages, e-mail
communications or other information, (B) any messages, e-mail communications or
other information that infringe or violate any other party's proprietary rights,
(C) any personally identifiable information belonging to minors or (D) any
messages, e-mail communications or other information that Airline is not
authorized to disseminate, (ii) for any illegal, unlawful, harassing,
defamatory, abusive, threatening, obscene, harmful, tortious or libelous
purposes, or (iii) intentionally to disrupt the resources, computer systems and
computer networks of Orbitz or its Subcontractors. Airline agrees to post a
mutually acceptable privacy policy, copyright infringement policy and end user
compliance policy on the Website and to comply with the terms and conditions of
such policy.
3. MANAGEMENT
3.1 RELATIONSHIP MANAGERS. Each party will appoint a Relationship
Manager to act as the primary point of contact between the parties with respect
to this Agreement, and will designate an alternate for its primary Relationship
Manager to act in his or her absence or unavailability. No modification of the
Specifications or the Schedule will be effective unless expressly approved by
the
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primary or alternate Relationship Managers of both parties pursuant to
Section 7. Each Relationship Manager will appoint Project Managers to manage
specific projects under this Agreement. The Project Managers will serve as the
primary interface points between the parties with respect to such projects.
3.2 STATUS REPORTS. The Orbitz Relationship Manager will provide
the Airline Relationship Manager with periodic status reports on Orbitz's
progress during the performance of the Pre-Launch Development Services. Prior to
the Development Completion Date, the Relationship Managers will meet at least
once per month to discuss the status of the Pre-Launch Development Services.
Following the Development Completion Date, the Relationship Managers will meet
at least once per quarter to discuss the Hosting and Support Services.
3.3 PROJECT PROBLEMS. In the event of any actual or potential
problem or delay in the Pre-Launch Development Services or the Hosting and
Support Services, the Relationship Managers will discuss the relevant sources,
possible remedies and potential impact on the Pre-Launch Development Services or
the Hosting and Support Services at the next scheduled status meeting or, at
either Relationship Manager's request, an emergency meeting. To assist in such
discussions, each Relationship Manager may invite any applicable Project
Managers or other persons to the scheduled or emergency meeting. If a
modification of the Specifications or the Schedule is required as a result of
the problem or delay, the Relationship Managers will follow the procedures
specified in Section 7.
3.4 PROJECT MANAGERS. Airline may object to the appointment of an
Orbitz Project Manager who, in the opinion of Airline, reasonably and legally
exercised, does not meet Airline's qualifications, by providing notice of its
objection to Orbitz in writing, specifying such objection in reasonable detail.
In such event, the Relationship Managers will meet to resolve any issue related
to such Project Manager. Should the Relationship Managers be unable to resolve
any issue related to such Project Manager, Orbitz shall appoint a different
Project Manager.
4. PRE-LAUNCH DEVELOPMENT
4.1 PRE-LAUNCH DEVELOPMENT SERVICES. Orbitz will use its
commercially reasonable efforts to provide Airline with dedicated resources to
perform the Pre-Launch Development Services and will use its commercially
reasonable efforts to develop the Airline-Specific Software and the Core
Software described in the Specifications. Airline will promptly respond to
Orbitz's requests for information regarding such efforts and will provide Orbitz
the assistance that Orbitz may reasonably require to complete the Pre-Launch
Development Services. Upon completion of such development efforts, Orbitz will
make the Orbitz Software available to Airline for testing.
4.2 FUTURE DEVELOPMENT SERVICES. From time to time during the term
of this Agreement, Airline may request technical or functional modifications to
the Orbitz Software in addition to or in lieu of the requirements set forth in
the Specifications. Any such request will be processed according to the
procedures set forth in Section 7. Orbitz will perform any such additional
services upon which the parties mutually agree at the rates set forth in Exhibit
D.
4.3 TESTING. Following receipt of Orbitz's notice that the Orbitz
Software, and any Update thereto, is ready for testing, Airline will test the
Orbitz Software, or any Update, within the time period set forth in the
Schedule, or any Order, to determine whether it substantially conforms to the
Specifications. If the Orbitz Software substantially conforms to the
Specifications, Airline will provide Orbitz with written notice that the Orbitz
Software, or any Update, is accepted. If the Orbitz Software or Update fails to
substantially conform to the Specifications, or Documentation, Airline will
provide Orbitz with a written report of the non-conformity, within thirty (30)
days after the notice that the Orbitz Software or Update is ready for testing,
specifying such non-conformity in reasonable detail. Upon receipt of a
non-conformity
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report, Orbitz will either promptly correct and resubmit the Orbitz Software or
Update for re-testing or, if the parties mutually agree that such reported
non-conformity is actually a modification from the agreed upon Specifications,
or other Documentation, the parties shall agree that such reported
non-conformity is actually a Change Request, to be handled pursuant to Section
7. Following the correction of any non-conformity, Airline shall again inspect
and evaluate the Orbitz Software or Update and conduct all necessary tests to
determine whether the non-conformity has been corrected. Upon confirming that
the non-conformity identified by Airline has been corrected, Airline shall
accept the Orbitz Software or Update as specified herein. In the event that
Airline fails to issue a report of non-conformity within such thirty (30) day
period, the Orbitz Software or Update will be deemed to be accepted.
The test period shall be suspended during periods when Orbitz is
attempting to correct any non-conformities. Following re-delivery of a
correction to Airline under no circumstances shall Airline have less than ten
(10) days to complete testing.
4.4 FAILURE TO DELIVER CONFORMING SOFTWARE. In the event that
Orbitz fails to deliver to Airline a version of the Orbitz Software
substantially in conformance with the Specifications within sixty (60) days of
the Launch Date and Orbitz is primarily responsible for such failure, then
Airline will not be charged for any development efforts performed by Orbitz or
its Subcontractors following such sixty (60) day period with respect to the
Pre-Launch Development Services and Orbitz will refund Pre-Launch Development
Fees actually paid to Orbitz for the Pre-Launch Development Services, in
accordance with refund policy set forth in Exhibit D. In the event that Orbitz
is not primarily responsible for such failure, no refund will be due.
Notwithstanding the foregoing, Orbitz agrees that it shall provide written
notice to Airline of any circumstances that would prevent Orbitz from delivering
conforming Orbitz Software and if such notice is not provided, Orbitz will be
deemed to have waived its argument that any performance failure under this
Agreement was attributable to Airline and Orbitz will be deemed primarily
responsible for such failure.
4.5 MIGRATION. Orbitz and Airline will develop a mutually agreed
upon plan to migrate the provision of online travel booking services from
Airline's current online travel booking provider to Orbitz. Such migration will
be completed prior to the Launch Date. Airline will use its commercially
reasonable efforts to cause its current online travel booking services provider
to cooperate with such migration. Airline will obtain from such provider and
deliver to Orbitz the customer registration database, and will secure any rights
necessary for Orbitz to convert and use such customer registration database to
provide the Services. Both parties will use reasonable best efforts to ensure a
smooth and seamless transition from Airline's current online travel booking
provider to Orbitz. [***]
4.6 INTERFACE TO PARTITION. With respect to any connectivity
interface that is required under the Specifications, the parties acknowledge
that Orbitz's obligations to develop such connectivity interface is expressly
dependent upon the cooperation of Worldspan, Airline's third party computerized
reservation system provider, or any other GDS selected by Airline, and Airline.
Airline will provide Orbitz with any and all information and assistance
reasonably requested by Orbitz to develop and maintain a connectivity interface
with the applicable computerized reservation system. Orbitz will not be
responsible for any delays caused by the computerized reservations system
provider's failure to cooperate with Orbitz.
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separately with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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5. HOSTING AND SUPPORT
5.1 HOSTING. Upon the Launch Date, Orbitz will, either directly or
through its Subcontractors, operate, host and maintain the Orbitz Software for
Airline in accordance with this Agreement. Orbitz will be responsible for (a)
all hardware and third-party licenses required to host the Orbitz Software, and
(b) pursuant to Section 6.3 herein, the reasonable routine business and
administrative expenses incurred by Orbitz or its Subcontractors in hosting the
Orbitz Software. Orbitz will host the Orbitz Software on servers located on
Orbitz's or its Subcontractor's premises.
5.2 SERVICE LEVELS. Orbitz will meet or exceed the service levels
set forth in Exhibit F related to the performance of the Hosting and Support
Services (the "Service Level Agreement"). Airline will use commercially
reasonable efforts to provide Orbitz with at least two (2) days advance
notification of any marketing events that are expected to create an unseasonably
high spike in the number of booking transactions. Orbitz will satisfy all
reasonable requests by Airline for information that Airline requires to properly
evaluate the performance of Orbitz under this Agreement, including validating
Orbitz's compliance with Exhibit F. In the event Orbitz fails to meet the
service levels set forth in Exhibit F, Airline's exclusive remedies and Orbitz's
sole liabilities are the service level credits and/or right of termination set
forth in Exhibit F and Section 16 herein.
5.3 SUPPORT. Airline will perform all customer service related to,
and will be responsible for the fulfillment of, all bookings made through the
Website for air travel. At Airline's request and expense, Orbitz will provide
such customer service support for the Website to Airline for an additional fee.
Such support will be provided pursuant to mutually agreed to support terms and
conditions.
5.4 UPDATES. Orbitz will make available to Airline all Updates to
the Orbitz Software and will use commercially reasonable efforts to provide such
Updates to Airline within thirty (30) days of Orbitz's general release thereof.
Such Updates may include functionality licensed to Orbitz from third parties, to
the extent permitted by Orbitz's agreements with its licensors. Notwithstanding
the foregoing, in no event will Airline be charged an additional fee for such
Updates.
5.5 RESERVATION AND TICKETING SERVICES.
(a) HOTEL AND RENTAL CAR RESERVATIONS. Orbitz will offer hotel and
car reservation services (including booking, fulfillment and
customer support) on the Website [***]. Upon at least 30 days
prior written notice, Airline may assume responsibility for the
provision of hotel and car reservation services on the Website.
Any modifications or changes to the Orbitz Software, the Website
or the Services related to Airline's provision of hotel and car
reservations services will be processed as a Change Request. In
the event that Airline provides hotel and car reservation
services on the Website, Airline will retain all commissions on
such services and will pay Orbitz transaction fees on such
bookings in accordance with the schedule set forth in Exhibit D,
as if each such reservation were a Ticket.
(b) SELLING OF OTHER AIRLINE TICKETS. Airline may, at its option and
sole discretion, offer the air transportation services of Other
Airlines for sale through the Website. In the event Airline
elects to offer such services for sale through the Website, (i)
any modifications or changes to the Orbitz Software, the Website
or the Services will be processed as a Change Request, (ii)
Airline will provide ticketing, fulfillment and customer support
services in connection Other
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separately with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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Airline bookings made through the Website, and (iii) Airline
will retain all commissions or service fees on Other
Airline tickets sold through the Website and will pay Orbitz
transaction fees on such tickets in accordance with the schedule
set forth in Exhibit D, as if each such ticket were a Ticket.
5.6 OUT-OF-SCOPE SERVICES. Orbitz is not responsible for profile
databases, ITA Software Inc.'s ("ITA") pricing services, customer service
(except as provided herein, specifically Section 5.3, or unless otherwise agreed
to by the parties in writing), fulfillment, or any and all other services not
specifically identified in this Agreement. The Orbitz Software does not include
the ITA pricing engine and is for air transportation bookings only. In the event
that Airline obtains a license to the ITA pricing engine from ITA, Orbitz will
provide Airline with support to implement such functionality into the Orbitz
Software. Any such support will be provided as a Change Request pursuant to
Section 7, and the fee for such support will be calculated using the rates set
forth in Exhibit D.
5.7 POST-LAUNCH DEVELOPMENT. Following the Launch Date, Orbitz
will use commercially reasonable efforts to provide, at Airline's request,
additional development services ("Post-Launch Development") for Airline-Specific
functionality, at the rates set forth in Exhibit D and pursuant to
specifications and requirements to be determined by Airline and mutually agreed
upon by the parties.
6. FEES AND PAYMENT
6.1 PRE-LAUNCH DEVELOPMENT SERVICES. Airline will pay Orbitz the
Pre-Launch Development Fee set forth in Exhibit D. Orbitz will invoice Airline
for the Pre-Launch Development Fee in accordance with the schedule set forth in
Exhibit D. Pre-Launch Development Fees may be deducted from Orbitz segment
incentive rebate per the Charter Associate Agreement dated May 9, 2000 made by
and between the parties.
6.2 HOSTING AND SUPPORT FEES. Upon the Launch Date, Airline will
pay Orbitz the Hosting and Support Fees set forth in Exhibit D. The Hosting and
Support Fees will be invoiced monthly.
6.3 REIMBURSABLE EXPENSES. If agreed to in writing by the parties,
Airline will reimburse Orbitz for reasonable, actual, out-of-pocket expenses
incurred by Orbitz in conjunction with out of town travel required for Orbitz to
perform the Services, provided that such travel is approved in advance by
Airline's representative. Airline will, at its option, provide Orbitz with Coach
Class space available or other tickets for air travel on Northwest Airlines or
reimburse Orbitz for Coach Class, round trip air travel. Orbitz shall utilize
Northwest Airlines air transportation unless specifically approved otherwise, on
a case-by-case basis, by Airline's representative. Other reimbursable expenses
will be limited to reasonable and actual expenses for lodging, meals, local
transportation, and incidentals only as are required by Orbitz in the
performance of its obligations hereunder. Unless specifically agreed upon
otherwise by Airline's representative, rental car expenses will only be
reimbursed if the car is necessary for Orbitz to complete its obligations
hereunder. Receipts will be required for any expenditure totaling US $25.00 or
more. Air travel, hotel and rental car expenses will only be reimbursed if
reservations are made through Airline's representative, unless Airline declines
to make such reservations. Notwithstanding the foregoing, the parties may agree
upon, in advance of any travel, a per diem payment in lieu of reimbursement.
6.4 PAYMENT TERMS. Airline will pay all undisputed invoices within
thirty (30) days of receipt of a correct invoice. Any fees not paid when due
will accrue interest at the rate of 1% per month until fully paid. In the event
that Airline asserts in good faith that any item or items on an invoice are not
correct, then Airline will within thirty (30) days of receipt of such invoice
(i) deliver written notice to Orbitz explaining in detail why Airline believes
that an item or items are not correct and (ii) pay to Orbitz all amounts on the
invoice that are not the subject of a good faith dispute by Airline. If Airline
disputes any
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invoice rendered or amount paid, the parties will use all reasonable efforts to
resolve such dispute expeditiously. If Airline so notifies Orbitz of a disputed
amount, the time for paying the disputed portion of the invoice shall be
extended by a period of time equal to the time between Orbitz's receipt of such
notice from Airline and the resolution of such dispute; provided however that in
no event will Airline pay less than the monthly minimum transaction fee set
forth in Exhibit D.
6.5 TAXES. The Pre-Launch Development Fees, the Hosting and
Support Fees, and the Reimbursable Expenses are exclusive of all sales, services
or other taxes that Orbitz may be legally obligated to charge Airline for
performing the Services, and Airline will promptly pay, or reimburse Orbitz for
the payment of, any and all such taxes that may be due or payable. For the
avoidance of doubt, Airline shall pay all sales and use taxes that are lawfully
imposed by any governmental authority in the United States and are based on or
measured by any payments of Airline pursuant to this Agreement, and for which no
exemption is available. Orbitz shall pay all taxes that are: (i) on, based on,
or measured by, gross or net income or gross or net receipts (including any
capital gains taxes or minimum taxes) of Orbitz, or taxes which are capital,
doing business, excess profits, net worth, or franchise taxes of Orbitz; (ii)
caused by or arising out of the willful misconduct or negligence of Orbitz; or
(iii) any interest, additions to tax, or penalties associated with the taxes set
forth in (i) or (ii) above.
No sales tax shall be collected by Orbitz if: (i) a specific exemption applies
to (a) the Products or Services purchased hereunder, or (b) any transaction
occurring pursuant to this Agreement, (ii) Airline has provided Orbitz with
written confirmation that Airline is authorized to make tax payments directly to
the applicable taxing authorities, or (iii) Orbitz is obligated to pay the taxes
as set forth herein. Orbitz shall promptly, upon receipt from any tax authority
of any levy, notice, assessment, or withholding of any tax for which Airline may
be obligated, notify Airline in writing directed to the following address:
Senior Tax Counsel, Northwest Airlines, Inc., Dept. A4450, 0000 Xxxxxxxxx Xxxxx,
Xx. Xxxx, XX 00000-0000.
If under the applicable law of the taxing jurisdiction Airline is allowed
directly to contest such tax in its own name, then Airline shall be entitled, at
its own expense and in its own name, to contest the imposition, validity,
applicability or amount of such tax and, to the extent permitted by law,
withhold payment during pendency of such contest. If Airline is not permitted by
law to contest such tax in its own name, upon Airline's request, Orbitz shall in
good faith and using best efforts, at Airline's expense, contest the imposition,
validity, applicability or amount of such tax. Orbitz shall in good faith and
using best efforts: (i) supply Airline with such information and documents
reasonably requested by Airline as are necessary or advisable for Airline to (a)
recover or seek a refund of any sales or use tax paid by Airline as a result of
this Agreement; or (b) control or participate in any proceeding to the extent
permitted herein, and (ii) reasonably assist Airline with evidentiary and
procedural development of any such proceeding or contest.
