Exhibit 10.27


SOFTWARE LICENSE
AGREEMENT


This SOFTWARE LICENSE AGREEMENT (“Agreement”),
made as of the 3rd day of October, 2002 by and between Galileo
International, L.L.C., a Delaware
limited liability company with its address at 1 Campus Drive, Parsippany, New
Jersey (“Galileo”) and ITA Software, Inc., a
Delaware corporation with its address at 141 Portland Street, 7th
Floor, Cambridge, MA 02139 (“ITA”).


WHEREAS, ITA has developed a software product known as “ITA Travel
Planning Software” (as further defined below, the “Licensed
Software”), which has a capability to search, select, sort and price
air fares and determine seat availability; and


WHEREAS, Galileo operates global electronic distribution systems for
the travel industry, that, among other things, provide low-airfare searching to
travel agents, web sites, airlines, corporate travel departments, and their
respective customers; and


WHEREAS, Galileo wishes
to license the Licensed Software for use within its business so as to provide
low-airfare searching services to its customers; and


WHEREAS, Galileo wishes ITA to furnish services relating to operation
and/or maintenance of the Licensed Software and to supply and management of
data for the Licensed Software (provided that Galileo may also determine in the
future to assume from ITA responsibility for operating the Licensed Software);


NOW, THEREFORE, in consideration of the foregoing, the parties hereby
agree as follows:


1.     DEFINITIONS


(a)   “Acceptance Date”
means, with respect to any Version of the Licensed Software, the date when such
Version is accepted pursuant to the provisions of Section 4.


(b)  “Affiliate” of a party means an individual, corporation,
partnership, association, limited liability company or business that directly
or indirectly controls, is under common control with, or is controlled by such
party.  For purposes of this definition, “controls,”
“under common control with” and “controlled by” means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such entity, whether through ownership of voting securities or
otherwise. The term “Affiliate” shall also include any unconsolidated
special-purpose entities created by Cendant Corporation (“Cendant”)
or any of its subsidiaries, and/or independent persons or entities, in which
Cendant owns (or would own if Cendant were to convert any convertible
securities that Cendant owns) more than twenty-five percent (25%) of the
outstanding common stock (or equivalent).


(c) “Airline” means
an air carrier or a foreign air carrier (each as defined in the United States
Federal Aviation Act of 1958, as amended).


PORTIONS OF THIS EXHIBIT MARKED BY AN (***) HAVE BEEN
OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY, WITH
THE SECURITIES AND EXCHANGE COMMISSION.


 

















(d)     “Airline Online Users” means customers of Airlines who gain
access to the Galileo System or other travel booking services of Galileo or its
Affiliates through web sites and/or other travel booking applications operated
by Airlines or Affiliates of Airlines.


(e)    “CPI Increase”
means the increase in the Consumer Price Index–All Items (as reported in the
Wall Street Journal) from a base of September, 2002 through September of the
year in which such increase is applied; provided that in the event a CPI
Increase is applied to a partial year, the increase will be prorated.


(f)    “Documentation”
means functional specifications, user manuals and similar written materials
relating to the use of the Licensed Software by Galileo that describes the
function and use of the License Software in sufficient detail to permit use of
the Licensed Software by a programmer reasonably skilled in the art, current
versions of which are found at http://doc.itasoftware.com.


(g)   “Domestic Version”
means a version of the Licensed Software which is capable of processing
low-fare searching and pricing queries that comprise origins and destinations
within the United States, Canada and Puerto Rico.


(h)    “Galileo System”
means the computerized global electronic distribution systems operated by
Galileo for providing information and reservation booking services to the
travel industry, including the collection, storage, processing, communication,
display and distribution of information regarding travel-related products and
services.


(i)    “Insolvency Event”,
with respect to either party, means any of the following: (i) such party
at any time ceases to conduct business in the ordinary course; (ii) such
party files a voluntary petition in bankruptcy or any voluntary proceeding
relating to insolvency, receivership, liquidation or composition for the
benefit of creditors; or (iii) such party becomes the subject of an
involuntary petition in bankruptcy or any involuntary proceeding relating to
insolvency, receivership, liquidation or composition for the benefit of
creditors, if such petition or proceeding is not dismissed within sixty (60)
days of filing.


(j)    “International Use”
means Galileo’s use of the International Version of the Licensed Software for
the purpose of serving Online Users and, if Galileo has accepted the Offline
Version, Offline Travel Agents.


(k)    “International Version”
means a version of the Licensed Software which is capable of processing
low-fare searching and pricing queries that comprise origins and/or
destinations outside the United States, Canada and Puerto Rico.


(l)     “License Fee Commencement
Date” means the earlier of (i) the Acceptance Date for the Online
Use or (ii) September 15, 2002.


(m)  “License Month”
means (i) in the case of the first License Month, the period beginning on the
License Fee Commencement Date and ending on the last day of the calendar month
following that in which the License Fee Commencement Date occurs; and (ii) in
the case of all subsequent License Months, each successive calendar month
during the license term.


 


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(n)    “License Year”
means (i) in the case of the first License Year, the period beginning on the
License Fee Commencement Date and ending on the one-year anniversary of the
last day of the calendar month within which the License Fee Commencement Date
occurs; and (ii) in the case of all subsequent License Years, the successive
one-year periods beginning on the first day following the end of the preceding
License Year.


(o)   “Licensed Software”
means ITA’s Air Travel Planning software product and related software products,
as described in Exhibit A, and any Upgrade Releases, Enhancements,
or Customization provided hereunder or under the SLA.


(p)   “Offline License Fee”
has the meaning set forth in Section 6(b).


(q)   “Offline Use”
means Galileo’s use of the Licensed Software (excluding the International
Version) for the purpose of serving Offline Travel Agents.


(r)    “Offline Travel Agents”
means travel agencies (including corporate travel departments) and others who
(i) operate so-called “brick and mortar” offices (i.e.,
physical offices rather than web sites) at which they are contacted by their
customers, (ii) are in the business of providing travel-related services to
others, and (iii) have contracts with Galileo pursuant to which they gain
access to Galileo System for the purpose of obtaining air travel-related fare
and booking information and making bookings; provided, however, that “Offline
Travel Agents” specifically excludes Airlines. 
If an Offline Travel Agent also provides travel planning services to
Online Users, its offline and online activities will be governed by the
applicable provisions of this Agreement relating to Offline Travel Agents and
Online Users, respectively.


(s)    “Online License Fee”
has the meaning set forth in Section 6(a).


(t)    “Online Use”
means Galileo’s use of the Licensed Software for the purpose of serving Online
Users.


(u)   “Online Users”
means (i) end users of air travel-related services (i.e.,
persons planning travel for their own use, who are not in the business of
providing such planning services to others) who gain access to the Galileo
System or other travel booking services of Galileo and/or its Affiliates over
the World Wide Web through web sites and/or travel booking applications
operated by travel agents (including www.trip.com and www.cheaptickets.com),
corporations, Galileo, affiliates of Galileo, and/or other individuals or
entities that use or provide travel-planning services to end users over the
World Wide Web and (ii) Airline Online Users. 
Galileo agrees to notify ITA from time to time of those individuals and
entities to which it has made the Licensed Software available for use by Online
Users, and all PNRs created in the Galileo System by such Online Users of such
individuals and entities will be subject to the Online License Fee set forth in
Section 6(a)(i), regardless of whether the functionality of the Licensed
Software is made available in any particular transaction to any such Online
User.  If a travel agent (or other
individual and entity providing travel planning services over the World Wide
Web) is also an Offline Travel Agent, its offline and online activities will be
governed by the applicable provisions of this Agreement relating to Offline
Travel Agents and Online Users, respectively.


 


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(v)   “PNR” means a
passenger name record created in the Galileo System resulting from the use of
the Licensed Software by Online Users and/or Offline Travel Agents, as
applicable, that includes one or more Airline travel segments, whether or not
it is subsequently cancelled.


(w)  “SLA” means the
Maintenance, Data and Operations Service Level Agreement dated the date hereof
and executed by the parties.


(x)    “SOW” has the
meaning set forth in Section 3(a).


(y)   “Upgrade Releases”
shall have the meaning set forth in the SLA.


(z)    “Version” means,
as the case may be, the Domestic Version or the International Version.


