Development, License and Hosting Agreement - American Airlines Inc. and Orbitz LLC
DEVELOPMENT, LICENSE AND HOSTING AGREEMENT
THIS DEVELOPMENT, LICENSE AND HOSTING AGREEMENT (this "Agreement") is
made as of September 9, 2001 (the "Effective Date"), by and between American
Airlines, Inc., a Delaware corporation with its principal offices in Fort Worth,
Texas ("AA"), and Orbitz LLC, a Delaware limited liability company with offices
in Chicago, Illinois ("Orbitz").
1. DEFINITIONS
The terms defined in this Section or elsewhere in this Agreement may
be used in the singular or plural, as the context requires.
1.1 "AA-COMPETITIVE FUNCTIONALITY" means those portions of the
AA-Specific Functionality that prior to the development of such functionality
are designated as "AA-Competitive Functionality" either in writing by mutual
agreement of the parties or otherwise in accordance with Section 4.2 of this
Agreement.
1.2 "AA INFORMATION" means booking information and other personally
identifiable information supplied by AA customers to Orbitz and any other trade
secret or confidential information supplied by AA to Orbitz under this
Agreement.
1.3 "AA-SPECIFIC FUNCTIONALITY" means that portion of the Orbitz
Software functionality that is made the subject of any Statement of Services or
Change Order and developed pursuant to this Agreement.
1.4 "AFFILIATE" means, with respect to any entity, any other entity
directly or indirectly controlling or controlled by, or under common control
with, such entity. For purposes of this definition, "control" (including the
terms "controlled by" and "under common control with") means the power, directly
or indirectly, to direct or cause the direction of the management and policies
of such entity, whether through the ownership of voting securities, by contract,
or otherwise. When used in this Agreement, the term "party" includes such
party's Affiliate.
1.5 "AIRLINE PARTNER" means any entity that has a codeshare,
frequent flyer alliance, or other similar marketing relationship with AA and/or
its Affiliates.
1.6 "CLAIM" means a third-party claim, demand, proceeding, suit or
action.
1.7 "COMPETITOR" means any passenger or cargo air transportation
carrier, Global Distribution System ("GDS"), or Computer Reservation System
("CRS") company.
1.8 "CHANGE REQUEST" means the form set forth as Exhibit A that will
be used to request any modification of or addition to the Core Functionality,
the AA-Specific Functionality, or the Services obligations.
1.9 "CONFIDENTIAL INFORMATION" has the meaning given to that term in
Exhibit G.
1.10 "CORE FUNCTIONALITY" means that portion of the Orbitz Software
functionality (and any Updates thereto) that is not AA-Specific Functionality
and that is used by Orbitz to provide the Hosting and Support Services,
including without limitation the functionality identified in Exhibit B.
1.11 "CUT-OVER DATE" means, (a) with respect to a merger or
acquisition, the date the transactions of the newly merged or acquired entity
are first booked, including, but not limited, to code sharing transactions,
using the Orbitz Software, and (b) with respect to a Divestiture Transaction,
the date following the effective date of such Divestiture Transaction on which
transactions associated therewith cease to be booked via the Orbitz Software.
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1.12 "DATALEX SOFTWARE" means the software, if any, that is licensed
by Datalex Limited to Orbitz that Orbitz embeds in or otherwise uses as part of
the Orbitz Software, including but not limited to the booking software product
known as BookIt!.
1.13 "DELIVERABLES" means the Orbitz Software, including but not
limited to the Core Functionality, the AA-Specific Functionality, and the
related Documentation, that Orbitz has agreed to deliver or make available to AA
pursuant to this Agreement (including any Statement of Services or any Change
Request accepted in accordance with Section 7.2 of this Agreement).
1.14 "DELIVERY DATE" means the date that the parties have specified
for the delivery of the Orbitz Software, as set forth in Exhibit C and as may be
amended by mutual written agreement.
1.15 "DIVESTITURE TRANSACTION" has the meaning given to that term in
Section 6.3(d).
1.16 "DOCUMENTATION" means the user manuals, technical material and
maintenance, and support documentation that Orbitz delivers to AA and that are
related to the use and operation of the Orbitz Software.
1.17 "HOSTING AND SUPPORT FEE" means a fee to be paid by AA to Orbitz
on an annual basis as specified in Section 6.2 and Exhibit D in consideration
for the Hosting and Support Services.
1.18 "FUTURE DEVELOPMENT SERVICES" means the Requirements definition,
design and development services, other than Initial Development Services, that
Orbitz and AA agree Orbitz will provide to AA, either directly or though
Subcontractors, pursuant to this Agreement.
1.19 "HOSTING AND SUPPORT SERVICES" means the hosting,
implementation, maintenance, support, construction, testing, installation and
initial implementation services that Orbitz has agreed hereunder to provide to
AA, either directly or though Subcontractors, pursuant to this Agreement,
including Article 5 and Exhibit D.
1.20 "INITIAL DEVELOPMENT SERVICES" means the Requirements
definition, design and development services that Orbitz and AA have agreed
Orbitz will provide to AA on or before the Delivery Date, either directly or
though Subcontractors, pursuant to this Agreement.
1.21 "INITIAL INSTALLMENT" has the meaning given to that term in
Section 6.5 of this Agreement.
1.22 "LABOR RATE" means the hourly rate which is calculated by
dividing the annual employment-related direct costs incurred by a party for any
employee performing services under this Agreement by 2,080 hours.
1.23 "LAUNCH DATE" means such date after acceptance by AA of the
Orbitz Software, as agreed upon by the parties, on which the Website will be
made available to AA customers.
1.24 "LOSS" means any liability, obligation, loss, damage,
deficiency, penalty, tax, levy, fine, judgment, settlement, cost, charge,
expense, legal fee and disbursement, or accountants' fee disbursement.
1.25 "MAXIMUM TRANSACTION VOLUME" means the number of Transactions
for each one-year period following the Launch Date as specified in Exhibit D.
1.26 "NOT-TO-EXCEED FEE ESTIMATES" mean the maximum fees chargeable
for development of the AA-Specific Functionality, as specified in an Estimate in
accordance with Section 4.2 of this Agreement.
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1.27 "ORBITZ SOFTWARE" means the computer programs necessary to
perform the functionality described in Exhibit B to this Agreement and any
subsequent Statements of Services or Change Orders hereunder.
1.28 "PROJECT MANAGERS" means the employees of AA and Orbitz, or
their replacements, who will manage specific projects, take responsibility for
project plans, timelines, and deployment of resources, and will serve as the
primary interface points to the development team under this Agreement.
1.29 "RELATIONSHIP MANAGERS" means the senior-level AA and Orbitz
employees identified in Exhibit E, or their replacements, who will manage the
relationship between AA and Orbitz and will serve as the single point of contact
within either party responsible for communications and problem resolution.
1.30 "REQUIREMENTS" means, with respect to any requested
Deliverables, AA's written requirements therefor, including but not limited to
the functional, business logic or Sabre/AA system specific rules or requirements
necessary to develop and test such functionality.
1.31 "SABRE-SPECIFIC CODE" means that portion of the Orbitz Software
which is necessary to interface with, and receive hosting from, the Sabre GDS.
1.32 "SCHEDULE" means the timetable for performing and completing the
Initial Development Services, as set forth in Exhibit C. The Schedule will be
integrated with AA's Fenix Master Schedule.
1.33 "SERVICES" means the Initial Development Services, the Hosting
and Support Services and any other services that Orbitz agrees to provide to AA
under this Agreement (including any Statement of Services or Change Order
hereunder).
1.34 "SPECIFICATIONS" means the functional and technical
specifications of, as the case may be, the Core Functionality or the AA-Specific
Functionality, including without limitation, the timeline for developing such
functionality and procedures for developing testing criteria.
1.35 "STATEMENT OF SERVICES" means a mutually executed document that
describes a specific project, engagement, or assignment for which Orbitz will
provide services to AA.
1.36 "SUBCONTRACTORS" means the subcontractors that Orbitz engages to
provide services under this Agreement.
1.37 "TERM" has the meaning given to that term in Section 16.
1.38 "THIRD PARTY COMPONENTS" means any third party software or
hardware that Orbitz may include in the Orbitz Software or use to provide the
Services.
1.39 "TRANSACTION" means each instance in which (i) a request from a
user of the Website results in creation of a new PNR (regardless of number in
party and number of segments), or (ii) more than 50% of the number of segments
in a previously-existing PNR are cancelled and a new itinerary produced for such
PNR; provided, however, that the cancellation of 100% of the segments of a
previously existing PNR without the creation of a new itinerary does not
constitute a Transaction.
1.40 "UPDATES" means any fix, correction, modification, upgrade,
enhancement or other change to the Orbitz Software that Orbitz makes generally
available from time to time during the Term.
1.41 "WEBSITE" means a website residing on the World Wide Web portion
of the Internet ("Web"), or any successor site(s) thereof, which AA
then-currently uses as a primary channel for directly marketing to the public.
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2. GENERAL
2.1 ENGAGEMENT. Orbitz hereby agrees to provide AA, and AA hereby
agrees to receive from Orbitz, the Initial Development Services and the Hosting
and Support Services, pursuant to the terms and conditions of this Agreement.
Orbitz will provide AA with dedicated resources to provide the Initial
Development Services. Orbitz will commence performance of the Hosting and
Support Services upon the Launch Date.
2.2 SUBCONTRACTORS. Subject to the limitation contained in
Section 8, Orbitz may subcontract its performance of the Services to one or more
Subcontractors. Prior to performing any Services, each Subcontractor must
execute a written agreement with Orbitz containing protections for AA's
confidential information and proprietary rights at least as protective as the
terms and conditions of this Agreement. Notwithstanding the foregoing, Orbitz
may not engage any Subcontractor who is then-currently providing any services to
a Competitor of AA without first obtaining AA's written approval.
2.3 SCHEDULE.
(a) Time is of the essence in the performance of the
Initial Development Services. Orbitz will use its best efforts to perform the
Initial Development Services to meet the Delivery Date.
(b) During the course of performance of the Initial
Development Services, AA and Orbitz may periodically modify the Schedule for
mutual convenience. Any such modification will be effective only if expressly
approved by both Relationship Managers pursuant to Section 7.
(c) As of the Effective Date, the target Launch Date is
March 15, 2002. In the event that AA pays the Initial Installment in advance of
the Launch Date in accordance with Section 6.5 of this Agreement, and the Launch
Date does not occur within seven months following the date of such payment,
which delay is not caused or contributed to by Orbitz, then the parties will
meet to discuss alternative solutions to address Orbitz's out-of-pocket costs,
if any, associated with such delayed Launch Date.
2.4 ANTICIPATED DELAYS. AA and Orbitz will immediately notify each
other if either party anticipates a delay in performing the Initial Development
Services according to the Schedule. Any such notice will identify the source and
expected length of the delay and its potential impact on the Initial Development
Services. Upon receipt of such notice, the Relationship Managers will promptly
seek in good faith to determine the potential impact and take the steps that may
be available to avoid or minimize the anticipated delay and its impact on the
Schedule.
2.5 FACILITIES. AA will provide Orbitz with access to those portions
of AA's offices that Orbitz may reasonably require to perform the Services. Such
access will be provided at mutually convenient times during AA's normal business
hours, unless otherwise agreed by the Relationship Managers. While working at AA
offices, the Orbitz employees and Subcontractors will adhere to AA's internal
rules and regulations; provided such rules and regulations have been
communicated to Orbitz.
3. MANAGEMENT
3.1 RELATIONSHIP MANAGERS. Each party will appoint a Relationship
Manager to act as the primary point of contact between the parties with respect
to this Agreement, and will designate an alternate for its primary Relationship
Manager to act in his or her absence or unavailability. No modification of the
Specifications or the Schedule will be effective unless expressly approved by
the primary or alternate Relationship Managers of both parties pursuant to
Section 7. Each Relationship Manager will appoint Project Managers to manage
specific projects under this Agreement. The Project Managers will serve as the
primary interface points between the parties with respect to such projects.
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3.2 STATUS REPORTS. The Orbitz Relationship Manager will provide
the AA Relationship Manager with periodic status reports on Orbitz's progress
during the performance of the Initial Development Services. Each status report
will describe (a) the tasks performed since the prior status report, (b) the
tasks performed as compared to the tasks scheduled, (c) the tasks to be
performed during the next period and (d) any actual or anticipated problems or
delays that may have arisen in the Schedule. Prior to the Launch Date, the
Relationship Managers will meet at least once per month to discuss the status of
the Initial Development Services. Following the Launch Date, the Relationship
Managers will meet at least once per quarter to discuss the Hosting and Support
Services.
3.3 PROJECT PROBLEMS. In the event of any actual or potential
problem or delay in the Initial Development Services or the Hosting and Support
Services, the Relationship Managers will discuss the relevant sources, possible
remedies and potential impact on the Initial Development Services or the Hosting
and Support Services at the next scheduled status meeting or, at either
Relationship Manager's request, an emergency meeting. To assist in such
discussions, each Relationship Manager may invite any applicable Project
Managers or other persons to the scheduled or emergency meeting. If a
modification of the Specifications or the Schedule is required as a result of
the problem or delay, the Relationship Managers will follow the procedures
specified in Section 7.