Upon Airline's request, Orbitz shall delineate the fees among the Component
Portions of the Service contracted for in this Agreement. The term "Component
Portions" for purposes of this paragraph shall include, but is not limited to:
(i) maintenance, including upgrades and enhancements, (ii) installation, (iii)
support, and (iv) training and related manuals.
6.6 MOST FAVORED CUSTOMER. During the Term, the financial terms of
this Agreement, including the fees set forth in Exhibit D, will be at least as
favorable or more favorable than the financial terms of any other current or
prospective Orbitz customer that engages Orbitz for a project that is
substantially similar to the engagement contemplated herein. The determination
of what is and is not "substantially similar" will be based on relevant factors
such as scope of project, volume of transactions, amount of integration and
custom development work required, and pricing model. Any change in financial
terms pursuant to this clause will only be applied on a prospective basis,
effective as of the effective date of such other customer's agreement with
Orbitz, whether such agreement is effective before or after the Effective Date.
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6.7 REPORTING; AUDIT. Orbitz will create and maintain accurate
records with respect to its performance under this Agreement. Orbitz will
maintain such records during the Term and for seven (7) years following any
expiration or termination of this Agreement. Within five (5) days following the
end of each applicable month, Orbitz will provide Airline with written reports
of such information. Airline will have the right, upon not less than five (5)
days prior notice, to conduct an audit of the information included in such
monthly reports. If such an audit reveals that any of Orbitz's reports submitted
overstated amounts owed by Airline, then Orbitz shall pay to Airline, within
thirty (30) days following the conclusion of such audit, the amount of any such
overpayments.
6.8 CALCULATION OF FARES. Orbitz will use Worldspan, or any other
system approved in writing by Airline, to calculate the total fares sold through
the Website.
7. CHANGE REQUESTS
7.1 CHANGE REQUEST. If either party wants to request a
modification, addition or replacement of the Orbitz Software (including, but not
limited to, the Core Software and the Airline-Specific Software) or the Hosting
and Support Services, that party's Relationship Manager will submit a completed
Change Request to the Relationship Manager of the other party. The Change
Request will adequately describe (a) the requested modification, (b) the
estimated resources required to implement the modification, (c) its impact on
the Schedule, (d) its impact, if any, resulting in an increase or decrease to
any license and development fees and/or the Hosting and Support Fees and (e) its
impact on the maintenance requirements of the Orbitz Software.
7.2 CHANGE ACCEPTANCE. Upon receipt of a completed Change Request,
the recipient Relationship Manager will either (a) expressly accept the proposed
modification without qualification within five (5) days after its receipt or (b)
defer the request for discussion at the next scheduled or emergency status
meeting. The Relationship Managers will use reasonable commercial efforts to
resolve any deferred proposed modification expeditiously. No proposed Change
Request will be effective unless expressly accepted by the primary or alternate
Relationship Managers of both parties. If so accepted, the Change Request will
be executed by the Relationship Managers of both parties and will then
constitute a formal amendment of this Agreement.
8. CONFIDENTIALITY
8.1 NDA. The following provisions shall supplement the terms of
that certain Non-Disclosure Agreement that was attached to the Letter of Intent
between Airline and Orbitz executed on March 8, 2000 (the "NDA"), a copy of
which is attached as Exhibit G to this Agreement and incorporated by reference
herein. The NDA shall continue to be in full force and effect during the term of
this Agreement. "Confidential Information" shall have the meaning ascribed in
the NDA.
8.2 PROTECTION OF CONFIDENTIAL INFORMATION. Each party agrees to
maintain strict confidentiality regarding the subject matter of this Agreement,
in accordance with the NDA. Each party will take such measures that are
necessary to protect against the disclosure or use of the Confidential
Information of the other party as it takes to protect its own proprietary or
confidential information (but in any case no less than reasonable measures).
Each party agrees that the other party will have no adequate remedy at law if
there is a breach or threatened breach of this Section 8 or the NDA and,
accordingly, that either party will be entitled (in addition to any legal or
equitable remedies available to such party) to injunctive or other equitable
relief to prevent or remedy such breach.
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8.3 RESTRICTIONS ON DISCLOSURE AND USE. Notwithstanding anything
contained in the NDA, Orbitz will not disclose any Confidential Information
provided to it by Airline, including the terms and conditions of this Agreement,
to any equity owners or principals of Orbitz that are employed by a Competitor
of Airline except to the extent required by the laws of the State of Delaware
and/or the Orbitz LLC Agreement. In the event such disclosure is required
pursuant to the laws of the State of Delaware, Orbitz will provide advance
notice to the Vice President of E-Commerce and Distribution at Airline and
provide Airline sufficient time to contest the need for such disclosure prior to
making such disclosure. In the event disclosure is required pursuant to the
Orbitz LLC Agreement, Orbitz will provide advance notice to, and obtain written
approval of such disclosure from, the Vice President of E-Commerce and
Distribution at Airline, which approval will not be unreasonably withheld.
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9. PROPRIETARY RIGHTS
9.1 OWNERSHIP. As between Airline and Orbitz, and to the extent of
Orbitz's prior ownership rights, Airline acknowledges that Orbitz will own all
patents (including any business process patents), rights to file for patents,
inventions, copyrights, trademarks, trade secrets and all other right, title and
interest (including any renewals or extensions) in or to the Orbitz Software,
except as otherwise provided in this Section 9, including the Airline-Specific
Software developed by Orbitz or its employees or Subcontractors during the
performance of this Agreement and any derivative works thereof. Airline hereby
assigns and agrees to assign, and will cause its subcontractors to assign, to
Orbitz all rights that Airline may have or acquire in or to such works for no
additional consideration. No other person will acquire or retain any rights in
or to such works, unless Orbitz otherwise agrees on a case-by-case basis. At
Orbitz's request and expense, Airline, for no additional consideration, will
cause the execution of the instruments that may be appropriate to give full
legal effect to this Section.
For the avoidance of doubt, as between Airline and Orbitz, and to the
extent of Airline's prior ownership rights, Orbitz acknowledges that Airline
will own all patents related to its internally developed business processes, and
the rights to file for such patents, inventions, copyrights, trademarks, and
trade secrets.
9.2 LICENSE TO AIRLINE.
A. Upon Airline's acceptance of any Orbitz Software, Orbitz
grants Airline the limited, non-exclusive,
non-transferable, worldwide right, effective during the
Term, to access and use (and permit its customers to access
and use) the Orbitz Software in conjunction with an
unlimited number of (i) Websites or (ii) other Airline
applications, on the terms and conditions set forth in this
Agreement. Airline will have no obligation to pay any
license fees or royalties to Orbitz's licensors, if any,
with respect to the license of the Orbitz Software granted
herein. Airline acknowledges and agrees that any access and
use by its customers will be subject to the terms and
conditions posted to the Website, which will include
reasonable protections for Orbitz at least as protective as
the terms and conditions that Airline posts to protect its
own rights, limit its liability, and disclaim forms of
damages. Such terms and conditions to be approved by
Airline, with such approval not to be unreasonably
withheld. Airline will not display or use the Orbitz
Software as part of any third party site or service.
Notwithstanding the foregoing, the Website may be branded,
as determined by Airline, with Airline branding, and, at
Airline's election, branding of KLM Royal Dutch Airlines,
Continental Airlines, other Affiliate Airlines and/or a
global alliance brand such as "Wings".
B. Upon Airline's acceptance of any Orbitz Software, Orbitz
grants Airline a limited, non-exclusive, non-transferable,
worldwide right, effective during the Term, to use the
object/executable code to the Orbitz Software, and all
Documentation related thereto to modify the
Airline-Specific Software pursuant to Section 9.3.
9.3 AIRLINE MODIFICATIONS. Airline shall have the right to modify
the Airline-Specific Software and to create external programs that may interface
with the Orbitz Software; provided that such interfaces may not be used to
create competitive travel agency web sites. Notwithstanding the foregoing,
Airline may use the external programs to provide travel agency access to the
Website. Orbitz will have no responsibility under this Agreement to support or
maintain any such external programs. Orbitz will provide to Airline all
Documentation to the Orbitz Software that will permit Airline to create such
interfaces.
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Any inventions, improvements, developments, processes or methods,
computer programs, or enhancements that are made, invented, or developed by
Airline to the Airline-Specific Software or any customizations to the Orbitz
Software that are developed by Orbitz for Airline and expressly agreed by the
parties to be custom for Airline under a separate Change Request pursuant to
Section 7, shall be deemed to be "Custom Material". Title and full ownership of
any Custom Material, whether patentable or otherwise, shall vest in Airline.
Orbitz shall not assert or establish a claim for any statutory or common law
patent or copyright or any other possessory or proprietary right on any Custom
Material. If requested by Airline and without any further compensation, Orbitz
shall execute appropriate documents of assignment to effectuate the purposes of
this Section 9.3.
Orbitz shall fully cooperate with Airline enforcing any patents,
copyrights, or other possessory or proprietary rights, provided that in the
event any assistance by Orbitz is requested and rendered pursuant to this
Section 9.3, Airline shall reimburse Orbitz for out-of-pocket expenses incurred
by Orbitz in rendering such assistance.
9.4 OPTIONAL LICENSE. At the expiration or termination of this
Agreement, Airline will have the option to purchase from Orbitz, and Orbitz
agrees to grant to Airline, a perpetual, non-exclusive, paid-up license to the
source and object code for the Orbitz Software (including the related
Documentation) for a [***] fee [***]. In the event that this Agreement
terminates at least two years from the Launch Date, the fee for a
non-transferable, perpetual, paid-up license to the Airline-Specific Software
source and object code, and related Documentation, will be waived. In the event
that the parties are unable to agree on the fee for the Core Software after a
period of thirty (30) days after expiration or termination of this Agreement,
the parties will jointly apply to and pay for an independent third party through
the Information Technology Association of America to determine such fee and the
determination of such third party will be final and binding on the parties,
provided, however, that Airline will be under no obligation to effectuate the
acquisition. After such purchase, Airline will have the right to host, modify,
maintain, support and use the Orbitz Software, pursuant to the terms of this
Agreement in conjunction with (i) the operation of Websites or (ii) any other
Airline applications. Unless otherwise agreed by the parties, Airline will not
use the Orbitz Software as part of any third party site or service.
9.5 LICENSE TO ORBITZ. Effective during the Term, Airline hereby
grants Orbitz the limited, non-exclusive, non-transferable, royalty-free,
world-wide right to (a) use the Airline Information solely to perform its
obligations under this Agreement; (b) use aggregated customer data derived from
Website bookings for internal site management purposes; and (c) permit
Subcontractors to use aggregate use data (that is not identified or identifiable
with any individual customer or user) derived from the Airline Information in
connection with user and performance statistics, so long as such aggregated data
does not make reference to the travel industry.
10. ESCROW
10.1 ESCROWED MATERIALS. No later than sixty (60) days after the
Launch Date, and within thirty (30) days after release of each Update, Orbitz
will deliver to DSI, as escrow agent, the following: (a) a copy of the current,
fully commented version of the source code of the latest release of the Orbitz
Software that Orbitz owns, (b) the available Documentation related thereto, and
(c) reproducible binary masters of the latest release of the Orbitz Software
(collectively, "Escrowed Material"). A copy of the
-------------------------
*** Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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Escrow Agreement between Orbitz and DSI related to the Escrowed Materials will
be attached hereto as Exhibit H upon execution.
10.2 MAINTENANCE. Orbitz will replace the source code of the Orbitz
Software in the event of a media defect. The nature and completeness of the
Escrowed Materials will be subject to verification by a representative of
Airline only at the facilities of the escrow agent in the presence of a
representative of Orbitz. Except as provided in the Escrow Agreement and in
Section 10.4 below, Airline may not make any copies, in whole or in part, of the
Escrowed Material, and all such material will be considered to be Confidential
Information regardless of whether they have been marked "confidential". All
expenses associated with establishing and maintaining the Escrowed Materials
will be shared equally between Airline and Orbitz.
10.3 RELEASE CONDITION. If Orbitz (a) generally discontinues the
operation, hosting or maintenance of the Orbitz Software, or (b) is insolvent,
files a petition in bankruptcy or has such a petition filed against it (and
fails to lift any stay imposed thereby within sixty (60) days after such stay
becomes effective), has a receiver appointed with respect to all or
substantially all of its assets, makes an assignment for the benefit of
creditors, or ceases to do business in the ordinary course, or (c) is in
material breach of this Agreement, then Airline may demand the release of the
Escrowed Material by simultaneously sending the escrow agent, with a copy to
Orbitz, a written demand for the Escrowed Material by facsimile and overnight
courier. In such circumstances, release of the Escrowed Material will be
governed by Article 4 of the Escrow Agreement set forth in Exhibit H hereto.
10.4 RIGHTS. In the event the Escrowed Material is released to
Airline, Orbitz grants to Airline a fully paid up license to use and modify the
Escrowed Material solely to maintain and support the Orbitz Software in
accordance with the terms of this Agreement and for no other purpose. Airline
will maintain the Escrowed Material on a secure system with access limited to
only those persons necessary to maintain and support the Orbitz Software.
Airline may make only such copies of the Escrowed Material as are reasonably
required for archival and disaster recovery purposes, and Airline will keep any
such copies under lock and key.
11. WARRANTIES AND DISCLAIMERS
11.1 GENERAL WARRANTY. Each party represents and warrants that (a)
it has the full corporate authority to execute this Agreement and perform its
obligations hereunder and (b) the execution or performance of this Agreement
will not violate or be considered a breach of any obligation of such party to
any third party.
11.2 SPECIFIC WARRANTIES. Orbitz represents and warrants that it
will perform the Pre-Launch Development Services in a good and workmanlike
manner and will meet or exceed the service levels set forth in the Service Level
Agreement. In the event that Orbitz fails to perform the Pre-Launch Services in
a good and workmanlike manner, Orbitz will re-perform the defective Pre-Launch
Development Services. In the event that Orbitz fails to meet or exceed the
service levels set forth in the Service Level Agreement, Airline will be
entitled to the applicable service level credits and/or the right to termination
set forth in the Service Level Agreement. This section and the applicable
section in the Service Level Agreement set forth Airline's exclusive remedies
and Orbitz's sole liabilities in the event of any breach of warranty with
respect to the quality of the Services.
11.3 LIMITATION. The warranties and remedies specified in this
Section will not apply to the extent the Services are defective due to causes
beyond Orbitz's reasonable control, such as (a) natural disasters, including
without limitation fire, smoke, water, earthquakes or lightning, (b) electrical
power fluctuations or failures, (c) neglect or misuse by Airline, (d) a
correction or modification of the Orbitz
CONFIDENTIAL Page 14
Software, the Website or the Services not authorized by Orbitz, or (e) the
combination of the Orbitz Software or Service in any manner not authorized by
Orbitz.
11.4 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND
GUARANTEES WITH RESPECT TO THE SERVICES, THE WEBSITE, THE ORBITZ SOFTWARE OR ANY
COMPONENT THEREOF, INCLUDING WITHOUT LIMITATION THE CORE SOFTWARE AND THE
AIRLINE-SPECIFIC SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM,
PRIOR ORAL OR WRITTEN STATEMENTS BY ORBITZ, ITS AGENTS OR OTHERWISE (INCLUDING,
BUT NOT LIMITED TO ANY WARRANTY OR CONDITION OF SATISFACTORY QUALITY, ACCURACY,
UNINTERRUPTED USE, TIMELINESS, SEQUENCE, COMPLETENESS, MERCHANTABILITY, FITNESS
FOR PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING
FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE) ARE HEREBY
OVERRIDDEN, EXCLUDED AND DISCLAIMED.
12. INDEMNITY
12.1 GENERAL THIRD-PARTY INDEMNITY.
(a) Orbitz will indemnify, defend and hold harmless
Airline, as well as Airline's subsidiaries and its Affiliates, and each of their
directors, officers, employees, assignees, agents and shareholders (hereinafter
collectively called the "Airline Indemnified Parties") from and against any and
all Claims, including any related Losses that the Airline Indemnified Parties
are required to pay any third party in any way relating to, arising out of or
resulting from: (i) any gross negligence or willful misconduct of any employee
or Subcontractor of Orbitz; (ii) breach of any warranty of Orbitz contained in
Section 11.1 of this Agreement; (iii) any actual or alleged infringement of any
patent, copyright, trademark, trade name, trade secret or other proprietary or
intellectual property right by any software or service provided pursuant to this
Agreement; or (iv) Orbitz's failure to comply with any and all applicable laws,
rules and regulations.
(b) Airline will indemnify and hold harmless Orbitz, as
well as Orbitz's subsidiaries, licensees and Affiliates, and each of their
officers, shareholders, directors, employees and agents (collectively, the
"Orbitz Indemnified Parties") from and against any and all Losses in any way
relating to, arising out of or resulting from: (i) any gross negligence or
willful misconduct of any employee or subcontractor of Airline; (ii) breach of
any warranty of Airline contained in Section 11.1 of this Agreement; (iii) any
actual or alleged infringement of any copyright, trademark, trade name, trade
secret or other proprietary or intellectual property or privacy right by the
Airline Information; or (iv) Airline's failure to comply with any and all
applicable laws, rules and regulations related to the Website.
