Software Maintenance, Data Services and Operations Service Level Agreement - ITA Software Inc. and Orbitz LLC
SOFTWARE MAINTENANCE, DATA SERVICES AND OPERATIONS SERVICE LEVEL AGREEMENT
SOFTWARE MAINTENANCE, DATA SERVICES AND OPERATIONS SERVICE LEVEL AGREEMENT
("Agreement") entered into as of the 1st day of January, 2001, as amended on
May 15, 2002, by and between ITA Software, Inc. ("Licensor") and Orbitz, LLC
("Licensee").
1. INTRODUCTION
This Software Maintenance, Data Services and Operations Service Level Agreement
covers standards for the provision of software maintenance, data management and
support, and operations by Licensor to Licensee, in connection with that certain
Software License Agreement dated as of July 1, 2000 between Licensee and
Licensor (the "License Agreement"). The License Agreement terminates on
September 30, 2004 (if not renewed) and this Agreement, and the pricing
contained herein, has been structured to run concurrently with the License
Agreement. Capitalized terms used but not defined herein will have the meaning
ascribed thereto in the License Agreement.
In accordance with the License Agreement, Licensor has granted to Licensee a
license to use the Licensed Software (as defined in the License Agreement) for
the purpose of enabling End Users (as defined in the License Agreement) to
obtain information and to make decisions about airline routes and schedules,
airfares and availability, as well as to search for low airfares, at Licensee's
World Wide Web site currently located at www.orbitz.com. Licensee will operate a
portion of the Licensed Software at its location in Chicago, Illinois (the
"Licensee Facility", which shall include any other location to which Licensee
may move its operations center in the future). To support Licensee, Licensor
will: (i) provide maintenance and support for the Licensed Software, pursuant to
Section 2 of this Agreement ("Maintenance Services"), (ii) provide data and data
support relating to the Licensed Software, pursuant to Section 3 of this
Agreement ("Data Services") and (iii) provide operations to effect the
Maintenance Services and the Data Services, pursuant to Section 4 of this
Agreement ("Operations Services").
2. MAINTENANCE SERVICES
2.1 SCOPE OF SERVICES
(a) The following are the Maintenance Services that will be provided by Licensor
in connection with the Licensed Software:
Licensor shall:
(i) develop and provide corrections, changes, or workarounds
("Corrections") for any defects, errors, or malfunctions in the
Licensed Software, including, but not limited to, any
nonconformities with the Specifications (as defined below)
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(collectively, "Defects"), discovered by Licensee or Licensor, on
a timely basis, given the nature and scope of the Defect;
(ii) provide to Licensee all improvements, modifications and
enhancements ("Improvements", which term will not include
improvements, modifications or enhancements (i) which contain
significant new or improved functionalities or (ii) which are
developed by Licensor specifically for its other customers which
are specific to the systems or software of such other customers
and which Licensor does not have the right to license to its
licensees) to the Licensed Software which Licensor shall make or
acquire from time to time and which Licensor makes available to
its licensees generally; and
(iii) provide Licensee any upgrade releases ("Upgrade Releases") to the
Licensed Software and all new Versions and Releases of the
Licensed Software, which Licensor makes available to its
licensees generally; provided, however, that if any such Version
or Release contains significant new or improved functionalities,
Licensor shall have the right to make such Version or Release
available to Licensee only upon the payment of additional license
fees, or upon such other terms, as the Licensor requires of its
licensees generally therefor. "Versions" shall be designated by a
change in the digits to the left of the decimal point, and
"Releases" shall be designated by a change in the digits to the
right of the decimal point.
As used herein, "Specifications" means the functionality of the Licensed
Software described in Exhibit A to the License Agreement.
(b) Licensee shall implement all Corrections that do not materially alter or
diminish the functionality of the Licensed Software as described in the
applicable Documentation and Specifications. Licensee's failure to do so within
90 days after receipt of notice from Licensor regarding the availability of such
Corrections shall eliminate Licensor's obligation to provide Maintenance
Services until such Corrections are implemented. In addition, any modifications
to Licensor-provided configuration files or alteration from Licensor's
recommended use of configuration options shall eliminate Licensor's obligation
to provide Corrections or other Maintenance Services for that portion of the
software affected thereby, unless such modifications by Licensee were
occasioned, following consultation between Licensee and Licensor, by Licensor's
failure to modify or correct the Licensed Software as required hereunder or
under the License Agreement.
