Worldspan System Access Agreement - Worldspan LP and priceline LLC
WORLDSPAN SYSTEM ACCESS AGREEMENT
THIS System Access Agreement ("Agreement") is made this 4th day of August,
1997, between WORLDSPAN, L.P., having its principal place of business at 300
Galleria Parkway, N.W., Suite 2100, Atlanta, Georgia, 30339 ("WORLDSPAN"), and
Priceline, L.L.C. having its principal place of business at Five High Ridge
Park, Stamford, CT, 06905 ("Developer").
WHEREAS, WORLDSPAN provides and markets computerized reservation services
and has developed and offers a computerized system which provides reservations,
ticketing, and other services for air transportation and other businesses (the
"System"); and
WHEREAS, Developer desires to gain access to the System for the purposes
of developing and testing proposed software program(s) to be used in connection
with the System (the "Program") and WORLDSPAN is willing to make access to the
System available to Developer according to the terms of this Agreement.
NOW, THEREFORE, IT IS AGREED;
1. Term.
This Agreement shall become effective upon the date first written above
and will continue until terminated by either party at any time thereafter upon
not less than thirty (30) days prior written notice to the other, or until
otherwise terminated pursuant to this Agreement.
2. Access to System and Use of Data.
(a) WORLDSPAN hereby grants to Developer access to the System through an
interchange address and one or more terminal addresses identified on Schedule A
of this Agreement and Developer accepts such access, all according to the terms
set forth herein. Developer agrees to pay to WORLDSPAN the fees and other
charges pursuant to this Agreement, including but not limited to, those included
on Schedule A.
(b) Developer agrees that the System will be used solely for the purposes
and functions contemplated by this Agreement. Developer agrees that it will
limit its access to development and testing of the Product and for no other
purpose. Improper use shall include, but is not limited to, generation of
message activity with the System of such speed or volume that may lead to
malfunctions or degradation of System performance. In the event that during the
term of this Agreement Developer is provided access to the System as a travel
agent subscriber for the purpose of performing reservations and ticketing
functions. Developer acknowledges that access is provided hereunder solely for
the purposes set forth herein. Developer further acknowledges that the ability
to access the System as a travel agent subscriber does not entitle Developer to
perform its travel agent functions with the access provided hereunder, nor may
Developer access the System pursuant to its Subscriber Agreement as a travel
agent, or provide any third party with any service for the uses contemplated
herein.
(c) Developer shall not copy, publish, disclose or otherwise make
available any compilations of air carrier service, data or any other information
obtained from WORLDSPAN to anyone in any form; provided, however, that the
foregoing shall not be construed to prevent Developer from preparing and
distributing to its customers reports normally generated through the use of
Developer's system. Improper use of the System shall include, but is not limited
to, speculative booking or reservation of space in anticipation of demand or
improper creation or modification of records. WORLDSPAN reserves the right to
inhibit Developer's access to the System for system maintenance or repairs or
for any other reason at WORLDSPAN's discretion.
(e) Within thirty (30) days after the commencement of this Agreement,
Developer agrees to provide WORLDSPAN, in writing, with a list of all of
Developer's customers where any product, software or device provided by
Developer is being used in conjunction with the System. This list shall be
updated
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every six (6) months or as otherwise reasonably requested by WORLDSPAN. Nothing
herein shall be construed to require Developer to provide services to any
customer, but Developer agrees to abide by all the terms of this Agreement
regarding provision of such services in the event that it elects to so provide
them.
2. Equipment Lease -- Repairs.
(a) WORLDSPAN leases to Developer, and Developer leases from WORLDSPAN,
the equipment (including hardware, peripherals, software and technical
specifications, configurations or addresses), if any, described on Schedule A
(collectively the "Equipment") at the fee set forth thereon. WORLDSPAN shall
retain title to and ownership of the Equipment, and the same shall be returned
to WORLDSPAN, shipping prepaid, at the termination of this Agreement in the same
condition as provided to Developer, normal wear and tear excepted. Developer
agrees to use the Equipment for the purposes of this Agreement only at
Developer's location identified above.
(b) WORLDSPAN will install the Equipment at Developer's location,
following Developer's preparation of the installation area at Developer's
expense. Developer shall be solely responsible for establishing electricity for
the Equipment, installing cables, and such other matters as are necessary to
prepare the area for installation consistent with applicable laws, regulations,
building codes and any real property lease(s) of Developer. Developer will not
move or modify the Equipment without the prior written consent of WORLDSPAN.
