Exhibit 10.6
AMENDED AND RESTATED
SOFTWARE LICENSE AGREEMENT
This AMENDED AND RESTATED SOFTWARE LICENSE AGREEMENT ("Agreement"), dated
as of May 15, 2002 ("Effective Date") is by and between Orbitz, LLC, a Delaware
limited liability company with its address at 000 Xxxxx Xxxxxx Xxxxx, 00xx
xxxxx, Xxxxxxx, XX 00000 ("Licensee" or "Orbitz") and ITA Software, Inc., a
Delaware corporation with its address at 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxxxxx, XX 00000 ("Licensor" or "ITA").
WHEREAS, Licensor has developed a software product known as "ITA Travel
Planning software", which has a capability to search, select, sort and price air
fares and determine flight availability; and
WHEREAS, Licensee operates a World Wide Web site at xxx.xxxxxx.xxx for
travel planning and other travel-related functions; and
WHEREAS, Licensee wishes to license the Licensed Software (as defined
below) for use at the Site (as defined below), and in connection therewith to
have the Licensed Software integrated into the Licensee's system;
WHEREAS, Orbitz and ITA entered into Software License Agreement dated
July 1, 2000 (the "Original Agreement"); and
WHEREAS, Orbitz and ITA desire to amend and restate the Original Agreement
under the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the foregoing the parties hereby agree
as follows:
I. DEFINITIONS
(a) " Affiliate" when used with respect to Licensee means Orbitz, Inc. and
any Person which is controlled by Licensee or Orbitz, Inc. " Affiliate" when
used with respect to Licensor means any Person which is controlled by Licensor.
For purposes of this definition, the term "controlled by" means possession,
directly or indirectly, of the power to direct or cause the direction of
management or policies (whether through ownership of securities or partnership
or other ownership interests, by contract or otherwise).
(b) "Basic Ratio" means the quotient of low search fares conducted on the
Orbitz URL to PNRs; provided that the Basic Ratio shall in no event exceed 60:1.
(c) "Documentation" means functional specifications, user manuals, flow
diagrams, file descriptions, and similar written materials relating to the
operation of the Licensed Software.
(d) "End Users" means end users who access the Licensed Software at the
Site, including versions of the Site that may be used by wireless and mobile
users.
(e) "First License Year" means the period beginning on October 1, 2001 and
running through September 30, 2002.
(f) "Initial Period" means the First License Year and each of the next two
Subsequent License Years (i.e. through September 30, 2004).
(g) "Licensed Software" means Licensor's ITA Travel Planning software
product and related software products, as described more fully in Exhibit A, and
any Upgrade Releases provided hereunder or under the SLA.
(h) "Licensee Data" has the meaning set forth in Section 7.
(i) "License Year" means the First License Year or any Subsequent License
Year.
(j) "Packet" means a file or packet of data which is sent (either over a
network or within a single computer) from one program comprised in the Licensed
Software to another program comprised in the Licensed Software; provided that a
"Packet" shall not include any data input by an End User or Licensee, any data
output by the Licensed Software to an End User or Licensee, or any Licensee
Data.
(k) "Person" means any individual, firm, corporation, partnership, limited
liability company, trust, joint venture or governmental or administrative agency
or authority, or any other entity, and shall include any successor (by merger or
otherwise) of such entity.
(l) "PNR" means a passenger name record created in a system (including,
but not limited to, a reservations system of an airline or a CRS) which allows
subscribers or users to: (i) reserve or otherwise confirm the use of
travel-related products and services; (ii) report or receive payment for or
otherwise clear transactions regarding such products and services; or (iii)
issue tickets for the acquisition or use of such products and services.
(m) "Site(s)" means the Internet travel site located at the URL
xxx.xxxxxx.xxx ("Orbitz URL"); provided, that in Orbitz's sole discretion, the
term "Site" may be extended to include any related, successor or affiliated
Internet sites with primary operations in the United States, Canada or Mexico
(provided no changes in the Licensed Software are necessitated by the location
of the primary operations of a site in Mexico, and provided further that
Licensee acknowledges it has been informed by Licensor that the Licensed
Software does not correctly process the calculation of fares with respect to
tickets that are sold outside the United States and Canada).
(n) "SLA" means the Software Maintenance, Data Services and Operations
Service Level Agreement dated as of January 1, 2001 executed by the parties, as
amended on May 15, 2002.
(o) "SOWs" has the meaning set forth in Section 4(a).
(p) "Subsequent License Year" means each twelve month period after the
First License Year, with each subsequent License Year beginning on October 1 of
the then-current year and running through September 30 of the following year.
(q) "Upgrade Releases" shall have the meaning set forth in the SLA.
(r) "URL" means a uniform resource locator.
2. LICENSE GRANT
(a) LICENSE GRANT. Licensor hereby grants to Licensee and its Affiliates a
worldwide, non-exclusive, irrevocable (except as expressly provided herein)
license during the term of this Agreement to use, perform
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and display the Licensed Software and Documentation in accordance with the terms
of this Agreement. Licensee may use the Licensed Software to generate, sort,
price and select airline itineraries and determine availability of selected
flights, classes of service and booking codes, in order to provide travel
planning and related services to End Users. In addition, End Users shall be
permitted to access and use the Licensed Software at the Site(s) or a co-
branded section of the Site(s). The foregoing license grant shall also include
the right to permit third party vendors, outsourcers and other service providers
to render services to the Licensee and its Affiliates relating to the design,
development and maintenance of the Licensed Software, subject to all the other
restrictions and conditions contained in this License Agreement.
(b) RIGHTS AND RESTRICTIONS.
(i) Except as provided in Section 19(f), Licensee shall not have
the right to sublicense or transfer the Licensed Software.
(ii) Licensee shall not have the right to use the Licensed Software
to provide services to an airline or to an affiliate of an airline which is
engaged in the business of selling travel on such airline.
(iii) Licensee may make copies of the Licensed Software for staging,
back- up, disaster recovery, testing or archival purposes, and as necessary to
utilize the Licensed Software in its business, subject to the other terms and
conditions of this Agreement.
(iv) Licensee shall be permitted to use (including via a network)
the Licensed Software on a worldwide basis and on an unlimited number of
machines without restriction as to the number of users, but only subject to the
restrictions and limitations contained herein.
(v) Licensee agrees that it shall not reverse engineer,
disassemble, decompile, modify, profile or monitor the Licensed Software for any
purpose whatsoever, nor will Licensee implement or permit procedures such as
"port scans", "tiger attacks" or other techniques designed to gain access to the
Licensed Software (or to computers running the Licensed Software) which have not
been specifically authorized by Licensor; provided, however, that Licensee may
monitor the operation of the programs with Licensor's prior consent, which will
not be unreasonably withheld, provided that such monitoring is in accordance
with all the other provisions of this Agreement. The foregoing provision shall
not be deemed to prohibit Licensee from monitoring the inputs to or outputs from
the Licensor's Application Program Interfaces (APIs). Without limiting the
foregoing, Licensee specifically agrees that it will not observe, read, copy,
profile or monitor the contents of any Packets (or write or use any software
program which permits or enables any of such activities) for any purpose
whatsoever; provided, however, that Licensee may monitor external
characteristics of Packets such as volume of Packets moving across the network
or the size of Packets. In addition, Licensee shall have the right to monitor,
through the use of passive monitoring agents that at no time during their
operations would result in changing configurations, changing the intended
operation of the system, or degrading performance, the performance (i.e, uptime,
disk space usage, bandwidth performance, memory utilization, etc.) of the
hardware and equipment on which the Licensed Software is running at the Atlanta
Facility and the Chicago Facility (as defined in the SLA).
(vi) The Licensor has designed the Licensed Software so that it
scales to accommodate arbitrary numbers of queries. However, the Licensee may
wish to scale its system using a system architecture different than that
presently used by the Licensed Software. In such event, Licensor will have the
opportunity, on its own or jointly with the Licensee, to modify the Licensed
Software, pursuant to an SOW, to
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accommodate such engineering requirements as may be occasioned by Licensee's
desire to scale its system according to a different architecture. In the event
that Licensor is unwilling or unable to provide appropriate modifications to the
Licensed Software, Licensor will make available to Licensee such information as
may be reasonably required for Licensee to make such modifications.