4. DEVELOPMENT
4.1 INITIAL DEVELOPMENT SERVICES.
(a) Specifications.
(i) Orbitz will provide AA with (A) Specifications
for the Core Functionality identified in Exhibit B that will be available on the
Delivery Date and (B) dedicated resources to assist AA in determining the
AA-Specific Functionality necessary to implement the Orbitz Software. AA will
thereafter provide Orbitz with a definitive list of the requested Deliverables,
along with any Requirements therefor, within any time period set forth in the
Schedule.
(ii) Orbitz will, within the time period set
forth in the Schedule, review the Requirements described in the preceding
subsection and provide AA with (A) Specifications for the Deliverables, (B) a
Not-To-Exceed Fee Estimate for the development of any requested AA-Specific
Functionality, and (C) a non-binding fee estimate for the development of any
requested AA-Competitive Functionality. The Specifications will include
procedures for developing mutually acceptable, objective criteria for testing
the Deliverables and any applicable requirements specifying the physical
locations where development will occur.
(iii) Following receipt of the Specifications,
the Not-To-Exceed Fee Estimate and the non-binding fee estimate described in the
preceding subsection, within the time period set forth in the Schedule AA will
provide Orbitz with written verification of which portions of the Deliverables
AA requests that Orbitz develop. Thereafter, AA and Orbitz will use reasonable
commercial efforts to agree upon the prioritization of the functionality to be
included in the Deliverables by the date set forth in the Schedule, including
the Core Functionality, the AA-Specific Functionality, and any other Initial
Development Services.
(b) Deliverables. Upon the parties' mutual agreement of the
prioritization of the Specifications in accordance with Section 4.1(a)(iii),
Orbitz will provide AA with dedicated resources to support the development of
the Deliverables. Orbitz will develop the Deliverables requested by AA in
accordance with the development milestone dates set forth in the Schedule.
Sabre-Specific Code will be considered AA-Specific Functionality, for which AA
will pay any applicable License and Development Fees in accordance with this
Agreement; provided, however, that at such time that Orbitz makes Sabre-Specific
Code available to, or uses Sabre-Specific Code for the benefit of, any
Competitor hosted in a Sabre GDS, any subsequent development of Sabre-Specific
Code will be considered Core Functionality, the development of which is not
chargeable to AA. When Orbitz has satisfactorily completed coding and
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testing of the Deliverables, Orbitz will: (i) notify AA, (ii) provide the Orbitz
test results to AA, and (iii) make such Deliverables available to AA for
acceptance testing.
4.2 FUTURE DEVELOPMENT SERVICES. Subject to Section 4.8, after the
Launch Date, AA may from time to time during the Term request that Orbitz
develop additional AA-Specific Functionality by submitting a Statement of
Services listing the requested AA-Specific Functionality and any Requirements
therefor. Orbitz will promptly review such Requirements and provide AA with (a)
Specifications for such AA-Specific Functionality; (b) a Not-To-Exceed Fee
Estimate for the development of such AA-Specific Functionality, including a
non-binding fee estimate for the development of any AA-Competitive
Functionality; (c) in the event Orbitz does not agree to designate any requested
AA-Competitive Functionality as such, a written statement indicating such
denial; and (d) an estimated timetable for commencement and completion of such
additional AA-Specific Functionality (collectively, the "Estimate"). Orbitz will
use commercially reasonable efforts to ensure that the Estimate is based on
assumptions and data that are realistic, reasonable and attainable. The
Specifications will include procedures for developing mutually acceptable,
objective criteria for testing the AA-Specific Functionality and any applicable
Requirements specifying the physical locations where development will occur. In
the event AA elects to proceed with such development in accordance with the
Estimate, Orbitz will take all reasonable steps to make available to AA
sufficient resources to fulfill the request. In the event any aspect of the
Estimate is not reasonably suitable to AA, Orbitz will allow AA to fund
dedicated Orbitz resources to fulfill such request, with such efforts being
provided at the rates set forth in Section 6.1(b) of this Agreement, provided
that such funding commitment is for a duration of not less than six months for
each such dedicated resource.
4.3 ACCEPTANCE TESTING.
(a) Following receipt of Orbitz's notice that a Deliverable
is ready for acceptance testing, AA will test the Deliverable within the time
period set forth in the Schedule (the "Test Period") to determine whether the
Deliverable substantially conforms to the Specifications. AA's acceptance
testing will include unit testing, system testing within the total Orbitz
Software solution, and AA.com site integration testing. If AA determines after
such acceptance testing that a Deliverable substantially conforms to the
Specifications, AA will accept such Deliverable and provide Orbitz with notice
that the Deliverable is accepted. Acceptance of a Deliverable will occur on the
later to occur of (i) the date AA successfully completes acceptance tests
demonstrating that the Deliverable substantially conforms to the acceptance
criteria specified in the applicable Statement of Services and AA issues a
written notice of acceptance, or (ii) ten days after the end of the Test Period.
(b) If a Deliverable fails to substantially conform to the
Specifications, AA will provide Orbitz with a written report of the
non-conformity, within ten days after the end of the Test Period, specifying
such non-conformity in reasonable detail. Upon receipt of a non-conformity
report, Orbitz will either correct and resubmit the Deliverable for re-testing
within ten days of AA's notice of non-conformance, or as otherwise set forth in
the Schedule or, if Orbitz reasonably believes that such reported non-conformity
is actually a modification from the agreed upon Specifications, Orbitz will
notify AA that such reported non-conformity is actually a Change Request, to be
handled pursuant to Section 7. In the event that a Deliverable fails to pass
acceptance testing and the failure is due to causes outside the control of
Orbitz, Orbitz agrees to use its commercially reasonable efforts to make its
personnel available to provide assistance to help resolve the problem; such
assistance to be chargeable as Initial Development Services.
4.4 FAILURE TO DELIVER CONFORMING SOFTWARE. In the event that Orbitz
fails to deliver Deliverables substantially in conformance with the
Specifications, including the Requirements, within 30 days of the Delivery Date,
then AA will not be charged for any development efforts performed by Orbitz or
its Subcontractors following such 30 day period with respect to that
non-conforming Deliverable. In the event that Orbitz fails to deliver
Deliverables that are substantially in conformance with the Specifications
within 90 days of the Delivery Date, AA will have the option, at its sole
discretion, to either (a) terminate
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this Agreement, receive a refund of all the License and Development Fees paid to
Orbitz and be released from any further payment obligation under this Agreement,
including payment of the remaining [***]% of the Fixed Hosting and Support Fee
described in Section 6.2; (b) issue a partial acceptance of the Deliverables and
obtain a refund of any portion of the License and Development Fees previously
paid for any rejected Deliverables, including fees paid for any other previously
accepted Deliverables rendered unusable due to the rejected Deliverables; or (c)
extend the Delivery Date while reserving its right to revoke acceptance pursuant
to options (a) and (b) above if corrections to the defective Deliverables are
not completed in a timely manner. In the event AA elects to issue a "partial
acceptance" or extends the Delivery Date pursuant to (b) or (c) above, AA will
not be charged for any subsequent development services performed by Orbitz or
its Subcontractors required to complete such Deliverables. The remedies
available to AA under this Section 4.4 will only apply to the extent that AA,
including its subcontractors, has not caused or contributed to the delay.
4.5 INSTALLATION AND INTEGRATION. Orbitz will be responsible for the
design, construction, installation and implementation of the Orbitz Software on
its servers or servers under its control. Upon implementation, Orbitz will
provide AA with all supporting documentation for the Orbitz Software as set
forth in the Specifications. Orbitz will not be responsible for any integration
services or for converting or loading any AA data into the Orbitz Software,
unless otherwise agreed in a Statement of Services or pursuant to the Change
Control Procedures.
4.6 INTERFACE TO SABRE. With respect to any connectivity interface
that is required under any Specifications, the parties acknowledge that Orbitz's
obligations to develop such connectivity interface is expressly dependent upon
the cooperation of Sabre and AA. Any such development, to the extent performed
by Orbitz, will be deemed AA-Specific Functionality for purposes of this
Agreement, and Orbitz will be solely responsible for the maintenance, support
and operation of such development. AA will provide Orbitz with any and all
information and assistance reasonably requested by Orbitz to develop and
maintain a connectivity interface with Sabre. Orbitz agrees that it will use
commercially reasonable efforts to cooperate with Sabre for all purposes in
connection with this Agreement. Orbitz will not be responsible for any delay or
failure to meet the Service Level Commitments specified in Exhibit F to the
extent such delay or failure is (a) caused by or related to AA's or Sabre's
failure to cooperate with Orbitz or to provide the information and assistance
that Orbitz may reasonably request to develop and maintain the connectivity
interface with Sabre, or (b) caused by or related to a failure in the Sabre
system.
4.7 LIMITATION. Orbitz will have no obligation to develop or provide
any functionality (including without limitation, coding rules or logic) with
respect to the Orbitz Software or the connectivity interface which is not
specifically requested by AA or included in any Statement of Services,
Specification or Change Order in accordance with this Agreement.
4.8 FURTHER DEVELOPMENT. Each party agrees that development of an
ongoing enhancement prioritization process is necessary to ensure that AA
receives the requisite resources should any Competitor select an Orbitz
solution. After the Delivery Date or upon completion of the Initial Development,
whichever is later, Orbitz will provide development services to AA pursuant to
the change control procedures set forth in Section 7. Any such subsequent
development of additional AA-Specific Functionality is outside the scope of
Orbitz's Hosting and Support Services obligations, and any such requests will be
handled as a new Statement of Services or as a Change Request pursuant to
Section 7.
4.9 ATTRIBUTION. Nothing in this Agreement will be deemed to require
AA to provide attribution for Orbitz or any third party with respect to the
Orbitz Software.
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5. HOSTING AND SUPPORT
5.1 HOSTING. Following the Launch Date, during the Term Orbitz will
implement and host the Orbitz Software for AA as part of the Website in
accordance with this Article 5. Orbitz will be responsible for (a) host
connectivity for the Orbitz Software, (b) all hardware and third-party licenses
required to host the Orbitz Software that are identified in the Specifications
for the Orbitz Software, (c) the routine business and administrative expenses
incurred by Orbitz in hosting the Orbitz Software, and (d) development costs to
provide a direct connection link to the host of the Website. Orbitz will host
the Orbitz Software on servers located in Orbitz's primary hosting facility,
unless AA approves or agrees to hosting in another location.
5.2 SERVICE LEVELS. Orbitz will meet or exceed the service levels
set forth in Exhibit F related to the Orbitz Software and performance of the
Hosting and Support Services (the "Service Level Agreement"). AA will use
commercially reasonable efforts to provide Orbitz with at least 24 hours advance
notification of any marketing events that are expected to create an unseasonably
high spike in the number of booking transactions. Orbitz will satisfy all
reasonable requests by AA for information AA requires to properly evaluate the
performance of Orbitz under this Agreement, including validating Orbitz's
compliance with Exhibit F.
5.3 SUPPORT. AA will perform all customer service related to, and
will be responsible for the fulfillment of, all bookings made through the
Website. Orbitz will provide second and third level technical support for the
Orbitz Software twenty-four hours per day, seven days per week, in accordance
with the second and third level support standards set forth in Exhibit F. At
AA's request and expense, Orbitz will provide first level support for the Orbitz
Software directly to AA customers for an additional fee. Such support will be
provided pursuant to Orbitz's then-current first level support terms and
conditions. Support will extend to, and be provided for, any Core Functionality
or Updates thereto developed during the Term and the connectivity interface
developed pursuant to Section 4.6.
5.4 UPDATES. Orbitz will make available to AA all Updates to the
Orbitz Software in a form which is compatible with the AA-Specific
Functionality, and will use commercially reasonable efforts to provide such
Updates to AA within 30 days of Orbitz's general release thereof. Such Updates
will include third party licensor functionality incorporated into the Orbitz
Software, to the extent permitted by Orbitz's agreements with its licensors.
Notwithstanding the foregoing, in no event will AA be charged an additional fee
for such Updates, unless otherwise agreed by AA. AA will have the right to
refuse, or delay implementation of, any Updates if such Updates: (a) involve an
additional third party license fee; (b) have been observed to cause performance
problems or degradation; or (c) will cause AA to incur additional indirect costs
(such as for related user interfaces) in order to implement the Update. If AA
elects not to implement an Update pursuant to the preceding sentence, Orbitz
will continue to provide support as described in Section 5.3 for the then
currently installed version of the Orbitz Software. Orbitz will use commercially
reasonable efforts to develop and release any Updates that are reasonably
requested by AA to keep the air transportation booking aspects of the Core
Functionality competitive with, and comparable to, similar products in the
marketplace.