2.     LICENSE
GRANT


(a)   License Grant.  ITA hereby grants to Galileo a worldwide,
non-exclusive, irrevocable (except as expressly provided herein) license during
the term of this Agreement to use, perform and display the Licensed Software
and Documentation for the purpose set forth in the following sentence, in
accordance with the other terms of this Agreement.  Galileo may use the Licensed Software solely
for the purpose of providing travel planning services (i.e.,
in response to a query, searching for airfares by generating, sorting, pricing
and then selecting airline itineraries and, in connection therewith,
determining availability of selected flights, classes of service and booking
codes) to Online Users and Offline Travel Agents.  Galileo may use the Licensed Software in
conjunction with other software of Galileo or of third parties, provided that
no warranties of ITA hereunder shall extend to any such Galileo- or
third-party-provided software or to any problems that are caused by such
software or by the interface between the Licensed Software and such software.
Galileo shall have the right to make as many copies of the Licensed Software
and Documentation as it may need for archival purposes and, if it elects to
operate the Licensed Software, for operating the Licensed Software.  Galileo shall have the right to utilize one
or more third-parties to provide managed hosting services in connection with
its operation of the Licensed Software.


(b)   Restrictions.


(i)    Except as provided in Section 16(g), Galileo
shall not have the right to sublicense or transfer the Licensed Software;
provided that Galileo may permit the Licensed Software to be used or operated
on its behalf by an Affiliate engaged in the business of providing travel
planning services, subject to all the other terms and restrictions of this
Agreement.


(ii)   Galileo agrees that it shall not reverse
engineer, disassemble, decompile, modify (except under the conditions specified
herein), or profile the Licensed Software for any purpose whatsoever, nor will
Galileo implement or permit procedures such as “portscans”, “tiger attacks” or
other techniques designed to gain access to the Licensed Software (or to
computers running the Licensed Software) which have not been specifically
authorized by ITA.


 


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(iii)  Except as expressly set forth in this
Agreement, and excluding Galileo Created Software (as defined in Section 5(b)),
Galileo shall not have any right to make, prepare or produce derivative works
of the Licensed Software, other than in the event that the source code for the
Licensed Software is released to Galileo pursuant to Section 11(b)(iii).


(iv)        Neither Galileo nor any Affiliate of
Galileo (for purposes of this subsection, as defined below) shall (i) license
or sublicense the Licensed Software, for Low Fare Searching or Guaranteed Fare
Pricing (as defined below), to any CRS Entity (as defined below), (ii) sell
Transactions (as defined below) to or otherwise perform Transactions for any
CRS Entity, or (iii) provide Low Fare Searching data processed using the
Licensed Software to or for any CRS Entity. 
However this restriction shall not be construed to prohibit Galileo from
licensing its own software with fare searching, shopping, or pricing
functionality to any CRS Entity or otherwise perform such functionality on
behalf of any CRS Entity using Galileo’s software.  The foregoing restrictions of this subsection
(iv) shall be inapplicable with respect to any CRS Entity that is an Affiliate
of Galileo.


As used in this subsection (iv):


“Affiliate” shall mean, when used with
respect to a specified Person, another Person that, directly or indirectly
through one or more intermediaries, controls or is controlled by or is under
common control with the Person specified. 
For purposes of this Agreement, the term “control” (including, with its
correlative meanings, “controlled by” and “under common control with”) shall
mean possession, directly or indirectly, of the power to direct or cause the
direction of management or policies (whether through ownership of securities or
partnership or other ownership interests, by contract or otherwise).


“CRS Entity” shall mean (i) any of the
computerized reservation systems providers listed at the end of this provision,
or any successor in interest, assign or renaming of any such provider, (a “CRS”), (ii) any Person (as defined below) which directly or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with any such provider, where the term “control”
(including, with its correlative meanings, “controlled by” and “under common
control with”) shall mean possession, directly or indirectly, of the power to
direct or cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise) (a “CRS Affiliate”), or (iii) any company with which any
CRS has contractual commitments for the distribution of such CRS’ products and
services (a “CRS National Distribution Company”).  Notwithstanding the foregoing definition, an
air carrier or a foreign air carrier (each as defined in the United States
Federal Aviation Act of 1958, as amended) shall not be deemed a “CRS Entity”
for the purposes hereof.


“Person” shall mean any individual,
corporation, partnership, limited partnership, joint venture, limited liability
company, unincorporated association, government or regulatory body (or any
agency or political subdivision thereof) or other entity.


“Low Fare Searching” shall mean the
capability for retrieving flight information and selecting flights (which may
or may not include flight connections) optimized for cost based on, among other
things, one or more of the following: 
travel origin, travel destination, travel date, and/or class of service.


 


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“Guaranteed Fare Pricing” shall mean
committing to a final price with one or more travel service providers for one
or more bookings, including all taxes, fees, and other charges.


“Transaction” shall mean an individual
Low Fare Searching query to the Licensed Software.


ITA and Galileo expressly agree that Amadeus Development Company, S.A.
(“Amadeus”) is an intended third party
beneficiary of this provision and Amadeus shall have the right to enforce this
provision as though it were a party hereto. 
Galileo acknowledges and agrees that (i) its breach of this provision
would cause irreparable injury for which monetary damages are not an adequate
remedy, and (ii) ITA and Amadeus shall be entitled to injunctive and other
equitable relief in the event of an actual or threatened breach of this
provision in addition to any other remedies that may be available.


List of
CRS Entities:  Abacus, Axess, Fantasia, Gemini, Genesis,
GETS, Infini, Sabre, Southern Cross, Worldspan.


(c)   Documentation.  When Licensed Software (including any Upgrade
Releases) is made available to Galileo, ITA shall supply, at no additional
charge, such Documentation (in electronic format) as it provides to its
customers generally.  If Documentation is
developed specifically for or at the request of Galileo, then the preparation
of such Documentation shall be undertaken pursuant to an SOW.  Galileo shall have the right, as part of the
license granted herein, to make such additional copies of the Documentation for
its own internal use as it may reasonably require.


3.     SERVICES


(a)   Statements of Work.  From time to time, Galileo may request, and
ITA will perform, services relating to the addition of features to the Licensed
Software (“Enhancements”) or changes to the
Licensed Software (“Customization”),
to conform the Licensed Software to Galileo’s specific needs, policies,
practices or operating environment; provided that such Enhancement and
Customization relate to the use of the Licensed Software within the scope of
license granted under this Agreement. 
ITA will, upon Galileo’s request, dedicate a certain number of its
development staff to the performance of such services, as follows:  the greater of (***) full-time equivalents
(FTEs) (calculated on a monthly basis), or (***) of ITA’s development staff,
except that no more than (***) FTEs shall be dedicated unless Galileo is using
the Licensed Software for both Online Use and Offline Use. Notwithstanding the
foregoing, ITA will not be obligated to dedicate such resources unless for each
FTE that Galileo requests ITA to dedicate, Galileo agrees to utilize (***) or
more hours of development services during the succeeding twelve months (it
being the parties’ intent that ITA not be required to hire personnel in order
to fulfill its obligations to Galileo whom ITA is not then able to retain
because Galileo’s need for such services has terminated). The provision of such
services shall be governed by statements of work agreed to by both parties, a
form of which is attached hereto as Exhibit B (“SOWs”).


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(b)   Software Maintenance.  ITA shall provide software maintenance and
technical support services for the Licensed Software in accordance with the
provisions of the SLA.


(c)   Operations; Data.  ITA will host the operation of the Licensed
Software and will provide and manage data required for the operation of the
Licensed Software.  The provision of such
services will be governed by the SLA. 
Notwithstanding the foregoing, Galileo may at any time assume
responsibility for hosting the operation of the Licensed Software, pursuant to
the provisions of Section 7.3(b) of the SLA.


4.     DELIVERY
AND ACCEPTANCE


(a)   Delivery.  Prior to execution of this Agreement, ITA has
made the Licensed Software as it presently exists available to Galileo for
evaluation and testing and will deliver to Galileo Documentation relating
thereto within 10 days of the date hereof.


(b)   Testing.


