Exhibit 10.3
AMENDED AND RESTATED AGREEMENT
FOR
CRS ACCESS AND RELATED SERVICES
between
ORBITZ, LLC
and
WORLDSPAN, L.P.
TABLE OF CONTENTS
PAGE
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ARTICLE I AGREEMENT, TERM, AND DEFINITIONS........................... 1
1.1 Agreement.................................................. 1
1.2 Term....................................................... 1
1.3 Definitions................................................ 2
ARTICLE II WORLDSPAN SERVICES......................................... 2
2.1 CRS Access................................................. 2
2.2. Service Levels............................................. 2
2.3 Customer Service and Fulfillment Interface................. 2
2.4 Relationships with Travel Suppliers........................ 2
2.5 Enhancements to WORLDSPAN System........................... 2
2.6 Continuing Integration Services............................ 3
2.7 Ticket Printers............................................ 3
2.8 Worldspan Support Services................................. 3
2.9 DIR Gap Analysis........................................... 4
ARTICLE III ORBITZ RESPONSIBILITIES....................................... 4
3.1 Orbitz Website ............................................ 4
3.2 Use of WORLDSPAN System.................................... 4
3.3 Capacity Planning.......................................... 5
3.4 Third Party Coordination................................... 6
3.5 Use of the Internet........................................ 7
ARTICLE IV PAYMENTS................................................... 7
4.1 Cost Reimbursement......................................... 7
4.2 Excess Weighted Message Unit Charges....................... 7
4.3 Segment Fees............................................... 8
4.4 ITA Subscription Fee....................................... 9
4.5 Time of Payment............................................ 9
4.6 Taxes...................................................... 10
ARTICLE V CONTRACT ADMINISTRATION.................................... 10
5.1 Contract Managers.......................................... 10
5.2 Periodic Meetings.......................................... 10
5.3 Management Reports......................................... 10
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ARTICLE VI SECURITY, CONFIDENTIALITY, AND PROPRIETARY RIGHTS.......... 10
6.1 Security .................................................. 10
6.2 Confidentiality............................................ 11
6.3 Proprietary Rights......................................... 11
6.4 Orbitz Information......................................... 11
ARTICLE VII TERMINATION................................................ 12
7.1 Termination for Cause...................................... 12
7.2 Termination for Nonpayment................................. 12
7.3 Termination for Insolvency................................. 12
7.4 Termination for Material Service Level Failure............. 12
7.5 Termination Upon a Change-in-Control....................... 12
7.6 Termination Assistance..................................... 13
ARTICLE VIII ALLOCATION OF RISKS AND RESOLUTION OF DISPUTES............. 13
8.1 Mutual Indemnities......................................... 13
8.2 Indemnification Procedures................................. 14
8.3 Disclaimer................................................. 14
8.4 Limitations on Liability................................... 14
8.5 Resolution of Disputes..................................... 15
ARTICLE IX MISCELLANEOUS.............................................. 16
9.1 Assignment................................................. 16
9.2 Notices.................................................... 16
9.3 Force Majeure.............................................. 17
9.4 Further Assurances......................................... 17
9.5 Press Releases............................................. 18
9.6 Non-Solicitation........................................... 18
9.7 Third Party Beneficiaries.................................. 18
9.8 No Waiver; Cumulative Remedies............................. 18
9.9 Construction............................................... 18
9.10 Severability............................................... 18
9.11 Counterparts............................................... 18
9.12 Governing Law.............................................. 19
9.13 Amendments................................................. 19
9.14 Entire Agreement........................................... 19
9.15 Audit Rights............................................... 19
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SCHEDULES
SCHEDULE A DEFINITIONS
SCHEDULE B SERVICE LEVELS
SCHEDULE C MESSAGE WEIGHTS
SCHEDULE D CHARTER AIRLINES
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AMENDED AND RESTATED AGREEMENT
FOR
CRS ACCESS AND RELATED SERVICES
THIS AMENDED AND RESTATED AGREEMENT (this "Agreement"), dated as of November 1,
2001, is between Orbitz, LLC, a Delaware limited liability company, ("Orbitz")
and Worldspan, L.P., a Delaware limited partnership, ("WORLDSPAN").
WHEREAS, Orbitz has been formed by United Air Lines, Inc., American Airlines,
Inc., Delta Air Lines, Inc., Northwest Airlines, Inc., and Continental Airlines,
Inc. to develop, own, and operate a consumer-oriented Internet travel portal
through which consumers can shop for and book air travel, hotel accommodations,
car rentals, cruises, tours, and other travel-related services;
WHEREAS, Orbitz has selected WORLDSPAN to provide, for this Internet portal,
access to and use of the computer reservations systems operated by WORLDSPAN and
certain related services, as provided in this Agreement, and has selected other
companies to provide the booking engine, fulfillment services, customer service
center, and other products and services required by Orbitz for this Internet
portal;
WHEREAS, Orbitz and Worldspan entered into an Agreement for CRS Access and
Related Services dated August 1, 2000 (the "Original Agreement"); and
WHEREAS, Orbitz and Worldspan desire to amend and restate the Original Agreement
under the terms and conditions of this Agreement;
NOW, THEREFORE, Orbitz and WORLDSPAN (each, a "Party") hereby agree as follows:
ARTICLE I
AGREEMENT, TERM, AND DEFINITIONS
1.1 AGREEMENT. During the Term of this Agreement and in accordance with the
provisions hereof, WORLDSPAN will provide, and Orbitz will obtain, the CRS
access and related services described in this Agreement.
1.2 TERM. The term of this Agreement will commence on November 1, 2001 (the
"Effective Date") and will end on (i) October 31, 2011, or (ii) such
earlier date upon which this Agreement may be terminated in accordance with
the provisions of this Agreement ("Term").
1.3 DEFINITIONS. As used in this Agreement, the terms set forth in Schedule A
will have the respective meanings specified in Schedule A. Other terms used
in this Agreement are defined in the context in which they are used and
will have the respective meanings there specified.
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ARTICLE II
WORLDSPAN SERVICES
2.1 CRS ACCESS. During the Term of this Agreement, WORLDSPAN will provide
Orbitz, as well as the Booking Engine Provider, the Customer Service Center
Provider, the Fulfillment Provider, and any other third parties that may be
engaged by Orbitz to provide products or services for the operation of the
Orbitz Website and that require such access in order to provide those
products or services, with access to the WORLDSPAN System for purposes of
the operation of the Orbitz Website and in accordance with the provisions
of this Agreement.
2.2 SERVICE LEVELS. During the Term of this Agreement, WORLDSPAN will operate
the WORLDSPAN System in accordance with the Service Levels as set forth on
Schedule B.
2.3 CUSTOMER SERVICE AND FULFILLMENT INTERFACE. During the Term of this
Agreement and subject to the charges set forth in Section 2.7, WORLDSPAN
will (i) provide the Fulfillment Provider, at its facilities, with
sufficient ticket printers to fulfill the travel services booked by means
of the Orbitz Website through the WORLDSPAN System, and (ii) provide,
[***], the communication lines necessary to connect the Fulfillment and
Customer Service Center Provider(s) with the WORLDSPAN data center.
2.4 RELATIONSHIPS WITH TRAVEL SUPPLIERS. WORLDSPAN will be responsible for
managing the relationships that it has established with travel suppliers
throughout the world pursuant to which the travel suppliers pay WORLDSPAN
fees for transactions booked through the WORLDSPAN System. Although Orbitz
may establish its own, independent relationships with travel suppliers,
WORLDSPAN will retain exclusive control over the identity of and the terms
of its agreements with travel suppliers. The Parties agree to comply with
the reasonable directions of the travel suppliers with respect to control
of their respective inventories and related matters.
2.5 ENHANCEMENTS TO WORLDSPAN SYSTEM. WORLDSPAN from time to time may enhance
or modify the WORLDSPAN System and may change the hardware and/or software
comprising the WORLDSPAN System and migrate processing for or on behalf of
Orbitz to such new hardware and/or software. In addition, WORLDSPAN from
time to time shall offer optional functions, services or equipment to
Orbitz on or before the time WORLDSPAN generally offers such functions,
services or equipment to any of its other actual or potential customers at
such fees, terms and conditions as may be mutually agreed upon. Orbitz's
use of any such optional function, service or equipment will constitute
agreement to such agreed upon fees, terms and conditions. WORLDSPAN will
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use reasonable business efforts to ensure that the services provided by
WORLDSPAN to Orbitz are not materially adversely affected by any such
enhancements, modifications or changes or by any such optional functions,
services or equipment.