5.5 OUT-OF-SCOPE SERVICES. Orbitz is not responsible for profile
databases, Website presentation or design, ITA pricing services, shared use of
other Orbitz partnerships, non-air functionality, customer service (unless
otherwise agreed by the parties in writing), fulfillment, or any and all other
services not specifically identified in this Agreement. The Orbitz Software does
not include the ITA pricing engine and is for air transportation bookings only.
In the event that AA obtains a license to the ITA pricing engine from ITA,
Orbitz will provide AA with support to implement such functionality into the
Orbitz Software. Any such support will be provided as a Change Request pursuant
to Section 7, and the fee for such support will be calculated using Orbitz's
Labor Rate. AA will negotiate the requisite license directly with ITA for such
functionality, or such other future third party licensor, as the case may be.
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6. FEES AND PAYMENT
6.1 LICENSE AND DEVELOPMENT FEES.
(a) Initial Development Services. In consideration for the
licenses granted by Orbitz hereunder and the Services related to development of
the AA-Specific Functionality and AA-Competitive Functionality as part of the
Initial Development Services performed by Orbitz personnel, AA will pay Orbitz a
fee (the "License and Development Fee") for such Initial Development Services at
the agreed upon rate of [***], whether such Initial Development Services were
performed prior to or after the Effective Date.
(b) Future Development Services. The License and
Development Fee for Services related to development of AA-Specific Functionality
(other than AA-Competitive Functionality) as part of the Future Development
Services performed by Orbitz personnel will be calculated using Orbitz's Labor
Rate. The License and Development Fee for Services related to development of AA
Competitive Functionality as part of the Future Development Services performed
by Orbitz personnel will be calculated using the then current market rates, as
determined by the parties based upon rates then being charged by Orbitz or its
Subcontractor (as the case may be) for similar services. AA will also reimburse
Orbitz the actual costs (without markup) incurred for any third party
professional services; provided, however, that Orbitz will notify AA of such
third party rates in advance of performance of such services.
6.2 FIXED HOSTING AND SUPPORT FEES. Following the Launch Date,
Orbitz will perform the Hosting and Support Services for an annual Fixed Hosting
and Support Fee, as set forth in Exhibit D.
6.3 FIXED HOSTING AND SUPPORT FEE CHANGES.
(a) In the event that either (i) the United States
Department of Justice or the Department of Transportation initiate formal
proceedings against Orbitz that result in the entry of a final, non-appealable
judgment, or (ii) Orbitz enters into an agreement or consent decree with either
such Department, that prohibits or restricts Orbitz' operation of its online
booking site and such prohibition or restriction is reasonably expected to
impact Orbitz' ability to host the Orbitz Software as contemplated by this
Agreement, then AA will have the option to host, or engage a third party to
host, the Orbitz Software without changing the other obligations of Orbitz set
forth herein. In such event, the annual Fixed Hosting and Support Fee will be
reduced by the cost incurred by AA to host, and establish and maintain the
connectivity required to host, the Orbitz Software for each year (or portion
thereof) remaining in the Term.
(b) The parties acknowledge and agree that the pricing
offered by Orbitz herein is based on AA's current and projected booking
transaction volumes, based on internally generated growth. In the event that AA
is a party, directly or indirectly, to [***] (each, an "Acquisition
Transaction"), and such Acquisition Transaction is reasonably expected to result
in a Booked Volume Increase (as defined in Section 6.3(f)) of more than [***]%,
then the annual Fixed Hosting and Support Fee will be increased (the "Fixed
Hosting and Support Fee Increase") by an amount equal to (x) the increase in
costs incurred by Orbitz due solely to the Booked Volume Increase, plus (y)
[***]% of such costs; provided, however, that the Fixed Hosting and Support Fee
Increase will not exceed an amount equal to the Booked Volume Increase
percentage times the then current annual Fixed Hosting and Support Fee.
One-twelfth (1/12) of the Fixed Hosting and Support Fee Increase will be added
for each month remaining in the then current
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year of the Agreement, and for each subsequent year during the Term, to be
effective as of the Cut-over Date and payable in accordance with the Fixed
Hosting and Support Fee schedule.
(c) (Intentionally left blank).
(d) In the event that AA experiences, directly or
indirectly, (i) a merger or divestiture of substantially all of the assets of AA
[***], or (ii) divestiture of the majority of the issued and outstanding voting
stock of AA (each, a "Divestiture Transaction") that is reasonably expected to
result in a Booked Volume Decrease (as defined in Section 6.3(f)) of more than
[***]%, then the annual Fixed Hosting and Support Fee will be decreased by an
amount (the "Fixed Hosting and Support Fee Decrease") equal to the amount of
such Booked Volume Decrease times the then-current Hosting and Support Fee (the
"Hosting and Support Fee Decrease"); provided, however, that if Orbitz can
establish that the costs incurred by Orbitz solely in connection with the Booked
Volume Decrease will decrease by an amount (the "Cost Decrease") less than the
Hosting and Support Fee Decrease, then the "Hosting and Support Fee Decrease
will equal the Cost Decrease; provided, further, that in any event, the Hosting
and Support Fee Decrease will not exceed the value of the Booked Volume Decrease
percentage applied to then current Hosting and Support Fee. One-twelfth of the
Fixed Hosting and Support Fee Decrease will be subtracted for each month
remaining in the then current year of the Agreement and for each subsequent year
during the Term, to be effective as of the Cut-over Date.
(e) In the event that Datalex Software is not used by
Orbitz to provide the Initial Development Services or Hosting and Support
Services, the annual Fixed Hosting and Support Fee will be reduced by $[***] for
each year (or portion thereof) remaining in the Term. In the event that any
Datalex Software is used by Orbitz to provide the Initial Development Services
or Hosting and Support Services, and the sublicense fee paid by Orbitz to
Datalex is less than $[***], then the annual Fixed Hosting and Support Fee will
be reduced by the amount of such fee reduction.
(f) For purposes of this Section 6.3, "Booked Volume
Increase" or "Booked Volume Decrease," will be calculated as (i) the difference
between AA.com's average monthly Transactions during the first 90 days following
the Cut-over Date and AA.com's average monthly Transactions during the 90 days
immediately preceding the Cut-over Date, divided by (ii) AA.com's average
monthly Transactions during the 90 days immediately preceding the Cut-over Date.
(g) In the event that Orbitz, as the result of any cause
other than superseding law or regulation, or court or government agency order,
discontinues hosting, maintenance and/or support of the Orbitz Software, (i) the
Fixed Hosting and Support Fee will thereafter be reduced by the greater of (A)
the amounts shown on the following table, or (B) an amount equal to the cost
incurred by AA to secure comparable replacement services, and (ii) Orbitz will
refund to AA a prorated portion of the then-current quarter's Fixed Hosting and
Support Fee, with such proration equal to one-twelfth of the reduced amount
described in the foregoing clause, multiplied by the number of months remaining
in the then-current contract quarter:
<Table>
<Caption>
Percentage Reduction
in Fixed Hosting and
Discontinued Service Support Fee
--------------------------- -----------------------------
<S> <C>
Hosting [***]
Maintenance [***]
Support [***]
</Table>
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6.4 REIMBURSABLE EXPENSES. AA will reimburse Orbitz at cost for the
reasonable, pre-approved travel and lodging and related out-of-pocket expenses
that Orbitz or its Subcontractors may incur in performing the Services (the
"Reimbursable Expenses"). Orbitz or its Subcontractors will use travel
authorization certificates (TACs) for air transportation whenever possible.
Orbitz will furnish AA with appropriate receipts for all Reimbursable Expenses.
6.5 PAYMENT TERMS. The annual Fixed Hosting and Support Fee will be
invoiced in four equal installments at the beginning of each calendar quarter
following the Launch Date. At Orbitz's option, the first installment payment
(the "Initial Installment") may be invoiced in advance of the Launch Date on the
date when the production environment is fully prepared for testing by AA, but no
earlier than November 15, 2001; provided, however, that in such event all
subsequent installments will be invoiced and payable as set forth above starting
with the beginning of the second calendar quarter following the Launch Date.
License and Development Fees and Reimbursable Expenses will be invoiced monthly.
AA will pay all undisputed invoices within 30 days of receipt of a correct
invoice. In the event that AA asserts in good faith that any item or items on an
invoice are not correct, then AA will within 30 days of receipt of such invoice
(i) deliver written notice to Orbitz explaining in detail why AA believes that
an item or items are not correct and (ii) pay to Orbitz all amounts on the
invoice that are not the subject of a good faith dispute by AA.
6.6 TAXES.
(a) The License and Development Fees, Fixed Hosting and
Support Fees, and Reimbursable Expenses are exclusive of all sales, services or
other taxes that Orbitz may be legally obligated to charge AA for performing the
Services, and AA will promptly pay, or reimburse Orbitz for the payment of, any
and all such taxes that may be due or payable. Orbitz will honor any tax-exempt
certificates provided by AA.
(b) AA will not be liable for the payment or reimbursement
to Orbitz of any franchise taxes or fees, or any taxes measured by or against
Orbitz's income or property. AA will not withhold taxes or Social Security
payments from any sum paid to Orbitz under this Agreement. Orbitz acknowledges
and agrees that Orbitz is solely responsible for the payment of its federal,
state and local employment taxes. Orbitz agrees to indemnify AA for all tax
liability described in this Section 6.6(b), including interest and penalties, if
any.
6.7 MOST FAVORED CUSTOMER. During the Term, the financial terms of
this Agreement will be at least as favorable or more favorable than the
financial terms of any other current or prospective Orbitz customer that engages
Orbitz for a project that is substantially similar to the engagement
contemplated herein. The determination of what is and is not "substantially
similar" will be based on relevant factors such as scope of project, volume of
transactions, amount of integration and custom development work required, and
pricing model. Any change in financial terms pursuant to this clause will only
be applied on a prospective basis, effective as of the effective date of such
other customer's agreement with Orbitz, whether such agreement is effective
before or after the Effective Date.
6.8 REPORTING; AUDIT. Orbitz will create and maintain accurate
records with respect to its performance under this Agreement, including without
limitation the number and substance of all Transactions and the calculation of
the Monthly System Availability. Orbitz will maintain such records during the
Term and for one year following any expiration or termination of this Agreement.
Within five days following the end of each applicable month, Orbitz provide AA
with written reports of such information, which reports will be in such detail
as may be reasonably requested by AA from time to time, including without
limitation detail as to the number and substance of all Transactions (with a
breakdown of new PNRs and modified PNRs) and Monthly System Availability. AA
will have the right, upon not less than five days prior notice, to conduct an
audit of the Transaction information included in such monthly
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reports. If such an audit reveals that any of Orbitz's reports submitted
overstated amounts owed by AA, then Orbitz shall pay to AA, within 30 days
following the conclusion of such audit, the amount of any such overpayments.
7. CHANGE REQUESTS
7.1 CHANGE REQUEST. If either party wants to request a modification,
addition or replacement of the Orbitz Software (including, but not limited to,
the Core Functionality and the AA-Specific Functionality) or the Hosting and
Support Services, that party's Relationship Manager will submit a completed
Change Request to the Relationship Manager of the other party. The Change
Request will adequately describe (a) the requested modification, (b) the
estimated resources required to implement the modification, (c) its impact on
the Schedule, (d) its impact, if any, resulting in an increase or decrease to
the License and Development Fees and/or the Fixed Hosting and Support Fees and
(e) its impact on the maintenance requirements of the Orbitz Software.
7.2 CHANGE ACCEPTANCE. Upon receipt of a completed Change Request,
the recipient Relationship Manager will either (a) expressly accept the proposed
modification without qualification within 5 days after its receipt or (b) defer
the request for discussion of the next scheduled or emergency status meeting.
The Relationship Managers will use reasonable commercial efforts to resolve any
deferred proposed modification expeditiously. No proposed Change Request will be
effective unless expressly accepted by the primary or alternate Relationship
Managers of both parties. If so accepted, the Change Request will be executed by
the Relationship Managers of both parties and will then constitute a formal
amendment of this Agreement.
8. CONFIDENTIALITY
The following provisions shall supplement the terms of that certain
Non-Disclosure Agreement that was attached as Exhibit C to the Letter of Intent
between AA and Orbitz executed in April 2001 (the "NDA"), a copy of which is
attached as Exhibit G to this Agreement and incorporated by reference herein.
The NDA shall continue to be in full force and effect during the term of this
Agreement:
8.1 PROTECTION OF CONFIDENTIAL INFORMATION. Each party agrees to
maintain strict confidentiality regarding the subject matter of this Agreement,
in accordance with the NDA. Each party will take such measures that are
necessary to protect against the disclosure or use of the Confidential
Information of the other party as it takes to protect its own proprietary or
confidential information (but in any case no less than reasonable measures).
Each party agrees that the other party will have no adequate remedy at law if
there is a breach or threatened breach of this Section 8 or the NDA and,
accordingly, that either party will be entitled (in addition to any legal or
equitable remedies available to such party) to injunctive or other equitable
relief to prevent or remedy such breach.