(i) Domestic Online Use.  Galileo has begun, and will continue,
functional and operational testing of the Domestic Version for use by Online
Users. Following the execution hereof, in the event Galileo wishes ITA to
continue to provide cooperation and assistance to Galileo in performing its
evaluation, the parties will agree to the terms pursuant to which reasonable
cooperation and assistance will be provided. 
Upon the execution of this Agreement, Galileo shall either (I) accept
the Domestic Version; or (II) reject the Domestic Version and terminate this
Agreement; or (III) accept the Domestic Version contingent on ITA’s correcting
material non-conformities with the Documentation or other deficiencies
reasonably identified by Galileo at the time of such notice.  ITA shall have up to 60 days from the date of
the notice to correct such non-conformities or deficiencies.  If Galileo reasonably determines that such
non-conformities or deficiencies are not corrected by the earlier of (A) 10
days after the date ITA informs Galileo that it has completed such corrections
or (B) the end of such 60-day period, then Galileo shall either (I) accept the
Domestic Version; or (II) reject the Domestic Version and terminate this
Agreement.  Galileo will not have the
right to reject the Domestic Version at the end of such 60-day (or shorter)
period for any reason other than ITA’s failure to correct non-conformities or
deficiencies which were identified by Galileo in its notice.  Acceptance of the Licensed Software does not
waive Galileo’s right to receive maintenance and support hereunder and under
the SLA.


                                (ii)
Domestic Offline Use.  Following acceptance of the Domestic Version
for Online Use, Galileo shall have 180 days to evaluate the Domestic Version of
the Licensed Software for Offline Use. 
In the event Galileo wishes ITA to provide cooperation and assistance to
Galileo in performing its evaluation, the parties will agree to the terms
pursuant to which reasonable cooperation and assistance will be provided.  On or prior to the expiration of such 180-day
period, Galileo shall either (I) accept the Domestic Version of the Licensed
Software for use by Offline Travel Agents; or (II) reject the Domestic Version
of the Licensed Software for use by Offline Travel Agents, in which case those
portions of this Agreement pertinent to use of the Domestic Version by Offline
Travel Agents shall be null and void; or (III) accept the Domestic Version of
the Licensed Software for use by Offline Travel Agents contingent on ITA’s
correcting material non-conformities with the Documentation or other deficiencies


 


7

















reasonably identified by Galileo at the time of such
notice.  ITA shall have up to 60 days
from the date of the notice to correct such non-conformities or
deficiencies.  If Galileo determines that
such non-conformities or deficiencies are not corrected by the earlier of (A)
10 days after the date ITA informs Galileo that it has completed such
corrections or (B) the end of such 60-day period, then Galileo shall either (I)
accept the Domestic Version for use by Offline Travel Agents; or (II) reject
the Domestic Version for use by Offline Travel Agents.  Galileo will not have the right to reject the
Domestic Version for use by Offline Travel Agents at the end of such 60-day (or
shorter) period for any reason other than ITA’s failure to correct
non-conformities or deficiencies which were identified by Galileo in its notice
on or prior to the expiration of such 180-day period.


                                (iii)  International Version.  Following acceptance or rejection of the
Domestic Version for Offline Use, Galileo shall have 180 days following ITA’s
delivery of the relevant Software to evaluate the International Version of the
Licensed Software. In the event Galileo wishes ITA to provide cooperation and
assistance to Galileo in performing its evaluation, the parties will agree to
the terms pursuant to which reasonable cooperation and assistance will be
provided. On or prior to the expiration of such 180-day period, Galileo shall
either (I) accept the International Version of the Licensed Software or (II)
reject the International Version of the Licensed Software and utilize only the
Domestic Version; or (III) accept the software contingent on ITA’s correcting
material non-conformities with the Documentation or other deficiencies reasonably
identified by Galileo at the time of such notice.  ITA shall have up to 60 days from the date of
the notice to correct such non-conformities or deficiencies.  If Galileo determines that such
non-conformities or deficiencies are not corrected by the earlier of (A) 10
days after the date ITA informs Galileo that it has completed such corrections
or (B) the end of such 60-day period, then Galileo shall either (I) accept the
International Version; or (II) reject the International Version.  Galileo will not have the right to reject the
International Version at the end of such 60-day (or shorter) period for any
reason other than ITA’s failure to correct non-conformities or deficiencies
which were identified by Galileo in its notice on or prior to the expiration of
such 180-day period.  Acceptance of the
International Version of the Licensed Software does not waive Galileo’s right
to receive maintenance and support hereunder and under the SLA.


5.       OWNERSHIP  OF SOFTWARE


(a)  Ownership of Licensed Software.  Galileo acknowledges that ITA is the sole and
exclusive owner of all rights in and to the Licensed Software and that other
than the license granted hereby, no proprietary rights, including but not
limited to copyrights and patents, in the Licensed Software are being
transferred to Galileo.  Galileo
acknowledges that it has been informed by ITA that ITA does not presently
develop software for the exclusive use of individual customers.  In the event ITA develops software for the
exclusive use of individual customers, then if Galileo has then satisfied the
conditions set forth in Section 3(a), ITA and Galileo shall negotiate in good
faith terms under which ITA will develop software for the exclusive use of
Galileo, and any such development shall be subject to the provisions of Section
3(a).


(b)  Ownership of
Galileo Created Software.  For
purposes hereof, “Galileo Created Software”
means one or more lines of code created by Galileo to interface with the
Licensed


 


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Software. 
Galileo will be the sole and exclusive owner of all rights, title, and
interest in and to the Galileo Created Software; provided, however, that the
foregoing shall not be construed as a grant of any right, title, or interest of
Galileo in or to Licensed Software except as otherwise provided herein, and
shall not be deemed to expand the scope of any of the licenses granted
hereunder.


6.     FEES AND EXPENSES


(a)   Online License Fee.


(i) Per-PNR
License Fee. 
Beginning on the License Fee Commencement Date, Galileo shall pay ITA a
basic license fee for the Online Use (the “Online License Fee”)
which will be calculated based on the number of PNR’s created within the
Galileo System resulting from the use of the Licensed Software by Online
Users.  The Online License Fee will be (***) per PNR, subject to
the following discounts, based on the number of PNR’s created during any single
License Year:




	
  Number of PNR’s during Year

  	
   

  	
  Fee per PNR

  
	
  (***)

  	
   

  	
  (***)

  
	
  (***)

  	
   

  	
  (***)

  
	
  (***)

  	
   

  	
  (***)

  
	
  (***)

  	
   

  	
  (***)

  
	
  (***)

  	
   

  	
  (***)

  
	
  (***)

  	
   

  	
  (***)

  
	
  (***)

  	
   

  	
  (***)

  
	
  (***)

  	
   

  	
  (***)

  
	
  (***)

  	
   

  	
  (***)

  
	
  (***)

  	
   

  	
  (***)

  
	
   

  	
   

  	
   

  
	
  (***)

  	
   

  	
  (***)

  






(ii) License Fee Graduated. The Online License Fee will be
graduated; in other words, PNR numbers 1 through 2,000,000 will be priced at
$1.00 regardless of any discounts that may apply to higher volumes.


(iii) Minimum Online License Fee. 
Notwithstanding the number of PNR’s, the Online License Fee will be
subject to a minimum of (***) (or, if applicable, the amount determined in
accordance with section 6(d)(iii)) per License Year for the Domestic Version,
and an additional (***) (or, if applicable, the amount determined in accordance
with section 6(d)(iv)) per License Year for the International Version if and
when it is accepted by Galileo.  (The
minimum Online License Fee shall be prorated for any partial License
Year.)  If and when Galileo begins paying
the Offline License Fee provided in Section 6(b), then the minimum Online
License Fee pursuant to this clause (iii) will cease to apply and Galileo will
pay only the Online License Fee calculated pursuant to clause (i).


 


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(iv) Payment Terms. 
Galileo shall pay the Online License Fee on a monthly basis in arrears,
as follows:  Within 25 days after the end
of each License Month, Galileo will certify to ITA the number of PNRs generated
by Online Users during such License Month, the cumulative number of PNR’s
generated by Online Users during the current License Year, and the amount of
Online License Fee owed for the previous License Month, which shall be an
amount equal to:


(A) the greater of:


(x) the Online License Fee calculated in accordance
with Sections 6(a)(i) and 6(a)(ii) above for the aggregate number of PNRs
created by Online Users year-to-date for the relevant License Year; or


(y) the prorated portion of the minimum Online License
Fee (i.e., year-to-date for the relevant License Year);


less


(B) the aggregate of the
Online License Fees previously paid in the relevant License Year.