2.6 CONTINUING INTEGRATION SERVICES. Throughout the Term of the Agreement,
Worldspan shall use commercially reasonable efforts to resolve technical
issues regarding the operation of the Worldspan System, including, without
limitation, technical issues or suspected errors in the Worldspan System
that cause travel suppliers to experience problems with fare display,
availability or sales confirmation on the Orbitz Website (each, a
"Technical Issue"). Each party shall appoint an employee who shall serve as
the primary point of contact for the other party with respect to Technical
Issues (each, a "Technical Contact"). Either party may change its Technical
Contact at any time upon notice to the other party. In addition, the
parties agree to participate jointly in communications with travel
suppliers regarding the status of any Technical Issue.
2.7 TICKET PRINTERS. Subject to availability, Orbitz may purchase Worldspan's
excess and reconditioned TI1600 ATB printers at a cost equal to market
value not to exceed [***] per printer plus shipping and handling. New
printers may be purchased by Orbitz from Worldspan [***]. If requested by
Orbitz, Worldspan shall provide maintenance on such printers and charge
Orbitz [***]. Notwithstanding the foregoing, any printers provided by
Worldspan to Orbitz prior to the Effective Date may continue to be used by
Orbitz or its Fulfillment Provider during the Term of this Agreement [***].
Orbitz may use any of the printers acquired from Worldspan to connect with
other third parties. All other equipment provided by Worldspan must be
connected to the Worldspan network and may not be used with any other third
party. With respect to any printers that are not connected to the Worldspan
network, Worldspan will provide maintenance relating to hardware issues and
Orbitz shall be responsible for all other maintenance issues impacting such
equipment.
2.8 WORLDSPAN SUPPORT SERVICES. Worldspan shall provide to Orbitz at [***]
a technical sales specialist and Contract Manager to facilitate bookings
made from the Orbitz Website through the Worldspan System. Worldspan
acknowledges that the foregoing obligations are intended to reflect [***].
2.9 DIR GAP ANALYSIS. Worldspan shall provide Orbitz with a DIR GAP analysis
based on the functionality requested by Orbitz. Worldspan shall use
reasonable commercial efforts to deliver such functionality and usage
requirements according to the priority lists mutually agreed upon by the
parties.
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ARTICLE III
ORBITZ RESPONSIBILITIES
3.1 ORBITZ WEBSITE. Orbitz will establish and maintain the Orbitz Website,
including performing, or causing third parties to perform, the applicable
tasks that are the responsibility of Orbitz or such third parties.
3.2 USE OF WORLDSPAN SYSTEM. Orbitz has incorporated the Worldspan System into
the Orbitz Website and will use reasonable business efforts to encourage
Users to book travel by means of the Orbitz Website so as to generate Net
Segments booked through the Worldspan System. Orbitz will [***]. Orbitz
shall use [***]. Orbitz agrees that from the Effective Date through [***],
at least [***] of the CRS Segments booked on behalf of all Users, including
Corporate Users, by means of the Orbitz Website through a CRS will be
booked through the Worldspan System. Commencing on [***] and continuing
throughout the remainder of the Term, Orbitz agrees that at least (i) [***]
of the CRS Segments booked on behalf of [***] by means of the Orbitz
Website through a CRS will be booked through the Worldspan System and (ii)
[***] of the CRS Segments booked on behalf of Corporate Users by means of
the Orbitz Website through a CRS will be booked through the Worldspan
System. Orbitz will use reasonable business efforts to prevent unauthorized
or improper use of the Worldspan System and to ensure that its employees,
agents and Users access and use the Worldspan System in compliance with all
reasonable instructions provided by Worldspan, including the following:
(a) The WORLDSPAN System may not be used to transmit personal messages,
make speculative or improper bookings, train anyone other than Orbitz
employees, agents, or Users, or publish or disseminate a compilation
of air carrier service or other information.
(b) Proper use of the WORLDSPAN System consists of making proper and
legitimate reservations, issuing travel related documents, and
performing normal accounting and record keeping functions. Improper
use of the WORLDSPAN System includes, without limitation, making
speculative bookings, reserving space in anticipation of demand, and
improper creation or modification of records.
(c) Orbitz's employees, agents, and Users may not enter passive bookings
(e.g., GC, HK, MK or BK codes) into the WORLDSPAN System when no
corresponding space has been reserved with the corresponding travel
supplier's internal reservations system. Any passive bookings will be
removed from the WORLDSPAN System if the corresponding space is
cancelled.
(d) The material and information supplied by WORLDSPAN will not be
manipulated in a manner that would lead to inaccurate, misleading, or
discriminatory presentation of information to consumers.
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(e) Orbitz will promptly report to WORLDSPAN any incidents of suspected
unauthorized access to or use of the WORLDSPAN System and will use
reasonable commercial efforts to curtail access to or use of the
WORLDSPAN System by any User upon WORLDSPAN's reasonable request.
3.3 CAPACITY PLANNING. By the end of each calendar month throughout the Term,
Orbitz will provide to WORLDSPAN, for purposes of WORLDSPAN's capacity and
resource planning, a written notice of Orbitz's best estimate of the number
of [***] that will be booked by means of the Orbitz Website through the
WORLDSPAN System, and the number of any other Message types the Parties may
mutually agree to be included in WORLDSPAN's capacity and resource
planning, during each of the next [***] months. Except as provided in the
next sentence, the notices are provided[***]. With respect to each such
notice, Orbitz's estimate for each of the first [***] months covered by the
notice will [***] and, except as set forth below, [***]. Commencing at the
beginning of the Term of this Agreement, in the event that the number of
[***] actually booked by means of the Orbitz Website through the WORLDSPAN
System during any month is less than [***] of [***], then Orbitz will
reimburse WORLDSPAN for any WORLDSPAN Actual Costs that [***]. In the event
that WORLDSPAN plans to incur an expense or cost of [***] or more due to
Orbitz's estimate and for which Orbitz might become obligated to reimburse
WORLDSPAN pursuant to this Section 3.3, then WORLDSPAN shall promptly
notify Orbitz of such planned expense or cost and provide Orbitz with a
reasonably detailed explanation of the reasons for such cost or expense,
and Orbitz shall have [***] days to resubmit a forecast with modified [***]
estimates. [***] WORLDSPAN shall use commercially reasonable efforts to
avoid and/or mitigate any Orbitz-reimbursable costs or expenses.
3.4 THIRD PARTY COORDINATION. Orbitz will manage its relationships with the
Booking Engine Providers, the Customer Service Center Providers, the
Fulfillment Providers, and any other applicable third parties involved in
the implementation or operation of the Orbitz Website and will be
responsible for the timely performance of their respective obligations
relating to WORLDSPAN's performance under this Agreement. In connection
therewith, Orbitz acknowledges and agrees that:
(a) Orbitz or its Booking Engine Providers will be responsible for
providing the booking engine utilized by the Orbitz Website.
(b) Orbitz or its Customer Service Center Providers will be responsible
for customer support relating to the Orbitz Website. Except to the
extent otherwise mutually agreed, WORLDSPAN will not be responsible
for providing any "help desk" or similar support or assistance with
respect to any hardware, software, product, or service that is not
provided by WORLDSPAN hereunder. Upon WORLDSPAN's reasonable request
from time to time, Orbitz will notify its employees, agents, and Users
of the appropriate places to obtain such support and assistance and
that WORLDSPAN is not responsible for providing the same.
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(c) Orbitz or its Fulfillment Providers will be responsible for
fulfillment of all travel services booked by means of the Orbitz
Website.
(d) Unless and until WORLDSPAN is requested to provide such services as
provided below, Orbitz or its Domestic Fares Providers will be
responsible for providing fares and pricing information relating to
Domestic Air Travel for the Orbitz Website. Upon Orbitz's request,
WORLDSPAN will commence providing Domestic Air Travel fares and
pricing information for the Orbitz Website and will use reasonable
business efforts to do so on the schedule reasonably requested by
Orbitz and in compliance with the Service Levels. However, if
WORLDSPAN is given less than [***] days prior notice that it is to
begin providing Domestic Air Travel fares and pricing information for
the Orbitz Website, then, for the period ending [***] days after
WORLDSPAN is given such notice, WORLDSPAN will be excused from and not
held accountable for any failure to meet any Service Level to the
extent that such failure results from WORLDSPAN's provision of
Domestic Air Travel fares and pricing information for the Orbitz
Website.