8.2 RESTRICTIONS ON DISCLOSURE AND USE. Notwithstanding anything
contained in the NDA, Orbitz will not disclose any Confidential Information
provided to it by AA, including the terms and conditions of this Agreement and
any advanced fare information provided under Section 5.2 of this Agreement or
otherwise, to any equity owners or principals of Orbitz that are employed by a
Competitor of AA except to the extent required by the laws of the State of
Delaware and/or the Orbitz LLC Agreement dated May 9, 2000 (formerly the "DUNC
LLC Agreement"). In the event such disclosure is required pursuant to the laws
of the State of Delaware, Orbitz will provide advance notice to the Vice
President of Customer Technology at AA and provide AA sufficient time to contest
the need for such disclosure prior to making such disclosure. In the event
disclosure is required pursuant to the Orbitz LLC Agreement, Orbitz will provide
advance notice to, and obtain written approval of such disclosure from, the Vice
President of Customer Technology at AA, which approval will not be unreasonably
withheld.
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9. PROPRIETARY RIGHTS
9.1 OWNERSHIP.
(a) As between AA and Orbitz, and to the extent of Orbitz's
prior ownership rights, AA acknowledges that Orbitz will own all patents
(including any business process patents), rights to file for patents,
inventions, copyrights, trademarks, trade secrets and all other right, title and
interest (including any renewals or extensions) in or to the Orbitz Software,
including the AA-Specific Functionality (but excluding the AA-Competitive
Functionality) developed by Orbitz or its employees or Subcontractors during the
performance of this Agreement and any derivative works thereof created by
Orbitz. AA hereby assigns and agrees to assign, and will cause its
Subcontractors to assign, to Orbitz all rights that AA may have or acquire in or
to such works for no additional consideration. No other person will acquire or
retain any rights in or to such works, unless Orbitz otherwise agrees on a
case-by-case basis. At Orbitz's request and expense, AA will cause the execution
of the instruments that may be appropriate to give full legal effect to this
Section for no additional consideration. Orbitz will not subcontract with a
third party developer granting any ownership rights to any AA-Specific
Functionality that would in any way impair AA's ability to have and enjoy full
use of the licenses and rights granted to AA under this Agreement.
(b) Orbitz acknowledges and agrees that it will develop the
AA-Competitive Functionality for AA as a "work-made-for-hire" and that AA will
own the copyright in or to the AA-Competitive Functionality, upon payment to
Orbitz of the applicable License and Development Fees for such AA-Competitive
Functionality. As between Orbitz and AA, Orbitz acknowledges that AA will own
all trademarks, trade secrets and all other right, title and interest (including
any renewals or extensions), excluding patent rights, in or to the
AA-Competitive Functionality and any derivative works thereof created by Orbitz.
Orbitz hereby assigns and agrees to assign, and will cause its Subcontractors to
assign, to AA for no additional consideration all rights that Orbitz may have or
acquires in or to such works. No other person will acquire or retain any rights
in or to such works, unless AA otherwise agrees on a case-by-case basis. At AA's
request and expense and for no additional consideration, Orbitz will cause the
execution of the instruments that may be appropriate to give full legal effect
to this Section for no additional consideration. Each party agrees that it will
not file a patent application with respect to the AA-Competitive Functionality
or any derivative works thereof without the written consent of the other party.
9.2 LICENSE TO AA.
(a) Upon AA's Acceptance of any Orbitz Software, Orbitz
grants AA the limited, paid-up, non-exclusive, non-transferable, royalty-free,
worldwide right, effective during the Term, to access and use (and permit its
customers to access and use) such Orbitz Software (other than the AA-Competitive
Functionality, which will be owned by AA in accordance with Section 9.1 of this
Agreement) on the terms and conditions set forth in this Agreement. AA
acknowledges and agrees that any access and use by its customers will be subject
to the terms and conditions posted to the Website, which will include
protections for Orbitz at least as protective as the terms and conditions that
AA posts on the Website to protect its own rights, limit its liability, and
disclaim forms of damages. AA will not display or use the Orbitz Software as
part of any third party site or service.
(b) Upon AA's Acceptance of the AA-Specific Functionality
(other than AA-Competitive Functionality, which will be owned by AA in
accordance with Section 9.1 of this Agreement), Orbitz grants AA the perpetual,
royalty-free, worldwide right to access and use such AA-Specific Functionality,
in both source and object code forms, for AA's ordinary and customary business
purposes; provided, however, that AA will not have the right to market or
distribute the AA-Specific Functionality to any third party.
(c) During the Term of this Agreement, AA may access and
use (and allow its customers to use) the Orbitz Software licensed hereunder to
search, view, reserve and/or purchase travel-related products and services
offered by AA, its Affiliates, Airline Partners and other air transportation
companies in accordance with the terms and conditions set forth in this
Agreement.
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(d) Agents of AA who are under contract with AA to provide
outsourcing services, including, but not limited to, providing application
development services, data processing or other transactional services for the
benefit of AA and/or its Affiliates and Airline Partners, are authorized to
access and use the Orbitz Software in accordance with the terms and conditions
set forth in this Agreement.
(e) At the expiration or termination of this Agreement, AA
will have the option to purchase from Orbitz, and Orbitz agrees to grant to AA,
a perpetual, non-exclusive license to the compiled and object code for the
Orbitz Software (including the related Documentation) for [***].
9.3 LICENSE TO ORBITZ. Effective during the Term, AA hereby grants
Orbitz the non-exclusive, non-transferable, royalty-free, world-wide right to
(a) use the AA Information solely to perform its obligations under this
Agreement; (b) use aggregated customer data derived from the Website bookings
for internal site management purposes, provided that Orbitz will not use or
disclose such customer data for customer tracking or any other purposes
whatsoever; and (c) use, host and display the AA-Competitive Functionality only
to provide the Hosting and Support Services to AA and to modify and adapt the
AA-Competitive Functionality for AA in accordance with this Agreement, either
directly or through Subcontractors.
10. ESCROW
10.1 ESCROWED MATERIALS. No later than 60 days after the Effective
Date, and within 30 days after release of each Update, Orbitz will deliver to
Fort Knox Escrow Services, as escrow agent, the following: (a) a copy of the
current, fully commented version of the source code of the latest release of the
Orbitz Software that Orbitz owns, (b) the available Documentation related
thereto, and (c) reproducible binary masters of the latest release of the Orbitz
Software (collectively, "Escrowed Material"). A copy of the Escrow Agreement
between Orbitz and Fort Knox Escrow Services related to the Escrowed Materials
will be attached hereto as Exhibit H upon execution.
10.2 MAINTENANCE. Orbitz will replace the source code of the Orbitz
Software in the event of a media defect. The nature and completeness of the
Escrowed Materials will be subject to verification by a representative of AA
only at the facilities of the escrow agent in the presence of a representative
of Orbitz. AA may not make any copies, in whole or in part, of the Escrowed
Material, and all such material will be considered to be Confidential
Information regardless of whether they have been marked "confidential". All
expenses associated with establishing and maintaining the Escrowed Materials
will be shared equally between AA and Orbitz.
10.3 RELEASE CONDITION. If Orbitz (a) generally discontinues hosting,
maintenance and/or support of the Orbitz Software, (b) is in material, uncured
breach of its maintenance and support obligations to the extent that it is in
breach of its support standard commitments for Severity 1 or Severity 2,
including those defined as a "Material Service Level Failure" in Exhibit F, or
(c) is insolvent, files a petition in bankruptcy or has such a petition filed
against it (and fails to lift any stay imposed thereby within 60 days after such
stay becomes effective), has a receiver appointed with respect to all or
substantially all of its assets, makes an assignment for the benefit of
creditors, or ceases to do business in the ordinary course, then AA may demand
the release of the Escrowed Material by simultaneously sending the escrow agent,
with a copy to Orbitz, a written demand for the Escrowed Material by overnight
courier. Orbitz will cause the escrow agent to release the Escrowed Material to
AA within five business days after Orbitz's receipt of the demand notice unless
Orbitz has notified the escrow agent and AA that it disputes that a release
condition has occurred within such five-day period. If Orbitz has not provided
AA with material information within ten days of Orbitz's notification to the
escrow agent which establishes that none of the release conditions set forth
above have occurred, Orbitz's dispute will be deemed withdrawn and the escrow
agent will release the Escrowed Material to AA.
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10.4 RIGHTS. In the event the Escrowed Material is released to AA,
Orbitz grants to AA a fully paid up license to use and modify the Escrowed
Material solely to maintain and support the Orbitz Software in accordance with
the terms of this Agreement and for no other purpose. AA will maintain the
Escrowed Material on a secure system with access limited to only those persons
necessary to maintain and support the Orbitz Software. AA may make only such
copies of the Escrowed Material as are reasonably required for archival and
disaster recovery purposes, and AA will keep any such copies under lock and key.
10.5 THIRD PARTY SOFTWARE. If the Orbitz Software includes the
Datalex Software or if Orbitz uses the Datalex Software to provide Hosting and
Support Services, within 60 days following the time that Orbitz decides to use
Datalex Software, Orbitz will use its best efforts to obtain a written agreement
with Datalex, a copy of which will be provided to AA, which provides that (a) in
the event AA receives the Orbitz-owned code as pursuant to this Agreement, the
license to the Datalex Software (including any code developed by Datalex to
support the Website) granted to Orbitz for hosting the Orbitz Software may be
assigned to AA, and (b) AA is a named third-party beneficiary of Orbitz's
agreement with Datalex. In such event, any license fees payable by AA to Datalex
for continued use of the Datalex Software, if any, will not exceed the rates
charged by Datalex to Orbitz to provide the Hosting and Support Services
hereunder. In the event Orbitz does not obtain such a written agreement, then in
the event that AA enters into a direct licensing agreement with Datalex for the
continued use of the Datalex Software, if the license fees payable by AA to
Datalex for such use exceed the rates charged by Datalex to Orbitz to provide
the Hosting and Support Services hereunder, any amounts due by AA to Orbitz
hereunder shall be reduced by an amount equal to the difference between the
rates charged by Datalex to Orbitz to provide the Hosting and Support Services
hereunder and the licensing fees due from AA to Datalex. Alternatively, in the
event Orbitz does not obtain such a written agreement, Orbitz shall have the
option of removing the Datalex Software provided that such removal does not
reduce the functionality of the then-current Orbitz Software or reduce AA's
ability to host and support the Orbitz Software.
11. WARRANTIES AND DISCLAIMERS
11.1 GENERAL WARRANTY. Each party represents and warrants that (a) it
has the full corporate authority to execute this Agreement and perform its
obligations hereunder and (b) execution or performance of this Agreement will
not violate or be considered a breach of any obligation of such party to any
third party. Each party agrees that with respect to any breach of the above
stated warranty, the non-breaching party's sole and exclusive remedy and the
breaching party's sole and exclusive liability will be the indemnity obligations
set forth in Section 12 below.
11.2 SPECIFIC WARRANTIES.
(a) Orbitz represents and warrants that it has, and will
continue to have during the Term, the right to license all Orbitz Software and
sublicense the Datalex Software (if such is used to provide Hosting and Support
Services) in accordance with this Agreement.
(b) Orbitz represents and warrants that it will perform the
Services in a good and workmanlike manner and, when applicable, in accordance
with the Service Level Agreement. In case of breach of warranty, Orbitz will, as
its sole and exclusive liability and as AA's sole and exclusive remedy, (i)
correct or re-perform the defective Services or, at Orbitz's discretion, (ii)
refund the fees actually paid to Orbitz for the defective Services. In the event
Orbitz provides the Hosting and Support Services in breach of the above stated
warranty, AA's sole and exclusive remedy and Orbitz's sole and exclusive
liability will be the service level credits or termination as set forth in the
Service Level Agreement.
11.3 LIMITATION. The warranties and remedies specified in this
Section will not apply to the extent the Deliverables or Services are defective
due to extrinsic causes beyond Orbitz's reasonable control, such as (a) natural
disasters, including without limitation fire, smoke, water, earthquakes or
lightning, (b) electrical power fluctuations or failures, (c) neglect or misuse
by AA, (d) a correction or modification of a Deliverable or Service not
authorized by Orbitz, or (e) the combination of a Deliverable or Service in any
manner not authorized by Orbitz.
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11.4 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND
GUARANTEES WITH RESPECT TO THE SERVICES, THE DELIVERABLES, THE ORBITZ SOFTWARE
OR ANY COMPONENT THEREOF, INCLUDING WITHOUT LIMITATION THE CORE FUNCTIONALITY
AND THE AA-SPECIFIC FUNCTIONALITY, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW,
CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY ORBITZ, ITS AGENTS OR OTHERWISE
(INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OR CONDITION OF SATISFACTORY
QUALITY, ACCURACY, UNINTERRUPTED USE, TIMELINESS, TRUTHFULNESS, SEQUENCE,
COMPLETENESS, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR
NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF
DEALING OR COURSE OF PERFORMANCE) ARE HEREBY OVERRIDDEN, EXCLUDED AND
DISCLAIMED.
