Exhibit
10.7


 


Orbitz Confidential Information


 


ORBITZ SUPPLIER LINK AGREEMENT


 


THIS AGREEMENT (the “Agreement”)
is made as of the later of the two dates set forth in the signature block below
(the “Effective Date”), by and between                           ,
a corporation organized and existing under the laws of                       
(“Airline”), and Orbitz, LLC,  a limited
liability company organized and existing under the laws of Delaware (“Orbitz”).


 


WHEREAS, Orbitz and Airline are
parties to that certain Amended and Restated Airline Charter Associate
Agreement dated as of                           
(as amended and supplemented from time to time, the “Airline Charter Associate
Agreement”); and


 


WHEREAS, the parties desire to
enter into this Agreement, pursuant to which Orbitz will provide certain
communications and computer related services to Airline in connection with the
sale of Airline’s air transportation services, including the booking and
ticketing of such tickets directly in Airline’s internal reservations system;
and


 


WHEREAS, therefore Orbitz agrees
to provide Network Services to Airline in accordance with the terms and
conditions of this Agreement.


 


NOW THEREFORE, in consideration
of the above recitals, the mutual undertakings of the parties as contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:


 


1.                                      DEFINITIONS.
The terms defined in this Section or elsewhere in this Agreement may be
used in the singular or plural, as the context requires.


 


1.1                               “Affiliate” means, in respect of any
specified Person, a Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with the
Person specified; provided, however, that notwithstanding the
foregoing, no Participating Carrier shall be deemed to be an Affiliate of any
other Participating Carrier due solely to being a party to a Stockholders
Agreement that also includes Orbitz; and provided, further, that
notwithstanding the foregoing, no Participating Carrier, or any affiliate
thereof, shall be deemed to be an Affiliate of Orbitz as a result of the
existence or continuation of the board positions, relationships with, or equity
ownership of Orbitz as such exist on the date hereof. For purposes of this
definition, “control” (including the terms “controlled by” and “under common
control with”) means the power, directly or indirectly, to direct or cause the
direction of the management and policies of such entity, whether through the
ownership of voting securities, by contract, or otherwise. When used in this
Agreement, the term “party” includes such party’s Affiliates.


 


1.2                               “Airline
Host System” means the Airline’s central reservation system on which
Airline stores Inventory and records Tickets, as is specified in Schedule E,
its successors or assigns.


 


1.3                               “Airline
Software” means software, and derivative works thereof, developed by
Airline based on the Airline Specifications.


 


1.4                               “Airline
Specifications” means any application, program or functionality
interface specifications developed by or on behalf of Airline or provided to
Orbitz by or on behalf of the Airline that will be used for purposes of
allowing the Network to interface with the Airline Host System. For the
avoidance of doubt, unless agreed in writing by the parties in Schedule C
hereto or elsewhere, any specifications developed by Orbitz for use in
connection with the Network Services shall not be deemed to be part of Airline
Specifications.


 


1.5                               “ARC”
means the Airline Reporting Corporation.


 


1.6                               “ATPCO”  means the Airline Tariff Publishing Company.


 

















 


1.7                               “Change Request” means the form set
forth as Schedule A that will be used to request any modification of or
addition to the Services, in accordance with Section 8 of this Agreement.


 


1.8                               “Codeshare” means the industry
practice whereby Airline markets flights that are not operated by Airline but
which are sold, confirmed and ticketed in the Airline Host System under Airline’s
designator code.


 


1.9                               “Confidential Information” means any
information of either party hereto (the “Disclosing Party”), disclosed in
writing or verbally to, or observed by the other party (the “Receiving Party”)
in connection with or as a result of discussions between Airline and Orbitz,
and which is at the time of disclosure is either (a) marked as being “Confidential”
or “Proprietary”, (b) otherwise reasonably identifiable as the confidential
information of the Disclosing Party, or (c) under the circumstances of disclosure
should reasonably be considered as confidential information of the Disclosing
Party. Airline’s Confidential Information may include, but is not limited to
its product requirements, business plans and forecasts, customer data, and
similar information of itself and its Affiliates, and its customers. Orbitz’s
Confidential Information may include, but is not limited to its product plans,
specifications and pricing. In addition, (i) the terms of this Agreement shall
be considered the Confidential Information of both parties; and (ii) the
following information shall be considered Confidential Information of Airline,
regardless of whether such information is labeled as such: (A) an Airline
customer’s name, travel destinations, itineraries, traveler profiles and travel
contacts, and all other information contained in a PNR, after submission to
Airline through the Network; (B) the Inventory and any information related
thereto; and (C) the Airline Specifications or any other specifications
relating to the Airline Host System, all other information contained in the
Airline Host System, business plans and forecasts, and similar information of
Airline and its Affiliates.


 


1.10                        “Commencement
Date” means the date when Orbitz issues the first Supplier Link
Ticket.