(c) In the event that changes in industry-standard practices and/or data formats
(such as ATPCO file formats, ATPCO processing, SSIM schedule formats and
government mandates regarding taxes and passenger facility charges (PFCs))
prevent the Licensed Software from functioning as specified in the License
Agreement or Specifications, the Licensor shall deliver updates to the Licensed
Software to permit operation of the Licensed Software in a manner equal to the
functionality described in the License Agreement and Specifications. Such
updates will be considered "Improvements" for the purposes of this Section 2,
and Licensor shall deliver such Improvements to Licensee
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within a reasonable time prior to the effective date of such industry change so
that such Improvements may be implemented by the effective date of such change.
Licensee shall implement any Improvements delivered pursuant to this paragraph
(c) as soon as practicable after delivery thereof.
(d) Licensor will provide Licensee any revisions to the existing Documentation
developed or necessary to reflect all Corrections, Improvements, Upgrade
Releases, Versions or Releases for the Software.
(e) All computer programs delivered pursuant to the Maintenance Services shall
be considered "Licensed Software" and subject to all the terms and conditions of
the License Agreement.
(f) Licensor shall provide Maintenance Services directly to Licensee but not to
End Users.
(g) Licensor shall at all times provide Maintenance Services for at least the
current and one (1) previous Release of the Licensed Software; provided, that
Licensor's obligation to maintain a previous Release will terminate 120 days
after the current Release was made available to Licensee; and provided further,
however, that in the case of Improvements delivered pursuant to paragraph (c),
Licensor will not be obligated to provide Maintenance Services with respect to
any prior Release which does not incorporate the industry changes comprised in
such Improvements.
2.2 MAINTENANCE
2.2.1 BASIC MAINTENANCE
The Licensor shall maintain a technical support entry point in Massachusetts,
identified by a dedicated phone number, fax number and e-mail address, which
will be staffed by knowledgeable employees capable of providing technical
assistance regarding the Licensed Software, its functionality, databases,
operations, utilities and supporting documentation. Such telephone or e-mail
assistance will be available to the Licensee on a daily basis during regular
working hours (9:00 a.m. to 6:00 p.m. Eastern time Monday through Friday). This
technical support entry point will also coordinate problem resolution and keep
the Licensee apprised of efforts to remedy any problem situation until complete
restoration of the service. First line of support will be the Licensee's Help
Desk, who will contact and escalate problem to Licensor when necessary.
2.2.2 ENHANCED MAINTENANCE
Enhanced Maintenance will comprise the following: the Licensor shall provide
on-call coverage outside the technical support working hours described above, 24
hours/day, 7 days/week, to support urgent problem resolutions of Severity 1 and
2 Problems (as
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defined in Section 2.3); provided that during the 72 hours prior to major
launches of the site (which will not occur more than four times per year)
Licensee may report problems which relate to such launch during non-business
hours even though such problems are not otherwise within the definitions of
Severity 1 or Severity 2. This on-call coverage will be provided via a dedicated
pager number, carried by knowledgeable employees of the Licensor. During normal
working hours, problem reporting will be through the Basic Maintenance entry
point, but the Licensor's response shall be in accordance with Enhanced
Maintenance service standards. In addition, upon request of Licensee, Licensor
shall provide on-site support within twenty-four (24) hours or within a mutually
agreed time frame between the parties where telephone support fails to correct
any Defect within the target time period set forth in Section 2.3. In such
event, Licensor shall provide qualified personnel to work exclusively to correct
such Defects until the same is corrected.
2.3 PROBLEM CLASSIFICATION
Licensor shall respond to and use its reasonable commercial efforts to resolve
problems in accordance with the severity levels indicated below, which severity
levels shall be determined in good faith by Licensee.