(e) With respect to the booking engine and any other component of, or used
by, the Orbitz Website that directly interfaces with the WORLDSPAN
System, Orbitz will use reasonable business efforts to ensure that (i)
the component uses the highest participation level in the WORLDSPAN
System that is available to the component, (ii) the component's
interface to the WORLDSPAN System results in a reasonably efficient
use of the WORLDSPAN System, as periodically confirmed by WORLDSPAN's
audit, (iii) any software included in the component meets commercially
reasonable standards for stability, acceptability, documentation, and
integrity and has been sufficiently stress tested to ensure that it
will meet anticipated volume requirements, and (iv) any hardware used
by the component meets WORLDSPAN's reasonable requirements for
compatibility.
(f) Each Party will cooperate with the other Party, and will cause each
third party under such Party's control or direction to cooperate with
the other Party, in the performance of the other Party's obligations
hereunder by, among other things, making available such information,
data, access to premises, management decisions, approvals, and
acceptances as may be reasonably requested by the other Party.
3.5 USE OF THE INTERNET. Since the Orbitz Website will primarily utilize the
Internet, which is not managed or controlled by either Party, both Parties
acknowledge and agree that:
(a) Any views or comments expressed by either Party in electronic
communications sent through the WORLDSPAN System over the Internet
will not reflect any review, approval, or endorsement of the other
Party.
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(b) Each Party reserves the right upon the written approval of the other
Party, to access the other Party's configuration/system in order to
investigate and resolve system errors or service-related problems.
ARTICLE IV
PAYMENTS
4.1 COST [***]. Orbitz will [***] in connection with the following:
(a) Any telecommunication lines and related equipment and services
associated with communication between WORLDSPAN and Orbitz or Orbitz
systems.
(b) Any telecommunication lines and related equipment and services
associated with communication between WORLDSPAN and (i) the
Fulfillment Providers, (ii) the Customer Service Center Providers,
(iii) Orbitz's telecommunications center in Oakbrook,
Illinois, and
(iv) unless otherwise mutually agreed, any other entity for which such
communication is requested by or on behalf of Orbitz.
4.2 EXCESS WEIGHTED MESSAGE UNIT CHARGES. During the Term of this Agreement,
Orbitz will pay Worldspan for any excess Weighted Message Units in
accordance with the following:
(a) For any month in which Worldspan does not provide Domestic Air Travel
fares and pricing information for the Orbitz Website and during which
the number of Weighted Message Units for the Messages processed by the
Worldspan System is greater than [***] times [***] booked by means of
the Orbitz Website through the Worldspan System during that month,
Orbitz will pay Worldspan an excess Weighted Message Unit charge equal
to (i) [***] multiplied by (ii) the amount by which the number of
Weighted Message Units for the Messages processed by the Worldspan
System during that month exceeds [***] times the number of [***]
during that month.
(b) For any month in which Worldspan does provide Domestic Air Travel
fares and pricing information for the Orbitz Website and during which
the number of Weighted Message Units for the Messages processed by the
Worldspan System is greater than [***] times [***] booked by means of
the Orbitz Website through the Worldspan System during that month,
Orbitz will pay Worldspan an excess Weighted Message Unit charge equal
to (i) [***] multiplied by (ii) the amount by which the number of
Weighted Message Units for the Messages processed by the Worldspan
System during that month exceeds [***] times the number of [***]
during that month. For purposes of this Agreement, the parties must
consent in writing to the provision of Domestic Air Travel fares and
pricing information to the Orbitz Website by Worldspan.
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(c) For any month during which the Response Time Monitor is operational,
Orbitz will be entitled to request in writing a credit against any
excess Weighted Message Unit charge otherwise payable pursuant to
either subsection (a) or subsection (b) of this Section 4.2, which
credit shall be equal to the lesser of [***].
4.3 SEGMENT FEES. During the Term of the Agreement, Worldspan will pay
Orbitz Base Segment Fees in accordance with the following:
(a) As an inducement for Orbitz to book Segments through the Worldspan
System and subject to Section 4.3(b), for each calendar month during
the period commencing on the Effective Date and continuing through the
remainder of the Term of this Agreement, Worldspan will pay Orbitz the
Adjusted Segment Fee for each Net Segment for that month. However,
[***].
(b) Retroactive to June 4, 2001 and continuing until July 31, 2003, this
Section shall apply to Net Air Segments and Booking Fees of Charter
Airlines. In determining the number of Net Air Segments of Charter
Airlines, Worldspan will include ninety-five percent (95%) of the Net
Air Segments booked by Orbitz users on Charter Airlines. The remaining
five percent (5%) of the Net Air Segments booked by Orbitz users on
Charter Airlines will not be taken into consideration in determining
the Adjusted Segment Fee payable to Orbitz. In addition, Worldspan
will pay Orbitz a fee equal to five percent (5%) of the Booking Fees
paid by Charter Airlines to Worldspan for Net Air Segments. This
Section 4.3(b) shall not apply to the following: (i) any Net Air
Segments or Booking Fees from a Charter Airline that implements a
direct connection to Orbitz; (ii) any Charter Airline that ceases to
be a Charter Airline; (iii) any Charter Airline that Orbitz is not
contractually obligated to pay air segment rebates; (iv) any Net Air
Segments or Booking Fees from Charter Airlines after September 30,
2003; or (v) as otherwise agreed by Orbitz and Worldspan.
4.4 ITA SUBSCRIPTION FEE. The parties agree to use their diligent best efforts
to reach a definitive agreement by December 31, 2001 whereby Orbitz shall
pay Worldspan a subscription fee in exchange for access to Worldspan's
availability information on air carrier seat inventory.
4.5 TIME OF PAYMENT. Promptly after the end of each calendar month during the
Term of this Agreement, WORLDSPAN will submit to Orbitz:
(a) An invoice for all amounts that are payable to WORLDSPAN by Orbitz
hereunder for that month.
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(b) A report of all amounts that are payable to Orbitz by WORLDSPAN
hereunder for that month.
All such amounts, whether payable to WORLDSPAN or Orbitz, will be due and
payable within thirty (30) days after the date of the invoice therefor or
the report thereof, as the case may be. However, the Party owing the larger
amount to the other Party may, at its discretion and after giving the other
Party at least ten (10) days' notice thereof, set-off the amount owed to it
by the other Party against the amount it owes the other Party and pay only
the net amount to the other Party. Any amount payable to either Party that
is not paid when due, and any amount that is erroneously paid to either
Party and is not repaid within thirty (30) days after that Party receives a
written request for repayment, will thereafter bear interest until paid or
repaid, as the case may be, at a rate of interest equal to the United
States prime rate that, as of the date such amount was due, was then most
recently published in the "Money Rates" section of THE WALL STREET JOURNAL;
provided, however, that in no event will such rate of interest exceed the
maximum rate allowed by applicable law.
4.6 TAXES. Each Party will be responsible for, and will pay or reimburse the
other for, any sales, use, excise, value-added, or similar taxes (but not
including taxes on net income or franchise taxes) that are based upon any
services, materials or goods provided to that Party hereunder or upon any
amounts payable to the other Party hereunder. Each Party will cooperate
with the other in minimizing any applicable taxes, including providing to
the other any exemption certificates or other information reasonably
requested by the other.
ARTICLE V
CONTRACT ADMINISTRATION
5.1 CONTRACT MANAGERS. Each Party will from time to time appoint, and give the
other written notice of the appointment of, an individual (the "Contract
Manager" for that Party) who will oversee and manage the performance of
that Party's obligations under this Agreement, will serve as that Party's
primary point of contact with the other Party, and will be authorized to
act for and on behalf of that Party with respect to all matters relating to
this Agreement.
5.2 PERIODIC MEETINGS. In order to facilitate and enhance on-going
communications, the Contract Managers will meet on a mutually agreed
periodic basis, and at such other times as may be reasonably requested by
either of them, to review the Parties' performance of their obligations
under this Agreement and to discuss technical plans, financial matters,
system performance, service levels and any other matters related to this
Agreement that may be reasonably requested by either Party.
5.3 MANAGEMENT REPORTS. On at least a calendar monthly basis, WORLDSPAN will
provide to Orbitz reports of WORLDSPAN's performance of its obligations
pursuant to this Agreement, including information regarding WORLDSPAN's
performance with respect to
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the Service Levels and such other information upon which the Parties may
mutually agree from time to time.