12.2 INDEMNIFICATION PROCEDURES.
(a) Promptly after any party entitled to indemnification
under this Section 12 ("Indemnitee") obtains knowledge of the potential
existence or commencement of a Claim, in respect of which Indemnitee is or may
be entitled to indemnification under this Agreement, such Indemnitee will
promptly notify the other party ("Indemnitor") of such Claim in writing;
provided, however, that any failure to give such notice will not waive any
rights of Indemnitee except to the extent that the rights of Indemnitor are
actually prejudiced thereby. Indemnitor will assume the defense and settlement
of such Claim with counsel reasonably satisfactory to Indemnitee at Indemnitor's
sole risk and expense; provided, however, that Indemnitee (i) will be permitted
to join in the defense and settlement of such Claim and to employ counsel at its
own expense; (ii) will reasonably cooperate with Indemnitor in the defense and
any settlement of such Claim; and (iii) will have the right to pay or settle
such Claim at any time in which event Indemnitee will be deemed to have waived
any right to indemnification therefor by Indemnitor. Indemnitor
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may settle any Claim without Indemnitee's written consent unless such settlement
(A) does not include a release of all covered claims pending against Indemnitee;
(B) contains an admission of liability or wrongdoing by Indemnitee; or (C)
imposes any obligations upon Indemnitee other than an obligation to stop using
any infringing items.
(b) If Indemnitor fails to assume the defense of such
Claim or, having assumed the defense and settlement of such Claim, fails
reasonably to contest such Claim in good faith, Indemnitee, without waiving its
right to indemnification, may assume the defense and settlement of such Claim;
provided, however, that Indemnitor (i) may join in the defense and settlement of
such Claim and employ counsel at its own expense and (ii) will cooperate with
Indemnitee in the defense and settlement of such Claim. Indemnitee may settle
such Claim without Indemnitor's written consent unless such settlement (A) does
not include a release of all covered Claims pending against Indemnitor; (B)
contains an admission of liability or wrongdoing by Indemnitor; or (C) imposes
any obligations upon Indemnitor other than an obligation to stop using any
infringing items. Indemnitor will be liable to Indemnitee for all costs and
expenses incurred in connection with the defense and settlement of any Claim
pursuant to this Section 12.2(b).
(c) Upon a determination of liability in respect of this
Section 12, Indemnitor will pay Indemnitee the amount so determined within
thirty (30) business days after the date of such determination. If there should
be a dispute as to the amount or manner of determination of any indemnity
obligation owed under this Agreement, Indemnitor will nevertheless pay when due
such portion, if any, of the obligation as will not be subject to dispute. Upon
the payment in full of any claim, either by setoff or otherwise, the party or
entity making payment will be subrogated to the rights of Indemnitee against any
person, firm, corporation or other entity with respect to the subject matter of
such claim.
12.3 INTELLECTUAL PROPERTY REMEDIES. In the event of a Claim under
Section 12.1(a)(iii) above, and in addition to all other obligations of Orbitz
in this Section 12, Orbitz will either (a) provide Airline with reasonable
assurances acceptable to Airline that Airline will continue to have the right to
use the affected products or services or (b) Orbitz will, at its expense, either
(i) procure for Airline the right to continue use of such infringing products or
services, or any component thereof; or (ii) replace or modify the same with
non-infringing products or services satisfactory to Airline, provided that
Orbitz will provide Airline with a comparable temporary replacement product or
reimburse Airline for the reasonable costs incurred by Airline in obtaining an
alternative product in the event Airline cannot use the affected product. If
Orbitz cannot accomplish any of the foregoing within a reasonable time and at
commercially reasonable rates, then Orbitz will accept the return of the
infringing component of the products or services, along with any other
components of any products rendered unusable by Airline as a result of the
infringing component, and refund the price paid to Orbitz for such components.
13. NO CONSEQUENTIAL DAMAGES
EXCEPT WITH REGARD TO DAMAGES ARISING OUT OF ANY BREACH OF SECTION 8 OR
FOR PERSONAL INJURY, AND THE INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH
HEREIN, WITH RESPECT TO EACH OF WHICH LIABILITY WILL NOT BE LIMITED PURSUANT TO
THIS SECTION, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST
PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER ARISING OUT OF BREACH
OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. EXCEPT FOR
EITHER PARTY'S INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH HEREIN, CLAIMS
UNDER SECTION 8 HEREOF OR AIRLINE'S PAYMENT OBLIGATIONS, IN NO EVENT WILL THE
AGGREGATE LIABILITY WHICH EITHER PARTY MAY INCUR TO THE OTHER PARTY IN ANY
ACTION OR PROCEEDING
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EXCEED THE GREATER OF (X) THE TOTAL FEES PAYABLE BY AIRLINE TO ORBITZ DURING THE
12 MONTH PERIOD PRECEDING THE EVENT THAT RESULTED IN SUCH LIABILITY, OR (Y) ONE
MILLION DOLLARS.
14. INSURANCE
Orbitz shall maintain insurance, with an A.M. Best rating of A- (VIII)
or better, in the following amounts:
(i) WORKER'S COMPENSATION - Statutory Limit.
(ii) EMPLOYERS LIABILITY - $1,000,000
(iii) COMMERCIAL GENERAL LIABILITY - $5,000,000 Combined Single
Limit Insurance per occurrence. (This is a minimum amount. Airport requirements
or the nature of the work may necessitate higher limits.) Commercial General
Liability insurance shall include endorsements for: personal injury; contractual
liability; completed operations/product liability; naming Airline as an
additional insured; and provide severability of interest, cross liability, and
independent contractors coverage.
(iv) BUSINESS AUTO POLICY - $1,000,000 Combined Single Limit. Such
insurance to cover owned, non-owned and hired vehicles when doing work on
Airline's premises.
(v) INTERNET MEDIA AND PROFESSIONAL LIABILITY - $5,000,000.
Orbitz agrees to insure (or self-insure) all losses to its owned or
leased tools and equipment used in the delivery of the Products and provision of
the Services and agrees to obtain an endorsement from its insurance carrier
waiving its right of subrogation against Airline.
If requested by Airline, Certificates of Insurance shall be delivered
to Airline evidencing compliance with the insurance terms of this Agreement. All
of the above insurance shall be written through a company or companies with an
A.M. Best rating of A- (VIII) or better. Orbitz will notify Airline in writing
in advance of the effective date of any material change in or cancellation of
such insurance; provided Orbitz receives such advance notice from the insurer.
Orbitz's failure to provide or to maintain the insurance required during the
term of this Agreement shall be deemed a material breach pursuant to Section
16.2.
15. DISPUTE RESOLUTION
Unless otherwise agreed by the parties, any claim, controversy or other
dispute between the parties relating to this Agreement will, before the filing
of any legal action, be submitted to two senior executives representing Airline
and Orbitz, respectively. These executives will promptly meet to explore all
possible ways of resolving the dispute amicably. Any resolution upon which these
executives may agree in writing will be final and binding on the parties. If the
executives do not resolve the dispute within thirty (30) days after the initial
request for an executive meeting, the parties may pursue any other legal
remedies available.
16. TERM AND TERMINATION
16.1 TERM. This Agreement shall be in effect as of the Effective
Date and will have an initial term of thirty (30) months following the Launch
Date (the "Initial Term"). This Agreement shall automatically renew for up to
three (3) successive one-year renewal terms (each, a "Renewal Term") (the
Initial Term and any Renewal Terms are collectively referred to herein as the
"Term"), unless Airline
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notifies Orbitz of its intention not to renew this Agreement at least ninety
(90) days prior to the expiration of the Initial Term or the then-current
Renewal Term.
16.2 TERMINATION FOR CAUSE. Either party may terminate this
Agreement for cause in the event that the other party materially breaches its
obligations under this Agreement and fails to cure such breach within ninety
(90) days after receiving written notice of such breach from the non-breaching
party. Notwithstanding the foregoing, Airline may terminate this Agreement upon
fifteen (15) days prior written notice without penalty in the event of a
Material Service Level Failure, as defined in Exhibit F attached hereto.
16.3 TERMINATION PRIOR TO LAUNCH DATE. If at any time prior to the
Launch Date (a) Orbitz assigns this Agreement or any of its rights or
obligations hereunder to an unrelated company pursuant to a sale, merger or
other consolidation of Orbitz or any of its operating divisions or offices, or
(b) Orbitz is acquired by another entity or merges with another entity and
Orbitz is not the surviving entity in such merger, then Airline may immediately
terminate this Agreement without penalty or any other obligation hereunder
except to pay Orbitz the amounts due, pursuant to the fee schedule set forth in
Exhibit D(I), for Services performed prior to the actual termination date.
16.4 EFFECT OF TERMINATION. If this Agreement terminates or
expires, except as a result of a material breach by Orbitz, Airline will
promptly pay Orbitz any undisputed amounts. In addition, if this Agreement
terminates or expires, except as a result of a material breach by Orbitz or as a
result of the Release Conditions set forth in Section 10.3, all rights Airline
may have in or to the Orbitz Software, including without limitation the Core
Software and the Airline-Specific Software, will immediately cease following the
Transition Period described in Section 16.5. The provisions of Sections 8, 9.1
9.3, 9.4, 11, 12, 13, 15, 16.5, 18, and 19, will survive the expiration or
termination of this Agreement. Further, in the event Airline elects to purchase
a license to the Orbitz Software in accordance with Section 9.4, then the
provisions of Sections 9.1, 9.3, 9.4, and 10 will also survive the expiration or
termination of this Agreement.
16.5 POST-TERMINATION. In the event that Airline provides written
notice of termination of the Agreement in accordance with the terms of this
Agreement, Orbitz will use reasonable efforts to cooperate with Airline and
Airline's new vendor, if any, in the transfer of all appropriate customer
information, as necessary to facilitate the transition to the new vendor. Prior
to the actual termination date of the Agreement, Airline shall have the right to
request that Orbitz continue to provide maintenance and support services for
Airline's Website(s) after the termination date of the Agreement ("Extended
Maintenance and Support Services") for such period of time as Airline may
reasonably request, up to ninety (90) days (the "Stand By Period"). In the event
that Airline requests that Orbitz provide such Extended Maintenance and Support
Services, such services shall be provided pursuant to the terms of the Agreement
at no additional charge for the duration of the Stand By Period.
17. PUBLICITY
Neither party will issue a press release, advertisement or public
statement concerning the existence of this Agreement, its contents or the
transactions contemplated by it without the express written consent of the other
for each such event. Airline will provide a prominent notice on the Website that
the Website is powered by Orbitz and its designees. The parties will mutually
agree upon the location and content of such notice.
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18. LEGAL STATUS
Nothing in this Agreement is intended or will be construed to create or
establish any agency, partnership or joint venture relationship between the
parties. The parties expressly disclaim such relationship, agree that they are
acting solely as independent contractors hereunder and agree that the parties
have no fiduciary duty to one another or any other special or implied duties
that are not expressly stated herein. Orbitz has no authority to act as agent
for, or to incur any obligations on behalf or in the name of, Airline or its
Affiliates. Orbitz is solely and exclusively responsible for the salaries,
wages, benefits, fees or other compensation that Orbitz, its Subcontractors or
its or their agents or employees may be entitled to receive. Airline will have
no obligation whatsoever to provide any employee benefits or privileges of any
kind or nature to Orbitz, including, without limitation, insurance benefits,
pension benefits or travel privileges. Further, Orbitz agrees that Airline is
not responsible to collect or withhold federal, state or local taxes, including,
without limitation, income taxes, social security taxes, unemployment taxes or
Medicare taxes, and that any and all such taxes imposed, assessed or levied as a
result of payments made to Orbitz pursuant to this Agreement or the fees, and
any penalties assessed on or against such taxes, shall be paid by Orbitz, or if
paid by Airline, Orbitz shall reimburse Airline upon demand. Orbitz shall
further reimburse Airline upon demand for any costs incurred by Airline to pay
for employee benefits upon Orbitz or any individuals utilized by Orbitz to
perform its obligations under this Agreement. Reimbursement for any costs
associated with the foregoing shall be considered an adjustment to the fees for
the Services contracted for in this Agreement.
19. MISCELLANEOUS
19.1 NOTICES. Any notice, approval or other communication required
or permitted under this Agreement will be given in writing.
Such communications will be sent to the address specified
below or to any other address that may be designated by prior
notice.
If to Airline:
Northwest Airlines, Inc.
Department A6370
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000-0000
Telephone: (000) 000-0000
Fax: (000) 000-0000
With copy to:
Northwest Airlines, Inc.
Department A1180
0000 Xxxx Xxx Xxxxxxx
Xxxxx, Xxxxxxxxx 00000-0000
Attn: General Counsel
Fax: (000) 000-0000
CONFIDENTIAL Page 19
If to Orbitz:
Orbitz LLC
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxx
Telephone: 000-000-0000
Fax: 000-000-0000
Notices will be effective on the first business day following receipt
thereof. Notices sent by certified mail or courier will be deemed received on
the date of delivery as indicated on the return receipt or delivery notice;
notices sent by facsimile will be deemed received on the date transmitted.
19.2 WAIVER, AMENDMENT AND MODIFICATION. Any waiver, amendment or
other modification of this Agreement will not be effective unless in writing and
signed by both parties. No waiver of breach of any provision of this Agreement
by either party will constitute a waiver of any subsequent breach of the same or
any other provision, and no waiver will be effective unless made in writing and
signed by an officer of the other party.
19.3 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, in whole or in part, such holding will not affect the validity of
the other provisions of this Agreement.
19.4 ASSIGNMENT. Except as set forth in this Agreement, neither
party may assign, delegate, sub-contract or otherwise transfer this Agreement or
any of its rights or obligations without the other party's prior approval, which
will not be unreasonably withheld or delayed. Notwithstanding the foregoing,
either party may assign this Agreement or any of its rights or obligations, upon
notice to the other party, (a) to an Affiliate or (b) to an unrelated company
pursuant to a sale, merger or other consolidation of such party or any of its
operating divisions or offices; provided that Orbitz may not assign this
Agreement or any of its rights or obligations to any of the following entities
without Airline's prior written approval, which approval will not be
unreasonably withheld: an Other Airline, Sabre, Galileo, Amadeus, any affiliate
of or successor to Sabre, Galileo or Amadeus, or any other global distribution
system.
19.5 FORCE MAJEURE. Except to the extent the Services or Orbitz
Software are designed to accommodate such failures or delays, neither party will
be liable for any failure or delay in performing an obligation under this
Agreement that is due to causes beyond its reasonable control, such as natural
catastrophes, governmental acts or omissions, laws or regulations, labor strikes
or difficulties, transportation stoppages or slowdowns or the inability to
procure parts or materials. If any of these causes continue to prevent or delay
performance for more than five (5) days, the non-delaying party may terminate
this Agreement for cause, effective immediately upon notice to the delaying
party.
19.6 GOVERNING LAW. This Agreement will be governed by and
interpreted in accordance with the laws of the state of New York, exclusive of
conflict of laws provisions.
19.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original and all of which
together will constitute one and the same instrument.
19.8 NON SOLICITATION. During the Term and for a period of one year
thereafter, neither party, either directly or through others, will solicit for
employment any personnel employed by the other with whom that party had contact
during the Term.
CONFIDENTIAL Page 20
19.9 ENTIRE AGREEMENT; AMENDMENT. This Agreement, and its Exhibits,
and the Non-Disclosure Agreement set forth as Exhibit G constitute the complete
and entire statement of all terms, conditions and representations of the
agreement between Airline and Orbitz with respect to the subject matter of this
Agreement, and supercede and replace all prior understandings between the
parties, whether oral or in writing.
19.10 NON-DISCRIMINATION AND FEDERAL CONTRACT COMPLIANCE. Airline is
a government contractor, and the parties agree, as a condition of this
Agreement, to comply with all applicable Equal Employment Opportunity and
Affirmative Action clauses as set forth in Executive Order 11246, the
Vietnam-Era Veterans' Readjustment Act of 1974, the Rehabilitation Act of 1973,
and implementing regulations at 41 CFR 60-1.14(a), 41 CFR 6-741.5, and 41 CFR
60-250.4 and that the provisions of such laws and regulations are hereby adopted
and incorporated into this Agreement by reference.
19.11 EXHIBITS. The following Exhibits, including all subparts
thereof, are attached to this Agreement and are made a part of this Agreement
for all purposes:
Exhibit A: Specifications
Exhibit B: Change Request
Exhibit C: Schedule
Exhibit D: Fees
Exhibit E: Relationship Managers
Exhibit F: Service Level Agreement
Exhibit G: Non-Disclosure Agreement
Exhibit H: Escrow Agreement
IN WITNESS WHEREOF, Airline and Orbitz have caused this Agreement to be
executed by their duly authorized representatives identified below.
