Software License Agreement [Amendment] - Orbitz LLC and ITA Software Inc.
AMENDMENT TO SOFTWARE LICENSE AGREEMENT
AMENDMENT, made as of the 19th day of June, 2003, to that certain
Amended and Restated Software License Agreement (the "Agreement"), dated as of
May 15, 2002 by and between Orbitz, LLC, ("Orbitz") and ITA Software, Inc.
("ITA"). All capitalized terms used but not defined herein shall have the
respective meanings set forth in the Agreement.
WHEREAS, the Agreement provides for the license by Orbitz of the
Licensed Software;
WHEREAS, the Licensed Software, as defined in the Agreement and as
licensed by Orbitz, includes the Domestic Version but not the International
Version (as such terms are defined below);
WHEREAS, Orbitz wishes to expand the scope of its license to include
the International Version as well as the Domestic Version;
NOW, THEREFORE, in consideration of the foregoing the parties hereby
agree as follows:
1. DEFINITIONS
The following definitions are hereby added to the Agreement:
"International Location" means any country or territory other than the
United States, Puerto Rico, the US Virgin Islands and Canada.
"International PNR" means a PNR that includes an origin, stop or
destination in an International Location. An International PNR "created" shall
be deemed to refer to all International PNRs created, whether or not
subsequently cancelled; I.E., "gross PNRs", not "net PNRs".
"International Production Date" means the earlier of (i) the date
Orbitz begins using the International Version in full commercial production
(excluding, however, the use of the International Version in a "beta" or similar
testing or evaluation phase, in connection with which Orbitz may make the
International Version available to a limited number of Online Users) or (ii)
October 1, 2003.
"International Version" means the version of the Licensed Software
that has the capability for searching flights and pricing itineraries where such
flights and itineraries include an origin, stop or destination in an
International Location.
"License Quarter" means each calendar quarter during a License Year,
with the first such License Quarter beginning on October 1, 2003.
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2. DEFINITION OF LICENSED SOFTWARE
The definition of "Licensed Software" in the Agreement is hereby
amended so as to include the International Version.
3. FEES AND EXPENSES
The following fees and expenses will apply to Orbitz's use of the
International Version:
(a) PER-PNR FEE. Beginning on the International Production Date,
Orbitz will pay a license fee (the "International License Fee") for the
International Version of $[***] per International PNR created.
(b) MINIMUM LICENSE FEE. The International License Fee will be
subject to a minimum of $[***] per License Year, with the first such License
Year beginning on October 1, 2003.
(c) PAYMENT TERMS. The Minimum License Fee will be payable in
equal quarterly installments of $[***], in advance, with the first such payment
due on October 1, 2003. In addition, within 30 days after the end of each
License Quarter, Orbitz will certify to ITA the number of International PNRs
created during such License Quarter and the cumulative number of International
PNRs created during the current License Year. In the event that, at the end of
any License Quarter, the International License Fee (calculated pursuant to
paragraph (a) above) that would apply to the cumulative number of International
PNRs generated during such License Year exceeds the cumulative Minimum License
Fees (I.E., during the first License Year, $[***] multiplied by the number of
License Quarters then elapsed in such License Year), then Orbitz will pay ITA,
simultaneously with such certification, an amount equal to the excess of the
International License Fee, as so calculated, over the total amount actually paid
License Year-to-date by Orbitz hereunder. The obligation to make Minimum License
Fee payments during a License Year shall be suspended at such time as the
International License Fee with respect to such License Year equals or exceeds
$[***].
(d) DOMESTIC PRICING UNAFFECTED. The price provisions applicable
to the Domestic Version set forth in Sections 8(a) through (d) of the Agreement
will not be affected by the provisions of this Section 3 of this Amendment.
4. TERM AND TERMINATION OF THIS AMENDMENT
The initial term of this Amendment shall be two years from October 1,
2003. Thereafter, it shall remain in force until terminated by either party upon
30 days' prior written notice to the other party, and the minimum International
License Fee payable for the last full or partial License Year shall be equal to
$[***] per quarter, multiplied by the number of prorated License Quarters in
such License Year.
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.
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In addition, Orbitz will have the right, on 30 days' written notice,
to terminate this Amendment, for any reason, at any time prior to the
International Production Date. In such event, (i) Orbitz will cease use of the
International Version on or prior to the effective date of termination, (ii) all
modifications to the Agreement effected hereby will be rescinded and this
Amendment will be of no force or effect; and (iii) in the event Orbitz
subsequently wishes to license the International Version, ITA will make it
available on then-standard prices (ITA's current standard price for the
International Version is $[***] per PNR).
5. OPERATIONS
The parties' current expectation is that Orbitz will operate the
computers running the International Version, and that ITA will assist Orbitz in
the set-up, installation and operation of the International Version. In such
event, ITA will work with Orbitz on an implementation plan for the International
Version, and ITA personnel will assist in executing such plan, so as to insure
an expeditious implementation of the International Version. ITA will invoice
Orbitz, and Orbitz will pay in accordance with Section 8(i) of the Agreement,
for the services of ITA's operations department in rendering such assistance.
Such services will be invoiced at ITA's standard rate (presently $[***] per
hour). In the event the parties determine that ITA, and not Orbitz, should
operate the computers running the International Version, then the parties will
negotiate an amendment to the SLA providing for the financial terms and service
levels that will apply to such operations services.
6. EFFECT ON AGREEMENT
Except as specifically amended hereby, the Agreement shall remain in
all respects in full force and effect.
IN WITNESS WHEREOF, the parties have hereunto set their hands and
seals as of the date first above written.
ORBITZ, LLC
By: /s/ Steve Hafner
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Name: Steve Hafner
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Title: EVP
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ITA SOFTWARE, INC.
By: /s/ Jeremy Wertheimer
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Jeremy Wertheimer, President
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*** Certain information on this page has been omitted and filed separately with
the Commission. Confidential treatment has been requested with respect to
the omitted portions.