ARTICLE VI
SECURITY, CONFIDENTIALITY, AND PROPRIETARY RIGHTS
6.1 SECURITY. Each Party will implement and maintain appropriate security
measures for its operations in accordance with technological developments
and its evolving security needs. Those appropriate security measures for
each Party will include, without limitation, establishing a security policy
for its computer network, preventing unauthorized access to its computer
systems, implementing administrative security controls for its computing
operations, installing firewalls in its communications network, protecting
its computer resources from insider abuse, having appropriate
administrative procedures to ensure that system access capability to its
computer systems is given to only authorized users and is promptly
withdrawn from terminated employees or other persons who are no longer
authorized, establishing a single point of control for responses to
incidents involving its security, and monitoring the effectiveness of the
security of its computer network. Neither Party will, or will assist others
in efforts to, subvert, compromise, or otherwise interfere with the
operations or security of any communications network or computing facility
of the other. Each Party will cooperate with the other in investigating and
prosecuting any security breaches that affect or threaten the security of
the other.
6.2 CONFIDENTIALITY. Each Party agrees that all Confidential Information
disclosed to it by the other, whether before or after the Effective Date,
will be held in strict confidence, will be used only for purposes of this
Agreement, will be kept in as secure a location and with as stringent
precautions as the receiving Party uses for its own similar information,
will be provided only to those employees and agents of the receiving Party
who require such access for purposes of this Agreement, and will not be
disclosed to any unauthorized person by the receiving Party or any of its
employees or agents except with the prior written consent of the disclosing
Party or as may be required by legal or regulatory requirements beyond the
control of the receiving Party.
6.3 PROPRIETARY RIGHTS. Orbitz acknowledges and agrees that, as between the
Parties, the WORLDSPAN System will be and remain the property of WORLDSPAN
and that the WORLDSPAN System constitutes and includes trade secrets and
proprietary and confidential information of WORLDSPAN. Orbitz will, and
will allow its employees, agents, and Users to, access and use the
WORLDSPAN System only for the purposes contemplated by this Agreement. In
addition, Orbitz will not, and will not allow its employees, agents, or
Users to, copy, duplicate, reproduce, de-compile, reverse engineer,
re-engineer, modify, or disclose in any form the WORLDSPAN System or any
portion thereof. Upon termination of this Agreement for any reason, Orbitz
will promptly return to WORLDSPAN any material relating to the WORLDSPAN
System that may be in Orbitz's possession or control.
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6.4 ORBITZ INFORMATION. WORLDSPAN acknowledges and agrees that, as between the
Parties, the Orbitz Information shall be deemed the confidential and
proprietary information of Orbitz and shall be considered as
work-made-for-hire. To the extent the Orbitz Information is not considered
work-made-for-hire, WORLDSPAN hereby assigns upon creation all ownership
rights that WORLDSPAN may have or hereafter acquires in the Orbitz
Information to Orbitz. WORLDSPAN shall cooperate with Orbitz in securing,
enforcing and otherwise protecting Orbitz's interest in the Orbitz
Information, including, without limitation, by signing all documents
reasonably requested by Orbitz. Upon request by Orbitz, WORLDSPAN shall
provide all Orbitz Information in the form, format and manner as may be
reasonably requested by Orbitz. However, notwithstanding the foregoing,
WORLDSPAN may disclose Orbitz Information if and to the extent required by
legal or regulatory requirements and may use aggregate information and
statistics reflecting the use of the WORLDSPAN System by means of the
Orbitz Website as long as such use is in accordance with applicable legal
or regulatory requirements and in accordance with WORLDSPAN's ordinary and
customary business practices.
ARTICLE VII
TERMINATION
7.1 TERMINATION FOR CAUSE. In the event that either Party materially defaults
in the performance of any of its duties or obligations hereunder and does
not substantially cure the default within thirty (30) days after being
given written notice specifying the default, or, with respect to any
default that cannot reasonably be cured within thirty (30) days, if the
defaulting Party fails to proceed promptly after being given such notice to
commence curing the default and thereafter to proceed with all due
diligence to substantially cure the same, then the Party not in default
may, by giving written notice of termination to the defaulting Party at any
time thereafter and before the default is substantially cured, terminate
this Agreement as of a date specified in the notice of termination.
7.2 TERMINATION FOR NONPAYMENT. In the event that either Party defaults in the
payment when due of any amount due to the other Party hereunder and does
not cure the default within thirty (30) days after being given written
notice specifying the default, then the Party not in default may, by giving
written notice of termination to the defaulting Party at any time
thereafter and before the default is cured, terminate this Agreement as of
a date specified in the notice of termination.
7.3 TERMINATION FOR INSOLVENCY. In the event that either Party becomes or is
declared insolvent or bankrupt, is the subject of any proceedings relating
to its reorganization, liquidation, insolvency or for the appointment of a
receiver or similar officer for it, makes an assignment for the benefit of
all or substantially all of its creditors, or enters into an agreement for
the composition, extension, or readjustment of all or substantially all of
its obligations, then the other Party may, by giving written notice of
termination to such Party, terminate this Agreement as of a date specified
in the notice of termination.
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7.4 TERMINATION FOR MATERIAL SERVICE LEVEL FAILURE. In the event that a
Material Service Level Failure occurs, then Orbitz may, by giving written
notice of termination to WORLDSPAN within [***], terminate this Agreement
without any liability as of a date specified in the notice of termination.
7.5 TERMINATION UPON A CHANGE-IN-CONTROL. In the event there is a
Change-in-Control of Worldspan, then Worldspan, or any successor in
interest to Worldspan (the "Successor"), [***] shall [***]. Any failure by
Worldspan or a Successor to comply with the foregoing obligations shall
constitute a material breach of this Agreement and in such event, not more
than 60 days following such breach, Orbitz shall have the right to
terminate this Agreement pursuant to this Section 7.5 by providing
Worldspan with written notice of the termination 3 months prior to the
effective date of termination specified in the notice. Such termination is
at the sole discretion of Orbitz and is in lieu of any other remedy
available at law or in equity.
7.6 TERMINATION ASSISTANCE. Upon the expiration or termination of this
Agreement for any reason, WORLDSPAN will provide to Orbitz, during any
applicable notice period and for up to [***] after the expiration or
termination, such termination assistance as may be reasonably requested by
Orbitz to facilitate the orderly transition of responsibility for the
services provided by WORLDSPAN hereunder to Orbitz or its designee. If and
to the extent that the termination assistance is provided after the
expiration or termination of this Agreement or otherwise requires resources
in addition to those resources then being regularly utilized in performing
services hereunder, Orbitz will pay WORLDSPAN for the termination
assistance at [***] for the resources used therefor or on such other basis
as WORLDSPAN and Orbitz may agree upon at that time. However, if this
Agreement is terminated by WORLDSPAN pursuant to Section 7.1, 7.2 or 7.3
hereof, then WORLDSPAN may, as a condition to WORLDSPAN's obligation to
provide any termination assistance for Orbitz during any month, require
Orbitz to pay to WORLDSPAN, prior to the first day of that month, an amount
equal to [***].
ARTICLE VIII
ALLOCATION OF RISKS AND RESOLUTION OF DISPUTES
8.1 MUTUAL INDEMNITIES. Each Party agrees to indemnify, defend, and hold
harmless the other Party and its successors, assigns, affiliates, officers,
employees, and agents from and against any and all claims, actions,
damages, liabilities, costs and expenses, including reasonable attorneys'
fees and expenses, arising out of any third party claim related to:
(a) Any death or personal injury, or any destruction of or damage to any
real or tangible personal property, alleged to have been caused by or
on behalf of the indemnifying Party or its employees or agents.
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(b) Any infringement of a United States letters patent, a trade secret, or
any copyright, trademark, service ▇▇▇▇, trade name or similar
proprietary rights conferred by statute, by common law, or by contract
alleged to have occurred as a result of rights conveyed, materials
provided, or work performed by or on behalf of the indemnifying Party.
8.2 INDEMNIFICATION PROCEDURES. Any Party claiming indemnification pursuant to
this Agreement will give the indemnifying Party prompt written notice of
any matters with respect to which this indemnity may apply, will give the
indemnifying Party full opportunity to control the response thereto and the
defense thereof, and will provide reasonable cooperation and assistance in
connection with the defense and/or settlement of the claim. However, the
indemnified Party may, at its own expense, participate in such defense and
in any settlement discussions, either directly or through counsel of its
choice.