(vii) Except as expressly set forth in this Agreement, Licensee shall
not have any right to make, prepare or reproduce derivative works of the
Licensed Software.
(viii) Notwithstanding any other provision of this Agreement, Licensee
shall be prohibited from providing the Licensed Software to a CRS, pursuant to
the restrictions more specifically set forth in Exhibit B. It is the parties'
intention that it not be considered a violation of such Exhibit B if such
restrictions are violated inadvertently by Licensee as a result of a CRS
Entity's (as defined therein) having access to the Licensed Software at the Site
without Licensee's acquiescence or control.
3. DOCUMENTATION
When delivering the Licensed Software (including any Upgrade Releases) to
Licensee, Licensor shall supply applicable Documentation in printed and/or
electronic formats, as requested by Licensee. Such Documentation shall be
provided at no additional charge. If Documentation is developed specifically for
or at the request of Licensee, then the preparation of such Documentation shall
be undertaken pursuant to an SOW. Licensee shall have the right, as part of the
license granted herein, to make as many additional copies of the Documentation
for its own internal use as it may reasonably determine are necessary.
4. SERVICES
(a) STATEMENTS OF WORK. Licensor shall furnish to Licensee such services as
Licensee may request from time to time, including services relating to
integration and customization of the Licensed Software, at Licensor's
then-current rates; provided that Licensor shall not be required to commit more
than two (2) full-time equivalents (calculated on a monthly basis) to perform
such services (including any services rendered pursuant to paragraph (d) below)
at anyone time. The provision of such services shall be governed by statements
of work executed by the parties, a form of which is attached hereto as Exhibit C
("SOWs"). In addition, Licensor agrees to maintain the performance of the
Licensed Software such that it is reasonably comparable, in terms of search time
and number of pricing solutions (combinations of itineraries and fares)
searched, with similar products available from any Competitive Entity.
"Competitive Entity" means the following entities that provide online travel
services: Sabre Inc. (including Easy Sabre, GetThere Inc., and Travelocity),
Expedia Inc., Xxxxxxxxx.xxx Incorporated, Cendant Corporation (including
XxxXxxx.xxx, XxxxxXxxxxxx.xxx and Galileo International), Worldspan L.P., and
any successor entity. Licensee may add additional entities to the list of
Competitive Entities with the consent of Licensor, which consent shall not be
unreasonably withheld.
(b) REPORTS. The parties anticipate that provisions relating to progress
reporting will be included in SOWs. Unless otherwise agreed in the SOW, Licensor
shall present to Licensee or Licensee's designated project manager or project
management company a progress report on a monthly basis in Licensor's standard
FORM and containing, with respect to each active project, information relating
to Licensor's progress toward completion of that project, and deliverables for
the coming month.
(c) ACCESS TO ELECTRONIC RESOURCES. Each party shall strictly follow all of
the other party's security rules and procedures for use of the other party's
electronic resources. All user identification numbers and
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passwords disclosed by each party to the other party shall be deemed to be, and
shall be treated as, the disclosing party's Confidential Information pursuant to
Section 15 of this Agreement. In addition, any information obtained by either
party as a result of its access to, and use of, the other party's computer and
electronic storage systems shall be deemed to be, and shall be treated as, the
other party's Confidential Information pursuant to Section 15 of this Agreement.
(d) COOPERATION. Licensor agrees to reasonably cooperate with Licensee and
any third parties that Licensee may engage in connection with the development,
testing, integration, maintenance and operation of the Site and related systems.
Resources expended by Licensor in providing such cooperation will be included in
the two full-time equivalents limitation described in paragraph (a).
(e) SOFTWARE MAINTENANCE. Licensor shall provide the maintenance and
technical support services set forth in the SLA in accordance with the service
levels also set forth therein.
5. PERSONNEL
(a) LICENSOR PERSONNEL. It is understood and agreed that Licensor's
employees and contractors shall not be considered employees of Licensee within
the meaning or the applications of any federal, state or local laws or
regulations including, but not limited to, laws or regulations covering
unemployment insurance, old age benefits, worker's compensation, industrial
accident, labor or taxes of any kind. Licensor's employees shall not be entitled
to benefits from Licensee that may be afforded from time to time to Licensee's
employees, including without limitation, vacation, holidays, sick leave,
worker's compensation and unemployment insurance. Further, Licensee shall not be
responsible for withholding or paying any taxes or social security on behalf of
Licensor's employees. Licensor shall be fully responsible for any such
withholding or paying of taxes or social security. Notwithstanding the
foregoing, Licensee may at any time require Licensor to remove from any
Licensee-related activity any personnel which Licensee, in its reasonable
discretion, deems to be unsatisfactory (by way of example but not limitation,
unprofessional or inappropriate conduct). Any such request for removal shall be
sent in writing to Licensor.
(b) STAFFING. Licensor shall staff each such project with personnel with
sufficient skill, experience and ability to complete the project on the schedule
specified in the applicable SOW.
6. OWNERSHIP
(a) LICENSED SOFTWARE. Licensee acknowledges that Licensor is the sole and
exclusive owner of all rights in and to the Licensed Software and that other
than the license granted hereby, no proprietary rights, including but not
limited to copyrights and patents, in the Licensed Software are being
transferred to Licensee.
(b) LICENSEE INTERFACES. Licensee shall have the right to interface to the
Licensed Software and to use it in conjunction with other software, programs,
routines and subroutines developed or acquired by Licensee, except that, other
than as set forth in Section 2(b)(v), (i) Licensee shall use the Licensed
Software as a whole and shall not have the right to substitute other software
for portions of the Licensed Software and (ii) any interfaces between those
portions of the Licensed Software comprising the low-fare search servers and
availability servers, on the one hand, and other such software, programs, etc.
of the Licensee, on the other hand, will occur via the Licensor's documented XML
Application Program Interface (API) or another API provided by or approved in
advance by Licensor. Licensor shall have no ownership interest in any other
software, program, routine or subroutine developed by Licensee or acquired by
Licensee from a third party by
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virtue of its having been interfaced with or used in conjunction with any
Licensed Software. In addition, Licensee may request that Licensor enter into an
SOW to modify the Licensed Software for Licensee (but not for Licensor's other
licensees) in the event Licensee is able to obtain availability information from
airlines which airlines do not make generally available. In the event such
modification would not degrade the performance of availability caching for
Licensor's other licensees, Licensor may enter into such an SOW and the
provisions of this Agreement will not be deemed to prohibit Licensee's use of
the Licensed Software as so modified.
(c) ORBITZ-DEVELOPED SOURCE CODE. Licensor acknowledges that Licensee shall
be the exclusive owner of all right, title and interest, including all
intellectual property rights, in and to any and all source code developed solely
by or for Licensee related to or in support of any object code of the Licensed
Software, including, but not limited to, source code that improves the
scalability of the Licensed Software. The foregoing will not be deemed to alter
the rights of the respective parties under applicable law and shall not preclude
either party from filing patents regarding inventions or discoveries invented or
discovered by such party.
7. DATA
Licensor understands and acknowledges that Licensee may (i) manage, modify,
maintain and update pre-existing data and information about End Users for use
with (or resulting from use of) the Licensed Software, and (ii) generate,
manage, modify, maintain and update additional such data and Information (such
pre-existing data and information and such additional data and information are
referred to collectively as "Licensee Data"; provided that schedule, fare and
availability data used by the Licensed Software shall not constitute Licensee
Data). Licensee Data shall be treated as Licensee Confidential Information, and
Licensee shall retain all right, title and interest in and to all Licensee Data.
Notwithstanding the foregoing, Licensee agrees that Licensor will have access to
Licensee Data comprising aggregated statistics relating to both the usage of the
Licensed Software and the traffic data (such as patterns of usage over times of
day, statistical information about the types of queries being asked (i.e.,
origin, destination, travel times, etc.) for the sole purpose of improving the
performance of the Licensed Software. In no event shall Licensor be permitted to
access any Licensee Data containing personally identifiable information
regarding End Users. All such Licensee Data relating to any End Users, including
without limitation, aggregated information, usage and traffic data,
transactional or financial information, End User names and addresses, passwords,
registration information, and cookie information, shall be subject to Licensee's
privacy policy as set forth on the Site, and Licensor shall at all times comply
with the most current version of such privacy policy (advance notice of any
modifications to which Licensee agrees to provide to Licensor).