<Table>
<Caption>
SEVERITY PROBLEM RESOLUTION
LEVEL DESCRIPTION RESPONSE TIME TARGET
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
1 Mission-Critical Impact-
Licensed Software or System [***] [***]
down
2 High Systems Impact
[***] [***]
3 Business Productivity Impact
[***] [***]
4 Minor Service Impact [***] [***]
</Table>
In addition to the foregoing, in the case of Severity Level 2 errors, Licensor
will use reasonable commercial efforts to acknowledge receipt of Licensee's
error report within 30 minutes; and in the case of Severity 3 and 4 errors
(which as set forth above may only be reported during normal business hours),
Licensor will use reasonable commercial efforts to acknowledge receipt of
Licensee's error report within 60 minutes (or, in the case of error reports
received during the last 60 minutes of the business day, within the first 60
minutes of the following business day).
Severity 1 - Mission-Critical Impact:
The system operating the Licensed Software is rendered inoperable due to system
software failure and thus cannot perform and return responses to fare/schedule
queries. Under Enhanced Maintenance, all resources shall be applied 24 hours/7
days a week until the problem is resolved; provided that in the event that
Licensee's system is "rolled back"
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and functionality is returned to a level such that it is no longer within the
definition of Severity 1 (although functionality may still be down, corrupted or
severely degraded), then the problem will be reclassified as a Severity 2
problem. Initial response and problem resolution target will be according to the
chart set forth above.
Severity 2 -High Systems Impact:
Availability feed from the Atlanta Facility is interrupted for a period
exceeding two hours, or availability information related to more than four
carriers is interrupted for a period exceeding four hours. For Enhanced
Maintenance, resources shall be applied 24 hours/7 days a week until the problem
is resolved. Initial response and problem resolution target will be according to
the chart set forth above.
[***]
[***]
Notwithstanding the foregoing definitions, problems caused by or arising from
the following will not be considered "problems" for the purposes hereof and will
not be subject to Licensor's obligation to provide Maintenance Services: (i)
failure of a Data Provider (as defined in Section 3.1(d)) to provide data in a
timely fashion; (ii) failure of telecommunications hardware or equipment; (iii)
failure or unavailability of the Worldspan system; (iv) failure of an airline
carrier to provide availability information; (v) Force Majeure (as defined in
Section 7.4).
In the event Licensee has elected not to receive Enhanced Maintenance, then the
response times and problem resolution targets (i.e., the hours during which
Licensor will be obligated to work on problem resolution) will be restricted to
normal working hours (9:00 am to 6:00 pm EST, Monday through Friday).
2.4 STANDARD OPERATING PROCEDURES
The procedures for reporting, diagnosing, tracking and responding to problems
are set forth in Licensor's standard operating procedures for Licensee ("SOP"),
which is attached to this Agreement as APPENDIX A, as it may be amended by the
parties from
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time to time; provided, that Licensor will give Licensee reasonable prior notice
of any anticipated major changes to the SOP.
2.5 CHANGE MANAGEMENT
The parties shall develop a mutually agreeable change management process. At a
minimum, such process shall require Licensor to notify Licensee and obtain
Licensee's approval prior to implementing any material changes to the services
provided by Licensor hereunder or any changes which could materially affect
Licensee's use of the Licensed Software as contemplated in this Agreement and
the License Agreement.
2.6 MAINTENANCE STANDARDS
Licensor shall use its best commercially reasonable efforts to meet the response
times and resolution targets set forth in this Section 2.
3. DATA SERVICES
3.1 SCOPE OF SERVICES
(a) Licensor maintains its data center in the Exodus Communications facility in
Waltham, Massachusetts (the "Waltham Facility", which shall include any other
location to which Licensor may move its data center in the future), from which
Licensor manages data feeds for schedule and faring data and provides such data
to Licensee for use with the Licensed Software. Licensor currently receives fare
data from Airline Tariff Publishing Company ("ATPCO") and schedule data from
Innovata, LLC ("Innovata"). Licensor also receives availability data through the
Worldspan GDS ("Worldspan") and maintains an availability cache at the Waltham
Facility for the purpose of providing availability data to its licensees.