8.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY
MAKES, AND EACH PARTY HEREBY DISCLAIMS, ANY INDEMNITIES, WARRANTIES,
INDEMNIFICATIONS, GUARANTEES, OR REPRESENTATIONS OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
8.4 LIMITATIONS ON LIABILITY. ANY LIABILITY OF EITHER PARTY ARISING FROM OR
RELATING TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE,
INTENDED CONDUCT, STRICT LIABILITY, OR OTHERWISE, WILL BE LIMITED TO THE
OTHER PARTY'S ACTUAL, DIRECT DAMAGES AND WILL BE SUBJECT TO THE FOLLOWING:
(a) EXCEPT FOR DAMAGES RESULTING FROM THE LIABLE PARTY'S GROSS NEGLIGENCE,
WILLFUL MISCONDUCT, OR FAILURE TO PERFORM ANY OF ITS CONFIDENTIALITY,
INDEMNIFICATION, OR PAYMENT OBLIGATIONS HEREUNDER, THE AMOUNT OF
DAMAGES RECOVERABLE AGAINST THE LIABLE PARTY FOR ALL EVENTS, ACTS, AND
OMISSIONS WILL NOT EXCEED, IN THE AGGREGATE, THE SUM OF [***].
(b) IN NO EVENT WILL THE LIABLE PARTY BE LIABLE FOR (I) ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, EXCEPTING
DAMAGES ARISING OUT OF THE LIABLE PARTY'S INDEMNIFICATION OBLIGATIONS
SET FORTH IN THIS ARTICLE VIII, OR (II) ANY DAMAGES THAT COULD HAVE
BEEN PREVENTED OR MITIGATED BY THE OTHER PARTY'S TAKING REASONABLE
PRECAUTIONS OR FOLLOWING REASONABLE PROCEDURES.
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8.5 RESOLUTION OF DISPUTES. In the event of any dispute between the Parties
arising from or relating to this Agreement, the Parties will resolve the
dispute by using the following procedures:
(a) Upon the request of either Party, the Contract Managers will meet to
discuss the dispute, will exchange any information that they mutually
agree is relevant to the issues in dispute, and will use all
reasonable efforts to resolve the dispute without the need for further
proceedings.
(b) If the Contract Managers fail to resolve the dispute within ten (10)
business days after the initial request that they meet to resolve the
dispute in accordance with subsection (a) above, or mutually conclude
in good faith that they are unlikely to resolve the dispute, then,
upon the request of either Party, each of the Parties will designate a
senior executive, who may be supported by legal and technical
advisers, to meet with the senior executive designated by the other
Party and negotiate in good faith to resolve the dispute on an
amicable basis.
(c) If the designated senior executives fail to resolve the dispute within
ten (10) business days after the initial request that they meet to
resolve the dispute in accordance with subsection (b) above, or
mutually conclude in good faith that resolution through such
negotiations does not appear likely, then, upon the request of either
Party, the dispute will be submitted to non-binding mediation as set
forth herein. In the mediation process, the Parties will try to
resolve their differences voluntarily with the aid of an impartial
mediator, who will attempt to facilitate negotiations. The mediator
will be selected by agreement of the Parties. If the Parties cannot
agree on a mediator, a mediator will be designated by the American
Arbitration Association or JAMS/Endispute, or other mutually
acceptable reputable dispute resolution firm, at the request of either
Party. Any mediator so designated must be acceptable to both Parties.
The mediation will be conducted as specified by the mediator and
agreed upon by the Parties. The Parties agree to discuss their
differences in good faith and to attempt, with the assistance of the
mediator, to reach an amicable resolution of the dispute. The
mediation will be treated as a settlement discussion and therefore
will be confidential. The mediator may not testify for either Party in
any later proceeding relating to the dispute. No recording or
transcript shall be made of the mediation proceedings. The mediation
shall be conducted in Chicago,
Illinois. Each Party shall, except as
otherwise provided herein, be responsible for its own expenses,
including legal fees, incurred in the course of the dispute resolution
period and mediation. The fees of the mediator shall be divided evenly
between the Parties.
(d) Neither Party may commence any legal action arising out of this
Agreement until thirty (30) days after the commencement of the
mediation as set forth above, or such shorter period as the Parties
may mutually agree in writing. Notwithstanding the foregoing
provisions of this Section 8.5, either Party may seek interim judicial
relief, including injunctions, specific performance, and other
equitable remedies,
14
to the extent necessary to preserve the status quo or prevent
irreparable injury until any related dispute can be resolved as
provided in this Section 8.5.
(e) Any action or proceeding seeking to enforce any provision of, or based
on any right arising out of, this Agreement may be brought against
either Party only in the appropriate state or federal courts located
in ▇▇▇▇ County,
Illinois. Each Party consents to the exclusive
jurisdiction of such courts (and of the appropriate appellate courts)
in any such action or proceeding and waives any objection to venue
laid therein.
ARTICLE IX
MISCELLANEOUS
9.1 ASSIGNMENT. This Agreement will be binding upon, and inure to the benefit
of, the Parties and their respective successors and assigns. However,
neither Party may, without the prior written consent of the other, assign
or transfer this Agreement, or any of its rights or obligations under this
Agreement, to any person or entity other than one who (i) merges,
consolidates, or otherwise combines with that Party or otherwise acquires
all or substantially all of the operating assets of that Party, and (ii)
agrees or otherwise becomes legally obligated to comply with and be bound
by the provisions of this Agreement to the same extent as that Party.
9.2 NOTICES. Any notice required or permitted by this Agreement will be deemed
given (i) when delivered, if delivered by hand or by facsimile
(transmission confirmed), (ii) on the next business day, if sent by
overnight courier service for next business day delivery, or (iii) on the
third business day, if sent by prepaid United States mail, return receipt
requested, in each case to the applicable Party at the address or facsimile
number specified as follows:
If to Orbitz:
Orbitz, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Orbitz, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
15
If to WORLDSPAN:
Worldspan, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President and Chief Executive Officer
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Worldspan, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Either Party may change its address or facsimile number for notice purposes
by giving the other Party prior written notice of the new address and/or
facsimile number and the date upon which the change will be effective.
9.3 FORCE MAJEURE. Neither Party will be responsible or liable for, and that
Party will be excused from, any non-performance or delay in the performance
of any of its non-monetary obligations under this Agreement if and to the
extent that such non-performance or delay (i) is caused by an act of God,
natural disaster, civil disturbance, or any other factor beyond the control
of that Party, whether or not foreseeable, and (ii) could not have been
prevented by that Party's taking normal and customary precautions. In the
event that either Party is excused from the performance of its obligations
pursuant to this Section, then that Party will use all efforts that are
practicable under the circumstances to resume performance of its
obligations as soon as feasible.
9.4 FURTHER ASSURANCES. Each Party agrees to execute, acknowledge, and deliver
such further instruments and documents, and to do such other acts and
things, as may be required by law or reasonably requested by the other
Party to carry out the full intent and purposes of this Agreement.
9.5 PRESS RELEASES. Neither Party will issue any press release or other public
communication that mentions the other, or uses any copyright, trademark,
service ▇▇▇▇, or trade name of the other, without the prior approval of the
other, except that each Party may make announcements intended solely for
internal distribution at that Party and may make any disclosure required by
legal, accounting, or regulatory requirements beyond the reasonable control
of that Party.
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9.6 NON-SOLICITATION. Each Party agrees that, during the Term of this Agreement
and for [***] thereafter, neither it nor any affiliate of it will, except
with the prior written consent of the other Party, solicit for employment
[***] by the other Party or any affiliate of the other Party if that
individual was involved in the performance of this Agreement. The foregoing
shall not restrict the general solicitation or recruiting activities by
either Party.
9.7 THIRD PARTY BENEFICIARIES. This Agreement is for the benefit of the Parties
and is not intended to confer any rights or benefits on any third party,
including any employee or creditor of either Party.
9.8 NO WAIVER; CUMULATIVE REMEDIES. No delay on the part of either Party in
exercising any right, power or privilege hereunder will operate as a waiver
thereof. No waiver on the part of either Party of any such right, power or
privilege will preclude any further exercise thereof or the exercise of any
other such right, power or privilege. All remedies provided for in this
Agreement shall be cumulative and in addition to and not in lieu of any
other remedies available to either Party at law, in equity or otherwise.