8. FEES AND EXPENSES
(a) LICENSE FEE FOR PERIOD ENDING SEPTEMBER 30, 2001. The license fee for
the Licensed Software for the period ending September 30, 2001 shall be
($[***]), which amount has been paid by Licensee prior to the execution hereof.
(b) LICENSE FEE FOR EACH LICENSE YEAR. Licensee shall pay Licensor a
license fee for each License Year (the "Basic License Fee"), as outlined in the
schedule below. Licensee shall pay the Basic License Fee
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for the First License Year in accordance with the payment schedule attached
hereto at Exhibit G, although such Basic License Fee shall accrue as of March 1,
2001. Furthermore, in consideration of Licensor's agreement to accept payment in
accordance with such Exhibit G, Licensee agrees to pay an additional $[***] to
Licensor (set forth as "TVM" on Exhibit G). Licensee will pay the Basic License
Fee for each Subsequent License Year on or prior to January 1of the calendar
year in which the applicable Subsequent License Year begins (I.E., the payment
for the License Year beginning October 1, 2005 will be payable on January 1,
2005). Payment of the Basic License Fee for any License Year provides Orbitz
with the ability, without obligation to pay additional license fees except as
set forth in paragraph (c) or (d) below, to create the applicable number of PNRs
set forth below under "Permissible PNRs":
LICENSE YEAR BASIC LICENSE FEE PERMISSIBLE PNRS
---------------------------------------------------------------------
License Year ending 9/2002 $ [***] [***]
License Year ending 9/2003 $ [***] [***]
License Year ending 9/2004 $ [***] [***]
License Year ending 9/2005 $ [***] [***]
License Year ending 9/2006 $ [***] [***]
License Year ending 9/2007 $ [***] [***]
(c) ADDITIONAL LICENSE FEES.
(i) INITIAL PERIOD - BASIC PNRS. With respect to the Orbitz
URL, if for any License Year during the Initial Period,
the number of Basic PNRs created exceeds [***], then
Licensee shall pay Licensor an additional license fee of
[***] for such License Year within forty-five (45) days
after the number of Basic PNRs exceeds [***].
As used herein, "Basic PNRs" means PNRs created at the
Orbitz URL other than PNRs created as a result of: use
of the Orbitz URL by travel agents (which term shall
include travel agency consortiums and corporate travel
departments) pursuant to a commercial arrangement
between Orbitz and such travel agents, other than use
resulting from so-called "banner advertisements" or
other forms of advertising on travel agent web sites
whereby Licensee pays a fixed amount to the travel
agent which is not based upon performance (by way of
example, and not by way of limitation, payment based
upon PNRs or bookings) and does not provide for the
sharing of revenue;
(ii) INITIAL PERIOD - INCREMENTAL PNRS. With respect to all
PNRs other than Basic PNRs (all such other PNRs are
referred to as "Incremental PNRs"), during the Initial
Period, Licensee shall pay Licensor an additional
licensee fee of [***] ($[***]) per Incremental PNR
created.
(iii) REMAINDER PERIOD. If for any Subsequent License Year
after the Initial Period, the number of PNRs created
exceeds the number shown under "Permissible PNRs" in the
table contained in paragraph (b) above, then Licensee
shall pay
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Licensor an additional license fee of [***] per PNR in
excess of such Permissible PNRs, regardless of whether
such PNRs are created with respect to the Orbitz URL or
any Site.
(iv) Within forty-five (45) days after the end of each fiscal
quarter during each License Year, Licensee will certify
to Licensor the number of PNRs created during such
quarter and the cumulative number of PNRs created during
the then-current License Year.
(d) INCREMENTAL FEES. At the end of each License Year, Orbitz shall
calculate and pay ITA, with respect to all Incremental PNRs (as defined in
paragraph (c)(ii) above), a fee equal to (i) [***] multiplied by the quotient of
the (A) the number of searches conducted during the previous License Year which
relate to such Incremental PNRs divided by (B) the Basic Ratio, minus (ii) the
amount paid by Orbitz to ITA pursuant to Section (c)(ii) or (c)(iii) above for
such Incremental PNRs (for the relevant License Year). For clarity, the
calculation shall be as follows:
Fee = $[***] X (Non-Orbitz URL searches at Site/Basic Ratio) -
fees paid pursuant to (c)(ii) or (c)(iii) above
(e) SERVICES. Licensee shall pay Licensor the fees set forth in the
applicable SOW for any services provided pursuant to Section 4(a), subject (in
the case of fees payable during calendar year 2001) to Exhibit G.
(f) REIMBURSABLE COSTS AND EXPENSES. Unless otherwise specified in the
applicable SOW, in addition to the hourly rates described in the applicable SOW,
Licensee shall pay Licensor's actual out-of-pocket expenses of the types agreed
to in writing by the parties, provided that (1) Licensor obtains Licensee's
prior written approval before incurring such reimbursable expenses; or (2) such
expenses are incurred in accordance with Licensee's then-current standard policy
regarding such reimbursable expenses (advance notice of any modifications to
which Licensee agrees to provide to Licensor). Licensor agrees to provide
Licensee with access to such original receipts, ledgers, and other records as
may be reasonably appropriate for Licensee or its accountants to verify the
amount and nature of any such expenses. The timing of Licensee ' s payment
obligations under this paragraph (e) will be subject (in the case of costs and
expenses payable during calendar year 2001) to Exhibit G.
(g) OPERATIONS. Charges relating to operation of the Licensed Software
(such as computers, communications, facilities, monitoring, operational support
and maintenance, etc.) shall be set forth in the SLA, subject (in the case of
charges payable during calendar year 2001) to Exhibit G.
(h) AVAILABILITY DATA COSTS. Licensor has created an industry-scale
availability cache with the Worldspan CRS, access to which is being provided to
Licensee. Costs for such availability data are set forth in the SLA, subject (in
the case of fees payable during calendar year 2001) to Exhibit G.
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(i) INVOICING. Unless otherwise provided in this Section 8, Licensor shall
invoice Licensee on a monthly basis for all fees and charges accruing hereunder
or pursuant to an SOW, and Licensee shall pay all such invoiced amounts within
thirty (30) days after receipt of a proper and correct invoice; provided, that
Licensor shall not be obligated to invoice any amounts (such as the Basic
License Fee) the amount and timing of which are fixed by this Agreement and/or
by Exhibit G. Such invoices shall provide such detail as required by the
invoicing policy set forth at Exhibit F, and shall be accompanied by any
supporting documentation required by such policy. Upon mutual agreement of the
parties, such invoicing policy may be changed from time to time. In the event of
a good faith dispute as to any portion of an invoice, Licensee shall give
written notice to Licensor, within fourteen (14) days after receiving such
invoice, stating the details of any such dispute and shall promptly pay any
undisputed amount in accordance with this Agreement. Within thirty (30) days
after the termination or expiration of this Agreement for any reason, Licensor
shall submit to Licensee an itemized invoice for any fees or expenses
theretofore accrued under this Agreement. Licensee, upon payment of accrued
amounts so invoiced, shall have no future liability or obligation to Licensor
whatsoever for any further fees, expenses, or other payments.
(i) TAXES. Licensee shall be responsible for the payment of any federal,
state or local taxes (other than taxes based on licensor's income) assessed on
the Licensed Software or services provided under this Agreement.
9. MOST FAVORED CUSTOMER
Licensor agrees to treat Licensee as its most favored customer, and Licensor
represents that all of the prices, warranties, benefits and other terms being
provided hereunder, considered as a whole, are equivalent to or better than the
terms being offered by Licensor to its current customers for substantially
similar software. In its sole right and discretion, Licensor may establish the
pricing for any application it develops for any other licensee. However, in the
event Licensor licenses to a third party software which is substantially similar
to the Licensed Software, at an effective price which is lower than that
provided hereunder or on more favorable terms (provided that such price and
terms shall be considered as a whole), Licensor shall prospectively (but not
retroactively) reduce the price to be charged to Licensee and/or revise the
terms such that, considered as a whole, they are at least as favorable as that
granted to such third party. In determining whether software is "substantially
similar" or whether the terms charged to a third party are "more favorable,"
Licensor will take into account the number of transactions for which a licensee
is using the software, the duration of the license, the amount of integration
work required, the minimum license fee, the expected volume of transactions, and
whether or not there is a per-transaction component to the pricing. Without
limiting the foregoing, the parties specifically agree that a license by the
Licensor to an airline will not trigger the provisions of this Section 9.