NORTHWEST AIRLINES, INC. ORBITZ LLC
By: /s/ A.M. Xxxxx By: /s/ Xxxxx X. Xxx
------------------------------------- -------------------------------------
Name: A.M. Xxxxx Name: Xxxxx X. Xxx
----------------------------------- -----------------------------------
Title: VP, Distribution and E-Commerce Title: V.P. New Ventures
---------------------------------- ----------------------------------
Date: 3/8/02 Date: 3/8/02
------------------------------- -----------------------------------
CONFIDENTIAL Page 21
EXHIBIT A
SPECIFICATIONS
Internet Booking Product
for
xxx.xxx
Statement of Work
Last Updated
March 8, 2002
Northwest Airlines, Inc. CONFIDENTIAL
1
TABLE OF CONTENTS
PAGE
OVERVIEW ......................................................................4
BUSINESS FRAMEWORK.............................................................4
PRODUCT FEATURES...............................................................4
DETAILED REQUIREMENTS.........................................................10
BOOKING ENVIRONMENT..................................................10
PROCESSING REQUIREMENTS.......................................................10
BOOKING REQUIREMENTS.................................................11
TICKETING FIELDS. ADDRESS FIELDS AND OUEUING.........................11
PHONE FIELDS AND PNR OWNERSHIP.......................................13
FORM OF PAYMENT AND APPROVAL.........................................13
PRICING REQUIREMENTS.................................................14
Remark Fields........................................................15
Seat Assignments.....................................................16
Frequent Flyer Number................................................16
E-Mail Confirmation..................................................18
Passport And Emergency Contact Information...........................18
RELATED PROCESSES.............................................................19
Automatic Black Listing..............................................19
Support .............................................................19
TEXT CHANGES AND BRANDING.....................................................24
Text Changes.........................................................24
Branding.............................................................24
CAPACITY & DATA STORAGE.......................................................24
Capacity.............................................................24
Data Storage.........................................................24
DELIVERABLES..................................................................25
Orbitz...............................................................25
Northwest Airlines...................................................25
2
ASSUMPTIONS...................................................................26
ORBITZ ASSUMPTIONS............................................................26
FUNCTIONALITY OF SUBSEQUENT PHASES............................................28
3
OVERVIEW
Northwest's current Internet Booking Products are designed for customers
residing in the United States and Canada. All functionality is geared towards
those countries. Prices are quoted in local currency and local (meaning US
point-of-sale or CA point-of-sale) credit cards must be entered into the system.
Our Asia/Pacific products are not included in this statement of work.
BUSINESS FRAMEWORK
The following airlines can be booked on the site: Northwest, KLM, Northwest
designated or KLM designated codeshares, and option to add other Northwest
partners at a later date.
The site will be built in [***] WORLDSPAN. Therefore, ORBITZ is responsible for
ensuring that the SIDs created for this product are set up with the appropriate
functionality and permissions.
1) ORBITZ agrees to work with Northwest's CRS/GDS system, WORLDSPAN
2) ORBITZ agrees to provide functionality for the following points-of-sale
(POS) markets (with the exception of booking car/hotel, which will be in
the US POS only):
a. United States
b. Canada
3) ORBITZ agrees to work jointly with Northwest and WORLDSPAN to develop
booking product.
4) ORBITZ agrees to provide all hosting services (servers, communication
lines, routes etc).
5) ORBITZ agrees to deliver selected functionality contained in this Statement
of Work and stage other items in a `phased' approach. Current levels of
functionality will be replicated which will allow a website transition.
6) ORBITZ agrees to host booking engine server and agrees to specific service
levels documented in the contract and plan to handle increased volumes.
7) ORBITZ agrees to provide links to NWA's small corporate web product and
agency booking web product from this product.
PRODUCT FEATURES
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
4
1) ORBITZ xxxx support one pseudo city code per POS for the site. ORBITZ will
be responsible for insuring that the SIDs are created. (To clarify - Orbitz
can order these items at Worldspan, and NWA will have to approve).
2) ORBITZ agrees that the customer support at the booking product will be
handled through E-Travel Experts, Northwest's Online Support Center.
3) ORBITZ agrees to allow Northwest to complete the ticket fulfillment
process.
4) ORBITZ agrees to provide the messaging capability between ORBITZ and
WORLDSPAN necessary to support PNR creation and other auxiliary functions.
5) ORBITZ will support ATPCO/WSP SecuRate fares, fare rules and pricing as
described in subsequent requirements in this section.
6) ORBITZ agrees to support Worldspan's Powershopper product.
7) ORBITZ will provide NWA with an administrative tool that will allow NWA to
log on as a Customer on the NWA website via the same toolset Orbitz
Customer Service Agents utilize to service Xxxxxx.xxx bookings. The
requirements for the administrative tool are described in detail at the end
of this document.
8) NWA will be able to access the database via BRIO (which NWA will supply).
Orbitz will provide a data warehouse that can be accessed using BRIO, or
any reporting package capable of interfacing with an Oracle database.
9) ORBITZ agrees to develop a process to handle new requests and/or changes
from Northwest as outlined within Exhibit B.
10) ORBITZ will utilize multiple passenger types (per PNR) in order to support
special programs/fares for children and seniors. Informational text on the
web page will inform the customer of the age group that qualifies for
senior or child fares. The website will also inform the customer that
children and senior's ages will be checked at the airport. All special
programs/fares described in this section are [***], accessible through
WORLDSPAN. NWA will provide ORBITZ with a "logic" table, which will be used
to determine which passenger types to use for different scenarios. For
example, [***]. ORBITZ will use this table in order to support companion
fares. This table may be updated frequently as sales dictate. ORBITZ will
develop a system to allow easy update to table.
11) The site will be set up so that end-users select a POS during registration
(or if not members, before booking). The following types of information can
be configured based on POS:
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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Meal preferences
Seat preferences
Frequent flyer programs
Ticketing options
Special service request list
Credit card list
Advance purchase requirements (for paper and e-ticket)
ECERT processing (on or off)
Hotel preferences
Car preferences
Trip Summary Receipt reception options (email, and/or mail); NWA will
be responsible for sending the TSR.
NWA is to provide the above configuration information to ORBlTZ,
12) ORBITZ agrees to provide Car and Hotel booking capability in the US POS,
which can be biased to Northwest preferences.
13) [***].
14) ORBITZ agrees to comply with all DOT requirements (codeshare disclosure,
change of gauge, etc).
15) Air availability can be configured to display all NWA coded and designated
flights, preferred carriers, or all available flights. Customers will have
the option to select one-way, round-trip, or multi-leg itineraries.
16) ORBITZ agrees to provide alternate routing and lower fare options to
customers xxx XXXXXXXXX.
00) XXXXXX agrees to provide Northwest customers with the ability to
a. Automatically stare routine travel itineraries
b. Access to booking history
c. Store preferences for additional travelers
d. Have multiple passengers travel on a single PNR
18) ORBITZ agrees to provide interactive seat map capability for Northwest
customers to select their desired seat location. NWA will provide any
required license with Kinetics to enable functionality.
19) [***].
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
6
20) NWA will display promotional fares on their site. Should the user select
one of the promotional fares, NWA may pass the [***] to the booking engine,
possibly with other information such as [***]. The booking engine will use
this information to build an itinerary.
Additionally, upon login to the booking engine, If NWA has any promotional
fares from the [***], the destination cities far those fares and a link to
the corresponding promotional fares page will be displayed to the user.
ORBITZ will provide NWA with an administrative interface from which they
could enter [***]. The URL Indicates the page on NWAs site to which the
user would be taken should he wish to investigate the promotional fare.
Should the user select the promotional fare from NWA's site, NWA may pass
[***] and other necessary information to the booking engine to begin the
booking process as explained above.
ORBITZ agrees to provide Northwest customer with a 12-month interactive
online reference calendar.
ORBITZ agrees to provide Northwest customers with links to Northwest
selected Orbitz and sites for access to different destination information,
such as Restaurants, Maps, Weather, etc. etc. ORBITZ can provide links to
NWA partners and ORBITZ as able to do so (pending any restrictions).
ORBITZ agrees to allow for E-Tickets to be the default ticket preference
for Northwest designated carriers and enable an administrator to configure
different ticketing options available for each POS.
ORBITZ agrees to provide a system that will price each ticket based on the
local currency of the POS.
ORBITZ agrees to provide a functionality that will recognize airport
proximity for a designated city name, spelling errors, and city
confirmation when more than one airport/city exist.
ORBITZ agrees to provide Northwest the ability to configure the site to
return alternate cities (e.g., return JFK when EWR is requested. This will
be accomplished via a static table the NWA provides and maintains.
ORBITZ agrees to distinguish between "no availability" and "no service" in
each market.
28) ORBITZ agrees to provide Northwest help pages for the booking product.
ORBITZ agrees to provide secure credit card encryption and IP packet
filtering security.
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
7
ORBITZ agrees to provide Northwest customers with access to change their
password on the booking engine site. REVISED: Per discussions regarding the
interface between the Orbitz software and [***].
31) ORBITZ agrees to enable Northwest customers with the ability to (`create
itineraries' and perform availability request without the need to register.
Registration will be required at point of purchase.
ORBITZ agrees to allow Northwest customers to book air travel in novice or
expert mode (express purchase), as well as designate preferred car and
hotel numbers, frequent flyer numbers, seating preferences and display
options.
ORBITZ agrees to provide Northwest post purchase cross-sell links on a trip
confirmation page. Links may refer back to products on xxx.xxx or other
travel partners.
ORBITZ agrees to display the current stage of the reservations process with
which the customer is at and indicate it dynamically.
35) ORBITZ agrees to provide Northwest the ability to customize verbiage an
interim screens seen by customers when processing is in progress (i.e.;
"Searching through thousands of records to find the best options...), which
can be unique per storefront. This text should be easily updateable by
Northwest.
36) ORBITZ agrees to provide a registration process for customers. Customers
who have been active during the 12 months prior to implementation date will
be able to sign in with their current member ID and password and all
existing itinerary information will be accessible in the new booking
product. A prompt will advise them to change their member ID to their
WorldPerks number and password to PIN. New customers will be required to
register using their WorldPerks number and PIN. Registration requires the
following information:
a. [***]
b. [***]
c. [***]
d. [***]
e. [***]
f. [***]
g. [***]
h. [***]
[***].
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
8
37. ORBITZ agrees to provide Northwest with a Sidebar Search & Trip Summary
feature that will enable a user to view & select air itineraries, which
were priced during the current session. A summary of a user's current
itinerary will also be displayed on the sidebar.
38. ORBITZ agrees to provide Northwest with a feature that will enable a user
to save an itinerary for up to two days without holding inventory.
39. ORBITZ agrees to provide Northwest with a feature that will enable a user
to receive [***].
40. ORBITZ agrees to provide Northwest "Airport Ready e-mail", which may be
customized to suit Northwest specific needs.
41. ORBITZ agrees to provide Northwest the option to allow customers to store
routine travel itineraries, reducing overall time to complete the
reservation process.
42. ORBITZ agrees to provide Northwest customers the ability to add their
WorldPerks number, and change or add a seat assignment after purchase.
43. ORBITZ agrees to display a prominent sign-out and sign-in link on every
page.
44. ORBITZ agrees to provide customers will full fare rules, similar to the
fare rules display on Xxxxxx.xxx.
45. ORBITZ will work with Northwest to integrate xxx.xxx Fast Trip Finder or
other NW products with xxx.xxx Reservations so that Northwest can pass
customers directly into flight search path.
46. ORBITZ will display unaccompanied minor text on the site, including pages
where search requirements are requested and where customers acknowledge the
understanding of fare rules. In addition to brief text in the booking
engine, ORBITZ will provide links back to xxx.xxx for further unaccompanied
minor details.
47. ORBITZ will provide links to "Privacy Text" and "Terms and Use" to
corresponding pages on xxx.xxx, or will ensure these pages are easily
updateable by Northwest via a content management tool.
48. ORBITZ will provide Northwest customers with the option to search for
flights by price. If customer designates a specific price, ORBITZ will
return fares close to or matching that price. Customers may designate
domestic, trans-Atlantic or trans-Pacific flight options. Subsequent phase
item that requires offline pricing support (e.g. ITA Pricing Services) to
implement. Orbitz agrees subject applicable support or functionality
required from WorldSpan.
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
9
49. ORBITZ will provide Northwest with Fare Calendar where customer will
provide city pairs, and ORBITZ will return fares with calendar of eligible
travel dates. ORBITZ agrees subject to applicable support or functionality
required from WorldSpan.
ORBITZ will provide Northwest with the option to sell other travel related
travel products and services (i.e. Car, Hotel, [***]). The capability would
be integrated within the purchase path, the cost breakdown, the
confirmation pages etc. This functionality would also be configurable by
P.O.S. (CA or US). This items is an agreed Phase 1 item for US point of
sale.
50. ORBITZ will provide Northwest with the capability to allow customers to
enter a specific online secure password/code that can be used when making
online transactions. By doing so it would enable the [***].
51. ORBITZ will provide Northwest with the capability to track customers
referred to Northwest xxx.xxx Reservations consumer booking engine (via a
separate url/domain) through the [***] and provide Northwest with reporting
capability (including air, car, hotel or other reservation add-ons) of all
transactions.
DETAILED REQUIREMENTS
BOOKING ENVIRONMENT
1) ORBITZ will develop a new pseudo city code (SID) for each POS through
WORLDSPAN. The SIDS will reside [***] WORLDSPAN See comment on page 5, #1.
NWA needs to assist ORBITZ as required with Worldspan to complete this
task.
2) ORBITZ will insure that air tables are created for the new SIDs.
3) ORBITZ will insure that PNR end transaction editing will allow TAE, TAM or
TAC ticketing field in the NW partition depending on the point of sale and
ticketing type, and allow QEP entry.
4) ORBITZ will insure that PNR editing will allow telemail address field
entries from new SIDs [***].
5) ORBITZ will insure that the SIDs are set up to allow end transaction of PNR
with ticketing field of 7TAC/date, 7TAM/date or 7TAE/date [***] by point of
sale SID.
6) The first phone field cannot be deleted. However, a new phone field may be
entered prior to it using the following entry
a. [***]
PROCESSING REQUIREMENTS
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the Commission. Confidential treatment has been requested with respect to
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10
BOOKING REQUIREMENTS
ORBITZ Requirements
1) ORBITZ will control air booking and permit specified carriers and their
code share segments only.
2) Car and hotel bookings are permitted either in conjunction with air
segments or as stand alone itinerary segments.
3) Non Air PNRs will be created by ORBITZ with a ticketing field of:
a. 7TAW/00/DDMMM
4) Maximum of 9 names per PNR including infants.
5) Full name of passenger should be required. There should be an edit in the
first name field to disallow an initial to be used in place of a full first
name.
6) E-Tickets will be issued; paper-tickets where E-Ticket is not an option.
7) Advance booking restrictions will be the same as in the NW product today,
configurable by point-or-sale. Paper tickets are available 3 or more days
In advance for US and CA points of sale and E-Tickets are available up to 2
hours prior to departure for US and CA points of sale.
8) Paper tickets may be booked seven (7) or more business days in advance of
flight if E-Ticket is not available. Business days refer to Monday-Friday.
Holidays that fall Monday-Friday will be considered business days. The
setting for this should be configurable by point-of-sale.
9) ORBITZ will provide the following search options.
a. Economy/Coach Class
b. Business Class
c. First Class
d. Non-Stop Flights
e. Avoid Change Penalties
f. No Advance Purchase Restrictions
10) [***] will be identified in the search results as outlined in the Business
Requirements document B-26
TICKETING FIELDS. ADDRESS FIELDS AND QUEUING
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
11
ORBITZ AND WORLDSPAN REQUIREMENTS
1) If customer chooses to purchase the appropriate ticketing field will be
stored and the PNR will be queued.
a. US and Canada Points of Sale
i. E-Ticket: [***]
ii. Paper ticket: [***]
2) If the customer chooses to purchase" the reservation before midnight US
(Pacific Time). ORBITZ will send a ticketing field change and a queuing
command.
a. US and Canada Points of Sale
i. E-Ticket: [***]
ii. Paper ticket: [***]
3) Third party xxxxxxxx (xxxx-to-mail-to) will be allowed.
a. Single address ([***]):
(i) [***]/Name on credit card[***]
[***]/Billing address line 1[***]
[***]/Billing address line 2
[***]/City State Zip
[***]/Prefecture or country
b. Xxxx-to-mail-to (*mandatory):
(ii) [***]/Name on credit card[***]
[***]/Billing address line 1[***]
[***]/Billing address line 2
[***]/City State Zip
[***]/prefecture or country
[***]/Mail-to Name[***]
[***]/Mail-to address line l[***]
[***]/Mail-to address line 2
[***]/City state zip[***]
[***]/prefecture or country
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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Express purchase option will be allowed. If the express purchase option is
selected, information will be pulled from the customer profile and used in
the booking process. This customer information will be displayed to the
user during the booking process, and the user will be given the opportunity
to change this information before completion of booking. Express Purchase
will be offered as on NW's current site for phase 1.
PHONE FIELDS AND PNR OWNERSHIP
ORBITZ AND WORLDSPAN REQUIREMENTS
1) ORBITZ will create the PNRs via the xxx.xxx Reservations Site with the
[***] of:
a. United States: [***]
b. Canada: [***]
2) Second, third and forth phone fields will follow WORLDSPAN format
a. All: [***]
b. [***]
c. [***]
3) If customer chooses to "purchase", ORBITZ will change the [***]. *Actual
text in phone field to be determined.
i) NW phone field[***]
* United States: [***]
* Canada: [***]
* Actual text In phone field to be determined.
b. ORBITZ booking engine will control queuing after the
addition of the FOP. Queues are to be determined and will be
configurable per POS.