(b) In response to a specific request from Licensee, Licensor has established a
facility at Worldspan in Atlanta, Georgia (the "Atlanta Facility", which shall
include any other location to which Licensor may in the future move its data
center for receiving availability data and operating an availability cache,
provided that Licensee shall not be obligated to pay the monthly fixed charge
set forth in Section 6.4.1 in the event such facility is moved from Atlanta,
Georgia), at which Licensor receives availability data and operates an
availability cache for the provision of availability information to the Licensed
Software. Licensor provides availability data from such availability cache to
another availability cache (which is part of the Licensed Software) operated at
the Licensee Facility. Licensor will also utilize the Waltham Facility as a
backup for availability data in the event the Atlanta Facility is unable to
communicate directly with the Licensee Facility.
(c) The operation of the Atlanta Facility and the Waltham Facility (including
all software running in such facilities) are the sole responsibility of Licensor
and the operation of the Licensee Facility (including the Licensed Software) is
the sole responsibility of Licensee.
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(d) As part of the data management services provided hereunder, Licensor will
(i) receive and manage downloads of fare and schedule data from ATPCO and
Innovata, respectively (or in each case from such other commercially reasonable
industry accepted sources as the parties may mutually agree upon, referred to
herein (together with Worldspan) as "Data Providers"), (ii) process such data
such that it is in a form suitable for use with the Licensed Software, (iii)
receive availability data from Worldspan and maintain the availability cache at
the Atlanta Facility (and, for backup purposes, at the Waltham Facility), and
(iv) transmit such availability, fare and schedule data to the Licensee Facility
as frequently as it receives such data from the relevant Data Providers. In the
event that Licensee desires Licensor to change a particular Data Provider for
purposes of providing services hereunder, Licensor shall consult with Licensee
to determine whether Licensor should make such a change.
3.2 DATA PROVIDERS
Licensor has in place and will use its best efforts to maintain legal agreements
with Data Providers for the provision of availability, schedule and fare data
for the operation of the Licensed Software. Furthermore, Licensor believes that
its commercial arrangements presently in effect with Data Providers should
enable Licensor to provide services in accordance with the terms of this
Agreement. However, Licensee acknowledges and agrees that such Data Providers
are third parties which are not in Licensor's control and which are subject to
delay or failure. While Licensor agrees, as part of its obligations under this
Agreement, to receive, load and manage such data, Licensor does not warrant the
accuracy of such data. In addition, Licensor disclaims any and all liability
resulting from or related to Data Providers' failure to provide data to Licensor
in a timely fashion. In the event a Data Provider breaches the terms of a legal
agreement with Licensor, and such breach has an adverse effect on Licensee,
Licensor shall, upon Licensee's request, consult with Licensee as to Licensor's
enforcement of its rights under such agreement; however, Licensor will retain
complete discretion as to what, if any, action to take as a result thereof.
4. OPERATIONS SERVICES
4.1 WALTHAM FACILITY AND ATLANTA FACILITY
Licensor will operate and maintain the Waltham Facility and the Atlanta
Facility. Such operation and maintenance will include, without limitation, the
acquisition, installation, maintenance, upgrading, monitoring and all aspects of
the operation of all computer hardware and equipment, and all services related
thereto, for the Waltham Facility and the Atlanta Facility necessary in
connection with the provision by the Licensor of the Data Services provided
hereunder.
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4.2 COMMUNICATIONS
The Licensor will receive data at the Atlanta Facility and the Waltham Facility
and transmit data from from such facilities via communications channels which
may include the Internet, a virtual private network or dedicated point-to-point
circuits. Licensor shall at all times maintain agreements for high speed
connections for the receipt and transmission of such data (except that Licensee
acknowledges that Licensor does not have direct connections to ATPCO or Innovata
and receives data from such Data Providers via a high-speed internet
connection).
(a) All hardware, software and services associated with communications between
the Atlanta Facility and the Licensee Facility, including maintenance thereof,
will be the responsibility of Worldspan. The cost of such services from
Worldspan will be for the account of Licensee and Worldspan will invoice
Licensee therefor directly. Such hardware, software and services will not be
included within any of the service level or support commitments contained in
this Agreement.