Galileo has paid to ITA a
non-refundable advance in the amount of (***), which shall be applied to the
Online License Fees owed until it is depleted. 
Thereafter, Galileo will pay ITA, simultaneously with each such
certification, an amount equal to the Online License Fee due for the previous
month.  If at the end of any License Year
the aggregate amount paid by Galileo to ITA under this Section 6 exceeds the
amount owed, as calculated pursuant to subsection (a)(i), then ITA shall
promptly refund such excess.


Example:


Calculation
of year-to-date Online License Fee:


If at the
end of the 4th License Month in a License Year the PNRs total 4,200,000, then
the year-to-date Online License Fee would be (***), calculated as follows: (***).


Calculation
of year-to-date Minimum Online License Fee:


If only
the Domestic Version is in use, then the Minimum Online License Fee would be (***), calculated as
follows:  (***).


If both
the Domestic Version and the International Version are in use, then the Minimum
Online License Fee would be (***), calculated as
follows:  (***).


 


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(*These
amounts are subject to adjustment as provided in Sections 6(d)(iii) and (iv).)


Calculation
of Amount Due for the License Month:  


Subtract
the aggregate amount of Online License Fees already paid during the relevant
License Year from the year-to-date Online License Fee.  In this example, if the aggregate Online
License Fees previously paid in the License Year (i.e., during the first three
License Months of the License Year) was (***), then the amount owed for
the 4th License Month would be (***), calculated
as follows:  (***).


End example.


(b)   Offline License Fee.  In the event Galileo uses the Licensed
Software to provide services to Offline Travel Agents, Galileo will pay (***)
fee therefor (the “Offline License Fee”)
in the amount of (***) for the Domestic Version and, if and when Galileo uses
the International Version, (***) for the International Version, plus (in either
case), beginning September 1, 2004, the CPI Increase.  The Offline License Fee will be payable in
cash in (***), in advance, with the (***) payable on the date Galileo begins
using the Licensed Software to provide services to Travel Agents (other than
Online Users).  Any (***) at the
beginning or the end of the license period will be (***).   The Offline License Fee will be in addition
to the Online License Fee payable pursuant to Section 6(a), except that the
Minimum Online License Fee will not apply from the date Galileo begins paying
the Offline License Fee.


(c)           Bundled License Fee.


(i) In lieu of the
foregoing Online License Fee and Offline License Fee, Galileo may elect to pay
a bundled fee for all components of the Licensed Software (the Online Use, the
Offline Use, and the International Version), as follows:  Galileo would pay to ITA an annual base
license fee for the Licensed Software in the amount of (***) (the “Annual Base License Fee”). 
The Annual Base License Fee will include the following uses or
functionalities of the Licensed Software: 
(A) the creation of up to (***) PNRs per License Year by Online Users
(with additional PNRs above (***) being charged pursuant to the provisions of
clause (ii) below); and (B) (***) both the Domestic Version and the
International Version of the Licensed Software by Offline Travel Agents.  In the event Galileo elects to pay the Annual
Base License Fee, Galileo will use the Licensed Software in a manner generally
consistent with its existing offline business model (measured in terms of
look-to-book productivity or a similar metric, which the parties will agree at
the time of election and which Galileo will implement sufficient technical
capabilities to measure).  Galileo’s
failure to use the Licensed Software in a manner generally consistent with its
existing offline business model will entitle ITA to impose a (***) fee ((***)
not less than that contained in Section 6(b)) for use of the Licensed


 


11

















Software by Offline Travel Agents.  In the event Galileo is not using the
International Version, then the Annual Base License Fee during the first year
following the License Fee Commencement Date will be reduced to (***) per
License Month until the date Galileo begins using the International Version or
the end of such one-year period, whichever first occurs.


(ii) Galileo will pay ITA an incremental fee of (***)
per PNR for each PNR in excess of (***) PNRs created by Online Users in any
License Year (the “Incremental PNR Fee”).  Galileo will be required to pay the
Incremental PNR Fee with respect to PNR’s in excess of the (***) on a monthly
basis in arrears, as follows:  Within 30
days after the end of each License Month, Galileo will certify to ITA the
number of PNRs created by Online Users during such License Month and the
cumulative number of PNR’s created during the current License Year.  In the event that, at the end of any License
Month, the cumulative number of PNRs generated during such License Year exceeds
(***) multiplied by the number of License Months then elapsed in such License
Year, then Galileo will pay ITA, simultaneously with such notification, an
amount equal to the number of excess PNRs multiplied by the Incremental PNR
Fee.


(iii) In the event ITA charges another customer an
incremental per-PNR fee for online usage which is less than the Incremental PNR
Fee, if such other customer is generating comparable PNR volumes to Galileo and
has agreed to minimum license fees that are not materially greater than those
provided herein, then ITA will so notify Galileo and the Incremental PNR Fee
will be prospectively (but not retroactively) reduced to an amount equal to
that paid by such other ITA customer.


(iv) Galileo shall have
30 days from the date it begins paying Offline License Fee pursuant to Section
6(b) to elect whether to accept the bundled pricing provided in this Section
6(c) or to continue paying the Online License Fee and the Offline License Fee
pursuant to Sections 6(a) and 6(b).  In
addition, Galileo shall have 30 days from the date it begins using the
International Version of the Licensed Software to elect whether to accept the
bundled pricing provided in this Section 6(c) or to continue paying the Online
License Fee and the Offline License Fee pursuant to Sections 6(a) and
6(b).  Galileo shall not have the right
to elect to pay the bundled license fee provided in this Section 6(c) except
during the two thirty-day periods described above.  In addition, Galileo’s election to pay the
bundled license fee pursuant to this Section 6(c) will be irrevocable, and
following its election to pay the bundled license fee, Galileo will not have
the option to return to paying the Online License Fee and the Offline License
Fee pursuant to Sections 6(a) and 6(b).


(d)           Amadeus Agreement.


(i) ITA is contractually
obligated, pursuant to its license agreement with Amadeus (the “Amadeus Agreement”) to charge Galileo annual payments that
are not less than Amadeus’ annual cost for the most comparable version of the


 


12

















Licensed Software (i.e., the
Domestic Version, the International Version and/or “Guaranteed Fare Pricing”
(defined as “committing to a final price with one or more travel service
providers for one or more bookings, including all taxes, fees, and other
charges”)).  The Amadeus Agreement
provides that in calculating Amadeus’ annual cost, Amadeus must consider its
annual direct costs for developing, maintaining and supporting the Licensed
Software, excluding overhead charges related thereto and non-cash payments,
which costs Amadeus must certify to ITA annually.  ITA has not yet requested that Amadeus so
certify its costs, and has informed Galileo that based upon ITA’s estimate it
believes that the license fees provided in the preceding Sections 6(a), 6(b)
and 6(c) should be sufficient to satisfy ITA’s obligation not to charge Galileo
less than Amadeus’ annual costs. 
Following the execution of this Agreement, ITA will request that Amadeus
certify its annual costs.


(ii) In the event Amadeus
informs ITA that its annual costs are such that the license fees provided in
Sections 6(a), 6(b) and 6(c) do not satisfy ITA’s obligations under the Amadeus
Agreement, then effective 90 days from the date of such certification, the
license fees payable hereunder will be increased by the smallest amount
possible so as to satisfy the Amadeus Agreement; provided, however, that if
such increases cause the total license fees payable by Galileo hereunder to
increase by more than (***), then the parties will use reasonable efforts
(either through negotiations with Amadeus or otherwise) to effect the smallest
possible increase while not violating the Amadeus Agreement or, if such efforts
are unsuccessful, Galileo will have the option (exercisable any time prior to
the effective date of any such license fee increase) to terminate this
Agreement.  Such termination will not be
deemed a breach by either party, and upon such termination Galileo will be
entitled to termination assistance pursuant to Section 7(g), provided that
Galileo pays a license fee, during the period of such transition, that is equal
to the amount required to be charged pursuant to this Section 6(d).  The provisions of this Section 6(d)(ii) will
apply on each occasion (if more than one) that Amadeus asserts that the license
fees payable hereunder should be increased as a result of the provisions of the
Amadeus Agreement.