FORM OF PAYMENT AND APPROVAL
ORBITZ REQUIREMENTS
1) Credit Cards only.
2) All credit cards will go through [***]
3) ORBITZ will send the following address and credit check format:
US:
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
13
[***]
[***]
International:
[***]
[***]
4) If the credit card fails, an error message will be returned to the customer
prompting him for another card.
5) If the credit card passes, the approval code and total amount to be charged
will be added to the PNR in the form of payment fields using the following
format
a. [***]
[***]
6) [***]. Worldspan will pass through additional information in the PNR that
is transparent to both NW and ORBITZ.
7) The system will provide a Credit Card Phone-In option for those customers
who do not wish to enter their credit cards over the Internet. The customer
must provide all other traveler preference information during the time of
booking. He will be advised that he must call the fulfillment center to
provide his credit card far payment within a set amount of time. If the
original fare is no longer available when the call is made, the fulfillment
agency will notify the customer of the new fare. If the customer does not
call within the allotted timeframe, the reservation will be automatically
cancelled. If a customer selects the credit card phone-in option during the
booking process, he will no longer have the option of purchasing this
particular Itinerary online; he must call the fulfillment center. Once a
reservation has been purchased, the customer can view the itinerary on the
web site.
8) Customers will be allowed to store multiple credit cards - each with a
description. Customer should be able to select their desired credit card on
the purchase and express purchase paths, or add a new card with the option
to store it in their profile.
PRICING REQUIREMENTS
ORBITZ AND WORLDSPAN REQUIREMENTS
1) Best Price requests will send a PowerShopper message to WORLDSPAN
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
14
a. Append as many airline codes as allowed to the PowerShopper entry for
all POS, as allowed by WORLDSPAN.
b. Display all valid results from Powershopper requests to ensure the
best fares are offered to customers.
2) All Available Flights requests will send a non-PowerShopper message to
WORLDSPAN
a. Stored fare quote
i.) Prior to end transaction on "ticketed' flights, ORBITZ will send
a stored fare quote message to WORLDSPAN.
3) Allow E-Certs to be redeemed through all paints of sale utilizing both
Powershopper and non-powershopper pricing entries (but can be configured off for
a POS).
a. ORBITZ should support E-Cert fares that require only a reference code
and also those that require both a reference code and E-Cert number.
REMARK FIELDS
ORBITZ REQUIREMENTS
1. ORBITZ will send the [***] fields in the following format
a. E-mail address: [***]
2. ORBITZ will use standard translation tables to convert special characters
in email addresses into the PNR (le; the underscore translates to [***]). ORBITZ
will use the following translation table far these translations:
-------------- ---------------
Original Translation
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
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[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
[***] [***]
-------------- ---------------
Changes to this table can be made during ORBITZ's regularly scheduled releases
provided that NWA provides the information to ORBITZ to allow sufficient time to
make the changes.
SEAT ASSIGNMENTS
NWA hill provide any required license with Kinetics to enable functionality.
ORBITZ REQUIREMENTS
1) Seat assignments will be sent to WORLDSPAN via 4R entry, versus a remark
entry. [ie; 4RA$AF (aisle forward)]
2) eat mapping will be enabled to allow customers to choose a specific seat
rather than generic.
3) Select seating xxxx be enabled in the seat maps. The select ("preferred")
seats will be distinguished by color In the seat map. Users will be notified
that they must be eligible to choose select seating and will be advised that
they must show proof of this fact at the airport should they choose select
seating. Should an Ineligible user select a "preferred" seat, the booking engine
will not guarantee that the user will obtain an assigned seat.
FREQUENT FLYER NUMBER
ORBITZ REQUIREMENTS
1) Frequent flyer number should be sent before the seat request.
[***]
NW member flying on NW: [***]
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16
KL member flying on KL: [***]
NW member flying on KL: [***]
NW member flying on NW and KL: [***]
[***]
CO member flying on NW: [***]
2) If multiple party PNR is built, screen returned to customer will reflect
each member of the party with their respective FQTV number to ensure number
correctly matched to individual. The confirmation page and trip itinerary will
also list each individual with their FQTV number.
3) [***] will be associated with [***] for reporting purposes. ORBITZ
understands this association to be made by the fact that an [***] and [***]
number can be stored in a customer's profile.
4) ORBITZ will validate WorldPerks FQTV number prior to registration, when it
is added to a passenger profile or as part of the booking process. Validation is
as follows.
To verify a 9 or 12-digit WorldPerks number, the following algorithm is used:
1. [***]
2. [***]
3. [***]
Example: [***]
1. [***]
2. [***]
3 [***]
[***]
Example: [***]
l. [***]
2. [***]
3. [***]
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17
[***]
This is Intended to be a Phase 1 Items. However, further detail and
specification of how Orbitz will interact with the WorldPerks system needs
to be defined. NW agrees
E-MAIL CONFIRMATION
ORBITZ REQUIREMENTS
1) An E-mail confirmation will be sent to the user upon completing a ticketed
reservation for all points of sale products. ORBITZ will provide customers with
the option of a text or HTML format.
2) Prior to purchasing, the customer's email address on file will be displayed
for review/change.
3) Customer can elect to receive their E-Ticket Trip Summary Receipt (TSR)
provided by NW via email, or via U.S. Mail. Email will be the default. PNR
formats:
a. Email: [***]
b.
c. Mail: [***]
i) TSR will be mailed to the address(es) In the PNR
d. NW should have the option to turn "off (not display) one or more types
of TSR delivery methods.
4) Customers should have the option to email a copy of their itinerary to
alternate email addresses. This option should be part of the build process as
well as a link when accessing individual itineraries.
PASSPORT AND EMERGENCY CONTACT INFORMATION
ORBITZ REQUIREMENTS
1) Passport Information will be collected and added to the PNR using standard
WORLDSPAN formats.
[***]
[***].
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18
2) Emergency contact information will be collected and added to the PNR using
standard WORLDSPAN formats.
[***]
If information is refused: [***]
ORBITZ will enter [***] in the PNR if customer refuses to enter this
information.
RELATED PROCESSES
AUTOMATIC BLACK LISTING
1) Automatic Black Listing process should be applied to the U.S. and Canada
points of sale.
ORBITZ will provide the following functionality:
1. The system will provide a password recovery system.
2. [***]. Alternately, the user may call customer support to reset the
account.
3. Customer support will be given the capability to deactivate a user's
account. The account may be reactivated by customer support at a later
time.
ORBITZ assumes that mast of these items should be security features on the
WorldPerks system that ORBITZ simply displays to the customer.
SUPPORT
NORTHWEST REQUIREMENTS
E-Travel Experts will have access to a Utility Server at ORBITZ at no additional
cost. Following are Northwest's requirements:
1) Look-up Functions
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
2) Historical Features
- [***]
- [***]
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19
- [***]
- [***]
- [***]
- [***]
3) Maintenance/Update/Edit Features
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
4) Profile and Preferences
- [***]
- [***]
- [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Orbitz Orbitz builds
Function NW has? NW requires? Orbitz has? builds Ph. 1 Ph. 2
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Search Functions
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
SEARCH PAGE INCLUDES SEARCH BY:
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Point of sale (US or CA) [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Itinerary number (PNR) [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
E-mail address [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Name (Last name required, first name optional) [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Member ID [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Account number [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Confirmation number (PNR?) [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
ADMINISTRATIVE FUNCTIONS
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Each agent has unique sine-in [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
MULTIPLE LEVELS [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Traveler [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Support Agent [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Manager level [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Emulation: [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Support functions emulate customer's account [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Support function advises agent is in `emulating'
mode and which account is being emulated [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
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20
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Comment fields to keep notes of customer contacts [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
HISTORICAL FEATURES
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Account history displaying each action the
customer took including profile and preference
updates [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Itinerary history displaying each action the
customer took [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Support Agent history [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
All previous booking [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Time/Date stamp of creating of itineraries and
each additional action [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Error message (code) kept [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
MAINTAIN/UPDATE/EDIT FEATURES
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Disable/enable accounts w/drop down for reason
and notes filed [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
E-MAIL SETTING
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Change customer e-mail address [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Select between text or HTML e-mails [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
TRAVEL SETTINGS
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
List of traveler profiles associated with account [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Add new traveler [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Delete travelers [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
PROFILE AND PREFERENCES FOR EACH TRAVELER
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Name [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Traveler type [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Phone numbers (Home, work, fax, cell) [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Date of birth [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Gender (NOT IN ORBITZ CB TODAY) [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Passport information (country and number) (NOT IN
ORBITZ CB TODAY) [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Emergency contact information (NOT IN ORBITZ CB
TODAY) [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
AIR PREFERENCES
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Seating preferences [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Meal preferences [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Special assistance [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Frequent Flier information [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Home Airport [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
VIEW CAR AND HOTEL PREFERENCES
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Frequent guest/rental information [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
PASSWORD AND SIGN IN
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Send password reminders [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Change customer password [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Sign out of account [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
PAYMENT INFORMATION
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Change/update customer credit card information [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
Credit card phone in option [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
By-pass address verification [***] [***] [***] [***] [***]
-------------------------------------------------- -------------- ------------- ------------ ------------- ---------------
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21
5) Orbitz will provide "Train the Trainer" training for NWA/E-Travel Experts.
ORBITZ will offer a set hour commitment of training. Beyond that amount
will be billed at [***]. Please advise `set' hour commitment before we can
agree to this. Orbitz will provide 10 days of training as part of this
agreement. A portion of the training will be for customer service
personnel, and a portion will be more technical, and geared toward the
staff that will administer and maintain the content of the site. The exact
split between customer service training and technical training will be
agreed upon between Orbitz and NWA.
6) ORBITZ will provide NW with any documentation prior to the Initial release
and any subsequent upgrades.
STATISTICAL DATA ORBITZ will make the following requested statistical
information available to Northwest:
NWA can access the databases via BRIO to access this Information directly.
ORBITZ will not perform any specific development on these items.
Booking information for Air, Car, Hotel and any other travel product.
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
- [***]
[***]
2. Account/Look to Book information
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22
[***]
- [***]
- [***]
- [***]
- [***]
- [***]
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23
TEXT CHANGES AND BRANDING
TEXT CHANGES
ORBITZ and Northwest Requirements
1) ORBITZ will provide NW with the ability to make text changes to adminable
fields only.
BRANDING
The booking engine will be developed to match the look & feel" of xxx.xxx as it
exists at the date of this SOW. Branding of XXX.xxx will be provided. ORBITZ/NWA
need to agree on definition of `look and feel.'
NORTHWEST REQUIREMENTS
1) Help section
a. Frequently Asked Questions
2) NW Headers, footers, desired logos would be provided to ORBITZ by NW.
Northwest may provide links to xxx.xxx products, to be Included in the
header and/or footer.
3) NW will have the ability to customize verbiage on interim screens seen by
customers when processing Is in progress if these screens are used on the
site (i.e.; Searching through thousands of records to find the best
options...).
CAPACITY & DATA STORAGE
CAPACITY
Capacity requirements are to be determined. NWA xxxx send volume forecasts to
ORBITZ.
ORBITZ needs the following information from NW:
Current maximum number of concurrent users that ORBITZ will need to support
Number of bookings per day / week generated by current product Twelve (12)
month projection for both concurrent users and booking totals
DATA STORAGE
ORBITZ will provide the following to NW:
[***]
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24
ORBITZ needs the following information from NW:
Test data extract from the legacy schema for planning purposes.
A set of extracts from the legacy database according to a strict schedule
as part of the testing and deployment process.
An escalation procedure with NW to assist ORBITZ through any data questions
that may develop.
DELIVERABLES
ORBITZ
1. Project Plan
2. Change Management Process Definition
3. Roles & Responsibilities Definition
4. Mockups of the site
5. Website as specified in this document
NORTHWEST AIRLINES
Detailed Requirements:
1. Documentation detailing any PNR formatting requirements missing from this
SOW
2. Documentation detailing confirmation email formatting requirements
3. User Acceptance Test Plan
4. All documentation for [***]required to implement this product
5. Additional detailed requirements for each feature outlined in this document
to be provided by NW as needed.
Web Design:
1. Site graphics
2. All static text to be displayed on the site in HTML format
3. FAQ text in HTML format
Test Data:
1. [***]
2. [***]
3. [***]
4. [***]
5. [***]
6. [***]
Configuration:
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25
1. All configuration Information for each POS
2. All other configuration Information for the site. ORBITZ will advise NWA
what Is needed.
Other:
1. Expected volume for the site
2. Maximum number of Concurrent users site should support
3. Expected number of registered users for the site
4. Database schema for current profile database
5. Sample data from current profile database for testing
6. All data from current profile database
ASSUMPTIONS
All functionality described in this document can be performed in WORLDSPAN's
[***]. ORBITZ will insure that the SIDs are set up correctly with the
appropriate permissions in the timeframe specified In the project plan. (With
assistance from NWA as required to interact with Worldspan on this item).
ORBITZ will provide deliverables to NWA in the timeframe specified in the
Schedule. NWA will provide deliverables to ORBITZ in the timeframe specified in
the Schedule. There will be no significant deviations from the volume
projections to be provided by NWA. Northwest will provide sufficient resources
to execute customer acceptance testing in the timeframe specified In project
plan.
Once Northwest signs off on customer acceptance testing, the site will be
considered implemented by ORBITZ.
After all Phase 1 cutover critical items have been resolved# and the site is
stable and within SLA, notwithstanding customer sign-off, xxx.xxx will be
considered implemented.
User profiles will be migrated to ORBITZ using ORBITZ's user profile upload
template, in a data format readily usable by ORBITZ. Please refer to project
assumptions for more information on this item.
ORBITZ ASSUMPTIONS
The following assumptions are not intended to describe functionality. It is
intended to clarify ORBITZ assumptions around a subsection of the functionality.
It's here to provide a stable point for the sake of estimation.
Data Migration
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26
- The quality of [***] and degree of support will directly impact
ORBITZ ability to port any member data to the new site.
- Specific needs currently include: password deciphering and itinerary
information Reporting
- All reporting needs will be supported by a data warehouse supplied
by Orbitz that work with Brio. Any and all Brio setup costs are outside the
scope of this engagement.
Administration
Orbitz is presently implementing a long-term customer service strategy, which
includes new products and tools to develop a host agnostic access environment
and contact management, administrative, and workflow tools integrated into a
customer service agent portal. XXX.xxx will be enabled with the necessary tools
to duplicate the level of administrative features currently present on XXX.xxx.
and be provided with the option to integrate additional customer service tools
as they become available. The administrative platform includes, but is not
limited to the following features.
- Administrative and Customer Service Platform: Orbitz will provide the
technical platform, and interface tools necessary to provide access to
NWAs Primary GDS in order to create graphical workflows to facilitate
administration and customer service management
- CSR Interface: Customer service representatives will be able to log in
to the system as a [***] in order to assist in website issues, manage
the XXX.xxx bookings, access and manage profile and preference
information, and [***]. This login will enable them to use the site as
that [***].
- System admin: Oribtz will also provide the ability to add/delete
customer service representative id's and user deactivation.
- Contact Management: Orbitz will provide a contact management tool in
order to facilitate the initial contact with the XXX.xxx customer to
manage all XXX.xxx Look-up Functions and Historical Features.
Kinetics Licensing
- As Orbitz is using Kinetics to power some of the items stated above.
Northwest will pick up any incremental license fee cost associated
with K-Term, Kinetic Worldspan DIR gateway and specific product
licenses, where applicable, or negotiate directly with Kinetics.
Host setup
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27
Northwest will pay all SID setup charges.
Subsequent Phase Items
- Subsequent Phase Items will be introduced as ORBITZ develops items for
Xxxxxx.xxx.
- Items in the development queue are noted and when a timeline for
launch is known, will be provided to NWA.
- Items that are un-noted either require significant development and/or
more definition to truly determine effort and timing.
FUNCTIONALITY OF SUBSEQUENT PHASES
The following features will be developed In the future by Orbitz and available
for use by Northwest at no additional Cost:
a. Car and hotel reservations for Canada point of sale.
b. Administrative functions identified in the table an pages 18 and 19 of
this Statement of Work.
The additional features listed below will be offered to NWA in accordance With
Orbitz release schedule, as defined in Exhibit D IV `Update and New Releases'.
(a) ORBITZ will provide a feature that would allow customers to [***].
(b) The site will be wireless enabled using ORBITZ's wireless framework.
(c) ORBITZ will provide Northwest customers with a travel arranger option.