(b) All hardware, software and services associated with communications between
the Waltham Facility and the Licensee Facility, and between the Atlanta Facility
and the Waltham Facility, including maintenance thereof, will be provided by the
Licensor and charged to Licensee pursuant to the provisions of Section 6.4.2
hereof.
(c) Licensee expressly acknowledges that the flow of data to or from the Atlanta
Facility or the Waltham Facility will depend in large part on the performance of
hardware, software and services provided or controlled by third party
communications providers and by Worldspan. Licensor disclaims any and all
liability resulting from or related to Licensee's inability to communicate with
the Atlanta Facility or the Waltham Facility, to the extent such inability is
the result of the failure of hardware, software or services provided by such
third party communications providers and/or Worldspan.
5. PERFORMANCE SERVICE LEVELS
5.1 DATA DELIVERY.
Licensor will exercise reasonable commercial efforts to deliver data in
accordance with Section 3.1. Failures to deliver data will be subject to the
following:
(a) In the event Licensor fails to deliver schedule data at the scheduled
delivery time, such failure will be treated as a "Severity 4" error. If
such failure has not been remedied within twenty-four hours of the later
of (i) the scheduled delivery time or (ii) the time Licensor actually
receives such data from the Data Provider thereof, then such failure will
be treated as a "Severity 2" error.
(b) In the event Licensor fails to deliver fare data at the scheduled
delivery time, such failure will be treated as a "Severity 4" error. If
such failure has not been remedied within the later of (i) the scheduled
delivery time for the next scheduled delivery or (ii) two hours of the
time Licensor actually receives such data from the Data Provider thereof,
then such failure will be treated as a "Severity 2" error.
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(c) Any failure to transmit availability data will be covered by the Severity
definitions contained in Section 2.3.
Licensor will not be deemed to have failed to deliver data under this Section if
such failure occurs as a result of unplanned telecommunication outages, of Force
Majeure (as defined in Section 7.4), or of acts or omissions of Licensee.
5.2 PRICING ACCURACY.
[***]
5.3 DISASTER RECOVERY
Licensor will comply with the provisions of the Disaster Recovery Plan (DRP)
attached hereto as Appendix B, and shall provide Licensee with notice of any
material change to such DRP.
6. FEES AND EXPENSES
6.1 BASIC MAINTENANCE
THERE IS NO CHARGE FOR BASIC MAINTENANCE.
6.2 ENHANCED MAINTENANCE
Beginning January 1, 2001, if the Licensee elects to receive Enhanced
Maintenance, the fee therefor will be $[***] per month, plus the increase in the
Consumer Price Index for
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Boston (as reported in the Wall Street Journal) from a base of January, 2001
through January of the year in which the Enhanced Maintenance is provided ("CPI
Increase"). Any CPI Increase (under this Section 6.2 or under Section 6.3 or
6.4.1) will be calculated in January of each year beginning 2002 and will remain
in effect for the balance of such calendar year. Licensee may discontinue
Enhanced Maintenance at any time upon 90 days' prior written notice to Licensor.
6.3 DATA SERVICES
Beginning January 1, 2001, the charge for the Data Services described in Section
3.1(d) is $[***] per month, plus the CPI Increase. Licensee may discontinue Data
Services at any time upon 90 days' prior written notice to Licensor.
6.3.1 AVAILABILITY DATA
Beginning January 1, 2001, Licensee will pay Licensor a fee of $[***] per month,
in respect of the cost of obtaining availability data. In the event that
Licensor is able to allocate the cost of Worldspan availability data among a
larger number of licensees, Licensor shall reduce the portion of such cost that
is being paid by Licensee pursuant to this paragraph.
Notwithstanding the foregoing, in the event Licensee may negotiate with
Worldspan, L.P. or another third party for relief from or abatement of such
fee, Licensor shall abate or adjust such fee as directed by Licensee;
provided, however, that if obtaining such relief or abatement necessitates a
change in the availability vendor, the parties shall mutually agree upon the
costs associated with such change.