(iii) Galileo acknowledges that the amount ITA is
obligated to charge Galileo under the Amadeus Agreement will increase if
Galileo uses the Licensed Software for Guaranteed Fare Pricing (as defined in
(i) above).


(e)   Services to Airlines.  Notwithstanding anything herein to the
contrary, the charges set forth in Section 6(a) (or, if Galileo has elected
bundled pricing, 6(c)) shall include Galileo’s use of the Licensed Software to
provide services to (***) at the (***) web site, but will not include use of
the Licensed Software to provide services to (***) airport or city ticket
offices (“ATOs/CTOs”) nor to provide such
services to any other Airlines’ web sites or ATOs/CTOs, unless Galileo is then
paying ITA total license fees of at least (***) annually.  In the event that, at a time when Galileo is
not paying ITA total license fees of at least (***) annually, Galileo wishes to
provides services to any Airline’s web site (other than (***)) or any Airline’s
ATOs/CTOs, using the Licensed Software, then the following provisions will
apply to the pricing thereof: (i) Galileo will aggregate, for the purpose


 


13

















of determining the per-PNR charge and the discount
applicable thereto pursuant to Section 6(a)(i), the PNRs created by such
Airline(s) with all other PNRs created by Galileo, and (ii) such per-PNR
charges will be subject to monthly minimums (in addition to any minimums
applicable to Galileo’s Online Use pursuant to Section 6(a)(iii)), as follows:
(A) in the case of any Airline that carries more than 10 million passengers per
year, as reported by Airline Transport World (“ATW”), Galileo will pay ITA a
minimum of (***) per month for each Airline to which it provides services using
the Licensed Software; (B) in the case of any Airline that carries more than 3
million but fewer than 10 million passengers per year, as reported by ATW,
Galileo will pay ITA a minimum of (***) per month for each Airline to which it
provides services using the Licensed Software; and (C) in the case of any
Airline that carries fewer than 3 million passengers per year, as reported by
ATW, Galileo will pay not be obligated to pay ITA any monthly minimum and
instead pay only for PNRs actually created.  
In the event ITA licenses to an airline software which is substantially
similar to the Licensed Software, at an effective price which is lower than
that provided hereunder or on more favorable terms (provided that such price
and terms shall be considered as a whole), ITA shall prospectively (but not
retroactively) reduce the price to be charged to Galileo and/or revise the
terms such that, considered as a whole, they are at least as favorable as that
granted to such third party. In determining whether software is “substantially
similar” or whether the terms charged to a third party are “more favorable,”
ITA will take into account, in addition to the minimum license fee, the number
of transactions for which a licensee is using the software, the duration of the
license, the amount of integration work required, the expected volume of
transactions, and whether or not there is a per-transaction component to the
pricing.


(f)    Services.  Galileo shall pay ITA the fees set forth in
the applicable SOW for any services provided pursuant to
Section 3(a).  Time will be billed
at ITA’s then-standard rates.  Presently
such rates are (***) per hour for regular developers and (***) per hour for
senior developers.  Notwithstanding the
foregoing, the rates charged for services under any SOW shall not exceed the
lowest rate that ITA charges any other customer (other than one customer to
which ITA is contractually obligated to charge (***) per hour for certain
services, and a second customer whose rate ITA is in the process of increasing
to (***)).  Senior Developers are defined
as those developers who have at least five years of paid professional software
programming experience.


(g)   Reimbursable Costs and
Expenses.  Unless otherwise
specified in the applicable SOW, in addition to the hourly rates described in
the applicable SOW, Galileo shall pay ITA’s
actual out-of-pocket expenses incurred by ITA in rendering services to Galileo
hereunder, including without limitation costs of travel, provided that such expenses are incurred in
accordance with Galileo’s then-current standard policy regarding such
reimbursable expenses (advance notice of any modifications to which
Galileo agrees to provide to ITA).  ITA agrees to provide Galileo with access to
such original receipts, ledgers, and other records as may be reasonably
appropriate for Galileo or its accountants to verify the amount and nature of
any such expenses.


(h)   Maintenance; Data;
Operations.  Charges relating
to provision of maintenance and support of the Licensed Software, provision and
management of data to the Licensed Software, and hosting and operation of the
Licensed Software (such as computers,


 


14

















communications, facilities, monitoring, operational
support and maintenance, etc.) shall be set forth in the SLA.


(i)    Invoicing.  ITA shall invoice Galileo on a monthly basis
for all fees and charges accruing hereunder or pursuant to an SOW, and Galileo
shall pay all such invoiced amounts within thirty (30) days after receipt of
invoice.  Any overdue invoices will
accrue interest at the rate of 12% per annum from the date due until the date
actually paid.  In the event of a good
faith dispute as to any portion of an invoice, Galileo shall give written
notice to ITA, within fourteen (14) days after receiving such invoice, stating
the details of any such dispute and shall promptly pay any undisputed amount in
accordance with this Agreement.


(j)    Taxes.  Galileo shall be responsible for the payment
of any federal, state or local sales or use taxes assessed on the Licensed
Software or services provided under this Agreement; provided, however, that
Galileo shall not be liable for taxes based on ITA’s income.


7.     TERM
AND TERMINATION


(a)           Term of Agreement. 
The term of this Agreement shall commence on the date hereof, and this
Agreement and the license granted to Galileo hereunder and shall terminate, if
not renewed as provided below, at the end of three License Years.  Thereafter, this Agreement will remain in
effect for successive one-year renewal terms unless, within 90 days prior to
the end of the initial term or any renewal term, Galileo notifies ITA that it
does not intend to renew the license for the renewal term.


(b)           Term of SOWs.  Unless
specified otherwise in an SOW or earlier terminated in accordance with this
Agreement, each SOW shall remain in full force and effect until expiration of
this Agreement or until performance is completed and deliverables are accepted,
whichever is later.


(c)           Termination for Cause by Galileo. 
This Agreement and the license granted hereunder may be
terminated by Galileo for cause immediately by written notice in the event (i)
ITA materially breaches the confidentiality obligations set forth in Section 12
so as to cause material damage to Galileo and such breach cannot be cured or is
not cured within 30 days after such breach; (ii) ITA materially breaches its
obligation timely to perform Maintenance Services under the SLA (as defined in
the following paragraph); (iii) the Licensed Software has substantially ceased
to operate (as defined in the following paragraph); (iv) ITA is unable to
obtain availability data (as contemplated in Section 3 of the SLA) such that
the availability information generated by the Licensed Software is
substantially similar, in scope and quality, to that generated using the data
currently obtained from Worldspan; (v) the cost to Galileo of availability data
increases by more than the amount allowed under Section 6.2.4(e) of the SLA; or
(vi) an Insolvency Event occurs with respect to ITA.  In the event of termination by Galileo
pursuant to this Section 7(c), ITA shall refund to Galileo any license or other
fees paid by Galileo which have been paid in advance by Galileo and have not become
due and payable as of the effective date of termination.


For the purposes of clause (iii) of this Section 7(c), ITA shall be
deemed to have materially breached its obligation to provide Maintenance
Services if, on three separate


 


15

















occasions during any month, or on two separate
occasions during each of three different months within any twelve-month period
(where, in each case, an “occasion” means a single problem or set of related
problems reported by Galileo within a twenty-four-hour period), ITA fails to
respond and apply resources to emergency problems (as defined in the SLA), and
ITA’s failure has an adverse affect on Galileo. 
In no event will ITA be deemed to have failed to respond and apply
resources to an emergency problem if, notwithstanding the response time or
amount of resources applied, ITA shall have resolved the problem within the
target resolution time set forth in the SLA.


For the purposes of clause (iv) of this Section 7(c), the Licensed
Software shall be considered to have “substantially ceased to
operate” if (A) the Licensed Software has failed of its fundamental
commercial purpose, (B) such failure is due to a software (and not an
operational or data) problem, (C) ITA shall have been unable, despite having
exercised the efforts required by Section 5.2 of the SLA, to resolve the
problem, and (D) such failure continues for a period of 15 days.


In the event of any dispute related to the circumstances justifying
either party’s right to terminate, no termination shall be effective until the
dispute resolution procedures set forth in Section 15 have been completed.