9.9 CONSTRUCTION. The Article, Section and similar headings used in this
Agreement are for reference purposes only and are to be given no effect in
the construction or interpretation of this Agreement. Any references in
this Agreement to an Article, Section, or Schedule is to that Article or
Section of, or that Schedule to, this Agreement, unless otherwise
specified. As used in this Agreement, the words "hereof" or "hereunder" or
other words of similar import refer to this entire Agreement and not any
separate portion hereof, unless otherwise specified.
9.10 SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
either invalidating the remaining provisions hereof, to the extent that
such remaining provisions are capable of substantial performance, or
affecting the validity or enforceability of such provision in any other
jurisdiction.
9.11 COUNTERPARTS. This Agreement may be executed in multiple counterparts, each
of which will be an original and all of which will together constitute one
single agreement between the Parties.
9.12 GOVERNING LAW. This Agreement will be governed by, and will be construed
and enforced in accordance with, the laws, other than choice of law rules,
of the State of
Illinois.
9.13 AMENDMENTS. This Agreement may be amended only by a written document signed
by an authorized representative of each of the Parties. No waiver or
discharge hereof will be valid unless in writing and signed by an
authorized representative of the Party against which the waiver or
discharge is sought to be enforced.
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9.14 ENTIRE AGREEMENT. This Agreement, including the Schedules hereto, each of
which is incorporated herein for all purposes, constitutes the entire
agreement and understanding of the Parties with respect to the subject
matter hereof and supersedes all prior agreements and understandings, both
written and oral, between the Parties with respect to the subject matter
hereof.
9.15 AUDIT RIGHTS. During the Term of this Agreement and for one (1) year
thereafter, WORLDSPAN agrees to keep all usual and proper records and books
of account relating to the products and services provided by WORLDSPAN and
operation of the WORLDSPAN System pursuant this Agreement. Once each
calendar quarter during the Term of the Agreement, and upon thirty (30)
days prior written notice to WORLDSPAN, Orbitz may have an auditor inspect
the records and other information collected, generated or maintained by
WORLDSPAN arising out of or in connection with the provision of the
services pursuant to this Agreement, during WORLDSPAN's normal business
hours, for the purpose of determining the accuracy of the charges,
expenses, costs, fees, service levels, and otherwise determining
WORLDSPAN's compliance with this Agreement. Orbitz shall pay for all the
costs of such inspection, including all reports and any other information
supplied. Information disclosed to Orbitz or to its auditing representative
in the course of such inspection shall be subject to the confidentiality
requirements of this Agreement.
IN WITNESS WHEREOF, each of Orbitz and WORLDSPAN has caused this Agreement to be
executed by its duly authorized representative.
ORBITZ, LLC WORLDSPAN, L.P.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Business Title: Senior Vice President - eCommerce
Development
18
SCHEDULE A
DEFINITIONS
1. "Adjusted Segment Fee" means, [***].
2. "Aggregate Segments" means, for any applicable time period, the sum of (i)
the Net Segments for that period, plus (ii) the number of direct or through
flights booked during that period by means of the Orbitz Website through
the WORLDSPAN System for which [***], as determined by the WORLDSPAN
System, plus (iii) any other segments mutually agreed upon by Orbitz and
Worldspan.
3. "Air Segment" means each direct or through flight booked by means of the
Orbitz Website through the WORLDSPAN System for which [***], as determined
by the WORLDSPAN System.
4. "Airline Direct Connect Segment" means an Air Segment that is designated by
an air carrier, Worldspanand Orbitz as constituting an Airline Direct
Connect Segment.
5. "Available" means, with respect to the WORLDSPAN System, [***] the
WORLDSPAN System is capable of performing [***].
6. "Base Segment Fee" means, for any calendar month, (i) for a Net Car Segment
or a Net Hotel Segment, [***] and (ii) for a Net Air Segment, the amount
set forth in the following table for the number of Net Segments for the
Contract Year in which that month falls [***].
CONTRACT YEAR NET AIR SEGMENT
NET SEGMENTS BASE SEGMENT FEE
------------------------- ------------------------
[***] or more $ [***]
[***] to [***] $ [***]
[***] or less $ [***]
Effective as of [***], "Base Segment Fee" means, for any calendar month,
(i) for a Net Car Segment, the amount set forth in Table 1 for the number
of Net Car Segments for the Contract Year in which that month falls [***],
and (ii) for a Net Air Segment, the amount set forth in Table 2 for the
number of Net Air Segments for the Contract Year in which that month falls
[***], and (iii) for a Net Hotel Segment, the amount set forth in Table 3
for the number of Net Hotel Segments for the Contract Year in which that
month falls [***]:
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Table 1
CONTRACT YEAR NET CAR SEGMENTS NET CAR SEGMENT BASE SEGMENT FEE
------------------------------ --------------------------------
[***] or more $ [***]
[***] to [***] $ [***]
[***] or less $ [***]
Table 2
CONTRACT YEAR NET AIR SEGMENTS NET AIR SEGMENT BASE SEGMENT FEE
------------------------------ --------------------------------
[***] or more $ [***]
[***] to [***] $ [***]
[***] to [***] $ [***]
[***] or less $ [***]
Table 3
CONTRACT YEAR NET HOTEL SEGMENTS NET HOTEL SEGMENT BASE SEGMENT FEE
-------------------------------- ----------------------------------
[***] or more $ [***]
[***] to [***] $ [***]
[***] to [***] $ [***]
[***] to [***] $ [***]
[***] or less $ [***]
[***]
7. "Booking Engine Providers" means Datalex Limited or any other company that
Orbitz may engage from time to time to provide the booking engine for the
Orbitz Website.
8. "Booking Fees" means the rates charged by Worldspan to participating air
carriers for airline passenger segments booked through the Worldspan System
based on the participating carriers' service levels and as published by
Worldspan from time to time. Booking Fees do not include usage fees, fees
for special services, or other ancillary fees.
9. "Car Segment" means each car rental booked by means of the Orbitz Website
through the WORLDSPAN System for which [***], as determined by the
WORLDSPAN System.
10. "Change-in-Control" shall be deemed to exist if affiliates of Delta Air
Lines, Inc. ("Delta"), Northwest Airlines, Inc. ("Northwest") or American
Airlines, Inc. ("American") collectively no longer hold more than fifty
percent (50%) of the voting interest in Worldspan or if Worldspan is
combined with another entity of which affiliates of Delta, Northwest and/or
American collectively do not hold more than fifty percent (50%) of the
voting interests of the combined entity. In addition, a "Change-in-Control
will be deemed to exist if more than fifty percent (50%) of the voting
interest of
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Worldspan is acquired by another CRS. Notwithstanding any of the foregoing,
an initial public offering of Worldspan shall not constitute a
"Change-in-Control."
11. "Charter Airline" means the air carrier set forth in Schedule D for the
period set forth in Schedule D.
12. "Contract Manager" has the meaning specified in Section 5.1.
13. "Contract Year" means a 12-month period of time commencing on the January 1
or any anniversary thereof, provided that the initial Contract Year shall
be a partial year commencing on the Effective Date and continuing through
December 31, 2001. Notwithstanding the foregoing, for purposes of Section
4.3(a), the initial Contract Year shall be a partial year retroactive to
June 4, 2001 and continuing through December 31, 2001.
14. "Confidential Information" means, with respect to either Party, any
proprietary business or technical information of that Party, including any
know-how, data, drawings, specifications, software, listings, source code,
object code, customer lists, financial information, business plans,
marketing concepts, and business relationships, including the terms of this
Agreement, regardless of the form in which such information is communicated
or maintained and whether or not such information constitutes a trade
secret. However, Confidential Information will not include any information
that (i) at the time of disclosure by the disclosing Party was already
rightfully known by the receiving Party without any obligation of
confidentiality, (ii) is or becomes generally available to the public other
than through any wrongful act or omission by the receiving Party, (iii) is
developed by the receiving Party independently of any Confidential
Information it may have received from the disclosing Party, or (iv) the
receiving Party receives from a third party free to make such disclosure
without breach of any legal obligation.
15. "CRS" means a computer reservations system operated by WORLDSPAN, Sabre,
Galileo, Amadeus, Abacus, Infini, Axxess, or any other company that [***].
16. "CRS Segment" means each (a) direct or through flight, (b) car rental or
(c) hotel stay, to the extent any of the foregoing is booked by means of
the Orbitz Website through a CRS. "CRS Segment" does not include an Airline
Direct Connect Segment.