10. TERM AND TERMINATION
(a) TERM OF AGREEMENT. The term of this Agreement and the license granted
to Licensee hereunder shall be deemed to have commenced as of July 1, 2000 and
shall terminate on September 30, 2007. Notwithstanding the foregoing, Licensor
agrees that any use by Licensee of the Licensed Software prior to the
commencement of this Agreement was authorized by Licensor, and Licensor hereby
waives any claim for unauthorized use and for license fees or other compensation
for such use prior to July 1, 2000.
(b) TERM OF SOWS. Unless specified otherwise in an SOW or earlier
terminated in accordance with this Agreement, each SOW shall remain in full
force and effect until expiration of this Agreement or until performance is
completed and deliverables are accepted, whichever is later.
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(c) TERMINATION FOR CAUSE BY LICENSEE. This Agreement and the license
granted hereunder (or an SOW) may be terminated by Licensee for cause
immediately by written notice upon the occurrence of any of the following
events: (i) Licensor materially breaches Section 4(c), 4(d), 11(b)(i),
11(b)(iii), 11(b)(vii), 12(a), 14 or 15, so as to cause material damage to
Licensee, and such breach is not cured within thirty (30) days after receipt of
written notice thereof from Licensee; (ii) Licensor materially breaches Section
7 and such breach is not cured within thirty (30) days after receipt of written
notice thereof from Licensee; (iii) Licensor materially breaches any of its
obligations under the SLA, so as to cause material damage to Licensee, and such
breach is not cured within sixty (60) days after receipt of written notice
thereof from Licensee; (iv) Licensor becomes the subject of a voluntary petition
in bankruptcy or any voluntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors; or (v) Licensor
becomes the subject of any involuntary petition in bankruptcy or any involuntary
proceeding relating to insolvency, receivership, liquidation, or composition for
the benefit of creditors, if such petition or proceeding is not dismissed within
sixty (60) days of filing. In the event of termination by Licensee pursuant to
this Section 10(c), Licensor shall refund to Licensee a pro rata portion of the
license fees paid by Licensee (other than the $[***] license fee paid by
Licensee in accordance with Section 8(a)) proportional to the license term
remaining in the License Year as of the date of termination and maintenance and
support fees set forth herein or in the SLA which were paid in advance and have
not been earned as of the effective date of termination.
(d) TERMINATION FOR CAUSE BY LICENSOR. This Agreement and the license
granted hereunder (or an SOW) may be terminated by Licensor for cause
immediately by written notice in the event Licensee breaches one of the
following provisions, so as to cause material damage to Licensor, and such
breach is not cured within thirty (30) days after receipt of written notice
thereof from Licensor: (i) the license restrictions set forth in Section 2; (ii)
the restrictions regarding use of electronic resources set forth in Section
4(c); (iii) Licensee's warranty set forth in Section 11(a); (iv) the
indemnification obligations set forth in Section 12(b); or (v) the
confidentiality obligations set forth in Section 15. In addition, this Agreement
and the license granted hereunder (or an SOW) may be terminated by Licensor for
cause immediately by written notice in the event Licensee breaches one of the
following provisions, and such breach is not cured within thirty (30) days after
receipt of written notice thereof from Licensor: (i) Licensee' s payment
obligations set forth in Section 8 or in the SLA; or (ii) the provisions
relating to source code restrictions and confidentiality set forth in Section
14(c) and (d).
(e) TERMINATION OF SOWS. Either party may terminate an SOW in the event the
other party materially breaches any provision thereof and fails to cure such
breach within thirty (30) days after receipt of written notice thereof from the
non-breaching party.
(f) DUTIES ON TERMINATION. Upon expiration of this Agreement at the end of
the term or termination by Licensee in accordance with Section 10(c), Licensor
shall provide to Licensee, upon Licensee's request, at Licensor's then-standard
rates and upon Licensee's continued payment of a pro-rated license fee pursuant
to Section 8(b), reasonable termination assistance, including the right to
continue to use the Licensed Software as set forth herein, in connection with
the transition from the Licensed Software to another system. Licensor shall
provide the foregoing rights and services for up to three (3) months in the
event of expiration of this Agreement and up to six (6) months in the event of
termination by Licensee in accordance with Section 10(c). Such termination
assistance shall include, without limitation, cooperating
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10
with third parties for the orderly transition to a new system in order to
minimize any disruption in the services provided on the Site by Licensee to its
End Users. After the applicable period of termination assistance, Licensee shall
immediately cease use of the Licensed Software and return all copies thereof to
Licensor, and all licenses granted hereunder shall immediately cease and
terminate.
(g) SURVIVAL. The parties' rights and obligations under the following
sections shall survive the termination or expiration of this Agreement: 6, 7,
10(b), 10(f), 10(g), 10(h), 12, 13, 15, 16, 17, 18 and 19.
11. REPRESENTATIONS AND WARRANTIES
(a) BY LICENSEE. Licensee represents and warrants to Licensor that it has
the full right, power and authority to enter into this Agreement and to perform
its obligations hereunder and that Licensee's compliance with the terms and
conditions of this Agreement shall not violate any federal, state or local laws,
regulations or ordinances or conflict with any third party agreements.
(b) BY LICENSOR. Licensor represents, warrants and covenants to Licensee
as follows:
(i) AUTHORITY: That: (1) Licensor has the full right, power and
authority to enter into this Agreement, to carry out its obligations under this
Agreement and to grant the rights and licenses granted to Licensee in this
Agreement; and (2) Licensor's compliance with the terms and conditions of this
Agreement shall not violate any federal, state or local laws, regulations or
ordinances or conflict with any third party agreements.
(ii) QUALITY: That Licensor shall perform all services in a
good, workmanlike and professional manner using people fully familiar with the
Licensed Software and the underlying technology.
(iii) INFRINGEMENT: That the Licensed Software does not and shall
not infringe any third party's patent, trademark, trade name, service xxxx,
copyright, trade secret or any other intellectual property right of a third
party. In the event that any such infringement claim or suit is brought or
threatened, Licensor shall, at its expense, (1) procure for Licensee and its
Affiliates the right to continue using the Licensed Software; (2) replace or
modify the Licensed Software so that it becomes non-infringing but remains
substantially equivalent in functionality and performance; or (3) in the event
(1) and (2) are not commercially practicable, terminate this Agreement and the
license granted hereunder and, within thirty (30) days of the date of such
termination, refund to Licensee all unearned license fees (other than the $[***]
license fee paid by Licensee in accordance with Section 8(a>> then paid by
Licensee (which refund shall be calculated by prorating the Basic License Fee(s)
over any portion of the applicable License Year(s) remaining after the
termination date) and any fees for maintenance services not yet performed as set
forth in the SLA.
(iv) CENTURY COMPLIANCE: That the century change is, and shall
be, supported in the Licensed Software's logic and data, and that the Licensed
Software shall support the use, entry or creation of dates prior to, on, after
or spanning January 1, 2000, so that when such a date is either processed
(including by way of calculation, comparison, sequencing, display, storage
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the omitted portions.
11
or otherwise), entered into, or is intended to be generated as a result of the
operation of the Licensed Software, the Licensed Software shall not (1) fail or
produce incorrect date results, or (2) cause any other programs, hardware or
system to fail or to generate errors.
(v) UNAUTHORIZED CODE: That the Licensed Software shall be
free, at the time of receipt by Licensee, of (1) any automatic restraints,
computer viruses, software locks, time bombs or other such code that hinders
Licensee's freedom fully to exercise its license rights under this Agreement;
(2) harmful programs or data incorporated into the Licensed Software which
destroy, erase, damage or otherwise disrupt the normal (i.e., in accordance with
the provisions of this Agreement) operation of the Licensed Software or other
programs, hardware or systems utilized by Licensee or allow for unauthorized
access to the Licensed Software or other programs, hardware or systems utilized
by Licensee; or (3) any mechanism, such as password checking, CPU serial number
checking or time dependency, that hinders Licensee's freedom to fully exercise
its license rights under this Agreement. The foregoing provisions of this
paragraph (v) shall not be deemed violated by license files that disable
functions in the Licensed Software which are not included in the license grant
to Licensee hereunder.