(c) WORLDSPAN or its service representative will provide repair services
for the Equipment during WORLDSPAN'S normal repair service hours, which are 8:30
a.m. through 5:00 p.m. local time, Monday through Friday, excluding WORLDSPAN
holidays. WORLDSPAN shall not pay for repair services if the Equipment
malfunction is caused by negligence, misuse, accident, fire, variation or
interruption of electricity, or any attempt to service the Equipment other than
by WORLDSPAN'S service representative (including the addition or removal of any
third party hardware, peripherals or software).
(d) Developer shall take all necessary precautions to protect the System.
4. Installation.
Within sixty (60) days following the execution of this Agreement, or as
soon thereafter as reasonably possible, WORLDSPAN shall cause the System to be
available at the Developer location identified above according to this
Agreement. Developer shall be solely responsible for procuring and paying for
the cost of the installation and maintenance of any personal computer, other
equipment and software necessary to enable Developer to access to the System
contemplated herein.
5. Disclaimer of Warranties
(a) WORLDSPAN DISCLAIMS AND DEVELOPER HEREBY WAIVES ALL WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, ANY
WARRANTY OF COMPATIBILITY BETWEEN THE SYSTEM, EQUIPMENT, SOFTWARE OR DATA
PROVIDED BY WORLDSPAN AND CUSTOMER OWNED EQUIPMENT OR SOFTWARE, OR ANY LIABILITY
IN NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE SYSTEM,
EQUIPMENT, SOFTWARE, DATA OR SERVICES FURNISHED HEREUNDER, DEVELOPER AGREES THAT
WORLDSPAN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT
LIMITED TO, LOSS OF REVENUES, EVEN IF ADVISED OF THE RISK OF SUCH DAMAGES IN
ADVANCE.
(b) WORLDSPAN shall not be liable to Developer nor deemed to be in default
of this Agreement, on account of any delays, errors, malfunctions, compatibility
problems or breakdowns with respect to the System, Equipment, data or services
provided hereunder, unless such delay, error,
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malfunction or breakdown results solely from the gross negligence or willful
misconduct of WORLDSPAN.
(c) Developer acknowledges that the installation or use of the Program or
the Developer's communications hardware (including peripherals) or software may
result in loss of or damage to Developer's hardware, software or data. Developer
agrees to take all reasonable precautions to prevent such loss and damage,
including copying data prior to installation and other reasonable and customary
measures, and adherence to manufacturer's instructions. Developer further agrees
to release and hold WORLDSPAN and its past and present directors, affiliates,
partners, officers, employees, agents and contractors harmless from and against
any losses, damages, liabilities, suits or fines caused by or arising from the
installation or use of the Program or the communications hardware (including
peripherals) or any other similar hardware or software utilized to permit
access to the System.
6. Indemnification.
(a) Each party shall indemnify, defend and hold harmless the other party,
its past and present directors, affiliates, partners, officers, employees and
agents, from and against all liabilities, damages and expenses, and claims for
damages, suits, proceedings, recoveries, judgments or executions (including but
not limited to litigation costs, expenses, and reasonable attorneys' fees)
arising out of or in connection with any claim that the use of the indemnifying
party's system or data (including, without limitation, hardware, software,
peripherals, technical specifications, configurations or addresses) by the other
party infringes any third party patent, copyright, trademark or other property
right.
(b) Each party shall indemnify, defend and hold harmless the other party,
its past and present directors, affiliates, partners, officers, employees and
agents from and against all liabilities, damages and expenses, claims for
damages, suits, proceedings, recoveries, judgments or executions (including but
not limited to litigation costs, expenses, and reasonable attorneys' fees) which
may be suffered by, accrued against, charged to or recoverable from the other
party, its past and present directors, affiliates, partners, officers, employees
or agents by reason of or in connection with the other party's performance or
failure to perform, or improper performance of any of the other party's
obligations under this Agreement.