6.3.2 ADDITIONAL CHARGE FOR AVAILABILITY DATA
(a) In the event Licensee uses Worldspan availability data but ceases to
process in the Worldspan system substantially all its air travel
transactions which are generated from the Licensed Software, then
Licensee will pay an additional charge of $[***] per PNR (as defined in
the License Agreement) created by Licensee's use of the Licensed
Software; provided, that in the event Licensee may negotiate with
Worldspan a relief from or abatement of such fee, Licensor will abate
such fee if so directed by Worldspan.
(b) If the charge described in paragraph (a) is applicable, Licensee will
certify to Licensor, within 30 days of the end of each calendar quarter,
the number of PNRs created on Worldspan during such quarter.
Notwithstanding the provisions of Section 6.5, Licensee will pay such
charge simultaneously with its delivery of such certification.
6.3.3 INCREASE IN DATA COSTS
The costs to Licensor of obtaining fare and schedule data provided hereunder is
included in the license fee payable by the Licensee. However, in the event there
is a material increase in the cost to Licensor of the data feeds which are
provided hereunder from those presently in effect, Licensor reserves the right
to impose a separate fee for such data
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upon 90 days' prior written notice to Licensee; provided that such fee shall be
limited to the actual cost increase incurred by Licensor for data provided to
Licensee. Such fee will only be assessed as part of a general increase by
Licensor in its pricing to its licensees resulting from such a cost increase.
6.4 OPERATIONS SERVICES
6.4.1 ATLANTA AND WALTHAM FACILITIES
Licensor will charge Licensee in respect of the costs for establishing and
maintaining the Atlanta Facility and a rateable portion of the costs for
maintaining the Waltham Facility. Such charge consists of (i) a single, one-time
charge of $[***], relating to the initial (non-recurring) cost of establishing
the Atlanta Facility (including acquisition of hardware and equipment and
amounts paid to Worldspan), which will be payable in accordance with the payment
schedule set forth in Exhibit G to the License Agreement, (ii) a fixed charge of
$[***] per month plus the CPI Increase, relating to the recurring acquisition,
replacement, upgrading, operation and maintenance costs of the hardware,
equipment, rack space, bandwidth, facility services and performance monitoring
for the Atlanta Facility and Licensee's rateable portion of such services from
the Waltham Facility. The monthly cost set forth in clause (ii) has been
calculated based upon the assumption of a three-year term for this Agreement.
6.4.2 COMMUNICATIONS COSTS
All hardware, software and services associated with communications between the
Waltham Facility and the Licensee Facility, including maintenance thereof, will
be contracted for by Licensor and the cost thereof is included in the monthly
fixed charge described in Section 6.4.1(ii).
6.4.3 OTHER COSTS
In the event that Licensor's personnel are obligated to travel outside of the
Greater Boston area in connection with the provision of Maintenance Services,
Data Services or Operations Services pursuant to this Agreement, Licensee will
pay Licensor, with respect to such travel, all out-of-pocket expenses thereof;
provided that (1) Licensor obtains Licensee's prior written approval before
incurring such reimbursable expenses; or (2) such expenses are incurred in
accordance with Licensee's then-current policy regarding such reimbursable
expenses. Licensor agrees to provide Licensee with access to such original
receipts, ledgers, and other records as may be reasonably appropriate for
Licensee or its accountants to verify the amount and nature of any such
expenses.
6.5 PAYMENT TERMS
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All fees and expenses described in this Section 6 will be payable, prior to
December 31, 2001, in accordance with the payment schedule set forth at Exhibit
G to the License Agreement, subject to Section 8(j) of the License Agreement. In
accordance with the provisions set forth in Section 8(h) of the License
Agreement and except as otherwise set forth herein, Licensor will invoice
Licensee for all such amounts at least thirty (30) days prior to the due date;
provided, that Licensor shall not be obligated to invoice any amounts (such as
the fee for availability data described in Section 6.3.1) the amount and timing
of which are fixed by this Agreement and/or by Exhibit G. Each such invoice will
be payable thirty (30) days after receipt by Licensee. In addition, without
limiting the foregoing, in the event Licensee fails to pay any properly invoiced
and undisputed amounts when due hereunder, and such failure continues for more
than ten business days after notice thereof by Licensor, then (i) Licensor will
be excused from all further performance of its obligations under this Agreement
until such amounts are paid in full, and (ii) Licensee will remain obligated to
pay the amounts set forth in Section 6.3 and 6.4, when and as specified therein,
for services actually performed. Any such failure will not affect the parties'
rights and obligations under the License Agreement except as specifically set
forth therein.