 


1.11                        “Competitor” means any passenger or
cargo air transportation carrier or Reservation System.


 


1.12                        “Forecast” means Orbitz’s
commercially reasonable estimate of (a) the annual aggregate number of Supplier
Link Tickets and Worldspan Tickets to be booked and issued, as applicable, on
behalf of Airline, based on known and forecast business conditions, as well as
the amount of Throttling required to comply with the Worldspan Segment
Obligation, (b) the annual aggregate number of Tickets to be booked and issued
through the Network Services and Worldspan Tickets to be booked and issued, as
applicable, on behalf of each Participating Carrier, based on known and
forecast business conditions, as well as the amount of Throttling required to
comply with the Worldspan Segment Obligation, and (c) the monthly aggregate
number of Tickets, Tickets issued through the Network Services, Worldspan
Tickets and anticipated Throttling.


 


1.13                        “Interface” means the connectivity
between the Airline Host System and the Network pursuant to which Orbitz
Customers place Queries and book Tickets directly within the Airline Host
System.


 


1.14                        “Inventory” means the seat
availability as stored in the Airline Host System for flight numbers with the
Airline designator code (including Codeshare flights); provided that, Inventory
shall only include inventory made available to Orbitz pursuant to the Charter
Associate Agreement or such similar or replacement commercial agreement between
Orbitz (or any of its Affiliates) and Airline in effect from time to time
pursuant to which Airline provides Orbitz with published fare and inventory
information for air transportation for inclusion and sale on the Site.


 


1.15                        “Network” means the hardware, Orbitz Software and communication
pathways that are used to provide a direct connection, which permits Orbitz to
provide pricing, availability, booking, ticketing and settlement services
including, without limitation, the Network Services.


 


2

















 


1.16                        “Network Fees” means the fees
specified in Schedule B (the “Network Fees Schedule”).


 


1.17                        “Network Services” means the
pricing, availability, booking, ticketing, and settlement services provided by
Orbitz hereunder through the Interface with respect to the sale of Tickets on
or through the Site, all as set forth in this Agreement and the Specifications.


 


1.18                        “Orbitz Customer” means any
(i) individual consumer, (ii) business traveler, (iii) entity that
uses the Site to make travel decisions or purchase travel products or services
on behalf of its employees, agents, contractors or authorized representatives
for such entity’s business travel purposes or (iv) as otherwise agreed by
Airline, any Person who is given access to the Airline Host System through the
Network to view Inventory or book Tickets.


 


1.19                        “Orbitz Software” means the
software, owned by or licensed to Orbitz that Orbitz uses to provide the
Network and the Network Services.


 


1.20                        “Participating Carrier” means Delta
Air Lines, Inc. (“DL”), Northwest
Airlines, Inc. (“NW”), American Airlines, Inc. (“AA”), Continental Airlines, Inc. (“CO”),
United Air Lines, Inc. (“UA”), US
Airways, Inc. (“US”), Alaska Airlines, Inc. (“AS”), America West Airlines (“HP”),
Midwest Airlines (“YX”), and
Spirit Airlines (“NK”), so long as
such carrier (i) is also a party to a Charter Associate Agreement or such
replacement commercial agreement with Orbitz (or any of its Affiliates)
pursuant to which such carrier provides Orbitz with published fare and
inventory information for air transportation for inclusion and sale on the Site
and (ii)  is not in material default of
its Charter Associate Agreement or replacement commercial agreement, where any
such default has not been cured within the applicable cure period stated in
such agreement.


 


1.21                        “Person” means any individual,
entity, firm, corporation, partnership, association, limited liability company,
joint stock company, trust or unincorporated organization.


 


1.22                        “PNR”
means a single passenger name record containing sufficient information to
reserve Inventory. A PNR may contain the same itinerary for more than one
passenger.


 


1.23                        “Project Managers” means the
employees of Airline and Orbitz, or their replacements, who will manage
specific projects and take responsibility for project plans under this
Agreement.


 


1.24                        “Queries” means a search of
Inventory by an Orbitz Customer through the Network based upon parameters
entered by an Orbitz Customer and the return to such Orbitz Customer of
Inventory information.


 


1.25                        “Relationship Managers” means the
employees of Airline and Orbitz or their replacements who are designated by the
parties in writing from time to time and will have overall responsibility to
manage the relationship between Airline and Orbitz pursuant to this Agreement.


 


1.26                        “Remaining Segments” means, for the
period of time beginning on the date when Orbitz first issues a Ticket through
the Network Services under a Supplier Link Agreement with DL or UA (whichever
is earlier) until December 31, 2004, all Segments available to be issued
through the Network Services above the number of Segments required to satisfy
the Caps for each of the Participating Carriers set forth in Section 5.3.1, it
being understood that if any such Participating Carrier is unable to reach its
Cap (other than as a result of a failure of the Network Services or Throttling)
any Segments which would have been available to such Participating Carrier to
attain such Participating Carrier’s Cap will be included in the number of
Remaining Segments to be allocated under Section 5.3.2.