(d)           Termination for Cause by ITA.  This
Agreement and the license granted hereunder may be terminated by ITA for cause
immediately by written notice in the event (i) Galileo breaches the
confidentiality obligations set forth in Section 12 so as to cause material
damage to ITA and such breach cannot be cured or is not cured within 30 days
after such breach; (ii) Galileo breaches the payment obligations set forth in
Section 6 or in the SLA, the license restrictions set forth in Section 2, or
the provisions relating to source code restrictions and confidentiality set
forth in Section 12(c) and (d), and in any such case such breach (irrespective
of damage to ITA) is not cured within thirty (30) days (sixty (60) days in the
case of a payment default, provided that Galileo will make commercially
reasonable efforts to pay invoices in a timely fashion), after receipt of
written notice thereof from ITA; or (iii) an Insolvency Event occurs with
respect to Galileo.


(e)           Termination Due to Assignment or Change of Control.  A party may terminate this Agreement in the
event the other party either assigns this Agreement to a third party or Control
of the other party is transferred to a third party and
such party reasonably believes that the third party would be unable to perform
the other party’s obligations under the Agreement.  In addition, Galileo may terminate this
Agreement in the event ITA either assigns this Agreement to a third party or
Control of ITA is transferred to a third party and
that third party or any of its Affiliates owns or operates any of the
reservations systems or web sites listed in, or is one of the entities listed
in, listed in, Exhibit F (or a successor or assign or any such
entity).  In the case of any termination
pursuant to this Section 7(e), a party shall have 20 days from the date of its
receipt of notice of such assignment or change of Control to exercise its right
to terminate pursuant to this subsection by giving notice thereof to the other
party.  In the event of termination by
Galileo pursuant to the second sentence of this subsection, Galileo shall pay
to ITA, upon the effective date of termination, a termination fee equal to the
product of (x) (***); and (y) a fraction, the numerator of which is the number
of License Months


 


16

















remaining in the term of the Agreement as of the
effective date of the termination, and the denominator of which is 36.


(f)            Termination of SOWs. 
Either party may terminate an SOW in the event the other party
materially breaches any provision thereof and fails to cure such breach within
thirty (30) days after receipt of written notice thereof from the non-breaching
party.


(g)           Duties on Termination. Upon termination of this Agreement
for any reason, Galileo shall, subject to the following, immediately cease use
of the Licensed Software, and all licenses granted hereunder shall immediately
cease and terminate.  Notwithstanding the
foregoing, upon termination of this Agreement for any reason other than Galileo’s
breach, ITA shall provide to Galileo, upon Galileo’s request, at ITA’s
then-standard rates and upon Galileo’s continued payment of the Online License
Fee and, if applicable, the Offline License Fee, pursuant to Section 6(a),
reasonable termination assistance, including the right to continue to use the
Licensed Software as set forth herein, for a period of up to six (6) months
following the effective date of termination. 
Such termination assistance shall include, without limitation,
cooperating with third parties for the orderly transition to a new system in
order to minimize any disruption in the services provided by Galileo to Online
Users and, in the event Galileo has begun the Offline Use, to Offline Travel
Agents.  Termination assistance will also
be available in the event of termination by ITA of this Agreement pursuant to
Section 7(d), except that ITA will not be obligated to render any such termination
assistance unless and until (i) Galileo has cured, to ITA’s reasonable
satisfaction, any breaches that led to such termination and (ii) Galileo pays
any applicable license or other fees to ITA in advance, or otherwise provides
reasonable assurances to ITA that it will receive payment as required
hereunder.


(h)           Survival.  The parties’
rights and obligations under the following sections shall survive the
termination or expiration of this Agreement: 
5, 7, 9, 10, 12, 13, 15 and 16.


8.     REPRESENTATIONS
AND WARRANTIES


(a)   By Galileo.  Galileo represents and warrants to ITA that
it has the full right, power and authority to enter into this Agreement and to
perform its obligations hereunder and that Galileo’s compliance with the terms
and conditions of this Agreement will not violate any federal, state or local
laws, regulations or ordinances or conflict with any third party agreements.


(b)   By ITA.  ITA represents, warrants and covenants to
Galileo as follows:


(i)    Authority:  That: (1) ITA has the full right, power
and authority to enter into this Agreement, to carry out its obligations under
this Agreement and to grant the rights and licenses granted to Galileo in this
Agreement; and (2) ITA’s compliance with the terms and conditions of this
Agreement shall not violate any federal, state or local laws, regulations or
ordinances or conflict with any third party agreements.


(ii)   Quality:  That ITA shall perform all services in a
good, workmanlike and professional manner using people fully familiar with the
Licensed Software and the underlying technology.


 


17

















(iii)  Infringement:  That the Licensed Software does not and shall
not infringe any third party’s patent, trademark, trade name, service mark,
copyright, trade secret or any other intellectual property right of a third
party.  In the event that any such
infringement claim or suit is brought or threatened, ITA shall, at its expense,
(1) procure for Galileo the right to continue using the Licensed Software; (2)
replace or modify the Licensed Software so that it becomes non-infringing but
remains substantially equivalent in functionality and performance; or (3) in
the event (1) and (2) are not commercially practicable, terminate this
Agreement and the license granted hereunder and refund to Galileo all unearned
license fees then paid by Galileo and any fees for maintenance services not yet
performed as set forth in the SLA.  Other
than ITA’s obligation to indemnify Galileo pursuant to Section 9, the
provisions of the preceding sentence shall be Galileo’s sole remedy in the case
of a claim of infringement.


(iv)  Century Compliance:  That the century change is, and shall be,
supported in the Licensed Software’s logic and data, and that the Licensed
Software shall support the use, entry or creation of dates prior to, on, after
or spanning January 1, 2000, so that when such a date is either processed
(including by way of calculation, comparison, sequencing, display, storage or
otherwise), entered into, or is intended to be generated as a result of the operation
of the Licensed Software, the Licensed Software shall not (1) fail or
produce incorrect date results, or (2) cause any other programs, hardware
or system to fail or to generate errors.


(v)   Unauthorized Code:  That the Licensed Software shall be free, at the
time of receipt by Galileo, of (1) any automatic restraints, computer viruses,
software locks, time bombs or other such code that hinders Galileo’s freedom
fully to exercise its license rights under this Agreement; (2) harmful programs
or data incorporated into the Licensed Software which destroy, erase, damage or
otherwise disrupt the normal (i.e., in accordance with the provisions of this
Agreement) operation of the Licensed Software or other programs, hardware or
systems utilized by Galileo or allow for unauthorized access to the Licensed
Software or other programs, hardware or systems utilized by Galileo; or (3) any
mechanism, such as password checking, CPU serial number checking or time
dependency, that hinders Galileo’s freedom to fully exercise its license rights
under this Agreement.  The foregoing
provisions of this paragraph (v) shall not be deemed violated by license files
that disable functions in the Licensed Software which are not included in the
license grant to Galileo hereunder.


(vi)  Pass-Through:  ITA hereby assigns, and shall assign, to
Galileo all warranties, representations and indemnities granted to ITA by third
parties in the Licensed Software or any components thereof, and all remedies
for breach of such warranties, representations and indemnities.


(vii) As Documented:  The Licensed Software will in all material
aspects conform to and operate in accordance with the Documentation.   Upon receipt from
Galileo of notice of a breach of this warranty, ITA will attempt to correct the
breach in accordance with the provisions of the SLA;


(viii)                No Litigation:  ITA is not a party to any litigation,
arbitration, or other proceeding regarding the Licensed Software.


 


18

















(c)   Disclaimer.  EXCEPT FOR THE WARRANTIES SET FORTH IN THIS
SECTION 8, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED,
INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.


9.     INDEMNIFICATION


(a)  By ITA.  ITA shall, at
its own expense, defend, indemnify and hold harmless Galileo, its Affiliates,
and their respective directors, officers, employees, successors and permitted
assigns from and against any and all liabilities, damages, awards, losses,
costs and expenses (including court costs and reasonable attorneys’ fees)
arising out of any claim, demand, suit or cause of action (hereinafter a “Claim”) brought by a third party relating to or resulting
from (i) any act or omission of ITA or its employees, agents or contractors,
(ii) any breach of the representation and warranty made in Section 8(b)(i) by
ITA; or (iii) the actual or alleged infringement by the Licensed Software of a
third party’s patent, copyright, trademark, service mark, trade secret or other
proprietary rights.