(vi) PASS-THROUGH: Licensor hereby assigns, and shall assign, to
Licensee all warranties, representations and indemnities granted to Licensor by
third parties in the Licensed Software or any components thereof, and all
remedies for breach of such warranties, representations and indemnities.
(vii) INSURANCE: Licensor warrants that it has in place and shall
maintain in place throughout the term the insurance coverages listed in
Exhibit D.
(c) DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 11,
EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE W
ARRANTIES OF MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. INDEMNIFICATION
(a) BY LICENSOR. Licensor shall, at its own expense, defend, indemnify and
hold harmless Licensee and its Affiliates and each of their respective
directors, officers, employees, successors and permitted assigns from and
against any and all liabilities, damages, awards, losses, costs and expenses
(including court costs and reasonable attorneys' fees) arising out of any claim,
demand, suit or cause of action (hereinafter a "Claim") brought by a third party
relating to or resulting from (i) any act or omission of Licensor or its
employees, agents or contractors, (ii) any breach of the representation or
warranty made in Section 11 (b)(i) by Licensor; or (iii) the actual or alleged
infringement by the Licensed Software of a third party's patent, copyright,
trademark, trade secret or other proprietary rights.
(b) BY LICENSEE. Licensee shall, at its own expense, defend, indemnify and
hold harmless Licensor and its Affiliates and each of their respective
directors, officers, employees, successors and permitted assigns from and
against any and all liabilities, damages, awards, losses, costs and expenses
(including court costs and reasonable attorneys' fees) arising out of any Claim
brought by a third party relating to or resulting from (i) any act or omission
of Licensee or its employees, agents or contractors, or (ii) any breach of the
representation or warranty made in Section 11(a) by Licensee.
(c) INDEMNIFICATION PROCEDURES. If any party entitled to indemnification
under this section (an "Indemnified Party") makes an indemnification request to
the other, the Indemnified Party shall permit the other party (the "Indemnifying
Party") to control the defense, disposition or settlement of the matter at its
own
12
expense; provided that the Indemnifying Party shall not, without the consent of
the Indemnified Party, enter into any settlement or agree to any disposition
that imposes any conditions or obligations on the Indemnified Party other than
the payment of monies that are readily measurable for purposes of determining
the reimbursement obligations of the Indemnifying Party. The Indemnified Party
shall notify the Indemnifying Party promptly of any claim for which the
Indemnifying Party is responsible and shall reasonably cooperate with the
Indemnifying Party to facilitate the defense of any such claim. An Indemnified
Party shall at all times have the option to participate in any Claim through
counsel of its own selection and at its own expense.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR
PROFITS, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL
EITHER PARTY'S LIABILITY TO THE OTHER PARTY FOR DAMAGES IN CONNECTION WITH THIS
AGREEMENT AND THE SLA IN THE AGGREGATE EXCEED 1.5 TIMES THE AMOUNTS PAID BY
LICENSEE TO LICENSOR DURING THE PREVIOUS 12 MONTHS PURSUANT TO THIS AGREEMENT
AND THE SLA, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER WISE. THE
LIMITATIONS CONTAINED IN THIS SECTION SHALL NOT APPL Y TO THE PARTIES'
INDEMNIFICATION OBUGATIONS SET FORTH IN SECTION 12, A BREACH BY EITHER PARTY OF
SECTION 15 (CONFIDENTIALITY), A BREACH BY LICENSOR OF SECTION 7 (DATA), A BREACH
BY LICENSEE OF SECTION 8 (FEES AND EXPENSES) OR SECTION 14 (d)
(CONFIDENTIALITYOF SOURCE CODE) OR THE WILLFUL OR RECKLESS ACTS OF EITHER PARTY.
14. SOURCE CODE ESCROW
(a) ESCROW. Within thirty (30) days after the execution of this Agreement,
Licensor shall place a current, complete, and accurate copy of all source code
for the Licensed Software in escrow with a nationally recognized escrow agent
for the benefit of Licensee. The materials placed in escrow shall include a
computer readable copy of the source code for each of the programs comprising
the Licensed Software, as well as complete program maintenance documentation,
including all technical manuals and release notes. Thereafter, Licensor shall
deliver to the escrow agent at the time of each new version (as defined in
Section 2.1 (a)(iii) of the SLA) of the Licensed Software (but no less
frequently than quarterly) all source code for each update, bug fix, upgrade,
release or version of the Licensed Software, and at least once each calendar
year, Licensor shall deliver to the escrow agent a fully updated copy of all
source code for the Licensed Software. Such additional source code deposits
together with the original source code deposit and any other materials placed in
escrow pursuant to this Agreement shall be referred to herein as the "Deposited
Materials." Within thirty (30) days after the end of each quarter, beginning
with the quarter ending June 30, 2001, Licensor shall certify to Licensee that
all required source code deposits were made. In the event Licensor fails to
provide such certification, Licensee shall send Licensor notice of such failure.
If Licensor fails to provide such certification within thirty (30) days after
receipt of such notice from Licensee, Licensee shall have the right to obtain
all Deposited Materials from the escrow agent in accordance with Section 14(b).
Licensee shall bear the costs charged by the escrow agent for such source code
escrow.
(b) RELEASE. The escrow agreement shall provide for release of the Deposited
Materials to the Licensee upon the occurrence of any of the following:
(i) Licensor at any time ceases to conduct business in the ordinary
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13
course; (ii) Licensor files a voluntary petition in bankruptcy or any voluntary
proceeding relating to insolvency, receivership, liquidation or composition for
the benefit of creditors; (iii) Licensor becomes the subject of an involuntary
petition in bankruptcy or any involuntary proceeding relating to insolvency,
receivership, liquidation or composition for the benefit of creditors, if such
petition or proceeding is not dismissed within sixty (60) days of filing; (iv)
Licensor is in material breach of its maintenance and support obligations under
this Agreement or under the SLA (including Maintenance Services as defined in
the SLA) and fails to cure such breach within (A) fifteen (15) days from the
date of receipt by Licensor of written notice from Licensee describing in
reasonable detail the grounds for Licensee's belief that such material breach
occurred, in the event the breach causes a Severity Level 1 or Severity Level 2
problem (as defined in the SLA), or (B) sixty (60) days from the date of receipt
of such notice in the event the breach causes Severity Level 3 or Severity Level
4 problems (as defined in the SLA) and such problems are chronic and continuous
(provided, however, that in both cases, prior to obtaining the release of the
Deposited Materials pursuant to this clause (iv), the parties shall have
completed the expedited dispute resolution procedures provided for under Section
18(b); (v) Licensor notifies Licensee of its intent to cease to offer
maintenance and support services for the Licensed Software; or (vi) Licensor
fails to provide certification of a quarterly source code deposit to Licensee
within thirty (30) days after receipt of notice from Licensee regarding such
failure, as set forth above in Section 14(a). In the event Licensee has the
right to have the Deposited Materials released to it pursuant to the procedures
set forth in Section 14(b)(iv) above, then Licensee shall have the option to (1)
have such Deposited Materials released to it immediately, in which case Licensee
shall have no further right to terminate this Agreement under Section
10(c)(iii); or (2) have the Licensee's chief technology officer inspect all
source code for the Licensed Software at Licensor's offices for a period not to
exceed five (5) days, and after such inspection, Licensee may choose to
terminate this Agreement in accordance with Section 10(c)(iii) or receive the
Deposited Materials from escrow, in which case Licensee shall have no further
right to terminate this Agreement under Section 10(c)(iii).
(c) RESTRICTIONS. In the event the Deposited Materials are released to
Licensee, Licensee shall have the right to use the Deposited Materials only for
the following purposes: (i) to correct bugs, errors, defects or malfunctions in
the Licensed Software; (ii) to modify the Software to comply with regulatory
requirements or industry standards; (iii) to add new features, functionalities,
or performances to the Licensed Software; and (iv) to perform the maintenance
and support services that Licensor was to perform under this Agreement and the
SLA, including without limitation the development of Upgrade Releases; provided,
however, that any modification by Licensee of the Licensed Software shall excuse
Licensor from any further performance of its maintenance and support obligations
with respect to such portions of the Licensed Software that were modified by
Licensee. Unless otherwise provided in this Agreement, the scope of and
restrictions on the licenses granted hereunder, and the intellectual property
rights of the parties, shall continue to be as set forth in Section 2 and 6,
provided that Licensee shall own all source code and object code developed by or
for Licensee after the release of the Deposited Materials to Licensee. The
foregoing restrictions are in addition to any restrictions imposed on
Confidential Information pursuant to Section 15.