12. INDEMNITY
12.1 GENERAL THIRD-PARTY INDEMNITY.
(a) Orbitz will indemnify, defend and hold harmless AA, as
well as AA's Affiliates and licensees, and each of their officers, shareholders,
directors, employees and agents (collectively, the "AA Indemnified Parties")
from and against any and all Claims, including any related Losses that AA is
required to pay any third party in any way relating to, arising out of or
resulting from: (i) any gross negligence or willful misconduct of any employee
or subcontractor of Orbitz; (ii) breach of any warranty of Orbitz contained in
Section 11.1 of this Agreement; (iii) any actual or alleged infringement of any
patent (other than with respect to AA-Competitive Functionality), copyright,
trademark, trade name, trade secret or other proprietary or intellectual
property right by any software or service provided pursuant to this Agreement;
or (iv) Orbitz's failure to comply with any and all applicable laws, rules and
regulations.
(b) AA will indemnify and hold harmless Orbitz, as well as
Orbitz's subsidiaries, licensees and Affiliates, and each of their officers,
shareholders, directors, employees and agents (collectively, the "Orbitz
Indemnified Parties") from and against any and all Losses in any way relating
to, arising out of or resulting from: (i) any gross negligence or willful
misconduct of any employee or subcontractor of AA; (ii) breach of any warranty
of AA contained in Section 11.1 of this Agreement; (iii) any actual or alleged
infringement of any copyright, trademark, trade name, trade secret or other
proprietary or intellectual property or privacy right by the AA Information; or
(iv) AA's failure to comply with any and all applicable laws, rules and
regulations related to the Website.
12.2 INDEMNIFICATION PROCEDURES.
(a) Promptly after any party entitled to indemnification
under this Section 12 ("Indemnitee") obtains knowledge of the potential
existence or commencement of a Claim, in respect of which Indemnitee is or may
be entitled to indemnification under this Agreement, such Indemnitee will
promptly notify the other party ("Indemnitor") of such Claim in writing;
provided, however, that any failure to give such notice will not waive any
rights of Indemnitee except to the extent that the rights of Indemnitor are
actually prejudiced thereby. Indemnitor will assume the defense and settlement
of such Claim with counsel reasonably satisfactory to Indemnitee at Indemnitor's
sole risk and expense; provided, however, that Indemnitee (i) will be permitted
to join in the defense and settlement of such Claim and to employ counsel at its
own expense; (ii) will reasonably cooperate with Indemnitor in the defense and
any settlement of such Claim; and (iii) will have the right to pay or settle
such Claim at any time in which event Indemnitee will be deemed to have waived
any right to indemnification therefor by Indemnitor. Indemnitor may settle any
Claim without Indemnitee's written consent unless such settlement (A) does not
include a release of all covered claims pending against Indemnitee; (B) contains
an admission of liability or wrongdoing by Indemnitee; or (C) imposes any
obligations upon Indemnitee other than an obligation to stop using any
infringing items.
(b) If Indemnitor fails to assume the defense of such Claim
or, having assumed the defense and settlement of such Claim, fails reasonably to
contest such Claim in good faith, Indemnitee, without waiving its right to
indemnification, may assume the defense and settlement of such Claim; provided,
however, that Indemnitor (i) may join in the defense and settlement of such
Claim and employ counsel at its own expense and (ii) will cooperate with
Indemnitee in the defense and settlement of such
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Claim. Indemnitee may settle such Claim without Indemnitor's written consent
unless such settlement (A) does not include a release of all covered Claims
pending against Indemnitor; (B) contains an admission of liability or wrongdoing
by Indemnitor; or (C) imposes any obligations upon Indemnitor other than an
obligation to stop using any infringing items. Indemnitor will be liable to
Indemnitee for all costs and expenses incurred in connection with the defense
and settlement of any Claim pursuant to this Section 12.2(b).
(c) Upon a determination of liability in respect of this
Section 12, Indemnitor will pay Indemnitee the amount so determined within 10
business days after the date of such determination. If there should be a dispute
as to the amount or manner of determination of any indemnity obligation owed
under this Agreement, Indemnitor will nevertheless pay when due such portion, if
any, of the obligation as will not be subject to dispute. Upon the payment in
full of any claim, either by setoff or otherwise, the party or entity making
payment will be subrogated to the rights of Indemnitee against any person, firm,
corporation or other entity with respect to the subject matter of such claim.
12.3 INTELLECTUAL PROPERTY REMEDIES. In the event of a Claim under
Section 12.1(a)(iii) above, and in addition to all other obligations of Orbitz
in this Section 12, Orbitz will either (a) provide AA with reasonable assurances
acceptable to AA that AA will continue to have the right to use the affected
products or services or (b) Orbitz will, at its expense, either (i) procure for
AA the right to continue use of such infringing products or services, or any
component thereof; or (ii) replace or modify the same with non-infringing
products or services satisfactory to AA, provided that Orbitz will provide AA
with a comparable temporary replacement product or reimburse AA for the
reasonable costs incurred by AA in obtaining an alternative product in the event
AA cannot use the affected product. If Orbitz cannot accomplish any of the
foregoing within a reasonable time and at commercially reasonable rates, then
Orbitz will accept the return of the infringing component of the products or
services, along with any other components of any products rendered unusable by
AA as a result of the infringing component, and refund the price paid to Orbitz
for such components.
13. NO CONSEQUENTIAL DAMAGES
EXCEPT WITH REGARD TO DAMAGES ARISING OUT OF ANY BREACH OF SECTION 8
OR FOR PERSONAL INJURY, AND THE INDEMNIFICATION OBLIGATIONS CONTAINED IN SECTION
12, WITH RESPECT TO EACH OF WHICH LIABILITY WILL NOT BE LIMITED PURSUANT TO THIS
SECTION 13, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST
PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER ARISING OUT OF BREACH
OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT,
MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. EXCEPT FOR
EITHER PARTY'S INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH HEREIN, CLAIMS
UNDER SECTION 8 HEREOF OR AA'S PAYMENT OBLIGATIONS, IN NO EVENT WILL THE
AGGREGATE LIABILITY WHICH EITHER PARTY MAY INCUR TO THE OTHER PARTY IN ANY
ACTION OR PROCEEDING EXCEED THE GREATER OF (X) THE TOTAL FEES PAYABLE BY AA TO
ORBITZ DURING THE 12 MONTH PERIOD PRECEDING THE EVENT THAT RESULTED IN SUCH
LIABILITY, OR (Y) [***].
14. INSURANCE
Orbitz will be solely responsible for obtaining and maintaining
appropriate insurance coverage for its activities under this Agreement,
including, but not limited to, comprehensive general liability (bodily injury
and property damage) insurance and professional liability insurance and
requiring its subcontractors to have similar insurance coverage. At AA's
request, Orbitz will provide AA with copies of the certificates of insurance.
15. DISPUTE RESOLUTION
Unless otherwise agreed by the parties, any claim, controversy or
other dispute between the parties relating to this Agreement will, before the
filing of any legal action, be submitted to two senior executives representing
AA and Orbitz, respectively. These executives will promptly meet to explore all
possible ways of resolving the dispute amicably. Any resolution upon which these
executives may agree
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CONFIDENTIAL Page 17
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in writing will be final and binding on the parties. If the executives do not
resolve the dispute within 30 days after the initial request for an executive
meeting, the parties may pursue other legal remedies.
16. TERM AND TERMINATION
16.1 TERM. This Agreement be in effect as of the Effective Date and
will have an initial term of three years following the Launch Date (the "Initial
Term"). AA may renew this Agreement for up to two (2) successive one-year
renewal terms (each, a "Renewal Term") (the Initial Term and any Renewal Terms
are collectively referred to herein as the "Term"), unless it notifies Orbitz of
its intention not to renew this Agreement at least 60 days prior to the
expiration of the then-current term.
16.2 TERMINATION FOR CONVENIENCE. AA may terminate this Agreement at
any time upon 60 days notice to Orbitz. If AA terminates this Agreement prior to
the Launch Date, AA will pay Orbitz for services performed and materials
delivered as of the effective termination as well as any pre-approved, out of
pocket expenses incurred by Orbitz, including, without limitation, pre-approved
expenses related to development services, connectivity services, co-location
leases and travel-related expenses. If AA terminates under this provision and
Orbitz is unable to re-deploy staff that had been hired to support Orbitz
obligations under this Agreement, then AA will additionally pay termination fees
equal to two (2) months salary for each such employee. If AA terminates pursuant
to this subsection after the Launch Date and during the Initial Term, AA will
pay Orbitz for services performed and materials delivered prior to the effective
date of termination, plus [***]% of the Fixed Hosting and Support Fees
associated with the remainder of the Initial Term. If AA terminates pursuant to
this subsection during any Renewal Term, AA will only be liable to pay Orbitz
for services performed and materials delivered as of the effective termination
date.
16.3 TERMINATION FOR CAUSE.
(a) Subject to the provisions of Section 4.4 hereof, either
party may terminate this Agreement for cause in the event that the other party
fails to cure a material breach of this Agreement within 30 days after receiving
written notice of such breach from the non-breaching party. AA may also
terminate this Agreement for cause in the event that Orbitz is acquired and/or
ownership changes such that an AA Competitor acquires a controlling interest in
Orbitz. For purposes of this provision, "control" means the power to direct or
cause the direction of the management and policies of Orbitz, whether through
the ownership of voting securities, by contract or otherwise. In the event that
AA terminates this Agreement for cause, AA will only be liable to pay Orbitz for
services performed as of the effective termination date.
(b) AA may terminate this Agreement in accordance with the
provisions of Section 5 of Exhibit F.
16.4 EFFECT OF TERMINATION. If this Agreement terminates or expires
for any reason:
(a) AA will promptly pay Orbitz any undisputed amounts,
provided that AA may offset any amounts due AA pursuant to Sections 6.3(g)(ii),
16.4(b) or 16.4(c).
(b) In the event of any early termination of this Agreement
by AA prior to the Launch Date, Orbitz will refund to AA, within 60 days
following such termination, any Initial Installment paid by AA pursuant to
Section 6.5 of this Agreement.
(c) In the event of any early termination of this Agreement
by AA after the Launch Date pursuant to Section 16.3 of this Agreement, Orbitz
will refund to AA a prorated portion of the Fixed
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CONFIDENTIAL Page 18
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Hosting and Support Fees for the then-current quarter, according to the number
of months remaining in the then-current contract quarter as of the effective
date of such termination.
(d) Except as provided in Sections 9.2(b) and 9.2(e) of
this Agreement, all rights AA may have in or to the Orbitz Software, including
without limitation the Core Functionality and the AA-Specific Functionality (but
excluding the AA-Competitive Functionality, which will be owned by AA in
accordance with Section 9.1 of this Agreement), will immediately cease.
(e) The provisions of Sections 4.9, 6.6, 6.8, 8, 9.1, 12,
13, 15, 16.4, 17, 18, and 19, and any payment obligations pending as of the date
of expiration or termination, will survive the expiration or termination of this
Agreement for any reason. Further, in the event AA elects to purchase a
perpetual license to the Orbitz Software in accordance with Section 9.2(e), then
the provisions of Sections 9.2(b) through (e), 10.3, and 10.4 will also survive
the expiration or termination of this Agreement for any reason.
17. NO PUBLICITY
Neither party will issue a press release, advertisement or public
statement concerning the existence of this Agreement, its contents or the
transactions contemplated by it without the express written consent of the other
for each such event.
18. LEGAL STATUS
Nothing in this Agreement is intended or will be construed to create
or establish any agency, partnership or joint venture relationship between the
parties. The parties expressly disclaim such relationship, agree that they are
acting solely as independent contractors hereunder and agree that the parties
have no fiduciary duty to one another or any other special or implied duties
that are not expressly stated herein. Orbitz has no authority to act as agent
for, or to incur any obligations on behalf or in the name of, AA or its
Affiliates. Orbitz is solely and exclusively responsible for the salaries,
wages, benefits, fees or other compensation that Orbitz, its Subcontractors or
its or their agents or employees may be entitled to receive.
19. MISCELLANEOUS
19.1 NOTICES. Any notice, approval or other communication required or
permitted under this Agreement will be given in writing. Such communications
will be sent to the address specified below or to any other address that may be
designated by prior notice.
If to AA:
American Airlines, Inc.
4333 Amon Carter Blvd., MD 1627
Fort Worth, Texas 76155
Attn: Vice-President, Customer Technology
Telephone: 817-967-2217
Fax: 817-963-2726
With copy to:
American Airlines, Inc.