7. Charges.
(a) In addition to the fees and other charges described in Section 2 and
Section 3 above, Developer shall pay WORLDSPAN at the rate described in Schedule
A of this Agreement, for each message transacted by Developer pursuant to this
Agreement. For the purposes of this Agreement, a "Message" shall include each
electronic transaction generated by Developer to the System including, but not
limited to, transactions initiated by an individual using the "enter" or similar
key on a personal computer or terminal and those automatically or mechanically
generated by a software or hardware device. Examples include, but are not
limited to:
o a request to display a record and the associated response
o a request to store a remark and the associated response
o a request to end a transaction and the associated response
o a request to move the screen text down and the associated response
(b) Developer shall pay to WORLDSPAN monthly, in advance, the nonvariable
fees pursuant to this Agreement. Billing for Message and bridge fees, as defined
herein, shall be made monthly after the end of the month in which such fees have
been incurred. Failure of WORLDSPAN to issue any invoice or bill shall not
relieve Developer of the obligation to pay for any charge owed WORLDSPAN
pursuant to this Agreement. Developer shall pay all fees and other charges
within fifteen (15) days of the date of each invoice. In the event that
Developer fails to pay within fifteen (15) days of an Invoice, WORLDSPAN may
levy a late payment charge computed at the rate of 1 1/2% per month on
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the outstanding balance due hereunder from any month or fraction thereof that
such payment is in default.
(c) Developer shall pay all sales, use, personal property, excise, license
and franchise taxes as well as any other similar fees, charges or assessments
which arise as a result of this Agreement or which may be imposed in connection
with the access to the System.
(d) WORLDSPAN reserves the right to increase any charge to Developer under
this Agreement once each calendar year upon not less than thirty (30) days prior
written notice to Developer.
(e) Developer agrees to advise each of its accounts of WORLDSPAN's fee
that will be billed to the account, for any bridge relationship established by
the account to the Developer. Developer agrees to pay WORLDSPAN for any bridge
relationship established by Developer to any WORLDSPAN subscriber, vendor or
contractor. This charge is set forth on Schedule A and may be modified by
WORLDSPAN from time to time.
8. Developer Support to Customers.
Developer acknowledges that WORLDSPAN does not agree to provide, and will
not provide, any "help desk" assistance or similar user or technical support to
Developer or its customers with regard to any hardware (including peripherals),
software, product or services provided by Developer. Developer agrees that it
will notify its customers and staff that WORLDSPAN does not provide such
support, and Developer shall be solely responsible for all such support for the
benefit of its staff and customers.
9. Termination.
(a) Either party shall be entitled to terminate this Agreement upon the
occurrence of any of the following events:
(1) Except for Developer's failure to make timely payment, if the other
party shall refuse, neglect or fail to perform, observe or keep any
of the material covenants, terms or conditions contained herein to
be performed, observed or kept, and such refusal, neglect or failure
shall continue for a period of thirty (30) days including weekends,
after written notice, the non-defaulting party shall have the right,
in addition to any other right or remedy it may have, to terminate
this Agreement; or
(2) If the other party petitions for relief under the Bankruptcy Code of
the United States, or any country or territory, or if voluntary
bankruptcy proceedings are instituted by a party under any federal,
state or foreign insolvency laws, or if such a proceeding is
imminent, or if it is adjudged bankrupt, or if it makes any
assignment for the benefit of its creditors of all or substantially
all of its assets; or if an involuntary petition is filed or
execution issued against it and not dismissed or satisfied within
thirty (30) days; or if its interest hereunder passes by operation
of law to any other person, except in case of merger or acquisition,
the other party may, at its option, terminate this Agreement by
written notice provided, however, that all monies owed hereunder
prior to the date of termination shall be immediately due and
payable.
(b) WORLDSPAN shall be entitled to terminate this Agreement should
Developer fail to pay any amount due hereunder, and Developer fails to cure such
default within thirty (30) days after the date of written notice from WORLDSPAN.
10. Notices.
All notices, requests, demands or other communications hereunder shall be
in writing, hand delivered, sent by first class mail, overnight mail, or
facsimile (upon electronic confirmation that the transmission was received) and
shall be deemed to have been given when received at the following addresses:
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if to WORLDSPAN:
WORLDSPAN, L.P.
300 Galleria Parkway, NW
Atlanta, Georgia 30339
U.S.A.
Facsimile: (770) 563-7004
ATTN: Karen Lennon; Manager - Emerging Markets
with a copy to:
WORLDSPAN, L.P.