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CONFIDENTIAL Page 22
EXHIBIT B
CHANGE REQUEST
Scope Change Request
1 Title:
2 Requested By:
3 Status: Unapproved, Approved, Rejected, or Implemented.
4 Business Need Detail:
5 Impact on Project:
6 Impact on Schedule:
7 Deliverables Impacted:
8 Approvals:
NORTHWEST AIRLINES, INC. ORBITZ LLC
By: By:
------------------------------------- -------------------------------------
Name: Name:
----------------------------------- -----------------------------------
Title: Relationship Manager Title: Relationship Manager
Date: Date:
------------------------------------- -----------------------------------
CONFIDENTIAL Page 23
EXHIBIT C
SCHEDULE
------------------------------------------------------ -------------- --------------
SITE MODULE ORBITZ NWA
TURNOVER TURNOVER
------------------------------------------------------ -------------- --------------
Home Page 3/7/2002 4/4/2002
------------------------------------------------------ -------------- --------------
Login 3/7/2002 4/4/2002
------------------------------------------------------ -------------- --------------
Car Booking 3/7/2002 4/4/2002
------------------------------------------------------ -------------- --------------
Hotel Booking 3/11/2002 4/8/2002
------------------------------------------------------ -------------- --------------
Registration 3/18/2002 4/15/2002
------------------------------------------------------ -------------- --------------
Flight Booking 4/8/2002 5/6/2002
------------------------------------------------------ -------------- --------------
MyStuff 4/22/2002 5/20/2002
------------------------------------------------------ -------------- --------------
------------------------------------------------------ --------------
TASK
FINISH
------------------------------------------------------ --------------
Legacy data migration 4/1/2002
------------------------------------------------------ --------------
All site code complete 5/30/2002
------------------------------------------------------ --------------
Admin features complete 5/30/2002
------------------------------------------------------ --------------
Train the Trainer Training 6/10/2002
------------------------------------------------------ --------------
Help pages complete 7/2/2002
------------------------------------------------------ --------------
Integration test ends/Beta begins 7/16/2002
------------------------------------------------------ --------------
CONFIDENTIAL Page 24
EXHIBIT D
FEES
I. Pre-Launch Development Fees:
Airline will pay Orbitz a fixed fee of $[***] for Pre-Launch Development
services described above. Payments will be made on the following payment
schedule:
------------------ ------------------ ----------------------------------------
PAYMENT AMOUNT
NUMBER DUE PAYMENT DUE BY:
------------------ ------------------ ----------------------------------------
[***] $[***] [***]
------------------ ------------------ ----------------------------------------
[***] $[***] [***]
------------------ ------------------ ----------------------------------------
[***] $[***] [***]
------------------ ------------------ ----------------------------------------
[***] $[***] [***]
------------------ ------------------ ----------------------------------------
[***] $[***] [***]
------------------ ------------------ ----------------------------------------
[***] $[***] [***]
------------------ ------------------ ----------------------------------------
[***]
II. Hosting and Support Fees:
Airline will pay Orbitz transaction fees based on the following transaction
pricing schedule per Ticket:
o $[***] per transaction for the 1st [***] Tickets per 12-month period
from the Launch Date
o $[***] per transaction for the next [***] Tickets per 12-month period
from the Launch Date
o $[***] per transaction for the next [***] Tickets per 12-month period
from the Launch Date
o $[***] per transaction for the next [***] Tickets per 12-month period
from the Launch Date
o $[***] per transaction for the next [***] Tickets per 12-month period
from the Launch Date
o $[***] per transaction for Tickets in excess of [***] per 12-month
period from the Launch Date
o The pricing schedule will be effective on the Launch Date. Upon the
successful full launch of the Orbitz Software, Airline will pay ORBITZ
a minimum transaction fee of $[***] per month, regardless of the
number of Tickets actually processed during the month.
o For the avoidance of doubt, the transaction pricing schedule set forth
above shall not apply to hotel and car reservation services offered
through the Website unless Northwest exercises its option under
Section
-------------------------
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separately with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
CONFIDENTIAL Page 25
5.5(a) of the Agreement to provide such reservation services. In the
event Airline exercises its option under Section 5.5(b) of the
Agreement to offer the air transportation services of Other Airlines
for sale through the Website, the transaction pricing schedule set
forth above shall apply to Other Airline tickets sold through the
Website.
III. Airline-Specific Development Service Fees
Hourly rates for post launch development provided pursuant to Change Requests
during the term of this Agreement:
o Post launch development, revisions, etc. of Orbitz Software: $[***] per hour
o Post launch development, revisions, etc. of Custom Material: $[***] per hour
IV. Updates and New Releases.
During the term of this Agreement, Orbitz will provide Airline with regular
bug-fixes and releases of the Orbitz Software at no additional charge.
Customization of a release for Airline will be treated as a Change Request at
the $[***] per hour post launch development rate. Orbitz will provide Airline at
least 30 days prior written notice of any releases, outlining the details of
each such release.
-------------------------
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CONFIDENTIAL Page 26
EXHIBIT E
RELATIONSHIP MANAGERS
o The Relationship Manager for Orbitz will be Xxxxx Xxx. The Alternate
Relationship Manager will be Xxxxx Xxxx.
o The Relationship Manager for Airline will be Xxxxx Xxxxx. The Alternate
Relationship Manager will be Xxxxx Xxxxxxx.
CONFIDENTIAL Page 27
EXHIBIT F
SERVICE LEVEL AGREEMENT
A. HOSTING SERVICES
1. GENERAL DEFINITIONS.
"Expected Hosting and Support Fee" means, for each Service Level
Period, the aggregate amount of Hosting and Support Fees that would be payable
to Orbitz by Airline if [***].
"Expected Ticket Volume" means, for each month during the Term, the
number of Tickets as calculated in accordance with Section A(2) of this Exhibit.
"Monthly System Availability Commitment" means, for each calendar
month, the number of minutes (expressed as a percentage) during such month that
the Orbitz Software operates in accordance with its Specifications, excluding
Excluded Hours Unavailable (as defined in Section A(3)(d) of this Exhibit). The
Monthly System Availability Commitment will be determined in accordance with
Section A(3)(b) of this Exhibit.
"Service Level Period" will mean (i) with respect to the first contract
year, the twelve-month period commencing on the Launch Date, and (ii) with
respect to each contract year thereafter, each subsequent twelve-month period
that Orbitz is obligated to provide the Hosting Services.
"System Response Time" will mean the total elapsed time from initiating a
booking engine service call/request to the receipt of the corresponding response
attributed to the Orbitz Software.
2. EXPECTED TRANSACTION VOLUME
(a) Sixty (60) days in advance of the Launch Date with respect to
the initial Service Level Period and thereafter, sixty (60) days prior to the
beginning of each Service Level Period, Airline will provide Orbitz with a
forecast of the Expected Ticket Volumes by month for the upcoming Service Level
Period.
(b) If the actual Ticket volume exceeds [***]% of the Expected
Ticket Volume for any particular calendar month and the Monthly System
Availability is adjusted pursuant to Section A(3)(g) of this Exhibit, the
parties may mutually agree to prospectively adjust the forecast of Expected
Ticket Volumes for the upcoming months, based on historical data and anticipated
events.
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separately with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
CONFIDENTIAL Page 28
(c) Notwithstanding the foregoing, at least every six months, the
parties will review the Expected Ticket Volume trend and may mutually agree to
prospectively adjust the forecast of Expected Ticket Volumes for the upcoming
months, based on historical data and anticipated events.
3. SYSTEM AVAILABILITY
(a) Monthly System Availability shall be defined using the following
formula.
[***]
Where AP = Availability Percentage
MM = Total minutes in a given month
EMU = Actual Excluded Minutes Unavailable (or the fraction thereof)
MU = Total Minutes Unavailable (or the fraction thereof)
(b) Monthly System Availability Commitment. Monthly System Availability
Commitment is defined as [***]% for each contract year.
(c) Minutes Unavailable. Minutes Unavailable shall be calculated from
earlier of: (i) the time an Orbitz Trouble Ticket is opened that the Orbitz
Software is unavailable or (ii) the time Orbitz is notified that the Orbitz
Software is not operating according to Specifications or (iii) the time that the
Orbitz Software is unavailable, and ends when the Orbitz Software is restored to
the extent that the system is operating substantially in conformance to
Specifications.
(d) Excluded Minutes Unavailable. Minutes Unavailable shall not include
minutes in which the Orbitz Software is unavailable due to (i) Scheduled
Downtime, (ii) failure of software, hardware, middleware or systems which are
necessary for the delivery of the Orbitz Software but which are not provided and
controlled by Orbitz or its Subcontractors, including, but not limited to, 3rd
party networks; outages attributable to the guaranteed time to repair software,
hardware, middleware or systems afforded to Orbitz's Subcontractors, Airline's
third party computerized reservation system provider's ("CRS") hardware,
middleware, software, or systems; availability of the World Wide Web; software
owned or licensed by Airline connected to Orbitz Software; or any Orbitz
Software modified by Airline.
(e) Scheduled Downtime. Inaccessibility of the Orbitz Software as part of
the Website for normal maintenance or upgrades of the Orbitz network or its
Subcontractor's network, equipment and systems ("Scheduled Downtime") will occur
during Orbitz's or its Subcontractor's regularly scheduled maintenance window,
which Orbitz or its Subcontractor may, in its or their reasonable discretion,
adjust to best serve the needs of its network and customer base. Maintenance
windows are currently defined as Mondays and Saturdays, 1 a.m. - 3 a.m. local
data center time and 11 p.m. Saturdays to 5 a.m. Sundays Pacific Time. Scheduled
Downtime that violates the foregoing requirements will violate the Monthly
System Availability Commitment. The parties agree that there shall be no
Scheduled Downtime unless such Scheduled Downtime is mutually agreed to in
writing by the parties, with such consent not to be unreasonably withheld.
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*** 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.
CONFIDENTIAL Page 29
(f) Airline will use commercially reasonable efforts to provide Orbitz with
at least two (2) days advance notification of any Airline-initiated promotional
events that are expected to create a significant increase Ticket volume.
(g) [***].
(h) Service Availability Credits. If Orbitz fails to meet the Monthly
System Availability Commitment after the Service Level Period commences, Orbitz
will credit Airline a prorated amount of the Hosting and Support Fee ("Hosting
Credit"), calculated as follows: Airline will be entitled to receive a credit
equal to [***] percent ([***]%) of the applicable monthly Hosting and Support
Fee for each [***] percent ([***]%) the Service Level falls below the Monthly
System Availability Commitment. Such Hosting Credits may be deducted from the
invoice for the next installment of the Hosting and Support Fee or, if there is
no subsequent installment due, Orbitz will refund to Airline the amount of such
Hosting Credits that have not been applied to invoices, subject to the
limitation set forth in Section C(1) of this Exhibit F.
4. SYSTEM RESPONSE
(a) Orbitz will be responsible for System Response Time; provided,
however, Orbitz will not be responsible for System Response Time in the event
that System Response Time is adversely impacted by factors, occurrences or
circumstances beyond the control of Orbitz. Such factors, occurrences and
circumstances that are deemed to be beyond the control of
Orbitz include, but
are not limited to, 3rd party networks; CRS system response and outages
attributable to the guaranteed time to repair software, hardware, middleware or
systems afforded to Orbitz's Subcontractors. Orbitz shall include detailed
information as to delays attributed to Orbitz, CRS and other causes outside the
control of Orbitz in the monthly System Availability and Performance Report set
forth in Section B(4) of this Exhibit.
(b) Orbitz will provide System Response Time within acceptable
limits for at least [***]% of all booking engine service calls/requests. The
specific metric for measuring System Response Time will be determined based on
[***] months of response time data and the metric shall be set as a result of
looking at [***] standard deviations from the mean of this data.
(c) The "System Response Time Commitment" shall [***].
(d) System Response Time Credit. For each month that Orbitz fails
to achieve at least [***]% performance at such System Response Time Commitment,
Airline shall receive a credit of $[***] subject to the limitation set forth in
Section C(1) of this Exhibit.
(e) If the actual Ticket volume exceeds [***]% of the Expected
Ticket Volume for any calendar month, the value of the System Response Time
Commitment will be increased by [***] percent ([***]%) for each [***] percent
([***]%) increment (or portions thereof) that the actual Ticket volume exceeds
[***]% of the Expected Ticket Volume.
[***]
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*** 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.
CONFIDENTIAL Page 30
B. SUPPORT SERVICES
1. SERVICE DESCRIPTION
(a) First Level Support. Airline shall be responsible for
providing all 1st level support to consumers using the Software for purposes of
investigating or booking travel and travel related services. Airline shall be
responsible for determining if any of Airline's own software, hardware, backend
systems, middleware or systems are responsible for any consumer problems or
error reports prior to contacting Orbitz.
(b) Second Level Support. Orbitz shall be responsible for
providing all 2nd level support. This refers to the support provided for
facilities management, maintenance and hosting services required to operate the
Orbitz Software.
(c) Third Level Support. Orbitz shall be responsible for providing
all 3rd level support. This refers to the support provided for Software
modifications or functionality issues.
(d) Airline Single Point of Contact (SPOC). Airline will provide a
SPOC for Orbitz to contact in the case of outage or downtime or status change.
The Airline SPOC will be available twenty-four hours, seven days per week by
phone and/or pager. Airline will also provide escalation procedures should the
Airline SPOC be unavailable.
(e) Orbitz Single Point of Contact (SPOC). Orbitz will provide a
SPOC for Airline to contact in the case of outage or downtime. The SPOC will be
available twenty-four hours, seven days per week by phone and/or pager. Orbitz
will also provide escalation procedures should the Orbitz SPOC be unavailable.
(f) Trouble Ticket. Orbitz will create a Trouble Ticket in
response to system abnormalities. Each Trouble Ticket shall contain:
(i) Trouble Ticket reference number.
(ii) A description of the problem or interruption or
degradation of the Hosting and Support Services,
(each a "Service Problem") sufficient to assign a
severity level and initiate an investigation of the
Service Problem.
(iii) A description of any actions taken by Airline to
correct the reported Service Problem.
(iv) The time and date of the call.
(v) Source of Service Problem report
(vi) An initial severity level designation assigned by
Orbitz based upon agreed upon Severity Level
Definitions
(g) Resolution Categories. For each Trouble Ticket, Orbitz will
assign a resolution category for its internal tracking purposes. Initial problem
categories are as follows:
CODE CHANGE: revised source code is required and a patch kit will be
made available to Airline.
DUPLICATE: the problem is a duplicate of an existing one.
DOCUMENTATION: the relevant Documentation is in error and no source
code change is needed.
CONFIDENTIAL Page 31
USE: the problem was caused by incorrect usage.
PERMANENT RESTRICTION: the problem can be traced to a problem in the
Orbitz Software that cannot be corrected in this version.
SUGGESTION: the Orbitz Software is operating to specification and the
reported problem is an enhancement or a (non-compliant) suggested
change.
CONFIGURATION: the problem has been caused by use of the Orbitz
Software on an unsupported or invalid configuration.
THIRD PARTY ERROR: the Orbitz Software is operating to specification
and the reported problem is due to an uplink error and/or 3rd party
outside of Orbitz's direct control.
(f) Severity Level Classification. The severity level of each
reported problem will be classified in accordance with the following
definitions:
---------- ---------------------------------------------------------- -----------------------------------------
SEVERITY DESCRIPTION SERVICE LEVEL
LEVEL
---------- ---------------------------------------------------------- -----------------------------------------
1 Critical Impact. The problem or defect in the Orbitz Notification within [***]; commitment
Software or degradation of Hosting Services cannot be to identify and implement steps to fix
reasonably circumvented, rendering the Orbitz Software and to use commercially reasonable
unusable, including, but not limited to the inability to efforts to fix within [***]. Orbitz
price or book a Ticket shall provide Airline with hourly
updates as to its progress until the
problem or defect is cured.
---------- ---------------------------------------------------------- -----------------------------------------
2 High Impact. As mutually agreed to by the parties for Notification within [***]; commitment
each reported problem: An error or defect in the Orbitz to identify and implement steps to fix
Software has caused incorrect results; and/or System and to use commercially reasonable
Response Time is greater than 3 times the agreed upon efforts to fix within [***].
System Response Time Commitment; and/or a specific
function has been interrupted, significantly restricting
the use of the Orbitz Software, but not rendering the
Orbitz Software unusable
---------- ---------------------------------------------------------- -----------------------------------------
3 Moderate Impact. An error or defect in the Orbitz Notification within [***]; commitment
Software that has caused unexpected behavior or a minor to identify and implement steps to fix
error where use of the Orbitz Software is not and to use commercially reasonable
interrupted, but unexpected results have occurred. efforts to fix within [***], with daily
updates.
---------- ---------------------------------------------------------- -----------------------------------------
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*** 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.
CONFIDENTIAL Page 32
---------- ---------------------------------------------------------- -----------------------------------------
4 Low Impact or Request for Enhancement. The parties As mutually agreed.
agree that the problem encountered requires new
functionality or an enhancement to be added to the
existing Orbitz Software.
---------- ---------------------------------------------------------- -----------------------------------------
(h) Resolution by Orbitz.
(i) Orbitz will use its commercially reasonable efforts
to provide a Resolution to each problem, within the
specified time periods above. The Airline SPOC will
use reasonable efforts to assist the Orbitz SPOC to
resolve the problem if problem determination is
unclear and impacts the resolution time frames noted.
(ii) Orbitz will use commercially reasonable efforts to
meet the resolution times (depending on the Severity
Level) set forth above with respect to acknowledging,
formulating an action plan and resolving such
problems by contacting the Airline SPOC through
e-mail, telephone, fax or other reliable means of
communication. Orbitz will maintain a log of all
incoming problems for tracking purposes. Orbitz will
contact the Airline SPOC as soon as Orbitz discovers
that a problem cannot be resolved in the specified
time period.