4333 Amon Carter Blvd., MD 5223
Fort Worth, Texas 76155
Attn: Managing Director, Purchasing
Telephone: 817-963-2690
Fax: 817-961-6947
CONFIDENTIAL Page 19
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If to Orbitz:
Orbitz LLC
200 South Wacker Drive
Suite 1900
Chicago, Illinois 60606
Attn: Ellen Lee
Telephone: 312-894-5000
Fax: 312-894-5001
19.2 WAIVER, AMENDMENT AND MODIFICATION. Any waiver, amendment or
other modification of this Agreement will not be effective unless in writing and
signed by both parties. No waiver of breach of any provision of this Agreement
by either party will constitute a waiver of any subsequent breach of the same or
any other provision, and no waiver will be effective unless made in writing and
signed by an officer of the other party.
19.3 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, in whole or in part, such holding will not affect the validity of
the other provisions of this Agreement.
19.4 ASSIGNMENT. Except as set forth in this Agreement, neither party
may assign, delegate, sub-contract or otherwise transfer this Agreement or any
of its rights or obligations without the other party's prior approval, which
will not be unreasonably withheld or delayed. Notwithstanding the foregoing,
either party may assign this Agreement or any of its rights or obligations, upon
notice to the other party, (a) to an Affiliate or (b) to an unrelated company
pursuant to a sale, merger or other consolidation of such party or any of its
operating divisions or offices.
19.5 FORCE MAJEURE. Except to the extent the Services or Orbitz
Software are designed to accommodate such failures or delays, neither party will
be liable for any failure or delay in performing an obligation under this
Agreement that is due to causes beyond its reasonable control, such as natural
catastrophes, governmental acts or omissions, laws or regulations, labor strikes
or difficulties, transportation stoppages or slowdowns or the inability to
procure parts or materials. If any of these causes continue to prevent or delay
performance for more than five days, the non-delaying party may terminate this
Agreement for cause, effective immediately upon notice to the delaying party.
19.6 GOVERNING LAW. This Agreement will be governed by and
interpreted in accordance with the laws of the state of Delaware, exclusive of
conflict of laws provisions.
19.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original and all of which
together will constitute one and the same instrument.
19.8 NON SOLICITATION. During the Term and for a period of one year
thereafter, neither party, either directly or through others, will solicit for
employment any personnel employed by the other with whom that party had contact
during the Term.
19.9 ENTIRE AGREEMENT; AMENDMENT. This Agreement, and its Exhibits,
and the Non-Disclosure Agreement set forth as Exhibit H constitute the complete
and entire statement of all terms, conditions and representations of the
agreement between AA and Orbitz with respect to the subject matter of this
Agreement, and supercede and replace all prior understandings between the
parties, whether oral or in writing.
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19.10 EXHIBITS. The following Exhibits, including all subparts
thereof, are attached to this Agreement and are made a part of this Agreement
for all purposes:
Exhibit A: Change Requests
Exhibit B: Core Functionality
Exhibit C: Schedule
Exhibit D: Fixed Hosting and Support Fees
Exhibit E: Relationship Managers
Exhibit F: Service Level Agreement
Exhibit G: Non-Disclosure Agreement
Exhibit H: Escrow Agreement
IN WITNESS WHEREOF, AA and Orbitz have caused this Agreement to be
executed by their duly authorized representatives identified below.
AMERICAN AIRLINES, INC. ORBITZ LLC
By: /s/John Samuel By: /s/ Alex D. Zoghlin
--------------------------- -----------------------------
Name: John Samuel Name: Alex D. Zoghlin
------------------------ ---------------------------
Title: V.P. Customer Technology Title: CTO
-------------------------- --------------------------
Date: September 7, 2001 Date: 9/10/01
------------------------- ---------------------------
CONFIDENTIAL Page 21
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EXHIBIT A
CHANGE REQUEST
Scope Change Request
1 Title:
2 Requested By:
3 Status: Unapproved, Approved, Rejected, or Implemented.
4 Business Need Detail:
5 Impact on Project:
6 Impact on Schedule:
7 Deliverables Impacted:
8 Classification of Change: (Core, AA Specific, or AA Competitive)
An electronic substitute for this form is available and has been employed by the
American Airlines PMO and the Orbitz PMO. Approvals and communication may occur
electronically.
8 Approvals:
AMERICAN AIRLINES, INC. ORBITZ LLC
By: By:
------------------------------- ---------------------------------
Name: Name:
----------------------------- -------------------------------
Title: Relationship Manager Title: Relationship Manager
Date: Date:
----------------------------- -------------------------------
Exhibit A-i
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EXHIBIT B
CORE FUNCTIONALITY
[***]
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the Commission. Confidential treatment has been requested with respect to
the omitted portions.
Exibit B-i
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EXHIBIT C
SCHEDULE
<Table>
<Caption>
Task Responsibility Date
---- -------------- ----
<S> <C> <C>
Mutual Agreement on Final Java Docs
Specifications of the Orbitz Software AA & Orbitz July 27, 2001
Delivery Date of Booking Engine Orbitz August 17, 2001
</Table>
Exibit C-i
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EXHIBIT D
FIXED HOSTING AND SUPPORT FEES
[***]
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and filed separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit D-i
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EXHIBIT E
RELATIONSHIP MANAGERS
Ellen Lee, VP New Ventures, will be the Relationship Manager for Orbitz. Brian
Wesselman, Project Manager, will be an alternate Relationship Manager for
Orbitz.
Scott Hyden, Managing Director, Product Management, will be the Relationship
Manager for AA.
Exhibit E - i
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EXHIBIT F
SERVICE LEVEL AGREEMENT
[***]
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and filed separately with the Commission. Confidential treatment has been
requested with respect to the omitted portions.
Exhibit F-i
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EXHIBIT G
NONDISCLOSURE AGREEMENT
1. CONFIDENTIAL INFORMATION. "Confidential Information" is defined as any
information of either party hereto (the "Disclosing Party"), disclosed in
writing or verbally to, or observed by the other party (the "Receiving Party")
in connection with or as a result of discussions between AA and Orbitz, and
which is at the time of disclosure is either (a) marked as being "Confidential"
or "Proprietary", (b) otherwise reasonably identifiable as the confidential
information of the Disclosing Party, or (c) under the circumstances of
disclosure should reasonably be considered as confidential information of the
Disclosing Party. AA's Confidential Information may include, but is not limited
to its product requirements, business plans and forecasts, customer data, and
similar information of itself, its affiliates and their customers. Orbitz's
Confidential Information may include, but is not limited to its product plans,
specifications, and pricing.
2. RESTRICTIONS ON DISCLOSURE AND USE. Unless expressly authorized in writing by
the Disclosing Party, the Receiving Party agrees to retain the Confidential
Information in confidence and shall not copy or disclose the Confidential
Information to, or use the Confidential Information for, the benefit of any
third party, except as follows. Confidential Information may be disclosed on a
need to know basis to the Receiving Party's employees, affiliates, and
independent contractors who are parties to a written agreement with the
Receiving Party which prohibits the disclosure of Confidential Information, and
limits its use to the benefit of the Receiving Party and its affiliates.
3. EXCLUSIONS. Notwithstanding any other provisions of this Agreement, each
party acknowledges that Confidential Information shall not include any
information which:
(a) Is or becomes publicly known through no wrongful act of the Receiving
Party;
(b) Is at the time of disclosure, already known to the Receiving Party
without restriction on use or disclosure and was not obtained from the
Disclosing Party or its contractors; or
(c) Is independently developed by the Receiving Party without breach of this
Agreement.
4. RELIEF FROM OBLIGATIONS. Either party will be relieved of its confidentiality
obligations hereunder if and to the extent that Confidential Information:
(a) Is disclosed pursuant to the lawful requirement of a governmental agency,
or disclosure is required by operation of law, provided that the party
making the disclosure has given timely notice to the Disclosing Party and
the Disclosing Party has been permitted at its expense to interpose
objections, defenses or obtain a protective order limiting disclosure and
use of the information; or
(b) Is explicitly approved for release by written authorization of the
Disclosing Party.
5. OWNERSHIP OF CONFIDENTIAL INFORMATION. No license, express or implied, in the
Confidential Information is granted to either party other than to use the
information in the manner and to the extent authorized by this Agreement. Each
party shall retain the title and full ownership rights to their respective
Confidential Information. Each party agrees that upon the request of the
Disclosing Party, it shall return to the Disclosing Party all tangible copies of
the Confidential Information in such party's possession.
Exhibit G-i
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EXHIBIT H
ESCROW AGREEMENT
To be attached upon execution per Section 10.1 of the Agreement.
<Page>
MASTER PREFERRED ESCROW AGREEMENT
Master Number _____________________
This agreement ("Agreement") is effective August, 2002 among DSI Technology
Escrow Services, Inc. ("DSI"), Orbitz, LLC ("Depositor") and any additional
party signing the Acceptance Form attached to this Agreement ("Preferred
Beneficiary"), who collectively may be referred to in this Agreement as the
parties ("Parties").
A. Depositor and Preferred Beneficiary have entered or will enter into a
license agreement, development agreement, and/or other agreement regarding
certain proprietary technology of Depositor (referred to in this Agreement as
"the License Agreement").
B. Depositor desires to avoid disclosure of its proprietary technology
except under certain limited circumstances.
C. The availability of the proprietary technology of Depositor is critical
to Preferred Beneficiary in the conduct of its business and, therefore,
Preferred Beneficiary needs access to the proprietary technology under certain
limited circumstances.
D. Depositor and Preferred Beneficiary desire to establish an escrow with
DSI to provide for the retention, administration and controlled access of
certain proprietary technology materials of Depositor.
E. The parties desire this Agreement to be supplementary to the License
Agreement pursuant to United States [Bankruptcy] Code, Section 365(n).
ARTICLE 1 - DEPOSITS
1.1 OBLIGATION TO MAKE DEPOSIT. Upon the signing of this Agreement by the
parties, including the signing of the Acceptance Form, and Exhibit D naming the
Deposit Account, Depositor shall deliver to DSI the proprietary technology and
other materials ("Deposit Materials") required to be deposited by the License
Agreement or, if the License Agreement does not identify the materials to be
deposited with DSI, then such materials will be identified on Exhibit A. If
Exhibit A is applicable, it is to be prepared and signed by Depositor and
Preferred Beneficiary. DSI shall have no obligation with respect to the
preparation, signing or delivery of Exhibit A.
1.2 IDENTIFICATION OF TANGIBLE MEDIA. Prior to the delivery of the Deposit
Materials to DSI, Depositor shall conspicuously label for identification each
document, magnetic tape, disk, or other tangible media upon which the Deposit
Materials are written or stored. Additionally, Depositor shall complete Exhibit
B to this Agreement by listing each such tangible media by the item label
description, the type of media and the quantity. Exhibit B shall be signed by
Depositor and delivered to DSI with the Deposit Materials. Unless and until
Depositor makes the initial deposit with DSI, DSI shall have no obligation with
respect to this Agreement, except the obligation to notify the parties regarding
the status of the account as required in Section 2.2 below.
1.3. ESCROW ACCOUNT NAME IDENTIFICATION. Subject to this Article 1, and at the
time Depositor makes the initial deposit with DSI in accordance with Section 1.2
above, Depositor shall complete and sign Exhibit D naming the initial account
upon which the Deposit Materials are
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written or stored. Any new deposits referencing new account names made
subsequent to the signing of this Agreement, intended by the Depositor to be
held in a separate account and maintained separately from the initial account,
but made a part of this Agreement, shall be provided for by the Depositor on
Exhibit E, and Exhibit E shall be signed by the Depositor and DSI.
1.4 ACCEPTANCE OF DEPOSIT. When DSI receives the Deposit Materials, DSI will
conduct a deposit inspection. At completion of the deposit inspection, if DSI
determines that the labeling of the tangible media matches the item descriptions
and quantity on Exhibit B, DSI will date and sign Exhibit B and mail a copy
thereof to Depositor and Preferred Beneficiary. If DSI determines that the
labeling does not match the item descriptions or quantity on Exhibit B, DSI will
(a) note the discrepancies in writing on Exhibit B; (b) date and sign Exhibit B
with the exceptions noted; and (c) mail a copy of Exhibit B to Depositor and
Preferred Beneficiary. DSI's acceptance of the deposit occurs upon the signing
of Exhibit B by DSI. Delivery of the signed Exhibit B to Preferred Beneficiary
is Preferred Beneficiary's notice that the Deposit Materials have been received
and accepted by DSI. Other than DSI's inspection of the Deposit Materials, DSI
shall have no obligation to the accuracy, completeness, functionality,
performance or non-performance of the Deposit Materials.
5 DEPOSITOR'S REPRESENTATIONS. Depositor represents as follows:
(a) Depositor lawfully possesses all of the Deposit Materials
deposited with DSI;
(b) with respect to all of the Deposit Materials, Depositor has the
right and authority to grant to DSI and Preferred Beneficiary the
rights as provided in this Agreement;
(c) as of the effective date of this Agreement, the Deposit Materials
are not the subject of a lien or encumbrances; provided, however,
that any liens or encumbrances made after the execution of this
Agreement will not prohibit, limit, or alter the rights and
obligations of DSI under this Agreement;
(d) the Deposit Materials consist of the proprietary technology and
other materials identified either in the License Agreement or
Exhibit A, as the case may be; and
(e) the Deposit Materials are readable and useable in their current
form or, if any portion of the Deposit Materials is encrypted, the
decryption tools and decryption keys have also been deposited.