300 Galleria Parkway, NW
Atlanta, Georgia 30339
U.S.A.
Facsimile: (770) 563-7878
ATTN: Legal Department
If to Developer: At the address first written above.
Any notice provided by facsimile which is received after 4:00 p.m. local
time shall be deemed received the following business day. A party may change its
addresses for notice on not less than ten (10) business days' prior written
notice to the other party.
11. Confidential Information.
(a) Confidential information supplied by one party to another pursuant to
this Agreement is for the exclusive use of the receiving party and shall not be
disclosed or made available to any other person, firm, corporation or
governmental entity in any form or manner whatsoever; provided, however, that in
the event Confidential Information is subpoenaed or otherwise requested or
demanded by any court or governmental authority, the receiving party shall give
written notice to the disclosing party prior to furnishing the same and shall,
at the request of the disclosing party, exercise reasonable business efforts in
cooperation and at the sole expense of the disclosing party, to quash or limit
such request, demand and/or subpoena. The receiving party's obligations include
treating Confidential Information with at least the concern and protective
measures accorded any trade secrets, proprietary or confidential information and
materials of the receiving party. Nothing herein shall be construed to require
the disclosure of Confidential Information to the receiving party, or to require
the receiving party to accept Confidential Information.
(b) Upon any termination of the Agreement, Developer agrees to deliver to
WORLDSPAN all documentation, materials, information, Equipment, technical
configurations and specifications supplied by WORLDSPAN and shall also certify
in writing that all copies have been returned to WORLDSPAN.
(c) Developer understands that the information it has access to through
the System is confidential and proprietary and includes valuable trade secrets
of WORLDSPAN and that WORLDSPAN would suffer irreparable harm if such
confidential or propriety information or trade secrets are directly or
indirectly (i) used by Developer for any purpose other than those specifically
set forth herein, or (ii) disclosed to any third party including affiliates of
Developer which may operate as ARC approved travel agents in direct or indirect
competition with the travel agents subscribing to WORLDSPAN or software
developers in direct or indirect competition with WORLDSPAN. Accordingly,
Developer agrees not to use the information for other purposes, disclose, or
allow access to such information to any third party. Developer agrees that a
breach of these conditions shall be grounds sufficient for immediate termination
of, or suspension of, services under this Agreement, inhibiting Developer's
access to and use of the System, and appropriate legal relief. Upon termination
of this Agreement for any cause or reason, Developer agrees to deliver to
WORLDSPAN all materials or
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information supplied pertaining to WORLDSPAN and shall also confirm that all
copies of such material have been returned to WORLDSPAN or destroyed.
(d) WORLDSPAN understands that the information it has access to through
the right of access to Developer's facilities is of a confidential and
proprietary nature, and WORLDSPAN may hereinafter have access to other
information of Developer which is of a confidential and proprietary nature, and
could result in irreparable harm to Developer if any such confidential or
proprietary information is directly or indirectly (i) used by WORLDSPAN for any
purpose other than as specifically set forth herein, or (ii) disclosed to any
third party. Accordingly, WORLDSPAN agrees not to use the information for other
purposes, disclose or allow access to such information to any third party.
WORLDSPAN agrees that a breach of these conditions shall be grounds sufficient
for immediate termination of this Agreement, and legal as well as injunctive
relief. Upon termination of this Agreement for any cause or reason, WORLDSPAN
agrees to deliver to Developer all materials or information supplied pertaining
to Developer and shall also confirm that all copies of such material have been
returned to Developer or destroyed.
(e) WORLDSPAN and Developer agree that any and all non-disclosure and use
covenants contained herein shall survive for a period of five years any
termination of this Agreement.
12. Modifications.
WORLDSPAN retains the right, in its sole discretion, to enhance, modify or
alter the operation of the System at any time and further retains the right to
make such enhancements, modifications or alterations generally available to
other users of the System. WORLDSPAN shall use reasonable business efforts to
give Developer written notice prior to loading of enhancements, modifications or
alterations, other than those corrective in nature, which would materially
adversely affect the services provided to Developer under this Agreement.