(b)   By Galileo.  Galileo shall, at its own expense, defend,
indemnify and hold harmless ITA, its Affiliates, and their respective
directors, officers, employees, successors and permitted assigns from and
against any and all liabilities, damages, awards, losses, costs and expenses
(including court costs and reasonable attorneys’ fees) arising out of any Claim
brought by a third party relating to or resulting from (i) any act or omission
of Galileo or its employees, agents or contractors, or (ii) any breach of the
representation and warranty made in Section 8(a) by Galileo.


(c)   Indemnification Procedures.  If any party entitled to indemnification
under this section (an “Indemnified Party”)
makes an indemnification request to the other, the Indemnified Party shall
permit the other party (the “Indemnifying Party”)
to control the defense, disposition or settlement of the matter at its own
expense; provided that the Indemnifying Party shall not, without the consent of
the Indemnified Party, enter into any settlement or agree to any disposition
that imposes any conditions or obligations on the Indemnified Party other than
the payment of monies that are readily measurable for purposes of determining
the reimbursement obligations of the Indemnifying Party.  The Indemnified Party shall notify the
Indemnifying Party promptly of any claim for which the Indemnifying Party is
responsible and shall reasonably cooperate with the Indemnifying Party to
facilitate the defense of any such claim. 
An Indemnified Party shall at all times have the option to participate
in any Claim through counsel of its own selection and at its own expense.


10.  LIMITATION
OF LIABILITY


                IN NO EVENT SHALL EITHER PARTY
BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR
ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN CONTRACT,
TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT
SHALL EITHER PARTY’S LIABILITY TO THE OTHER PARTY FOR DAMAGES IN CONNECTION WITH
THIS AGREEMENT AND THE SLA IN THE AGGREGATE EXCEED THE AMOUNT OF


 


19

















LICENSE
FEES AND CHARGES FOR MAINTENANCE, DATA, AND OPERATIONS SERVICES PAID BY GALILEO
TO ITA DURING THE PREVIOUS (***) MONTHS PURSUANT TO THIS AGREEMENT AND THE SLA,
WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.  THE LIMITATIONS CONTAINED IN THIS SECTION
SHALL NOT APPLY TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS SET FORTH IN
SECTION 9, A BREACH BY EITHER PARTY OF SECTION 12 (CONFIDENTIALITY), A BREACH
BY GALILEO OF SECTION 6 (FEES AND EXPENSES) OR SECTION 11 (d) (CONFIDENTIALITY
OF SOURCE CODE) OR THE WILLFUL OR RECKLESS ACTS OF EITHER PARTY.


11.  SOURCE
CODE ESCROW


(a)   Escrow.  Within thirty (30) days after the execution
of this Agreement, ITA shall place a current, complete, and accurate copy of
all source code for the Licensed Software in escrow with a nationally
recognized escrow agent for the benefit of Galileo.  The materials placed in escrow shall include
a computer readable copy of the source code for each of the programs comprising
the Licensed Software, as well as complete program maintenance documentation,
including all technical manuals and release notes.  Thereafter, ITA shall deliver to the escrow
agent at the time of each new version of the Licensed Software all source code
for each update, bug fix, Upgrade Releases, Enhancement, Customization, release
or version of the Licensed Software, and no less often than on the anniversary
of the date of this Agreement, ITA shall deliver to the escrow agent a fully
updated copy of all source code for the Licensed Software.  Such additional source code deposits together
with the original source code deposit and any other materials placed in escrow
pursuant to this Agreement shall be referred to herein as the “Deposited Materials.” 
Galileo shall bear the costs charged by the escrow agent for such source
code escrow.


(b)   Release.  The escrow agreement shall provide for
release of the Deposited Materials to Galileo upon the occurrence of any of the
following: (i) an Insolvency Event occurs with respect to ITA; (ii) ITA
notifies Galileo of its intent to cease to provide maintenance and support
services for a material portion of the Licensed Software, or ITA fails, for a
period of thirty days after notice, to make available to Galileo Upgrade
Releases which are generally made available to other ITA licensees, or ITA
fails, for a period of thirty days after notice, to provide Maintenance
Services to Galileo in compliance with Section 2.1(i) of the SLA; (iii) ITA
fails to provide resources to perform customization of the Licensed Software
requested by Galileo pursuant to Section 3(a) (but only to the extent and under
the conditions set forth in Section 3(a)), and such failure continues for 60
days after written notice by Galileo; (iv) ITA is prevented by an event of
Force Majeure (as defined in Section 7.4 of the SLA) from performing
Maintenance Services for a period of 90 consecutive days; or (v) that part of
ITA’s (or its successors’ or assigns’) business that operates and/or maintains
the Deposited Materials ceases to be conducted in the ordinary course.  If the event which allows Galileo to obtain
the Deposited Materials from escrow also constitutes a breach which would
entitle Galileo to terminate this Agreement pursuant to Section 7(c), then
Galileo’s election to obtain the Deposited Materials from escrow will operate
as a complete waiver of Galileo’s right to terminate as a result of such
breach.


 


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(c)   Impact on Fees/Charges.  In the event the Deposited Materials are
released to Galileo, then Galileo will be obligated to continue paying the
Online License Fee and, if applicable, the Offline License Fee under Sections
6(a) and 6(b), respectively, for as long as this Agreement remains in effect;
provided, however, that in the event that the Deposited Materials are released
as a result of the occurrence of one of the events set forth in Section
7(b)(ii) or Section 7(b)(v), then ITA will be relieved of the obligation to
perform Maintenance Services under the SLA and the License Fee shall be reduced
by an amount equal to the lesser of: (i) the actual, direct costs incurred by
Galileo to perform the Maintenance Services itself; and (ii) (***).


(e) Return of Deposited
Materials.  In the event this
Agreement terminates after Galileo has received source code from escrow, then
upon such termination, in addition to the provisions of Section 7(g), Galileo
will either return to the escrow agent all copies of the source code (other
than source code written by Galileo as contemplated by Section 11(f)) or will
certify to ITA that all copies of the source code (other than source code
written by Galileo as contemplated by Section 11(f)) have been destroyed.


(f)    Restrictions.  In the event the Deposited Materials are
released to Galileo, Galileo shall have the right to use the Deposited
Materials only for the following purposes: (i) to continue operating the
software in accordance with the license granted hereunder; (ii) to correct
bugs, errors, defects or malfunctions in the Licensed Software; (iii) to modify
the Licensed Software to comply with regulatory requirements or industry
standards; and (iv) to perform the maintenance and support services that ITA was
to perform under this Agreement and the SLA, including without limitation the
development of Upgrade Releases, Enhancements, and Customizations; provided,
however, that any modification by Galileo of the Licensed Software shall excuse
ITA from any further performance of its maintenance and support obligations
with respect to such portions of the Licensed Software that were modified by
Galileo.  Unless otherwise provided in
this Agreement, the scope of and restrictions on the licenses granted
hereunder, and the intellectual property rights of the parties, shall continue
to be as set forth in Section 2 and 5, provided that Galileo shall own all
source code and object code developed by or for Galileo after the release of
the Deposited Materials to Galileo.  In
addition, the following provisions will apply in the event source code is
released to Galileo:


(i)    Galileo may make copies of the Licensed
Software for staging, back-up, disaster recovery, testing or archival purposes,
and as necessary to utilize the Licensed Software in its business.


(ii)   Galileo shall be permitted to use (including
via a network) the Licensed Software on a worldwide basis and on an unlimited
number of machines without restriction as to the number of users, but only
subject to the restrictions and limitations contained herein.


The
foregoing restrictions are in addition to any restrictions imposed on
Confidential Information pursuant to Section 12.