(d) CONFIDENTIALITY. The escrow agreement (or a separate agreement entered
into between Licensor and Licensee) shall also include reasonable provisions for
maintenance by Licensee of the confidentiality of the Deposited Materials in the
event the Deposited Materials are released to Licensee, including but not
limited to requirements that (i) access to the source code and documentation
related to such source code ("Access") be limited only to those employees or
third party contractors or outsourcers of Licensee engaged in operating,
maintaining, supporting and updating the Software; (ii) Licensee shall maintain
a list of all such individuals to whom Licensee has granted Access and shall
provide a copy of such list to Licensor upon Licensor's request; (iii) all such
individuals shall, as a condition of and prior to being granted such Access,
14
execute a non- disclosure agreement containing provisions at least as
restrictive as those set forth in Section 15, and Licensee shall maintain such
agreements available for inspection and copying by Licensor upon reasonable
request; and (iv) the Deposited Materials shall be stored in a secure manner.
15. CONFIDENTIAL INFORMATION
(a) CONFIDENTIAL INFORMATION. Each party has disclosed (prior to the
commencement of this Agreement) and may disclose Confidential Information to the
other party which it intends the other party to maintain in confidence, and each
party agrees to comply with the provisions of this Section 15 with respect to
all such Confidential Information. As used herein, each party which discloses
such information is referred to as a "Disclosing Party" and each party which
receives such information is referred to as a "Receiving Party." "Confidential
Information" means Disclosing Party's confidential and proprietary inventions,
products, designs and ideas, including computer software, functionality,
concepts, processes, internal structure, external elements, user interfaces,
technology and documentation, as well as confidential and proprietary
information relating to Disclosing Party's operations, plans, opportunities,
finances, research, technology, developments, know-how, personnel, and any third
party confidential information disclosed to Receiving Party. Without limiting
the foregoing definition, the Licensed Software, the Documentation (except
Documentation reasonably expected to be provided to End Users regarding the use
of the Licensed Software) and all Packets are "Confidential Information" of the
Licensor. The terms and conditions of this Agreement are also "Confidential
Information." However, "Confidential Information" shall not include information
(a) already lawfully known to Receiving Party if the Receiving Party does not
then have a duty to maintain its confidentiality, (b) developed independently by
the Receiving Party, (c) generally known to the public through no fault of the
Receiving Party; (d) lawfully obtained from a third party not obligated to
preserve its confidentiality; (e) required to be disclosed by law, regulation or
order of a court of competent jurisdiction or other governmental authority
(except that prior to any such disclosure the Receiving Party shall give the
Disclosing Party notice thereof and afford the Disclosing Party the opportunity
to oppose any such disclosure).
(b) NON-DISCLOSURE. Receiving Party acknowledges that Confidential
Information is confidential, proprietary and/or trade secret information of the
Disclosing Party. Receiving Party shall not use the Confidential Information for
any purpose other than in accordance with this Agreement, and shall not disclose
Confidential Information to anyone other than its employees and contractors who
legitimately need access to it and who have signed confidentiality agreements
comparable in scope to this Section 15. Receiving Party shall notify each of its
employees and contractors who are given access to Confidential Information that
they have an obligation not to disclose Confidential Information and shall take
such steps as are reasonably necessary to insure compliance with this
obligation. Receiving Party shall safeguard Confidential Information with
reasonable security means at least equivalent to measures that it uses to
safeguard its own proprietary information. Receiving Party shall store
Confidential Information in a safe and secure location. Receiving Party may not
remove copyright, trademark, trade secret, confidentiality, and patent notices
from Confidential Information.
(c) NO WARRANTIES. Except as set forth in Section 11, all Confidential
Information is provided "as is," without any express or implied warranty of any
kind.
(d) BREACH OF CONFIDENTIALITY OBLIGATIONS. Receiving Party hereby
acknowledges that unauthorized disclosure or use of Confidential Information
shall cause immediate and irreparable harm to Disclosing Party for which it
would not have an adequate remedy at law. Accordingly, Disclosing Party shall
have the right to
15
seek and obtain preliminary and final injunctive relief to enforce this
Agreement in case of any actual or threatened breach, in addition to other
rights and remedies that may be available to Disclosing Party.
16. RELATIONSHIP OF THE PARTIES
The parties shall be treated for all purposes as independent contractors, and no
provision of this Agreement shall be construed to constitute or create a
partnership, joint venture, agency or formal business organization of any kind.
17. PUBLICITY
(a) At no time shall either party release a press release that mentions the
other party unless the other party has consented in writing in advance to such
press release; provided, however, that each party may approve in writing in
advance a representative sample of a reference to such party, which may then be
used by the other party in press releases without further approval from such
party.
(b) For so long as the Licensed Software is used on the Site(s), the
Site(s) will contain the Licensor's logo with words to the effect of "powered by
ITA Software", or such similar language the content and placement of which will
be mutually determined by the parties.
18. DISPUTE RESOLUTION
(a) DISPUTE RESOLUTION. The parties shall first attempt in good faith to
resolve any dispute arising out of or relating to this Agreement by negotiation,
then arbitration, in accordance with the dispute resolution procedures as set
forth in Exhibit E.
(b) EXPEDITED PROCESS. In the case of a dispute as to whether the Licensee
is entitled to release of Deposited Materials from escrow as a result of
Licensor's material failure to maintain or support the Licensed Software, as
described in Section 14(b)(iv), the procedures set forth in Exhibit E will be
modified as follows: (i) in the event Licensee believes Licensor has materially
failed to maintain or support the Licensed Software, as described in Section
14(b)(iv), then Licensee may initiate the negotiation procedures set forth in
Section 1 of Exhibit E at any time after Licensee has given Licensor the notice
described in Section 14(b)(iv); (ii) in the event such negotiation procedures
are unsuccessful in resolving such dispute, either party may initiate
accelerated arbitration proceedings by notifying the other party at any time
following the end of the 15-day or 60-day period, as applicable, described in
Section 14(b)(iv); (iii) immediately upon the giving of such notice, the parties
will exercise their best efforts to select a mutually acceptable, technically
competent arbitrator through the Information Technology Association of America,
and such selection shall occur within seven (7) days of the giving of such
notice; (iv) as soon as the parties select an arbitrator, the parties and the
arbitrator shall immediately determine a mutually acceptable date(s) for such
arbitration to occur, which shall be not less than fourteen (14) nor more than
thirty (30) days after the date the arbitrator is selected, and in determining
such date, the parties agree to make the appropriate resources available for
arbitration on a "highest priority" basis; (v) at such arbitration each party
will have a maximum of two hours to present its case, for a total of not more
than four hours, and the arbitrator will have an additional four hours within
which to question the parties and allow the parties to rebut each other's
arguments; (vi) the arbitrator will be instructed to exercise his or her best
efforts to present his decision within fourteen (14) days of the last date on
which arbitration occurs. In connection therewith, the parties agree that the
arbitrator will present the reason for his determination in summary fashion
(i.e., in five pages or less) and will not be required to produce a detailed
legal or technical opinion.
16
19. MISCELLANEOUS
(a) SEVERABILITY. If any provision of this Agreement is declared by a court
of competent jurisdiction to be invalid or unenforceable, such determination
shall not affect the validity or enforceability of any other provision hereof.
(b) ENTIRE AGREEMENT. This Agreement together with the SLA represents the
entire agreement of the parties with respect to the subject matter hereof and
cancels and supersedes any previous understanding, commitments, or agreement,
oral or written, between Licensee and Licensor, other than confidential
disclosure agreements.
(c) WAIVER. No failure by either party to insist upon the strict
performance of any covenant, term or condition of this Agreement, or to exercise
any right or remedy, shall constitute a waiver of such right or remedy on any
subsequent occasion.
(d) GOVERNING LAW. The validity, construction, scope and performance of
this Agreement shall be governed by the laws of the State of
Delaware, exclusive
of its choice of law provisions.
(e) AMENDMENT. This Agreement may not be amended except in writing executed
by duly authorized representatives of both Licensor and Licensee.