13. Title
Title and full and complete ownership rights to all WORLDSPAN owned or
developed software (including source and object code) and other technical
specifications, addresses or configurations (collectively the "Software")
associated with or contained in the System or used by WORLDSPAN in connection
with this Agreement shall remain with WORLDSPAN. Developer understands and
agrees that WORLDSPAN's owned or developed Software is WORLDSPAN's trade secret,
proprietary information, and confidential information whether any portion
thereof is or may be validly copyrighted or patented. Any Software provided to
Developer is provided by license only and such license is personal,
non-exclusive, non-transferable and limited to the right to use such Software
during the term of this Agreement only according to guidelines established by
WORLDSPAN from time to time. Such Software shall be utilized by Developer only
in accordance with this Agreement and shall not be copied, duplicated,
reproduced, manufactured, de-compiled, reverse engineered, incorporated into any
software (including any source code, object code or algorithms), modified or
disclosed in any form by any media to any other person or party. Developer
agrees to abide by any terms imposed by any third party that has directly or
indirectly licensed Developer to use Software pursuant to this Agreement. Upon
termination of this Agreement. Developer shall immediately return to WORLDSPAN
any Software provided by WORLDSPAN. Nothing herein shall be construed to require
WORLDSPAN to deliver any Software to Developer or to require Developer to accept
such Software.
14. No Endorsement.
Nothing herein shall be construed to constitute an endorsement by
WORLDSPAN of any product, software, device or service marketed, sold or provided
by Developer. Developer shall not be entitled to use the name "WORLDSPAN" or any
WORLDSPAN product mark or logo in any fashion, except as otherwise agreed in
writing.
15. General Provisions.
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(a) Nothing in this Agreement is intended or shall be construed to
create or establish an agency, partnership, or joint venture relationship
between the parties.
(b) The captions in this Agreement are for convenience only and in no way
define, limit, or enlarge the scope of this Agreement or any of the provisions
therein. Capitalized terms shall have the meanings assigned in this Agreement.
(c) No waiver by either party of any provision or any breach of this
Agreement constitutes a waiver of any other provision or breach of this
Agreement and no waiver shall be effective unless made in writing. The right of
either party to require strict performance and observance of any obligations
hereunder shall not be affected in any way by any previous waiver, forebearance
or course of dealing.
(d) Except for Developer's obligation to make payments hereunder, neither
party will be deemed in default of this Agreement as a result of a delay in
performance or failure to perform its obligations caused by acts of God or
governmental authority, strikes or labor disputes, fire, acts of war, failure of
third party suppliers, or for any other cause beyond the control of that party.
(e) Developer shall not sell, assign, license, sub-license, franchise or
otherwise convey in whole or in part to any third party this Agreement or the
services provided hereunder without the prior written consent of WORLDSPAN,
except that Developer may freely assign all rights, title, interest and
obligations under this Agreement to any taker of all, or substantially all of
Developer's assets.
(f) This is a non-exclusive agreement. Similar agreements may be entered
into by either party with any other person.
(g) This Agreement shall be governed by, construed, interpreted and
enforced according to the laws of the State of Georgia and of the United States
of America, without regard to principles of conflict of laws and rules. Each
party hereby consents to the non-exclusive jurisdiction of the courts of the
State of Georgia and United States Federal Courts located in Georgia to resolve
any dispute arising out of this Agreement.
(h) Each party shall not make any use of the other party's company name,
logo, trademarks or service marks, without the prior written consent of the
party.
(i) In the event that any material provision of this Agreement is
determined to be invalid, unenforceable or illegal, then such provision shall be
deemed to be superseded and the Agreement modified with a provision which most
nearly corresponds to the intent of the parties and is valid, enforceable and
legal.
(j) This Agreement constitutes the final and complete understanding and
agreement between the parties concerning the subject matter hereof. Any prior
agreements, understandings, negotiations or communications written or otherwise
are deemed superseded by this Agreement. This Agreement may be modified only by
a further written agreement executed by an authorized representative of the
parties hereto.
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IN WITNESS WHEREOF, Developer and WORLDSPAN have executed this Agreement
by their respective authorized representatives as of the day and year first
above written.
Priceline, L.L.C. WORLDSPAN, L.P.
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(Legal Name of Person or Company)
By: /s/ Jesse Fink By: /s/ Karen Lennon
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Print Name: Jesse Fink Name: Karen Lennon
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Print Title: C.O.O. Title: Manager - Emerging Markets
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