(g)   Confidentiality.  The escrow agreement (or a separate agreement
entered into among the escrow agent, ITA and Galileo) shall also include
reasonable provisions for


 


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maintenance by Galileo of
the confidentiality of the Deposited Materials in the event the Deposited
Materials are released to Galileo, including but not limited to requirements
that (i)  access to the source code and
documentation related to such source code (“Access”)
be limited only to those employees or third party contractors or outsourcers of
Galileo engaged in operating, maintaining, supporting and updating the Licensed
Software; (ii) Galileo shall maintain a list of all such individuals to whom
Galileo has granted Access and shall provide a copy of such list to ITA upon
ITA’s request; (iii) all such individuals shall, as a condition of and prior to
being granted such Access, execute a non-disclosure agreement containing
provisions at least as restrictive as those set forth in Section 12, and
Galileo shall maintain such agreements available for inspection and copying by
ITA upon reasonable request; and (iv) the Deposited Materials shall be stored
in a secure manner.


12.  CONFIDENTIAL
INFORMATION


(a)   Confidential Information.  Each party has disclosed (prior to the
commencement of this Agreement) and may disclose Confidential Information (as
defined below) to the other party that the other party shall maintain in
confidence in accordance with the provisions of this Section 12.  As used herein, each party which discloses
such information is referred to as a “Disclosing Party”
and each party which receives such information is referred to as a “Receiving Party.”  “Confidential Information” means Disclosing Party’s
confidential and proprietary inventions, products, designs and ideas, including
computer software, functionality, concepts, processes, internal structure,
external elements, user interfaces, technology and documentation, as well as
confidential and proprietary information relating to Disclosing Party’s
operations, plans, opportunities, finances, research, technology, developments,
know-how, personnel, and any third party confidential information disclosed to
Receiving Party.  Without limiting the
foregoing definition, the Licensed Software and the Documentation (except
Documentation reasonably expected to be provided to Online Users regarding the
use of the Licensed Software) are “Confidential Information” of ITA.  In addition, information about private fares
that Galileo makes available to certain customers is “Confidential Information”
of Galileo that may not be disclosed to any other parties.  The terms and conditions of this Agreement
are also “Confidential Information.” 
However, “Confidential Information” shall not include information
(a) already lawfully known to Receiving Party if the Receiving Party does
not then have a duty to maintain its confidentiality, (b) developed
independently by the Receiving Party, (c) generally known to the public
through no fault of the Receiving Party; (d) lawfully obtained from a
third party not obligated to preserve its confidentiality; (e) required to be
disclosed by law, regulation or order of a court of competent jurisdiction or
other governmental authority (except that prior to any such disclosure the
Receiving Party shall give the Disclosing Party notice thereof and afford the
Disclosing Party the opportunity to oppose any such disclosure).


(b)   Non-Disclosure.  Receiving Party acknowledges that
Confidential Information is confidential, proprietary and/or trade secret
information of the Disclosing Party. 
Receiving Party shall not use the Confidential Information for any
purpose other than in accordance with this Agreement, and shall not disclose
Confidential Information to anyone other than its employees and contractors who
legitimately need access to it and who have signed confidentiality agreements
comparable in scope to this Section 12. 
Receiving Party shall notify each of its employees and contractors who
are given access to Confidential Information that they


 


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have an obligation not to disclose Confidential
Information and shall take such steps as are reasonably necessary to insure
compliance with this obligation. 
Receiving Party shall safeguard Confidential Information with reasonable
security means at least equivalent to measures that it uses to safeguard its
own proprietary information. Receiving Party shall store Confidential
Information in a safe and secure location. 
Receiving Party may not remove copyright, trademark, trade secret,
confidentiality, and patent notices from Confidential Information.


(c)   Breach of Confidentiality
Obligations.  Receiving Party
hereby acknowledges that unauthorized disclosure or use of Confidential
Information shall cause immediate and irreparable harm to Disclosing Party for
which it would not have an adequate remedy at law.  Accordingly, Disclosing Party shall have the
right to seek and obtain preliminary and final injunctive relief to enforce
this Agreement in case of any actual or threatened breach, in addition to other
rights and remedies that may be available to Disclosing Party.


13.  RELATIONSHIP
OF THE PARTIES


The parties shall be
treated for all purposes as independent contractors, and no provision of this
Agreement shall be construed to constitute or create a partnership, joint
venture, agency or formal business organization of any kind.


14.  PUBLICITY


                (a) At no time shall either
party release a press release that mentions the other party unless the other
party has consented in writing in advance to such press release; provided,
however, that upon the execution hereof the parties will jointly release the
press release contained in Exhibit C; and provided further that either
party may state that Galileo has Licensed Software from ITA.


(b)  For so long as the Licensed
Software is used by Online Users, Galileo will require, as a condition of
providing a web site with use of the Licensed Software, that each query input
screen on any such web site using the Licensed Software, as well as each screen
displaying search results, will contain ITA’s logo with the words “powered by
ITA Software”, or such other language as Galileo, subject to ITA’s consent, may
determine.  Such logo and language will
appear in a location on each such web site and in the size mutually
agreed.  The placement and size of such
attribution for the TRIP and CheapTickets web sites will be as shown in the
screen shots attached hereto as Exhibit D.  Galileo’s marketing and publicity materials
as well as User Documentation such as manuals, when discussing the Licensed
Software, will mention ITA as the creator thereof.


15.  DISPUTE RESOLUTION


The parties shall first attempt in good faith to resolve any dispute
arising out of or relating to this Agreement by negotiation, then arbitration,
in accordance with the dispute resolution procedures as set forth in Exhibit E.


16.  MISCELLANEOUS


 


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(a)   Severability.  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)   Entire Agreement.  This Agreement together with the SLA, the
source code escrow documentation, and any SOW represents the entire agreement
of the parties with respect to the subject matter hereof and cancels and
supersedes any previous understanding, commitments, or agreement, oral or
written, between Galileo and ITA, other than confidential disclosure
agreements.


(c)   Waiver.  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)   Governing Law.  The validity, construction, scope and
performance of this Agreement shall be governed by the laws of the State of New
York, exclusive of its choice of law provisions.


(e)    Amendment.  This Agreement may not be amended except in
writing executed by duly authorized representatives of both ITA and Galileo.


(f)   Notices.  Any notices
hereunder shall be given by certified mail (return receipt requested) or
overnight mail to the parties at their addresses set forth above, or to such
other address as either party may have notified the other.  Notices given by certified mail shall be
deemed given three business days after the day mailed; notices given by
overnight mail shall be deemed given one business day after the day mailed.


(g)  Assignment.  This
Agreement may not be assigned by either party without the prior written consent
of the other party, except that, subject to the other party’s right of
termination set forth in Section 7(e), a party may assign this Agreement in
connection with a merger or consolidation, or a sale of substantially all of
its business or assets.  Subject to the
foregoing, this Agreement shall be binding on the parties and their respective
successors and permitted assigns, and such permitted assigns shall expressly
agree to be bound by all the terms and conditions herein and in the SLA.  No partial assignment of the rights or
obligations granted hereunder and under the SLA shall be permitted.


(f)    Counterparts.  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.


 


(g)
  Further Assurances.  Each party agrees to take such further action
and execute, deliver and/or file such documents or instruments as are necessary
to carry out the terms and purposes of this Agreement.


 


(h)  Cumulative Remedies.  Except as expressly provided otherwise in
this Agreement, in addition to any remedies provided in this Agreement, the
Parties shall have all remedies provided at law or in equity.  The rights and remedies provided in this
Agreement or


 


 


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otherwise
under law or in equity shall be cumulative and the exercise of any particular
right or remedy shall not preclude the exercise of any other rights or remedies
in addition to, or as an alternative of, such right or remedy, except as
expressly provided otherwise in this Agreement.


(i)            Compliance with Laws. 
Each party shall comply in all material respects with all foreign and
domestic laws, statutes, ordinances, rules, regulations, and orders applicable
and material to the performance of its obligations under this Agreement.  Each party shall promptly notify the other
party in writing if a charge of noncompliance with any foreign, federal, state
or local law (including statutes, rules, or regulations) that is related to, or
might affect its performance under, the Agreement is filed against such party.


 


IN WITNESS WHEREOF, the
parties have hereunto set their hands and seals as of the date first above
written.


	
   

  	
  GALILEO INTERNATIONAL, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  KENNETH ESTEROW

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Kenneth
  Esterow

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ITA SOFTWARE, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeremy Wertheimer

  
	
   

  	
   

  	
  Jeremy
  Wertheimer, President

  



 


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