(f) ASSIGNMENT. This Agreement may not be assigned by either party without
the other party's prior written consent; provided that either party shall be
permitted to assign its rights and obligations hereunder, without the other
party's consent, to a third party in the event of a change in control or any
sale, assignment, transfer or other conveyance to such third party of all or
substantially all of the business or assets of the assigning party, or (in the
case of the Licensee) any sale, assignment, transfer or other conveyance of the
Site to such third party. Subject to the foregoing, this Agreement shall be
binding on the parties and their respective successors and permitted assigns,
and such permitted assigns shall expressly agree to be bound by all the terms
and conditions herein and in the SLA. No partial assignment of the rights or
obligations granted hereunder and under the SLA shall be permitted.
(g) COUNTERPARTS. This Agreement may be signed in one or more counterpart
copies, all of which together shall constitute one Agreement and each of which
shall constitute an original.
17
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as of
the date first above written.
ORBITZ, LLC
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------
Title: Vice President
-----------------------------------
ITA SOFTWARE, INC.
By: /s/ Xxxxxx Xxxxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxxxx, President
18
EXHIBIT A
LICENSED SOFTWARE
Within thirty (30) days after the date of Licensee's payment of the
amounts set forth in Exhibit G under "Total Monthly Amounts Due" for the months
of February and March, Licensor shall prepare a draft of Exhibit A based on the
following documentation and other documentation exchanged between the parties:
"ITA Software Low Fare Sears Administration v1.0", "ITA Software Low Fare Search
Architecture v0.1", "ITA Software, Inc. Availability System (AVS) Administration
Document (Draft 1) for Orbitz, LLC", "ITA Software Query Distributor
Documentation v0.2" and "QPX-XML Programmers' Manual, version 0.900" (found at
xxxx://xxxx.xxxxxxxxxxx.xxx/xxx/xxxxxxxxxx/). Such draft of Exhibit A shall
include a list of the functional specifications for the Licensed Software.
Licensee shall have the right to review and comment on such draft. Once the
parties have mutually agreed on the terms of such Exhibit A, it shall be
attached hereto and incorporated into the Agreement.
EXHIBIT B
CRS PROHIBITION
Neither Licensee nor any Affiliate (as defined below) shall (i) license or
sublicense the Licensed Software, for Low Fare Searching or Guaranteed Fare
Pricing (as defined below), to any CRS Entity (as defined below), (ii) sell
Transactions (as defined below) to or otherwise perform Transactions for any CRS
Entity, or (iii) provide Low Fare Searching data processed using the Licensed
Software to or for any CRS Entity.
As used in this Exhibit B:
"Affiliate" shall mean, when used with respect to a specified Person,
another Person that, directly or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified. For purposes of this Agreement, the term "control" (including, with
its correlative meanings, "controlled by" and "under common control with") shall
mean possession, directly or indirectly, of the power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).
"CRS Entity" shall mean (i) any of the computerized reservation systems
providers listed at the end of this Exhibit B, or any successor in interest,
assign or renaming of any such provider, (a "CRS", (ii) any Person (as defined
below) which directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with any such provider, where the
term "control" (including, with its correlative meanings, "controlled by" and
"under common control with") shall mean possession, directly or indirectly, of
the power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise) (a "CRS Affiliate"), or (iii) any company with which any
CRS has contractual commitments for the distribution of such CRS' products and
services (a "CRS National Distribution Company"). Notwithstanding the foregoing
definition, an air carrier or a foreign air carrier (each as defined in the
United States Federal Aviation Act of 1958, as amended) shall not be deemed a
"CRS Entity" for the purposes hereof.
"Person" shall mean any individual, corporation, partnership, limited
partnership, joint venture, limited liability company, unincorporated
association, government or regulatory body (or any agency or political
subdivision thereof) or other entity.
"Low Fare Searching" shall mean the capability for retrieving flight
information and selecting flights (which may or may not include flight
connections) optimized for cost based on, among other things, one or more of the
following: travel origin, travel destination, travel date, and/or class of
service.
"Guaranteed Fare Pricing" shall mean committing to a final price with one
or more travel service providers for one or more bookings, including all taxes,
fees, and other charges.
"Transaction" shall mean an individual Low Fare Searching query to the
Licensed Software.
It shall not be a violation of this Exhibit B solely because Licensee's
reservations system is hosted on a CRS, provided that neither the CRS nor any
CRS affiliate or CRS National Distribution company can use the Licensed Software
to provide services using the Licensed Software or data processed using the
Licensed Software to any Person other than Licensee and its Affiliates.
Licensor and Licensee expressly agree the Amadeus Development Company, S.A.
("Amadeus") is an intended third party beneficiary of this Exhibit B and Amadeus
shall have the right to enforce this Exhibit B as
though it were a party hereto. Licensed acknowledges and agrees that (i) its
breach of this Exhibit B would cause irreparable injury for which monetary
damages are not an adequate remedy, and (ii) Licensor and Amadeus shall be
entitled to injunctive and other equitable relief in the event of an actual or
threatened breach of this Exhibit B in addition to any other remedies that may
be available.
LIST OF COMPUTERIZED RESERVATION SYSTEMS PROVIDERS
Abacus
Axess
Fantasia
Galileo
Gemini
Genesis
GETS
Infini
Sabre
Southern Cross
Worldspan
2
EXHIBIT C
FORM OF STATEMENT OF WORK
Statement of Work Number ___
This document shall serve as a Statement of Work to that certain
Software
License Agreement dated as of July 1, 2000 by and between Orbitz, LLC
("Customer") and ITS Software, Inc. ("ITA") the "Agreement").
The undersigned agree that this Statement of Work and the services to be
provided hereunder are subject to the terms and conditions of the Agreement,
which terms and conditions are incorporated herein by reference.
ORBITZ, LLC ITA SOFTWARE, INC.
By: By:
------------------------------- --------------------------------------
Name: Name:
----------------------------- ------------------------------------
Title: Title:
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I. NARRATIVE DESCRIPTION OF PRODUCTS AND SERVICES
A. DESCRIPTION AND PROJECT SCOPE
B. ITA RESPONSIBILITIES
C. DELIVERABLES
D. REPORTING
E. TESTING
F. ORBITZ RESPONSIBILITIES
G. ESTIMATED TIMELINE
II. PRODUCT PRICING AND DELIVERABLES
A. WORK PRODUCT TO BE DEVELOPED BY ITA
B. OWNERSHIP OF THE DELIVERABLES
III. COMPLETION AND ACCEPTANCE CRITERIA
IV. FEES SCHEDULE
V. EXPENSES
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EXHIBIT D
LICENSOR INSURANCE REQUIREMENTS
1. REQUIRED INSURANCE. Licensor shall, at its own expense, obtain and
maintain the following insurance:
(a) Commercial General Liability, with coverage including
premises/operations, contractual, personal and advertising injury, and
products/completed operations liabilities, with limits of not less than
$1,000,000 per occurrence for bodily injury and property damage combined.
Licensee shall be named as an additional insured. Limits of liability
requirements may be satisfied by a combination of Commercial General Liability
and Umbrella Excess Liability policies.
(b) Motor Vehicle Liability insurance for owned, non-owned and hired
vehicles, with limits of not less than $1,000,000 per occurrence for bodily
injury and property damage combined. If no vehicles are owned or leased, the
Commercial General Liability insurance shall be extended to provide insurance
for non-owned and hired automobiles. Licensee shall be named as an additional
insured. Limits of liability requirements may be satisfied by a combination of
Automobile Liability and Umbrella Excess Liability policies.
(c) Workers' Compensation insurance, including coverage for all costs,
benefits, and liabilities under Workers' Compensation and similar laws which may
accrue in favor of any person employed by Licensor, for all states in which the
project or work to be performed is located, and Employer's Liability insurance
with limits of liability of not less than $100,000 per accident or disease and
$500,000 aggregate by disease. Such insurance shall contain a waiver of
subrogation in favor of Licensee unless such waivers are not available in the
state(s) where the project or work to be performed is located. Licensor warrants
and represents that its subcontractors shall maintain Workers' Compensation and
Employer's Liability insurance, and Licensor further agrees to indemnify
Licensee for any loss, cost, liability, expense and/or damage suffered by
Licensee as a result of failure of its subcontractors to maintain such
insurance.