1.6 VERIFICATION. Upon receipt of a written request from Preferred
Beneficiary, DSI and Preferred Beneficiary may enter into a separate proposal
agreement pursuant to which DSI will agree, upon certain terms and conditions,
to inspect the Deposit Materials for the purpose of verifying its accuracy,
completeness, sufficiency and quality ("Verification Proposal Agreement").
Preferred Beneficiary and DSI shall notify Depositor of the Verification
Proposal Agreement, and the verification shall be conducted at Preferred
Beneficiary's expense. Depositor shall have the right to be present at the
verification. If a verification is elected after the Deposit Materials have been
delivered to DSI, then only DSI, or at DSI's election, an independent contractor
or company selected by DSI, may perform the verification.
1.7 DEPOSIT UPDATES. Unless otherwise provided by the License Agreement,
Depositor shall update the Deposit Materials within sixty (60) days of each
release of a new version of the product, which is subject to the License
Agreement. Such updates will be added to the existing deposit. All deposit
updates shall be listed on a new Exhibit B and the new Exhibit B shall be signed
by Depositor. Each Exhibit B will be held and maintained separately within the
escrow
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account. An independent record will be created which will document the activity
for each Exhibit B. The processing of all deposit updates shall be in accordance
with Sections 1.2 through 1.6 above. All references in this Agreement to the
Deposit Materials shall include the initial Deposit Materials and any updates.
1.8 REMOVAL OF DEPOSIT MATERIALS. The Deposit Materials may be removed and/or
exchanged only on written instructions signed by Depositor and Preferred
Beneficiary, or as otherwise provided in this Agreement.
ARTICLE 2 CONFIDENTIALITY AND RECORD KEEPING
2.1 CONFIDENTIALITY. DSI shall maintain the Deposit Materials in a secure,
environmentally safe, locked facility, which is accessible only to authorized
representatives of DSI. DSI shall have the obligation to reasonably protect the
confidentiality of the Deposit Materials. Except as provided in this Agreement
or any subsequent agreement between the Parties, DSI shall not disclose,
transfer, make available, or use the Deposit Materials. DSI shall not disclose
the terms of this Agreement to any third party. If DSI receives a subpoena or
any other order from a court or other judicial tribunal pertaining to the
disclosure or release of the Deposit Materials, DSI will immediately notify the
parties to this Agreement unless prohibited by law. It shall be the
responsibility of Depositor and/or Preferred Beneficiary to challenge any such
order, provided, however, that DSI does not waive its rights to present its
position with respect to any such order. DSI will not be required to disobey any
order from a court or other judicial tribunal including, but not limited to,
notices delivered pursuant to Section 7.6 below.
2.2 STATUS REPORTS. DSI will issue to Depositor and Preferred Beneficiary a
report profiling the account history semi-annually.
2.3 Audit Rights. During the term of this Agreement, Depositor and Preferred
Beneficiary shall each have the right to inspect the written records of DSI
pertaining to this Agreement. Any inspection shall be held during normal
business hours and following reasonable prior notice.
ARTICLE 3 - RIGHT TO MAKE COPIES
DSI shall have the right to make copies of the Deposit Materials as reasonably
necessary to perform this Agreement. DSI shall copy all copyright,
nondisclosure, and other proprietary notices and titles contained on the Deposit
Materials onto any copies made by DSI. With all Deposit Materials submitted to
DSI, Depositor shall provide any and all instructions as may be necessary to
duplicate the Deposit Materials including but not limited to the hardware and/or
software needed. Any copying expenses incurred by DSI as a result of a request
to copy will be borne by the party requesting the copies. Alternatively, DSI may
notify Depositor requiring its reasonable cooperation in promptly copying the
Deposit Materials in order for DSI to perform this Agreement.
ARTICLE 4 - RELEASE OF DEPOSIT
4.1 RELEASE CONDITIONS. As used in this Agreement, "Release Condition" shall
mean the occurrence of an event (including any applicable cure periods)
specified under the License Agreement as entitling Preferred Beneficiary to
release of the Deposit Materials.
4.2 FILING FOR RELEASE. If Preferred Beneficiary believes in good faith that
a Release Condition has occurred, Preferred Beneficiary may provide to DSI
written notice of the
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occurrence of the Release Condition and a request for the release of the Deposit
Materials. Within two (2) business days of receipt of a written notice, DSI
shall provide a copy of the notice to Depositor by commercial express mail. DSI
will promptly notify the Parties unless DSI acknowledges or discovers
independently, or through the Parties, its need for additional documentation or
information in order to comply with this section. Such need for additional
documentation or information may extend the time period for DST's performance
under this section.
4.3 CONTRARY INSTRUCTIONS. From the date Depositor receives the notice
requesting release of the Deposit Materials, Depositor shall have ten (10)
business days to deliver to DSI contrary instructions ("Contrary Instructions").
Contrary Instructions shall mean the written representation by Depositor that a
Release Condition has not occurred or has been cured. Upon receipt of Contrary
Instructions, DSI shall send a copy to Preferred Beneficiary by commercial
express mail. Additionally, DSI shall notify both Depositor and Preferred
Beneficiary that there is a dispute to be resolved pursuant to the Section 7.4.
Subject to Section 5.2 of this Agreement, DSI will continue to store the Deposit
Materials without release pending (a) joint instructions from Depositor and
Preferred Beneficiary; (b) dispute resolution pursuant to Section 7.4; or (c)
order from a court of competent jurisdiction.
4.4 RELEASE OF DEPOSIT. If DSI does not receive Contrary Instructions from
the Depositor, DSI is authorized to release, and shall release, the Deposit
Materials to the Preferred Beneficiary or, if more than one beneficiary is
registered to the deposit, to release a copy of the Deposit Materials to the
Preferred Beneficiary. However, DSI is entitled to receive any fees due DSI
before making the release. Any copying expenses will be chargeable to Preferred
Beneficiary. Upon any such release, the escrow arrangement will terminate as it
relates to the Depositor and Preferred Beneficiary involved in the release.
4.5 RIGHT TO USE FOLLOWING RELEASE. Unless otherwise provided in the License
Agreement, upon release of the Deposit Materials in accordance with this Article
4, Preferred Beneficiary shall have the right to use the Deposit Materials for
the sole purpose of continuing the benefits afforded to Preferred Beneficiary by
the License Agreement. Preferred Beneficiary shall be obligated to maintain the
confidentiality of the released Deposit Materials.
ARTICLE 5 - TERM AND TERMINATION
5.1 TERM OF AGREEMENT. The initial term of this Agreement is for a period of
one (1) year. Thereafter, this Agreement shall automatically renew from
year-to-year unless (a) Depositor and Preferred Beneficiary jointly instruct DSI
in writing that the Agreement is terminated; (b) DSI instructs Depositor and
Preferred Beneficiary in writing within ninety (90) days after its renewal date
that the Agreement is terminated for nonpayment in accordance with Section 5.2;
or (c) DSI provides Depositor and Preferred Beneficiary ninety (90) days written
notice of its intent to terminate this Agreement. If the Deposit Materials are
subject to another escrow agreement with DSI, DSI reserves the right, after the
initial one year term, to adjust the anniversary date of the Agreement to match
the then prevailing anniversary date of such other escrow arrangements.
5.2 TERMINATION FOR NONPAYMENT. In the event of the nonpayment of fees owed
to DSI, DSI shall provide written notice of delinquency to the parties to this
Agreement affected by such delinquency. Any such party shall have the right to
make the payment to DSI to cure the default. If the past due payment is not
received in full by DSI within one (1) month of the date of such notice, then at
any time thereafter DSI shall have the right to terminate this Agreement to the
extent it relates to the delinquent party by sending written notice of
termination to such affected
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parties. DSI shall have no obligation to take any action under this Agreement so
long as any payment due to DSI remains unpaid.
5.3 DISPOSITION OF DEPOSIT MATERIALS UPON TERMINATION. Subject to the
foregoing termination provisions, and upon termination of this Agreement, DSI
shall destroy, return or otherwise deliver the Deposit Materials in accordance
with Depositor's instructions. If there are no instructions, DSI may, at its
sole discretion, destroy the Deposit Materials or return them to Depositor. DSI
shall have no obligation to destroy or return the Deposit Materials if the
Deposit Materials are subject to another escrow agreement with DSI or have been
released to the Preferred Beneficiary in accordance with Section 4.4.
5.4 SURVIVAL OF TERMS FOLLOWING TERMINATION. Upon termination of this
Agreement, the following provisions of this Agreement shall survive:
(a) The obligations of confidentiality with respect to the Deposit
Materials;
(b) The obligations to pay DSI any fees and expenses due;
(c) The provisions of Article 7; and
(d) Any provisions in this Agreement which specifically state they
survive the termination of this Agreement.
ARTICLE 6 - DSI'S FEES
6.1 FEE SCHEDULE. DSI is entitled to be paid its standard fees and expenses
applicable to the services provided, as set forth on Exhibit F. DSI shall notify
the party responsible for payment of DSI's fees at least sixty (60) days prior
to any increase in fees; provided that any such increase shall not go into
effect until the end of the then-current term of this Agreement. For any service
not listed on Exhibit F, DSI will provide a quote prior to rendering the
service, if requested.
6.2 PAYMENT TERMS. DSI shall not be required to perform any service,
including release of any Deposit Materials under Article 4, unless the payment
for such service and any outstanding balances owed to DSI are paid in full. Fees
are due within thirty (30) days following receipt of (a) an invoice following a
signed contract or (b) receipt of the Deposit Materials whichever is earliest.
If invoiced fees are not paid when due, DSI may terminate this Agreement in
accordance with Section 5.2.
ARTICLE 7 - LIABILITY AND DISPUTES
7.1 RIGHT TO RELY ON INSTRUCTIONS. DSI may act in reliance upon any
instruction, instrument, or signature reasonably believed by DSI to be genuine.
DSI may assume that any officer of a party to this Agreement who gives any
written notice, request, or instruction has the authority to do so. DSI will not
be required to inquire into the truth or evaluate the merit of any statement or
representation contained in any notice or document. DSI shall not be responsible
for failure to act as a result of causes beyond the reasonable control of DSI.
7.2 INDEMNIFICATION.
(a) Depositor agrees to indemnify, defend and hold harmless DSI from
any and all claims, actions, damages, arbitration fees and
expenses, costs, attorney's fees and other liabilities
("Liabilities") incurred by DSI relating in any way to Depositor's
actions, omissions, instructions or representations in connection
with this
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Agreement except to the extent such Liabilities arise out of or in
connection with DSI's grossly negligent, intentional or willful
actions, omissions, instructions or representations in connection
with this Agreement.
(b) Preferred Beneficiary agrees to indemnify, defend and hold
harmless DSI from any and all Liabilities incurred by DSI relating
in any way to Preferred Beneficiary's actions, omissions,
instructions or representations in connection with this Agreement,
except to the extent such Liabilities arise out of DSI's grossly
negligent, intentional or willful actions, omissions, instructions
or representations in connection with this Agreement.
(c) DSI agrees to indemnify, defend and hold harmless Depositor and,
if applicable, Preferred Beneficiary against any and all
Liabilities arising from (i) intellectual property infringement
relating to the performance of services hereunder by DSI, except
to the extent such Liabilities arise out of the grossly negligent,
intentional or willful actions, omissions, instructions or
representations of Depositor and/or Preferred Beneficiary, as
applicable; and (ii) a breach of any of the obligations of
confidentiality of DSI.
7.3 LIMITATION OF LIABILITY. Except for claims based on or arising out of
breaches of the obligations set forth in Article 2 or acts of gross negligence,
or personal injury or property damage claims, with respect to which liability
will not be limited pursuant to this Section 7.3, in no event will (a) DSI,
Depositor or Preferred Beneficiary be liable for any incidental, indirect,
special, exemplary, punitive or consequential damages, including, but not
limited to, damages (including loss of data, revenue, and/or profits) costs or
expenses (including legal fees and expenses), whether foreseeable or
unforeseeable, that may arise out of or in connection with this Agreement; and
(b) the liability of each of DSI, Depositor or Preferred Beneficiary hereunder
exceed ten times the fees paid under this Agreement. Notwithstanding the
foregoing, (i) the provisions of this Section 7.3 shall not be deemed to affect,
modify or reduce the indemnification obligations set forth in Section 7.2 above;
and (ii) nothing contained in this Section 7.3 or otherwise set forth in this
Agreement shall limit, or be interpreted to limit, the amount or type of damages
that may be payable to a third party, or between DSI, Depositor and Preferred
Beneficiary by virtue of a cross claim or impleader, arising out of claims by
such third party.