17. "Corporate User" means any corporation, partnership, limited liability
company or other business entity to whom Orbitz provides travel related
services for such entity's own internal use via a corporate travel-oriented
micro site of the Orbitz Website developed, owned and operated by Orbitz.
18. "Customer Service Center Provider(s)" means Precision Response Corporation
or any other company or companies that Orbitz may engage from time to time
to provide customer service center services for the Orbitz Website.
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19. "Daily Average Internal Response Time" means, for each day, (i) for
Standard Messages, [***], and (ii) for PowerShopper Messages, [***].
20. "Domestic Air Travel" means air travel for which both the departing and
arriving locations, as well as any intermediate stops, are within the ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇.
21. "Domestic Fares Provider(s)" means ITA Software, Inc. or any other company
or companies that Orbitz may engage from time to time to provide Domestic
Air Travel fares and pricing information for the Orbitz Website.
22. "Effective Date" has the meaning specified in Section 1.2.
23. "Fulfillment Provider(s)" means e-Travel Experts, Inc. or any other company
or companies that Orbitz may engage from time to time to provide
fulfillment services for the Orbitz Website.
24. "Hotel Segment" means each hotel stay booked by means of the Orbitz Website
through the WORLDSPAN System for which WORLDSPAN receives a discrete
payment from the applicable hotel company, as determined by the WORLDSPAN
System.
25. "Internal Response Time" means, for a given Message, [***].
26. "Material Service Level Failure" means any of the following:
(a) The Monthly System Availability of the WORLDSPAN System is below [***]
for any [***] in any period of [***] consecutive calendar months
during the Term of this Agreement.
(b) The Monthly System Availability of the WORLDSPAN System is below [***]
for [***] during the Term of this Agreement and has been below [***]
for [***] previous calendar months during the Term of this Agreement.
(c) The Monthly Average Internal Response Time for Standard Messages is
greater than [***] for [***] during the Term of this Agreement and has
been greater than [***] for [***] during the Term of this Agreement.
(d) The Monthly Average Internal Response Time for PowerShopper Messages
is greater than [***] for [***] during the Term of this Agreement and
has been greater than [***] during the Term of this Agreement.
(e) WORLDSPAN fails to substantially comply with any applicable Service
Level set forth in Section 3 of Schedule B more than [***] during any
period of [***] during the Term of this Agreement.
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27. "Message" means each electronic transmission to the WORLDSPAN System
generated by the Response Time Monitor, Orbitz, the Orbitz Website, any
employee, agent, or contractor of Orbitz, or any User, and the associated
response. The types of Messages as of the Effective Date are set forth on
Schedule C.
28. "Migration Costs" mean the increased costs incurred by Orbitz for hardware
and software necessitated by the migration from the system and platform
operated by Worldspan immediately prior to a Change-in-Control to
Worldspan's successor system and platform. Migration Costs also include
applications development efforts incurred by Orbitz and required to migrate
the then existing Orbitz product to Worldspan's successor computer
reservation system.
29. "Monthly Average Internal Response Time" means, for each calendar month,
(i) for Standard Messages, [***], and (ii) for PowerShopper Messages [***].
30. "Monthly System Availability" means, for each calendar month, the
percentage obtained by dividing (i) the aggregate time that the WORLDSPAN
System is Available during that month, by (ii) the total time during that
month less any Scheduled Downtime during that month and any time during
that month that the WORLDSPAN System was not Available as a result of
unplanned telecommunication outages or other causes outside of WORLDSPAN's
control.
31. "Net Air Segments" means, for any applicable time period, the number of Air
Segments booked during that period less the number of Air Segments
cancelled during that period, as determined by the WORLDSPAN System. "Net
Air Segments" shall not include Airline Direct Connect Segments.
32. "Net Car Segments" means, for any applicable time period, the number of Car
Segments booked during that period less the number of Car Segments canceled
during that period, as determined by the WORLDSPAN System.
33. "Net Hotel Segments" means, for any applicable time period, the number of
Hotel Segments booked during that period less the number of Hotel Segments
cancelled during that period, as determined by the WORLDSPAN System.
34. "Net Segments" means, for any applicable time period, all of the Net Air
Segments, Net Car Segments, and Net Hotel Segments for that period.
35. "Orbitz" has the meaning specified in the introductory paragraph of this
Agreement.
36. "Orbitz Information" means any and all information [***] by WORLDSPAN
arising out of or in connection with and reflecting [***]of the Orbitz
Website, including, without limitation, [***] of the WORLDSPAN System in
conjunction with the Orbitz Website,
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A - 5
including any associated response time or performance monitoring
information that is specific to Orbitz, but not including more
comprehensive information reflecting the overall usage and operation of the
WORLDSPAN System, which information may include, but shall not be limited
to, such usage and operation in conjunction with the Orbitz Website.
37. "Orbitz Website" means the consumer-oriented Internet travel portal to be
developed, owned, and operated by Orbitz, including any related or
successor Internet sites.
38. "Party" has the meaning specified in the preamble of this Agreement.
39. "Peak Period" means, for each 24 hour day, the period of [***] during that
day when the WORLDSPAN System processes the most messages.
40. "Performance-Based Segment Fee" means any amount determined as such in
accordance with the applicable provisions of Schedule B.
41. "PowerShopper Average" means, for any calendar month, the number obtained
by dividing (i) the number of PowerShopper Messages received by the
WORLDSPAN System during that month, by (ii) the number of Net Air Segments
booked through the WORLDSPAN System during that month.
42. "PowerShopper Message" means a Message received by the WORLDSPAN System
that accesses or initiates PowerShopper, Power Pricing, Low Fare Finder, or
any similar functionality that finds the lowest or most suitable fare
within the WORLDSPAN System.
43. "PowerShopper Percentage" means, with respect to a given calendar month,
(i) for each month until the beginning of the Term of this Agreement, 100%,
and (ii) for each month thereafter, the percentage set forth in the
following table for the PowerShopper Average for that month.
POWERSHOPPER AVERAGE POWERSHOPPER PERCENTAGE
-------------------- -----------------------
[***] or less [***]
more than [***], but no more than [***]
[***]
more than [***], but less than [***] [***]
[***] or more [***]
44. "Response Time Monitor" has the meaning specified in Section 2(d) of
Schedule B.
45. "Scheduled Downtime" means any periods of time when the WORLDSPAN System is
scheduled to not be Available; provided, however, [***].
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46. "Segment" means an Air Segment, Car Segment, or Hotel Segment.
47. "Service Level" means any Service Level set forth in Schedule B.
48. "Standard Message" means any Message other than a PowerShopper Message.
49. "Term" has the meaning set forth in Section 1.2.
50. "User" means any person who uses the Orbitz Website.
51. "Weighted Message Unit" means a unit of measurement for Messages that
reflects the [***], as determined in accordance with the methodology used
by WORLDSPAN in the ordinary course of its business for that purpose. The
number of Weighted Message Units for a given Message is determined by the
Message Weight for that type of Message. Unless and until the Parties
otherwise mutually agree, the Message Weight for each of the types of
Messages set forth on Schedule C will be as set forth on Schedule C.
However, as WORLDSPAN adds new functionality to the WORLDSPAN System, it
may establish new types and categories of Messages and, for each new type
or category of Message, determine a Message Weight that is [***].
52. "WORLDSPAN" has the meaning specified in the introductory paragraph of this
Agreement.
53. "WORLDSPAN Actual Cost" means, [***].
54. "WORLDSPAN System" means the computer reservations systems operated by
WORLDSPAN and containing the following functionality:
(a) Mainframe transaction processing and electronic distribution of travel
information, such as schedules, availability, fares, pricing, and
negotiated rates for various travel suppliers.
(b) Providing booking capability for air, car, and hotel reservations and
other travel-related services.
(c) Enabling the issuance of paper and electronic tickets and other
travel-related documents.
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A - 7
SCHEDULE B
SERVICE LEVELS
1. SYSTEM AVAILABILITY.
The Service Level for System Availability is for the Monthly System
Availability of the Worldspan System to be at least [***]% during [***]
during the Term of this Agreement.
In the event that the Monthly System Availability of the Worldspan System
is less than [***]% during any calendar month during the Term of this
Agreement, the Parties agree that [***].