(iii) In the event that Orbitz reasonably determines that
the problem is not an error in or problem with the
Orbitz Software, Orbitz will promptly notify the
Airline SPOC with a detailed explanation. In the
event that Orbitz provides such notice, but the
Airline SPOC continues to request that Orbitz remedy
the problem, Orbitz may charge Airline for such
requests.
2. NOTIFICATION BY ORBITZ
(a) Orbitz will notify Airline of (i) any known Orbitz Software or
hosted system errors; (ii) communications failures from Orbitz to the CRS host;
(iii) availability of the CRS Gateway, CRS Host, and CRS products called by the
Orbitz booking engine within the time frames set forth in Section B(1)(g) of
this Exhibit, depending on the Severity level of such problem. The parties agree
that Orbitz does not have responsibility for resolving the CRS specific
problems; however, Orbitz has the responsibility for communicating this
information to Airline as specified above.
3. ESCALATION
In the event that a Severity Level 1 or Severity Level 2 defect or
problem is not resolved within the response time listed in Section B.1.f. above,
such defect or problem will be reported to the applicable Project Managers and
Airline's Relationship Manager. If the Project Managers cannot agree on a
resolution and defect remains unresolved for 8 hours, the defect will be
reported to the Relationship Managers.
4. REPORTING
CONFIDENTIAL Page 33
Orbitz will calculate System Availability Credits and System Response Time
Credits (whether or not such calculations result in a Credit due Airline) and
provide a report of the results to Airline (the "System Availability and
Performance Report") within 15 days after the end of each month. Airline and
Orbitz will work together to develop any reports with such reports to be
satisfactory to Airline, in its reasonable discretion.
C. TERMINATION OPTION AND LIMITATION OF REMEDIES
1. LIMITATION OF REMEDIES
In no event shall the total of System Availability Credits and System
Response Time Credits (individually and collectively, a "Credit") due Airline
during any month exceed the value of [***] percent ([***]%) of the Hosting and
Support Fee for such month. Further, in no event shall the total of Credits due
Airline during any Service Level Period exceed the value of [***] percent
([***]%) of the Expected Hosting and Support Fee during that Service Level
Period. Each such Credit owed Airline will be calculated within 15 days after
each month of the Service Level Period and applied to the next invoice or
scheduled payment or, if there is no subsequent installment due, Orbitz will
refund to Airline the amount of such Hosting Credits that have not been applied
to invoices.
-------------------------
*** 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.
CONFIDENTIAL Page 34
EXHIBIT G
NON-DISCLOSURE AGREEMENT
CONFIDENTIAL Page 26
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement (this "Agreement"), is made this 6th day
of March, 2000, by and between DUNC, LLC, a Delaware limited liability company
(the "COMPANY") and NORTHWEST AIRLINES, INC., a Minnesota corporation
("INVESTOR"). Capitalized terms used and not defined herein shall have the
meanings set forth in the LLC Agreement (as defined below).
RECITALS
WHEREAS, the Investor has entered into a Subscription Agreement of even
date herewith pursuant to which it will its purchase membership interests in the
Company and become a member of the Company; and
WHEREAS, the Investor previously entered into that certain Limited
Liability Company Agreement of the Company, dated as of February 9, 2000 (the
LLC Agreement"), pursuant to which the Company was formed with Investor as one
of the Initial Members:
WHEREAS, in connection with the conduct of the Company's operations,
each of the Company and Investor (each a "Party" and, collectively, the
"Parties") may disclose certain confidential and proprietary information
regarding the conduct of each Party's respective business activities; and
WHEREAS, the Parties desire to provide appropriate protection for the
exchange of such confidential and proprietary information and to establish the
terms under which such information shall be disclosed.
NOW THEREFORE, in consideration of the premises, covenants and
agreements herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound hereby agree, as follows:
1. CONFIDENTIAL INFORMATION. Confidential Information shall mean:
(a) any data or information that is supplied by either Party
(which will be deemed to include, in the case of the Company, any data or
information with respect to any Member of the Company supplied by the
Company or such Member to the Investor in connection with the operation of
the Company or the performance of any obligation, or the exercise of any
rights, under the LLC Agreement or any Related Agreement), including by its
Affiliates (the "DISCLOSING PARTY"), or the agents, employees, authorized
representatives or nominees thereof (such persons being referred to
collectively as the REPRESENTATIVES") to the other Party including its
Affiliates (the "RECEIVING PARTY") (or the Representatives of the Receiving
Party) including, but not limited to, information regarding: products and
services planning, marketing strategies, strategic and business plans,
finance, operations, customer relationships, customer profiles, sales
estimates and internal performance results relating to the past, present or
future business activities of the Disclosing Party and its owners,
customers, clients and suppliers;
CONFIDENTIAL Page 27
(b) any scientific or technical information, design, process,
procedure, formula, or improvement that is supplied by the Disclosing Party
or its Representatives to the Receiving Party or its Representatives;
(c) all confidential or proprietary concepts, documentation.
reports, data, specifications, computer software, source code, object code,
flow charts, databases, inventions, information, know-how and trade
secrets, whether or not patentable or subject to copyright, supplied by the
Disclosing Party or its Representatives to the Receiving Party or its
Representatives; and
(d) without limitation, all documents, inventions, drawings,
diagrams, specifications, bills of material, equipment, prototypes and
models, and any other tangible manifestation of the foregoing supplied by
the Disclosing Party or us Representatives to the Receiving Party or its
Representatives.
2. CONFIDENTIALITY OBLIGATIONS. Except as expressly authorized by
prior written consent of the Disclosing Party, the Receiving Party shall:
(a) limit access to any Confidential Information received by it
solely to its Representatives who have a need to know such in connection
with any current or future negotiations or arrangements between the
Receiving Party and the Disclosing Party, including, without limitation in
connection with the membership of the Investor in the Company and any
commercial arrangements between the Investor and the Company and only for
use in connection therewith. The Investor may provide access to and may
disclose Confidential Information of the Company to any other Member of the
Company in connection with such Member's participation as a Member of the
Company. The Disclosing Party hereby consents to, and represents and
warrants that it has obtained from its applicable Affiliates their consent
to the use by the Receiving Party of any information received by the
Receiving Party in connection with the above-referenced negotiations or
arrangements;
(b) advise its Representatives having access to the Confidential
Information of the proprietary nature thereof and of the obligation set
forth in this Agreement;
(c) take appropriate action by instruction or agreement with its
Representatives having access to the Confidential Information to fulfill
its obligations under this Agreement;
(d) safeguard all Confidential Information received by it using
a reasonable degree of care and discretion to avoid disclosure, publication
or dissemination of such Confidential Information, but not less than that
degree of care and discretion used by the Receiving Party in safeguarding
its own similar information or material that it does not wish to disclose,
publish or disseminate; and
(e) use all Confidential Information received by it for the
purposes described in subsection (a) of this Section 2 and for no other
purpose whatsoever.
CONFIDENTIAL Page 28
3. DESTRUCTION OF CONFIDENTIAL INFORMATION UPON REQUEST. Upon the
request of the Disclosing Party, the Receiving Party shall (i) destroy all
memoranda, notes, records, drawings, manuals, other documents or materials and
any other manifestation (and all copies thereof) pertaining to or arising from
the Confidential Information in any form or medium (whether written,
typewritten, recorded, electronic or otherwise) and (ii) at the option of the
Receiving Party, either return to the Disclosing Party or destroy the
Confidential Information supplied by the Disclosing Party or its
Representatives. Upon the return and/or destruction of such materials, the
Receiving Party agrees to certify, in writing, that all of the foregoing
materials have been destroyed or surrendered to the Disclosing Party.
4. EXCEPTIONS TO CONFIDENTIALITY. The obligation of confidentiality
and restriction on use in Section 2 hereof shall not apply to any Confidential
Information that the Receiving Party proves:
(a) was in the public domain prior to the date of this Agreement
or subsequently came into the public domain other than as a result of
disclosure by the Receiving Party;
(b) was received by the Receiving Party from a third party free
of any obligation of confidence of the Receiving Party to such third party;
provided that such third party is not known by the Receiving Party, after
reasonable diligence, to be bound by a confidentiality agreement with or
other obligation of secrecy to the Disclosing Party;
(c) was already in the possession of or known to the Receiving
Party, without obligation of confidentiality, prior to receipt thereof,
directly or indirectly, from the Disclosing Party;
(d) is requested to be disclosed in a judicial or administrative
law, regulation or proceeding after all reasonable legal remedies for
maintaining such information in confidence have been exhausted, including,
but not limited to, giving the Disclosing Party reasonable advance notice
of the potential for such disclosure and allowing the Disclosing Party to
seek a protective order concerning such disclosure; or
(e) is subsequently and independently developed by employees,
consultants or agents of the Receiving Party without reference to the
Confidential Information of the Disclosing Party disclosed under this
Agreement.
5. RIGHTS IN CONFIDENTIAL INFORMATION. Except as specifically
provided for herein, this Agreement does not confer any right, license, interest
or title in, to or under the Disclosing Party's Confidential Information to the
Receiving Party. No license is hereby granted to the Receiving Party, by
estoppel or otherwise, under any patent, trademark, copyright, trade secret or
other proprietary rights of the Disclosing Party. Title to the Disclosing
Party's Confidential Information shall remain solely in the Disclosing Party.
6. TERMINATION. This Agreement may not be terminated except
following Withdrawal by the Investor pursuant to the terms of the LLC Agreement.
The obligations of confidentiality and limitations on use under this Agreement
shall survive termination of this Agreement for a period of five (5) years from
the execution of this Agreement; PROVIDED,
CONFIDENTIAL Page 29
HOWEVER, notwithstanding the term of this Agreement, any provisions hereof that
by their nature extend beyond such term or termination shall remain in effect
beyond such term or termination under this Section 6 until fulfilled and shall
apply to either Party's successors and assigns.
7. EQUITABLE RELIEF. Each Party agrees that money damages would not
be a sufficient remedy for breach of the confidentiality and other obligations
of this Agreement. Accordingly, in addition to all other remedies that each
Party may have, each Party shall be entitled to specific performance and
injunctive relief or other equitable relief as determined by a court of
competent jurisdiction as a remedy for any breach of this Agreement. Each Party
agrees to waive any requirement for a bond in connection with any such
injunctive or other equitable relief.
8. GOVERNING LAW. This Agreement and performance thereunder shall be
governed by the laws of the State of Delaware, excluding its conflicts of laws
rules.
9. THIRD PARTY BENEFICIARIES. This Agreement may be enforced by any
Member of the Company with respect to any information or data regarding such
Member disclosed by the Investor m violation of this Agreement. Except as set
forth in the preceding sentence, nothing in this Agreement shall provide any
benefit to any third party or entitle any third party to any claim, cause of
action, remedy or right of any kind, it being the intent of the Parties that
this Agreement shall not be construed as a third party beneficiary contract.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
COMPANY:
DUNC, LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
--------------------------------------
INVESTOR:
NORTHWEST AIRLINES, INC.
By: /s/ A.M. Xxxxx
--------------------------------------
Name: A.M. Xxxxx
--------------------------------------
Title: Vice-President
--------------------------------------
CONFIDENTIAL Page 30
EXHIBIT H
MASTER PREFERRED ESCROW AGREEMENT
Master Number ______________________
This agreement ("Agreement") is effective ________, 20__ among DSI Technology
Escrow Services, Inc. ("DSI"), Orbitz LLC ("Depositor"), and any additional
party signing the Acceptance Form attached to this Agreement ("Preferred
Beneficiary"), who collectively may be referred to in this Agreement as the
parties ("parties").
A. Depositor and Preferred Beneficiary have entered or will enter into an
agreement regarding certain proprietary technology of Depositor (referred to in
this Agreement as "the License Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology
except under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical
to Preferred Beneficiary in the conduct of its business and, therefore,
Preferred Beneficiary needs access to the proprietary technology under certain
limited circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with
DSI to provide for the retention, administration and controlled access of
certain proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to 00 Xxxxxx Xxxxxx [Bankruptcy] Code, Section 365(n).
ARTICLE 1 -- DEPOSITS
1.1 OBLIGATION TO MAKE DEPOSIT. Upon the signing of this Agreement by the
parties, including the signing of the Acceptance Form, Depositor shall deliver
to DSI the proprietary technology and other materials ("Deposit Materials")
required to be deposited by the License Agreement or, if the License Agreement
does not identify the materials to be deposited with DSI, then such materials
will be identified on Exhibit A. If Exhibit A is applicable, it is to be
prepared and signed by Depositor and Preferred Beneficiary. DSI shall have no
obligation with respect to the preparation, signing or delivery of Exhibit A.
1.2 IDENTIFICATION OF TANGIBLE MEDIA. Prior to the delivery of the Deposit
Materials to DSI, Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the Deposit
Materials are written or stored. Additionally, Depositor shall complete Exhibit
B to this Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. Exhibit B shall be signed by
Depositor and delivered to DSI with the Deposit Materials. Unless and until
Depositor makes the initial deposit with DSI, DSI shall have no obligation with
respect to this Agreement, except the obligation to notify the parties regarding
the status of the account as required in Section 2.2 below.
1.3 DEPOSIT INSPECTION. When DSI receives the Deposit Materials and the
Exhibit B, DSI will conduct a deposit inspection by visually matching the
labeling of the tangible media containing the Deposit Materials to the item
descriptions and quantity listed on the Exhibit B. In addition to the deposit
inspection,
CONFIDENTIAL Page 36
Preferred Beneficiary may elect to cause a verification of the Deposit Materials
in accordance with Section 1.6 below.
1.4 ACCEPTANCE OF DEPOSIT. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit B, DSI will date and sign Exhibit B and mail a copy
thereof to Depositor and Preferred Beneficiary. If DSI determines that the
labeling does not match the item descriptions or quantity on Exhibit B, DSI will
(a) note the discrepancies in writing on Exhibit B; (b) date and sign Exhibit B
with the exceptions noted; and (c) mail a copy of Exhibit B to Depositor and
Preferred Beneficiary. DSI's acceptance of the deposit occurs upon the signing
of Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred Beneficiary
is Preferred Beneficiary's notice that the Deposit Materials have been received
and accepted by DSI.
1.5 DEPOSITOR'S REPRESENTATIONS. Depositor represents as follows:
a. Depositor lawfully possesses all of the Deposit Materials deposited
with DSI;
b. With respect to all of the Deposit Materials, Depositor has the right
and authority to grant to DSI and Preferred Beneficiary the rights as provided
in this Agreement;
c. The Deposit Materials are not subject to any lien or other encumbrance;
d. The Deposit Materials consist of the proprietary technology and other
materials identified either in the License Agreement or Exhibit A, as the case
may be; and
e. The Deposit Materials are readable and useable in their current form
or, if any portion of the Deposit Materials is encrypted, the decryption tools
and decryption keys have also been deposited.
1.6 VERIFICATION. A verification determines, in different levels of detail,
the accuracy, completeness, sufficiency and quality of the Deposit Materials.
Preferred Beneficiary shall have the right to cause a verification of any
Deposit Materials, at Preferred Beneficiary's expense. Preferred Beneficiary
shall notify Depositor and DSI of Preferred Beneficiary's request for
verification. Depositor shall have the right to be present at the verification.
If a verification is elected after the Deposit Materials have been delivered to
DSI, then only DSI, or at DSI's election an independent person or company
selected and supervised by DSI, may perform the verification.
1.7 DEPOSIT UPDATES. Unless otherwise provided by the License Agreement,
Depositor shall update the Deposit Materials within sixty (60) days of each
release of a new version of the product which is subject to the License
Agreement. Such updates will be added to the existing deposit. All deposit
updates shall be listed on a new Exhibit B and the new Exhibit B shall be signed
by Depositor. Each Exhibit B will be held and maintained separately within the
escrow account. An independent record will be created which will document the
activity for each Exhibit B. The processing of all deposit updates shall be in
accordance with Sections 1.2 through 1.6 above. All references in this Agreement
to the Deposit Materials shall include the initial Deposit Materials and any
updates.
1.8 REMOVAL OF DEPOSIT MATERIALS. The Deposit Materials may be removed
and/or exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 -- CONFIDENTIALITY AND RECORD KEEPING
CONFIDENTIAL Page 37
2.1 CONFIDENTIALITY. DSI shall maintain the Deposit Materials in a secure,
environmentally safe, locked facility which is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement,
DSI shall not disclose, transfer, make available, or use the Deposit Materials.
DSI shall not disclose the content of this Agreement to any third party. If DSI
receives a subpoena or any other order from a court or other judicial tribunal
pertaining to the disclosure or release of the Deposit Materials, DSI will
immediately notify the parties to this Agreement unless prohibited by law. It
shall be the responsibility of Depositor and/or Preferred Beneficiary to
challenge any such order; provided, however, that DSI does not waive its rights
to present its position with respect to any such order. DSI will not be required
to disobey any order from a court or other judicial tribunal. (See Section 7.5
below for notices of requested orders.)