7.4 DISPUTE RESOLUTION. Any dispute relating to or arising from this
Agreement shall be submitted to, and settled by arbitration in accordance with
the Commercial Rules of the American Arbitration Association. Three arbitrators
shall be selected. Depositor and Preferred Beneficiary shall each select one
arbitrator and the two chosen arbitrators shall select the third arbitrator, or
failing agreement on the selection of the third arbitrator, the American
Arbitration Association shall select the third arbitrator. Unless otherwise
agreed by Depositor and Preferred Beneficiary, arbitration will take place in
Chicago, Illinois. Any court having jurisdiction over the matter may enter
judgment on the award of the arbitrator. Service of a petition to confirm the
arbitration award may be made by First Class mail or by commercial express mail,
to the attorney for the party or, if unrepresented, to the party at the last
known business address.
7.5 CONTROLLING LAW. This Agreement is to be governed and construed in
accordance with the laws of the State of Illinois, without regard to its
conflict of law provisions.
7.6 NOTICE OF REQUESTED ORDER. If any party intends to obtain an order from
the arbitrator or any court of competent jurisdiction, which may direct DSI to
take, or refrain from taking any action, that party shall:
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(a) Give DSI at least two (2) business days prior notice of the
hearing;
(b) Include in any such order that, as a precondition to DSI's
obligation, DSI be paid in full for any past due fees and be paid
for the reasonable value of the services to be rendered pursuant
to such order; and
(c) Ensure that DSI not be required to deliver the original (as
opposed to a copy) of the Deposit Materials if DSI may need to
retain the original in its possession to fulfill any of its other
escrow duties.
ARTICLE 8 GENERAL PROVISIONS
8.1 ENTIRE AGREEMENT. This Agreement, which includes the Acceptance Form and
Exhibits A, B, C, D and E described herein, embodies the entire understanding
among all of the parties with respect to its subject matter and supersedes all
previous communications, representations or understandings, either oral or
written. DSI is not a party to the License Agreement between Depositor and
Preferred Beneficiary and has no knowledge of any of the terms or provisions of
any such License Agreement. DSI's only obligations to Depositor or Preferred
Beneficiary are as set forth in this Agreement. No amendment or modification of
this Agreement shall be valid or binding unless signed by all the parties
hereto, except that Exhibit A need not be signed by DSI, Exhibit B need not be
signed by Preferred Beneficiary, Exhibit C need not be signed by any party,
Exhibit D need not be signed by Preferred Beneficiary or DSI and the Acceptance
Form need only be signed by the parties identified therein.
8.2 NOTICES. All notices, invoices, payments, deposits and other documents
and communications shall be given to the parties at the addresses specified in
the attached Exhibit C and Acceptance Form. It shall be the responsibility of
the parties to notify each other as provided in this Section in the event of a
change of address. The parties shall have the right to rely on the last known
address of the other parties. Any correctly addressed notice or last known
address of the other parties that is relied on herein that is refused,
unclaimed, or undeliverable because of an act or omission of the party to be
notified as provided herein shall be deemed effective as of the first date that
said notice was refused, unclaimed, or deemed undeliverable by the postal
authorities by mail, through messenger or commercial express delivery services.
Unless otherwise provided in this Agreement, all documents and communications
may be delivered by First Class mail.
8.3 SEVERABILITY. In the event any provision of this Agreement is found to be
invalid, voidable or unenforceable, the parties agree that unless it materially
affects the entire intent and purpose of this Agreement, such invalidity,
voidability or unenforceability shall affect neither the validity of this
Agreement nor the remaining provisions herein, and the provision in question
shall be deemed to be replaced with a valid and enforceable provision most
closely reflecting the intent and purpose of the original provision.
8.4 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of the successors and assigns of the parties. However, DSI
shall have no obligation in performing this Agreement to recognize any successor
or assign of Depositor or Preferred Beneficiary unless DSI receives clear,
authoritative and conclusive written evidence of the change of parties.
8.5 WAIVER. Any term of this Agreement may be waived by the party entitled
to the benefits thereof, provided that any such waiver must be in writing and
signed by the party against whom the enforcement of the waiver is sought. No
waiver of any condition, or breach of any provision of this
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Agreement, in any one or more instances, shall be deemed to be a further or
continuing waiver of such condition or breach. Delay or failure to exercise any
right or remedy shall not be deemed the waiver of that right or remedy.
8.6 REGULATIONS Depositor and Preferred Beneficiary are responsible for and
warrant compliance with all applicable laws, rules and regulations, including
but not limited to customs laws, import, export, and re-export laws and
government regulations of any country from or to which the Deposit Materials may
be delivered in accordance with the provisions of this Agreement.
8.7 ATTORNEY'S FEES. In any litigation or other proceeding by which one party
either seeks to enforce its rights under this Agreement (whether in contract,
tort, or both) or seeks declaration of any rights or obligations under this
Agreement, the prevailing party who has proven in court by court decree,
judgment or arbitrator's decision that the other party has materially breached
its representation and/or warranty under this Agreement shall be awarded
reasonable attorneys' fees, together with any costs and expenses, to resolve the
dispute and to enforce final judgement.
8.8 NO THIRD PARTY RIGHTS. This Agreement is made solely for the benefit of
the Parties to this Agreement and their respective permitted successors and
assigns, and no other person or entity shall have or acquire any right by virtue
of this Agreement unless otherwise agreed to by all the parties hereto.
8.9 AUTHORITY TO SIGN. Each of the Parties herein represents and warrants
that the execution, delivery, and performance of this Agreement has been duly
authorized and signed by a person who meets statutory or other binding approval
to sign on behalf of its business organization as named in this Agreement.
8.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
Orbitz LLC DSI Technology Escrow Services, Inc.
By: /s/ Rick Weber By: /s/ Basoor S. Prabhuswamy
----------------------------------- ---------------------------------
Name: RICK WEBER Name: BASOOR S. PRABHUSWAMY
--------------------------------- -------------------------------
Title: VP BUSINESS SERVICES Title: CONTRACT ADMINISTRATOR
-------------------------------- ------------------------------
Date: SEP. 3, 2002 Date: 9/18/02
--------------------------------- -------------------------------
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EXHIBIT A
MATERIALS TO BE DEPOSITED
Account Number _______________
Depositor represents to Preferred Beneficiary that Deposit Materials delivered
to DSI shall consist of the following:
-------------------------------------- ----------------------------------------
Depositor Preferred Beneficiary
By: By:
----------------------------------- -------------------------------------
Name: Name:
--------------------------------- -----------------------------------
Title: Title:
-------------------------------- ----------------------------------
Date: Date:
-------------------------------- -----------------------------------
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EXHIBIT B
DESCRIPTION OF DEPOSIT MATERIALS
Depositor Company Name__________________________________________________________
Account Number__________________________________________________________________
Product Name___________________________________________Version__________________
(PRODUCT NAME WILL APPEAR AS EXHIBIT B NAME ON ACCOUNT HISTORY REPORT)
DEPOSIT MATERIAL DESCRIPTION:
<Table>
<Caption>
QUANTITY MEDIA TYPE & SIZE LABEL DESCRIPTION OF EACH SEPARATE ITEM
<S> <C> <C>
Disk 3.5" or
DAT tape mm
CD-ROM
Data cartridge tape
TK 70 or ___ tape
Magnetic tape_
Documentation
Other___________________
</Table>
PRODUCT DESCRIPTION:
Environment_____________________________________________________________________
DEPOSIT MATERIAL INFORMATION:
Is the media or are any of the files encrypted? Yes/No If yes, please include
any passwords and the decryption tools.
Encryption tool name____________________________________Version
Hardware required_______________________________________________________________
Software required_______________________________________________________________
Other required information______________________________________________________
<Table>
<S> <C>
I certify for DEPOSITOR that the above described DSI has inspected and accepted the above
Deposit Materials have been transmitted to DSI: materials (ANY EXCEPTIONS ARE NOTED ABOVE):
Signature Signature
---------------------------------------- -------------------------------------------
Print Name Print Name
--------------------------------------- ------------------------------------------
Date Date Accepted
--------------------------------------------- ---------------------------------------
Exhibit B#
------------------------------------------
</Table>
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EXHIBIT C
DESIGNATED CONTACT
Master Number _________________
<Table>
<Caption>
NOTICES, DEPOSIT MATERIAL RETURNS AND INVOICES TO DEPOSITOR SHOULD BE ADDRESSED
COMMUNICATIONS TO DEPOSITOR SHOULD BE TO:
ADDRESSED TO:
<S> <C>
Company Name: Orbitz, LLC (same address)
Address: 200 S. Wacker Drive, Ste 1900
Chicago, IL 60606 Contact: Accounts Payable
Designated Contact:
Telephone:_____________________________ P.O.#, if required:____________________
Facsimile: 312-894-5001
Verification Contact: General Counsel
Telephone/E-mail: 312-894-4755
</Table>
With a copy to:
Orbitz, LLC
200 W. Wacker Drive, Suite 1900
Chicago, IL 60606
Attn: General Counsel
Requests to change the designated contact should be given in writing by the
designated contact or an authorized employee.
<Table>
<Caption>
DSI HAS TWO OPERATIONS CENTERS TO ALL INVOICE FEE REMITTANCES TO DSI SHOULD BE
SERVICE YOU. AGREEMENTS, DEPOSIT ADDRESSED TO:
MATERIALS AND NOTICES TO DSI SHOULD
BE ADDRESSED TO:
(SELECT LOCATION)
<S> <C>
8 Attn: Client Services DSI Technology Escrow Services, Inc.
9265 Sky Park Court, Suite 202 PO Box 45156
San Diego, CA 92123 San Francisco, CA 94145-0156
Telephone: (858) 499-1600
Facsimile: (858) 694-1919
E-mail: clientservices@dsiescrow.com
or
Attn: Client Services
2100 Norcross Parkway, Suite 150
Norcross, GA 30071 Date: _________________
Telephone: 770-239-9200
Facsimile: 770-239-9201
E-MAIL: clientservices@dsiescrow.com
</Table>
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EXHIBIT D
NAME OF INITIAL ACCOUNT
Account Number_____________________
Orbitz, LLC ("Depositor") has entered into a Master Preferred Escrow Agreement
with DSI Technology Escrow Services, Inc. ("DSI"). Pursuant to that Agreement,
Depositor may deposit certain Deposit Materials with DSI.
The initial account will be referenced by the following name:
_____________________________________________________________
Orbitz LLC
By:
-----------------------------
Name:
-----------------------------
-----------------------------
-----------------------------
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EXHIBIT E
ADDITIONAL ESCROW ACCOUNT
TO MASTER PREFERRED ESCROW AGREEMENT
Master Number_________________
New Account Number_________________
Orbitz, LLC ("Depositor") has entered into a Master Preferred Escrow Agreement
with DSI Technology Escrow Services, Inc. ("DSI"). Pursuant to that Agreement,
Depositor may deposit certain Deposit Materials with DSI.
Depositor desires that new Deposit Materials be held in a separate account and
be maintained separately from the initial account. By execution of this Exhibit
E, DSI will establish a separate account for the new Deposit Materials. The new
account will be referenced by the following name:__________________________.
Depositor hereby agrees that all terms and conditions of the existing Master
Preferred Escrow Agreement previously entered into by Depositor and DSI will
govern this account. The termination or expiration of any other account of
Depositor will not affect this account.
Orbitz LLC DSI Technology Escrow Services, Inc.
By:
---------------------------------- ------------------------------------
Name: Name:
-------------------------------- ----------------------------------
Title:
---------------------------------- ---------------------------------
Date: Date:
-------------------------------- ----------------------------------
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PREFERRED BENEFICIARY
ACCEPTANCE FORM
Account Number__________________________
Depositor, Preferred Beneficiary and DSI Technology Escrow Services, Inc.
("DSI"), hereby acknowledge that____________________________ is the Preferred
Beneficiary referred to in the Master Preferred Escrow Agreement effective
August __, 2002 with DSI as the escrow agent and Orbitz, LLC as the Depositor.
Preferred Beneficiary hereby agrees to be bound by all provisions of such
Agreement.
Depositor hereby enrolls Preferred Beneficiary to the following account(s):
ACCOUNT NAME ACCOUNT NUMBER
-------------------------------------- ------------------------------------
-------------------------------------- ------------------------------------
-------------------------------------- ------------------------------------
Notices and communications to Preferred
Beneficiary should be addressed to: Invoices should be addressed to:
Company Name:
----------------------------- ------------------------------------
Address:
---------------------------------- ------------------------------------
---------------------------------- ------------------------------------
---------------------------------- ------------------------------------
Designated Contact: Contact:
----------------------- ----------------------------
Telephone:
-------------------------------- ------------------------------------
Facsimile: P.O.#, if required:
-------------------------------- -----------------
E-mail:
----------------------------------
------------------------------------------ ------------------------------------
Preferred Beneficiary Depositor
By: By:
--------------------------------------- ---------------------------------
Name: Name:
------------------------------------- -------------------------------
Title: Title:
------------------------------------ ------------------------------
Date: Date:
------------------------------------- -------------------------------
DSI TECHNOLOGY ESCROW SERVICES, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Date:
-------------------------------
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