6.6 SERVICE LEVEL CREDITS
[***]
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6.7 ABUSE OF MAINTENANCE SERVICES BY LICENSEE
In the event Licensee abuses the Maintenance Services (E.G., by declaring a
problem Severity Level 1 when it was only Severity Level 3, unless such
distinction could not reasonably have been determined, or by reporting problems
which are not Severity 1 or 2 during non-business hours) (an "Abuse Incident"),
then Licensee shall pay Licensor fees for such abuse in accordance with this
Section 6.7. There shall be no charge for the first Abuse Incident occurring in
a calendar month. For each of the second through seventh Abuse Incident
occurring in such calendar month, Licensee shall pay to Licensor a fee of $150.
Thereafter, Licensee shall pay Licensor a fee of $500 for each additional Abuse
Incident occurring in such calendar month; provided that the aggregate amount of
fees for Abuse Incidents shall not exceed $2900 during any single calendar
month.
7. GENERAL PROVISIONS
7.1 WARRANTIES
Licensor shall perform the Maintenance Services, Data Services, Operations
Services and all other services specified herein in a good, workmanlike and
professional manner using qualified personnel fully familiar with the Licensed
Software.
7.2 DESIGNATED ACCOUNT MANAGERS
Licensee and Licensor shall each appoint an account manager ("Account Managers")
who shall be responsible for all administrative matters pertaining to this
Agreement. The
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Account Managers will serve as primary point of contact for the other party for
any matter regarding this Agreement.
The Account Managers will initially be the following individuals:
For Licensor:
Name: Judith Lepor
Title: Customer Relations Manager
E-Mail: customersupport@itasoftware.com
Phone: (617) 714-2100
Fax: (617) 621-3913
For Licensee:
Name: Alex Zoghlin
Title: Chief Technology Officer
E-Mail: alex@orbitz.com
Phone: (312) 894-4708
Fax: (312) 894-4855
Either party may replace the appointed Account Manager upon delivery, prior to
such change, to the other party of written notice of such change.
7.3 TERM
The term of this Agreement will commence as of January 1, 2001 and will
terminate contemporaneously with the termination of the License Agreement,
unless earlier terminated in accordance with this Section 7.3.
(a) Licensee may, upon 90 days' prior written notice to Licensor, terminate
Enhanced Maintenance under Section 2.2.2, in which event Licensee will,
following such termination, be relieved of further responsibility for
payment of the charge described in Section 6.2.
(b) Licensee may, upon 90 days' prior written notice to Licensor, terminate
Data Services under Section 3.1 with respect to schedule, fare and
availability data, in which event Licensee will, following such
termination, be relieved of further responsibility for payment of the
charge described in Section 6.3 (but will remain responsible for payment
of the charges described in Sections 6.3.1, 6.3.2 and 6.4). In the event
Licensee terminates the Data Services with respect to availability data,
Licensee shall be permitted to use its own data source in connection with
the Licensed Software, subject to the provisions of Section 6(b) of the
License Agreement.
(c) Licensee may, upon one year's prior written notice (or such shorter
notice period, no less than 90 days, equivalent to the then-remaining
commitment Licensor has to Worldspan with respect to the Atlanta
Facility) to Licensor, terminate Operations Services under Section 4.1
and 4.2, in which event Licensee will,
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following such termination, be relieved of further responsibility for
payment of the charge described in Section 6.4 (but will remain
responsible for payment of the charges described in Sections 6.3.1 and
6.3.2).
(d) Either party may terminate this Agreement in its entirety in the event
the other party materially breaches any of its obligations hereunder and
fails to cure such breach within thirty (30) days after receipt of notice
of such breach by the non-breaching party.