2.2 STATUS REPORTS. DSI will issue to Depositor and Preferred Beneficiary a
report profiling the account history at least semi-annually. DSI may provide
copies of the account history pertaining to this Agreement upon the request of
any party to this Agreement.
2.3 AUDIT RIGHTS. During the term of this Agreement, Depositor and
Preferred Beneficiary shall each have the right to inspect the written records
of DSI pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
ARTICLE 3 -- GRANT OF RIGHTS TO DSI
3.1 TITLE TO MEDIA. Depositor hereby transfers to DSI the title to the
media upon which the proprietary technology and materials are written or stored.
However, this transfer does not include the ownership of the proprietary
technology and materials contained on the media such as any copyright, trade
secret, patent or other intellectual property rights.
3.2 RIGHT TO MAKE COPIES. DSI shall have the right to make copies of the
Deposit Materials as reasonably necessary to perform this Agreement. DSI shall
copy all copyright, nondisclosure, and other proprietary notices and titles
contained on the Deposit Materials onto any copies made by DSI. With all Deposit
Materials submitted to DSI, Depositor shall provide any and all instructions as
may be necessary to duplicate the Deposit Materials including but not limited to
the hardware and/or software needed.
3.3 RIGHT TO TRANSFER UPON RELEASE. Depositor hereby grants to DSI the
right to transfer Deposit Materials to Preferred Beneficiary upon any release of
the Deposit Materials for use by Preferred Beneficiary in accordance with
Section 4.5. Except upon such a release or as otherwise provided in this
Agreement, DSI shall not transfer the Deposit Materials.
ARTICLE 4 -- RELEASE OF DEPOSIT
4.1 RELEASE CONDITIONS. As used in this Agreement, "Release Condition"
shall mean those conditions set forth in Section 10.3 of the License Agreement.
4.2 FILING FOR RELEASE. If Preferred Beneficiary believes in good faith
that a Release Condition has occurred, Preferred Beneficiary may provide to DSI
written notice of the occurrence of the Release Condition and a request for the
release of the Deposit Materials. Upon receipt of such notice, DSI shall provide
a copy of the notice to Depositor by facsimile and overnight courier.
4.3 CONTRARY INSTRUCTIONS. From the date DSI transmits the notice
requesting release of the Deposit Materials, Depositor shall have two (2)
business days to deliver to DSI contrary instructions ("Contrary Instructions").
Contrary Instructions shall mean the written representation by Depositor that a
Release Condition has not occurred or has been cured. Upon receipt of Contrary
Instructions, DSI shall send a
CONFIDENTIAL Page 38
copy to Preferred Beneficiary by facsimile and overnight courier. After
transmitting Contrary Instructions to DSI, Depositor shall have ten (10)
calendar days to provide Preferred Beneficiary with material information which
establishes that none of the Release Conditions have occurred ("Material
Information"). A copy of the Material Information shall be simultaneously sent
to DSI. If Depositor provides such Material Information to Preferred
Beneficiary, DSI shall notify both Depositor and Preferred Beneficiary that
there is a dispute to be resolved pursuant to Section 7.3 of this Agreement.
Subject to Section 5.2 of this Agreement, DSI will continue to store the Deposit
Materials without release pending (a) joint instructions from Depositor and
Preferred Beneficiary; (b) dispute resolution pursuant to Section 7.3; or (c)
order of a court.
4.4 RELEASE OF DEPOSIT. If DSI does not receive Contrary Instructions from
the Depositor or if Depositor does not provide Material Information to Preferred
Beneficiary, DSI is authorized to release the Deposit Materials to the Preferred
Beneficiary or, if more than one beneficiary is registered to the deposit, to
release a copy of the Deposit Materials to the Preferred Beneficiary. However,
DSI is entitled to receive any fees due DSI before making the release. Any
copying expense in excess of $300 will be chargeable to Preferred Beneficiary.
Upon any such release, the escrow arrangement will terminate as it relates to
the Depositor and Preferred Beneficiary involved in the release.
4.5 RIGHT TO USE FOLLOWING RELEASE. Unless otherwise provided in the
License Agreement, upon release of the Deposit Materials in accordance with this
Article 4, Preferred Beneficiary shall have the right to use the Deposit
Materials for the sole purpose of continuing the benefits afforded to Preferred
Beneficiary by the License Agreement. Preferred Beneficiary shall be obligated
to maintain the confidentiality of the released Deposit Materials.
ARTICLE 5 -- TERM AND TERMINATION
5.1 TERM OF AGREEMENT. The initial term of this Agreement is for a period
of one year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) Depositor and Preferred Beneficiary jointly instruct DSI
in writing that the Agreement is terminated; or (b) DSI instructs Depositor and
Preferred Beneficiary in writing that the Agreement is terminated for nonpayment
in accordance with Section 5.2 or by resignation in accordance with Section 5.3.
If the Acceptance Form has been signed at a date later than this Agreement, the
initial term of the Acceptance Form will be for one year with subsequent terms
to be adjusted to match the anniversary date of this Agreement. If the Deposit
Materials are subject to another escrow agreement with DSI, DSI reserves the
right, after the initial one year term, to adjust the anniversary date of this
Agreement to match the then prevailing anniversary date of such other escrow
arrangements.
5.2 TERMINATION FOR NONPAYMENT. In the event of the nonpayment of fees owed
to DSI, DSI shall provide written notice of delinquency to the parties to this
Agreement affected by such delinquency. Any such party shall have the right to
make the payment to DSI to cure the default. If the past due payment is not
received in full by DSI within one month of the date of such notice, then at any
time thereafter DSI shall have the right to terminate this Agreement to the
extent it relates to the delinquent party by sending written notice of
termination to such affected parties. DSI shall have no obligation to take any
action under this Agreement so long as any payment due to DSI remains unpaid.
5.3 TERMINATION BY RESIGNATION. DSI reserves the right to terminate this
Agreement, for any reason, by providing Depositor and Preferred Beneficiary with
60-days' written notice of its intent to terminate this Agreement. Within the
60-day period, the Depositor and Preferred Beneficiary may provide DSI with
joint written instructions authorizing DSI to forward the Deposit Materials to
another escrow company and/or agent or other designated recipient. If DSI does
not receive said joint written instructions within 60 days of
CONFIDENTIAL Page 39
the date of DSI's written termination notice, then DSI shall destroy, return or
otherwise deliver the Deposit Materials in accordance with Section 5.4.
5.4 DISPOSITION OF DEPOSIT MATERIALS UPON TERMINATION. Subject to the
foregoing termination provisions, and upon termination of this Agreement, DSI
shall destroy, return, or otherwise deliver the Deposit Materials in accordance
with instructions. If there are no instructions, DSI may, at its sole
discretion, destroy the Deposit Materials or return them to Depositor. DSI shall
have no obligation to destroy or return the Deposit Materials if the Deposit
Materials are subject to another escrow agreement with DSI or have been released
to the Preferred Beneficiary in accordance with Section 4.4.
5.5 SURVIVAL OF TERMS FOLLOWING TERMINATION. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
a. Depositor's Representations (Section 1.5);
b. The obligations of confidentiality with respect to the Deposit
Materials;
c. The rights granted in the sections entitled Right to Transfer Upon
Release (Section 3.3) and Right to Use Following Release (Section 4.5), if a
release of the Deposit Materials has occurred prior to termination;
d. The obligation to pay DSI any fees and expenses due;
e. The provisions of Article 7; and
f. Any provisions in this Agreement which specifically state they survive
the termination of this Agreement.
ARTICLE 6 -- DSI'S FEES
6.1 FEE SCHEDULE. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided. Unless otherwise stated in this Agreement
or agreed in a writing signed by DSI, Depositor will pay DSI's fees. DSI shall
notify the party responsible for payment of DSI's fees at least sixty (60) days
prior to any increase in fees. For any service not listed on DSI's standard fee
schedule, DSI will provide a quote prior to rendering the service, if requested.
6.2 PAYMENT TERMS. DSI shall not be required to perform any service unless
the payment for such service and any outstanding balances owed to DSI are paid
in full. Fees are due upon receipt of a signed contract or receipt of the
Deposit Materials whichever is earliest. If invoiced fees are not paid, DSI may
terminate this Agreement in accordance with Section 5.2.
ARTICLE 7 -- LIABILITY AND DISPUTES
7.1 RIGHT TO RELY ON INSTRUCTIONS. DSI may act in reliance upon any
instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any employee of a party to this Agreement who gives any
written notice, request, or instruction has the authority to do so. DSI shall
not be required to inquire into the truth or evaluate the merit of any statement
or representation contained in any notice or document. DSI shall not be
responsible for failure to act as a result of causes beyond the reasonable
control of DSI.
CONFIDENTIAL Page 40
7.2 INDEMNIFICATION. Depositor and Preferred Beneficiary each agree to
indemnify, defend and hold harmless DSI from any and all claims, actions,
damages, arbitration fees and expenses, costs, attorney's fees and other
liabilities ("Liabilities") incurred by DSI relating in any way to this escrow
arrangement unless such Liabilities were caused solely by the negligence or
willful misconduct of DSI.
7.3 DISPUTE RESOLUTION. Any dispute relating to or arising from this
Agreement shall be resolved by arbitration using a panel of three (3)
arbitrators under the Commercial Rules of the American Arbitration Association.
Three arbitrators shall be selected. The Depositor and Preferred Beneficiary
shall each select one arbitrator and the two chosen arbitrators shall select the
third arbitrator, or failing agreement on the selection of the third arbitrator,
the American Arbitration Association shall select the third arbitrator. However,
if DSI is a party to the arbitration, DSI shall select the third arbitrator.
Unless otherwise agreed by Depositor and Preferred Beneficiary, arbitration will
take place in Chicago, Illinois, USA. Any court having jurisdiction over the
matter may enter judgment on the award of the arbitrators. Service of a petition
to confirm the arbitration award may be made by First Class mail or by
commercial express mail, to the attorney for the party or, if unrepresented, to
the party at the last known business address.
7.4 CONTROLLING LAW. This Agreement is to be governed and construed in
accordance with the laws of
New York, without regard to its conflict of law
provisions.
7.5 NOTICE OF REQUESTED ORDER. If any party intends to obtain an order from
the arbitrator or any court of competent jurisdiction which may direct DSI to
take, or refrain from taking any action, that party shall:
a. Give DSI at least two business days' prior notice of the hearing;
b. Include in any such order that, as a precondition to DSI's obligation,
DSI be paid in full for any past due fees and be paid for the reasonable value
of the services to be rendered pursuant to such order; and
c. Ensure that DSI not be required to deliver the original (as opposed to
a copy) of the Deposit Materials if DSI may need to retain the original in its
possession to fulfill any of its other escrow duties.
ARTICLE 8 -- GENERAL PROVISIONS
8.1 ENTIRE AGREEMENT. This Agreement, which includes the Acceptance Form
and Exhibits described herein, embodies the entire understanding among all of
the parties with respect to its subject matter and supersedes all previous
communications, representations or understandings, either oral or written. DSI
is not a party to the License Agreement between Depositor and Preferred
Beneficiary and has no knowledge of any of the terms or provisions of any such
License Agreement. DSI's only obligations to Depositor or Preferred Beneficiary
are as set forth in this Agreement. No amendment or modification of this
Agreement shall be valid or binding unless signed by all the parties hereto,
except that Exhibit A need not be signed by DSI, Exhibit B need not be signed by
Preferred Beneficiary, Exhibit C need not be signed, and the Acceptance Form
need only be signed by the parties identified therein.
8.2 NOTICES. All notices, invoices, payments, deposits and other documents
and communications shall be given to the parties at the addresses specified in
the attached Exhibit C and Acceptance Form. It shall be the responsibility of
the parties to notify each other as provided in this Section in the event of a
change of address. The parties shall have the right to rely on the last known
address of the other parties. Unless otherwise provided in this Agreement, all
documents and communications may be delivered by First Class mail.
CONFIDENTIAL Page 41
8.3 SEVERABILITY. In the event any provision of this Agreement is found to
be invalid, voidable or unenforceable, the parties agree that unless it
materially affects the entire intent and purpose of this Agreement, such
invalidity, voidability or unenforceability shall affect neither the validity of
this Agreement nor the remaining provisions herein, and the provision in
question shall be deemed to be replaced with a valid and enforceable provision
most closely reflecting the intent and purpose of the original provision.
8.4 SUCCESSORS. This Agreement shall be binding upon and shall inure to the
benefit of the successors and assigns of the parties. However, DSI shall have no
obligation in performing this Agreement to recognize any successor or assign of
Depositor or Preferred Beneficiary unless DSI receives clear, authoritative and
conclusive written evidence of the change of parties.
CONFIDENTIAL Page 42
8.5 REGULATIONS. Depositor and Preferred Beneficiary are responsible for
and warrant compliance with all applicable laws, rules and regulations,
including but not limited to customs laws, import, export, and re-export laws
and government regulations of any country from or to which the Deposit Materials
may be delivered in accordance with the provisions of this Agreement.
Orbitz LLC DSI Technology Escrow Services, Inc.
By: By:
---------------------------------- ----------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------
Date: Date:
-------------------------------- --------------------------------
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CONFIDENTIAL Page 43
PREFERRED BENEFICIARY ACCEPTANCE FORM
Account Number ________________
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledge that _______________ is the Preferred Beneficiary
referred to in the Master Preferred Escrow Agreement ("Agreement") effective
________, 20__ with DSI as the escrow agent and Orbitz LLC as the Depositor.
Preferred Beneficiary hereby agrees to be bound by all provisions of such
Agreement.
Notices and communications to Invoices should be addressed to:
Preferred Beneficiary should
be addressed to:
Company Name: Company Name:
------------------------- -------------------------
Address: Address:
------------------------------ -------------------------
Address: Address:
------------------------------ -------------------------
Address: Address:
------------------------------ -------------------------
Designated Contact: Contact:
------------------- -------------------------
Tel: Tel:
---------------------------------- -----------------------------
Fax: P.O.# if req'rd:
---------------------------------- -----------------
Orbitz LLC _____________________________________
ositor Preferred Beneficiary
By: By:
---------------------------------- ----------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------
Date: Date:
-------------------------------- --------------------------------
DSI Technology Escrow Services, Inc.
By: _________________________
Name: _______________________
CONFIDENTIAL Page 44
Title: ______________________
Date: _______________________
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EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number _________________
Depositor represents to Preferred Beneficiary that Deposit Materials delivered
to DSI shall consist of the following Deposit Materials identified in License
Agreement:
Orbitz LLC _____________________________________
Depositor Preferred Beneficiary
By: By:
---------------------------------- ----------------------------------
Name: Name:
-------------------------------- --------------------------------
Title: Title:
------------------------------- -------------------------------
Date: Date:
-------------------------------- --------------------------------
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CONFIDENTIAL Page 45
EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name: Orbitz LLC
Account Number: __________________________
Product Name: ____________________________ Version: _____________
(Product Name will appear as the Exhibit B Name on Account History report)
DEPOSIT MATERIAL DESCRIPTION:
Quantity Media Type & Size Label Description of Each Separate Item
____ Disk 3.5" or ____
____ DAT tape ____mm
____ CD-ROM
____ Data cartridge tape ____
____ TK 70 or ____ tape
____ Magnetic tape ____
____ Documentation
____ Other ______________________
PRODUCT DESCRIPTION:
Environment: _______________________________________________________________
DEPOSIT MATERIAL INFORMATION:
Is the media or are any of the files encrypted? Yes / No If yes, please include
any passwords and the decryption tools. Encryption tool
name________________________ Version:__________________
Hardware required: _________________________________________________________
Software required: _________________________________________________________
Other required information: ________________________________________________
I certify for Depositor that the above described Deposit Materials have been
transmitted to DSI:
Signature: ________________________
Print Name: _______________________
Date: _____________________________
DSI has inspected and accepted the above materials (any exceptions are noted
above):
Signature: _________________________
Print Name: ________________________
Date Accepted:______________________
Exhibit B#:_________________________
Send materials to: DSI, 0000 Xxx Xxxx Xx., Xxxxx 000, Xxx Xxxxx, XX 00000
(000) 000-0000
CONFIDENTIAL Page 46
EXHIBIT C
DESIGNATED CONTACT
Account Number: _________________
Notices and communications Invoices should be addressed to:
should be addressed to:
Company Name: ________________
Address: _____________________ Address: _____________________
Address: _____________________ Address: _____________________
Address: _____________________ Address: _____________________
Designated Contact: __________ Contact: _____________________
Tel: _________________________ Tel: _________________________
Fax: _________________________ P.O.# if req'rd: _____________
Email: _______________________ Email: _______________________
Verification Contact: _______________
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
Contracts, Deposit Materials and Invoice inquiries and fee
notices to DSI should be addressed: remittances addressed to:
DSI Technology Escrow Services, Inc. DSI Technology Escrow Services, Inc.
Contract Administration Accounts Receivable
Xxxxx 000 X.X. Xxx 00000
0000 Xxx Xxxx Xxxxx Xxx Xxxxxxxxx, XX 00000-0000
Xxx Xxxxx, XX 00000
Tel: (000)000-0000 Tel: (000) 000-0000
Fax: (000)000-0000 Fax: (000) 000-0000
Email: xx@xxxxxxxxx.xxx
Date:__________________
P01v2
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