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
2. INTERNAL RESPONSE TIME.
(a) STANDARD MESSAGES. The Service Level for Internal Response Time for
Standard Messages is for the Monthly Average Internal Response Time
for Standard Messages for [***] during the Term of this Agreement to
be no more than [***].
In the event that the Monthly Average Internal Response Time for
Standard Messages for [***] during the Term of this Agreement is
greater than [***] the Parties agree that [***]:
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
(b) POWERSHOPPER MESSAGE. The Service Level for Internal Response Time for
PowerShopper Messages is as follows:
(1) For [***] during the Term of this Agreement during swhich
WORLDSPAN does not provide Domestic Air Travel fares and pricing
information for
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B - 1
the Orbitz Website, the Monthly Average Internal Response Time
for PowerShopper Messages will be no more than [***].
In the event that the Monthly Average Internal Response Time
for PowerShopper Messages for [***] during the Term of this
Agreement is greater than [***] the Parties agree that [***]:
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
(2) For each [***] during the Term of this Agreement during which
WORLDSPAN does not provide Domestic Air Travel fares and pricing
information for the Orbitz Website, the Monthly Average Internal
Response Time for PowerShopper Messages will be no more than [***].
In the event that the Monthly Average Internal Response Time for
PwerShopper Messages for [***] during the Term of this Agreement is
greater than [***] the Parties agree that [***]:
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
(c) UNFORECAST DEMAND. Notwithstanding anything to the contrary, if the
number of Net Segments booked by menas of the Orbitz Website through
the WORLDSPAN System [***], then the foregoing provisions of this
Section 2 will not be applicable [***].
(d) RESPONSE TIME MONITOR. The Parties acknowledge that, as of the
Effective Date, WORLDSPAN measures Internal Response Time through the
use of monitoring tools internal to the WORLDSPAN System. In order to
augment, not replace, WORLDSPAN's internal system for measuring
Internal Response Time ORBITZ, its supplier or contractors, will
develop a system (the "Response Time Monitor") for measuring Internal
Response Time external to the WORLDSPAN System , all in accordance
with the following:
(1) The Response Time Monitor will be designed to measure Internal
Response Time external to the WORLDSPAN System by simulating a
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B - 2
request from the Orbitz Website booking engine for five or more
common customer queries.
(2) WORLDSPAN will have the right to validate the operability of the
Response Time Monitor prior to implementation and to approve the
testing procedures as well as the format of the results. the
measurements performed by the Response Time monitor shall be made
on a continuous basis, twenty-four hours per day, seven days per
week, so long as that can be done without compromising the
performance of the WORLDSPAN System . the Internal Response Time
shall be determined during the Peak Period for each twenty-four
hour day. Each Party will have unlimited access to the data
produced by the Response Time Monitor.
(3) [***].
3. ESCALATION PROCEDURES. the Service Level for WORLDSPAN'S response to
reported problems with the sw will be based on the severity of the
problem, as reasonably determined by Orbitz, in accordance with the
following:
SEVERITY
LEVEL DESCRIPTION SERVICE LEVEL
-------------------------------------------------------------------------
0 WORLDSPAN System down [***]
1 Serious business impact, e.g., [***]
message response times materially
exceeding Service Levels
2 Less serious business impact, e.g., [***]
flight information unavailable
3 Nuisance, e.g., unable to retrieve [***]
non-critical backup information
4. Change Management. The Parties will develop and mutually agree upon a
change management process that will, among other things, provide for the
following:
(a) WORLDSPAN will notify Orbitz of any scheduled changes to the WORLDSPAN
System that are reasonably anticipated to materially affect Orbitz at
least [***] prior to the change and will consult with Orbitz's
operations staff as to the timeframe for the change.
(b) Orbitz will notify WORLDSPAN of any scheduled changes to Orbitz's
systems or business operations (e.g., promotions) that are reasonably
anticipated to
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B - 3
materially affect WORLDSPAN at least [***] prior to the change and
will consult with WORLDSPAN'S operations staff as to the timeframe for
the changes.
(c) Notwithstanding the foregoing, the Parties may make emergency changes
that are required to protect the integrity of their respective systems
without giving the notice described above, but each Party will use
reasonable business efforts to notify the other of any such emergency
change as soon as practicable.
5. FUNCTIONALITY. WORLDSPAN agrees to use reasonable business efforts so that
the functionality included within the WORLDSPAN System that is necessary
for Orbitz's business operations continues to be fully functions. In
particular, [***]
6. EQUIVALENT SERVICES. In addition to the specific Service levels specified
above, during the Term of this Agreement.
(a) WORLDSPAN will provide Orbitz with Monthly System Availability that is
[***].
(b) WORLDSPAN will provide Orbitz with Internal Response Time that is
[***].
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B - 4
SCHEDULE C
MESSAGE WEIGHTS
MESSAGE TYPE MESSAGE WEIGHT
------------ --------------
CATEGORY 1 [***]
[***]
CATEGORY 2 [***]
[***]
CATEGORY 3 [***]
[***]
CATEGORY 4 [***]
[***]
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C - 1
SCHEDULE D
Charter Airlines
EFFECTIVE EXPIRATION
AIRLINE DATE DATE
------- --------- ----------
AEROMEXICO 18-JUN-01 17-JUN-04
AIR FRANCE 21-MAY-01 21-MAY-02
AIR JAMAICA 12-MAY-00 12-MAY-01
AIR NEW ZEALAND ▇▇-▇▇▇-▇▇ ▇▇-▇▇▇-▇▇
▇▇▇▇▇▇ AIR GROUP 8-AUG-01 8-AUG-02
ALOHA 5-JAN-01 5-JAN-04
ALL NIPPON 13-AUG-01 13-AUG-02
AMERICAN 19-MAY-01 17-MAY-11
ANSETT 20-APR-01 20-APR-02
ASIANA 2-APR-01 2-APR-02
CANADA 3000 1-FEB-01 1-FEB-04
CATHAY PACIFIC ▇▇-▇▇▇-▇▇ ▇▇-▇▇▇-▇▇
▇▇▇▇▇ AIRLINES 16-JUL-01 16-JUL-02
CONTINENTAL 19-MAY-01 17-MAY-11
COPA ▇▇-▇▇▇-▇▇ ▇▇-▇▇▇-▇▇
▇▇▇ ▇▇▇▇▇ ▇▇-▇▇▇-▇▇ 22-MAY-02
DELTA 19-MAY-01 17-MAY-11
EL AL 1-AUG-01 1-AUG-02
EVA 15-NOV-00 15-NOV-01
HAWAIIAN ▇▇-▇▇▇-▇▇ ▇▇-▇▇▇-▇▇
▇▇▇▇▇▇ ▇-▇▇▇-▇▇ ▇-▇▇▇-▇▇
▇▇▇▇▇ AIRLINES 26-JUL-01 26-JUL-02
KLM (SAME AS NW)
KOREAN AIR ▇▇-▇▇▇-▇▇ ▇▇-▇▇▇-▇▇
▇▇▇ ▇▇▇▇▇ 18-DEC-00 18-DEC-01
LAN PERU 21-MAY-01 21-MAY-02
LOT POLISH 1-JUN-01 1-JUN-02
LUFTHANSA 15-MAR-01 15-MAR-02
MEXICANA 15-MAY-00 15-MAY-03
MIDWAY 1-APR-01 31-MAR-04
MIDWEST EXPRESS 1-JUN-01 31-MAY-04
NATIONAL 7-MAY-01 6-MAY-04
NORTHWEST 19-MAY-01 17-MAY-11
D - 1
QANTAS 13-AUG-01 13-AUG-02
SABENA 1-JUN-01 ▇-▇▇▇-▇▇
▇▇▇ ▇-▇▇▇-▇▇ ▇-▇▇▇-▇▇
▇▇▇▇▇▇▇▇▇ 29-JAN-01 29-JAN-02
SOUTH AFRICAN AIRWAYS 13-JUN-01 13-JUN-02
SPIRIT 8-JAN-01 8-JAN-04
SWISSAIR 1-JUN-01 1-JUN-02
TWA 19-MAY-01 17-MAY-11
UNITED 19-MAY-01 17-MAY-11
US AIRWAYS 27-JUN-00 27-JUN-03
UZBEKISTAN AIRWAYS 22-DEC-00 22-DEC-01
VANGUARD 5-JUN-00 5-JUN-03
VARIG 22-MAY-00 22-MAY-01
VIRGIN 16-JUL-01 16-JUL-02
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