7.4 FORCE MAJEURE
Licensor will not be responsible or liable for, and will be excused from, any
non-performance or delay in the performance of any of its obligations under this
Agreement if and to the extent that such non-performance or delay (i) is caused
by an act of God, natural disaster, civil disturbance, war, fire, earthquakes,
changes in law, regulation or government policy, or non-performance by any third
party (including vendors or suppliers), or any other factor beyond the control
of Licensor, whether or not foreseeable ("Force Majeure"), and (ii) could not
have been prevented by Licensor's taking normal and customary precautions. In
the event that Licensor is excused from the performance of its obligations
pursuant to this Section 7.4, then Licensor will use its best commercial efforts
that are practicable under the circumstances to resume performance of its
obligations as soon as feasible.
7.5 EXCLUSIVITY OF REMEDIES
The provisions of this Agreement and the License Agreement constitute the
exclusive provisions applicable to Licensor's maintenance and support of the
Licensed Software and the provision and support of data and operations therefor.
Licensor disclaims any and all warranties, express or implied, including but not
limited to warranties of merchantability or fitness for a particular purpose,
except as specifically set forth herein.
7.6 NOTICES
Any notices given hereunder shall be given pursuant to and as provided in the
License Agreement. In addition, Licensee agrees that Licensor may provide
invoices to Licensee by means of facsimile or email transmission.
7.7 LIMITATION OF LIABILITY
The parties' limitations of liability set forth in Section 13 of the License
Agreement shall apply to this Agreement.
<Page>
7.8 DEFAULT
If Licensor fails to perform any of its obligations under this Agreement, and
such failure continues for more than thirty (30) days following receipt of
written notice from Licensee, then Licensee, in addition to its other remedies,
shall have the right to correct the failure or to have the failure corrected by
a third party. Licensor shall reimburse Licensee for all costs incurred by
Licensee in effecting such correction, less the amount of any Service Level
Credit received by Licensee pursuant to Section 6.6 hereof. In the event such
failure relates to Severity 3 or Severity 4 errors, this Section will only apply
if such errors are chronic or continuous.
7.9 MISCELLANEOUS
(a) If any provision of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, such determination shall not affect
the validity or enforceability of any other provision hereof.
(b) This Agreement, together with the License Agreement, represents the entire
agreement of the parties with respect to the subject matter hereof and any other
previous understanding, commitments, or agreement, oral or written, between
Licensee and Licensor with respect to the subject matter hereof.
(c) No failure by either party to insist upon the strict performance of any
covenant, term or condition of this Agreement, or to exercise any right or
remedy, shall constitute a waiver of such right or remedy on any subsequent
occasion.
(d) The validity, construction, scope and performance of this Agreement shall be
governed by the laws of the State of Delaware, exclusive of its choice of law
provisions.
(e) This Agreement may not be amended except in writing executed by duly
authorized representatives of both Licensor and Licensee.
(f) This Agreement may not be assigned by either party except in connection with
and under the circumstances permitted under the License Agreement. Subject to
the foregoing, this Agreement will be binding on the parties and their
respective successors and permitted assigns.
(g) This Agreement may be signed in one or more counterpart copies, all of which
together shall constitute one Agreement and each of which shall constitute an
original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of this 2nd day
of March, 2001.
ITA Software, Inc. Orbitz, LLC
<Page>
By: /s/ Jeremy Wertheimer By: /s/ Jeffrey Katz
-------------------------- ------------------------------
Name: Jeremy Wertheimer Name: Jeffrey Katz
----------------------- ----------------------------
Title: President & CEO Title: President & CEO
----------------------- ----------------------------
<Page>
APPENDIX A
[ITA SOFTWARE LOGO]
ITA Software, Inc.
Standard Operating Procedures
(SOP)
for
On Call Operating Support to
Orbitz, LLC.
<Page>
[***]
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*** The contents of this Exhibit, consisting of eight pages, have been
omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.
<Page>
APPENDIX B
[ITA SOFTWARE LOGO]
ITA
DISASTER
RECOVERY
PLAN
(DRP)
<Page>
[***]
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*** The contents of this Exhibit, consisting of eight pages, have been
omitted and filed separately with the Commission. Confidential treatment
has been requested with respect to the omitted portions.