(d) Fidelity Bond covering employee dishonesty with limits o not less
than $1,000,000 per loss. Licensee shall be named as an additional insured.
(e) Professional Liability or Errors & Omissions Insurance with limits
of not less than $1,000,000 per claim.
2. POLICIES. Insurance shall be purchased from companies having a rating of
A-VII or better in the current BEST'S INSURANCE REPORTS published by A.M. Best
Company. Policies of insurance shall provide that they shall not be canceled or
materially changed without at least thirty (30) days prior written notice to
Licensee. Certificates of insurance evidencing coverage shall be submitted in
advance of or concurrent with the execution of this Agreement, and on each
insurance policy renewal thereafter. Licensor shall, at Licensee request,
provide copies of requested insurance policies. If Licensor does not provide
Licensee with such certificates of insurance, or, in Licensee opinion, such
policies do not afford adequate protection for Licensee, then licensee shall so
advise Licensor. Thereafter, if Licensor does not furnish evidence of acceptable
coverage within fifteen (15) days, then Licensee shall have the right, in its
sole discretion, to (i) withhold payments from Licensor until evidence of such
acceptable coverage is provided, or (ii) terminate this Agreement in accordance
with Section 10(c). Failure to obtain and maintain required insurance shall not
relieve Licensor of any obligation contained in this Agreement. Additionally,
any approval by Licensee of any of Licensor's insurance policies shall not
relieve Licensor of any obligation contained in this Agreement.
EXHIBIT E
DISPUTE RESOLUTION PROCEDURES
1. NEGOTIATION. In the event of any dispute or disagreement between the
parties with respect to the interpretation of any provision of this Agreement or
with respect to the performance of either party hereunder, account managers from
both parties shall meet for the purpose of resolving the dispute. If the account
managers are unable to resolve the dispute within five (5) business days, the
dispute shall then be submitted to the Chief Executive Officer ("CEO") of each
party (or the CEO's designee, excluding the account managers) (the
"Representatives") who shall commence meeting within five (5) business days in
order to gather and furnish to each other all essential, non-privileged
information that the parties believe germane to resolution of the matter at
issue, and to resolve the dispute. Such meetings shall extend for no more than
five (5) business days after commencement (the "Representative Negotiation
Period"). During the Representative Negotiation Period, all information
exchanged shall be limited to non-privileged information. All requests shall be
made in good faith and be reasonable in light of the time period specified for
the Representative Negotiation Period.
2. ARBITRATION. In the event the parties are not able to resolve the
dispute through the process described above, the dispute shall be finally
settled by binding arbitration ("Arbitration") conducted expeditiously in
accordance with the rules of the American Arbitration Association (the "Rules").
The arbitration procedure set forth below shall be the parties' exclusive remedy
for all disputes arising hereunder; and PROVIDED, FURTHER, that any party may
seek judicial entry of any arbitral award. The Arbitration shall be conducted by
a single arbitrator, who shall not be an officer, director, or employee of any
party hereto or its affiliates, appointed as provided in the Rules. The
arbitrator shall not have the power to adjudicated or make an award with respect
to any matter that is not subject to the Arbitration. The arbitrator may make
interim awards and may award equitable and declaratory relief.
3. PLACE OF ARBITRATION. Any Arbitration hereunder shall be conducted at a
mutually acceptable location in either Chicago, Illinois, USA or Boston,
Massachusetts, USA (or, if the parties are unable to agree as to which of such
cities shall be the location of Arbitration, then in a mutually acceptable
location in Xxx Xxxx Xxxx, Xxx Xxxx, XXX).
4. COSTS AND FEES. Each party shall, except as otherwise provided herein,
be responsible for its own expenses, including legal fees, incurred in the
course of the Representative Negotiation Period and Arbitration. The fees of the
arbitrator shall be divided evenly between the parties.
5. EQUITABLE RELIEF. The provisions of this Exhibit shall not prevent
either party from seeking (a) equitable relief for breaches of the other party's
confidentiality obligations under this Agreement or (b) specific performance of
the other party's material breach of its obligations under this Agreement,
including, without limitation, a material breach by Licensor of its warranty and
support obligations. Both parties agree that, the existence of a dispute
notwithstanding, they shall continue without delay to carry out all their
responsibilities under this Agreement that are not affected by the dispute.
EXHIBIT F
LICENSEE'S INVOICING POLICY
1. Timely Invoicing.
Licensor shall invoice Licensee for all fees and charges accruing under the
Agreement on a timely basis. Licensee shall have no obligation to pay any fees
or charges that Licensor fails to invoice to Licensee within thirty (30) days
following the end of the monthly billing cycle in which such fees and charges
were incurred or should have been billed.
2. Appropriate Detail And Documentation.
Where the Licensor is invoicing for professional services that relate to an
existing SOW, then the invoice will identify (i) the SOW to which the invoice
pertains; (ii) general descriptions of the work that was performed (i.e.,
"gateway code modifications", "triage and diagnosis of line problems to and from
Atlanta/Chicago", etc.), broken down by categories (i.e., "Engineering",
"Operations", etc.); (iii) the number of hours for each principal work project
included in the SOW, identifying those hours incurred by Engineering/Development
and those hours spent by Operations; and (iii) the billable rate therefor.
Where the Licensor is invoicing for professional services that do not relate to
an existing SOW but relate to work undertaken at the direction of an authorized
officer of Licensee (whether or not in writing), then the invoice will identify
(i) the authorized officer of Licensee who has directed Licensor to undertake
such work; (ii) a general description of the activities undertaken by the
Licensor during the period, broken down by categories (i.e., "Engineering",
"Operations", etc.); (iii) the number of hours spent on such work, identifying
those hours incurred by Engineering/Development and those hours spent by
Operations; and (iv) the billable rate therefor.
Licensee shall not be obligated to pay any invoices until receiving the
foregoing detail and documentation.
EXHIBIT G
PAYMENT SCHEDULE
ITA Payment Schedule for 2001
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1-Jan 1-Feb 1-Mar 1-Apr 1-May 1-Jun
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ITA ESTIMATED COSTS YEAR 2001
LICENSE FEES
Atlanta Set Up [***] [***]
License Fee [***] [***] [***]
PROFESSIONAL FEES
Current Invoice [***] [***]
Expected PS [***] [***] [***]
SLA MONTHLY SERVICE COSTS
TVM [***] [***] [***]
Enhanced Maintenance [***] [***] [***] [***] [***]
Atlanta Operations [***] [***] [***] [***]
Availability Services [***] [***] [***] [***]
Data Services [***] [***] [***] [***]
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TOTAL MONTHLY AMOUNTS DUE [***] [***] [***] [***] [***] [***]
=========================================================
TOTAL BY QUARTER Q1 2001 Q2 2001
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[***] [***]
------------------------------------------------------------------------
1-Jul 1-Aug 1-Sep 1-Oct 1-Nov 1-Dec Total 2001
------------------------------------------------------------------------
ITA ESTIMATED COSTS
LICENSE FEES
Atlanta Set Up [***]
License Fee [***] [***] [***] [***] [***]
PROFESSIONAL FEES
Current Invoice [***]
Expected PS [***] [***] [***] [***]
SLA MONTHLY SERVICE COSTS
TVM [***]
Enhanced Maintenance [***] [***] [***] [***] [***]
Atlanta Operations [***] [***] [***] [***] [***]
Availability Services [***] [***] [***] [***] [***]
Data Services [***] [***] [***] [***] [***] [***]
------------------------------------------------------------------------
TOTAL MONTHLY AMOUNTS DUE [***] [***] [***] [***] [***] [***] [***]
========================================================================
TOTAL BY QUARTER Q3 2001 Q4 2001
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[***] [***]
Notes:
1. SERVICE FEES ARE SPREAD THROUGHOUT THE YEAR, BUT ARE BASED UPON THE
FOLLOWING:
Service Fees (Beginning 1/1/01) Monthly amount
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Enhanced Maintenance [***]
Data Services [***]
Availability Data [***]
Operations Services [***]
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Total Monthly Service Fees: [***]
Annual Service Fees: [***]
2. AVAILABILITY COSTS HAVE BE RESET TO BEGIN IN JANUARY 2001
3. A $[***] LINE ITEM HAS BEEN ADDED FOR TVM
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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.