 


1.27                        “Remaining
Segment Carriers”  means the
following carriers who have signed a letter of intent to participate in the
Network Services but have not yet commenced processing Tickets through the
Network Services as of the date of this Agreement:                       .


 


3

















 


1.28                        “Reservation System” means Sabre,
Galileo, Worldspan and Amadeus and any other computerized reservation system
within the meaning of 14 C.F.R. Sec. 255, as such regulation existed on the
date hereof; provided that, Reservation System shall not include Orbitz or the
Site.


 


1.29                        “Reservation System Fees” means all
booking fees, distribution costs and/or other fees or charges payable to a
Reservation System in connection with the sale of any tickets for air carriage,
other than fees paid by Airline for the Airline Host System.


 


1.30                        “Safe Harbor Event” means either (a)
an act of God, natural disaster, civil disturbance, strike, labor unrest, act
of war (whether declared or undeclared), act of terrorism, outbreak or
escalation of hostilities, or other calamity or crisis, which has a material
adverse effect on Orbitz’s business and the travel industry generally, or (b)
the first period of two consecutive calendar months in a calendar year in which
the total number of air and car booking transactions completed by Orbitz, as
measured by Orbitz, has declined, in each such month, by more than [***] when
compared to the same calendar months in calendar year 2002.


 


1.31                        “Segments”
means those portions of a Ticket, each of which represents a direct or through
flight represented by a single flight number.


 


1.32                        “Services” means the Network
Services and any other services that are required under this Agreement for
Orbitz to book and ticket in the Airline Host System, including without
limitation any services required by Section 5.11 of this Agreement.


 


1.33                        “Site” means the Orbitz publicly
available website presence on the internet known as orbitz.com or any
replacement or successor URL through which Orbitz primarily conducts its
business in accordance with the Airline Charter Associate Agreement or any
replacement commercial agreement.


 


1.34                        “Specifications” means the
functional and technical specifications for the Network Services set forth in
Schedule C (as amended and updated from time to time by mutual written
agreement of the parties). For the avoidance of doubt, unless otherwise agreed
in writing by the parties, the Airline Specifications shall not be deemed to be
part of the Specifications.


 


1.35                        “Statement of Work” means the form
of any agreed upon obligations of the parties, which form shall be mutually
agreeable to both parties and may be either a separate agreement or addendum to
this Agreement, regarding any modifications, adaptations, additional uses or
other development services outside of the scope of the Specifications entered
into by the parties pursuant to Section 8 hereof.


 


1.36                        “Subcontractors” means the
subcontractors that Orbitz engages to provide services under this Agreement.


 


1.37                        “Supplier Link Agreement” means an
agreement between a carrier and Orbitz for Network Services.


 


1.38                        “Supplier
Link Segment” means a Segment booked and issued for transportation on
Airline’s flights, Codeshare flights or flights sold under Airline’s designator
code through the Network Services.


 


1.39                        “Supplier
Link Share” means a Participating Carrier’s relative proportion
of Segments booked and issued through the Network Services, equal to (X/Y) x [***],
where X = the total number of Airline’s Supplier Link Segments during the
previously completed three months and Y = the total number of Segments issued
through the Network Services for all carriers during the previously completed [***]
months. For example, if the Forecast for May shows that Orbitz will be short by
{***] segments in meeting its Worldspan Segment Obligation, and {***] Segments
were processed using Network Services by all carriers during Feb., Mar. and
Apr., and [***] Supplier Link Segments were processed by Airline during


 


4

















 


Feb., Mar. and
Apr., then Orbitz could Throttle Airline by [***] ([***]) of [***] Segments or
a total of [***] Segments.


 


1.40                        “Supplier
Link Ticket” means a Ticket booked and issued for transportation
on Airline’s flights, Codeshare flights or flights sold under Airline’s
designator code through the Network Services. All Supplier Link Tickets shall
be in electronic form except as expressly agreed by the parties in writing.


 


1.41                        “Throttle”,
“Throttled” or “Throttling”
means the reduction by Orbitz of Tickets to be processed by Orbitz through the
Network Services on behalf of carriers as required to meet the Worldspan
Segment Obligation. In determining which Tickets to Throttle pursuant to this
Agreement, Orbitz shall not consider the number of Segments in any Ticket; the
parties acknowledge that Orbitz is unable to Throttle a partial Ticket, and
therefore, if Orbitz has one remaining Segment available for processing through
the Network Services and a Ticket consists of more than one Segment, the entire
Ticket will be Throttled.


 


1.42                        “Ticket”
means an airline passenger reservation (in the itinerary portion of a PNR)
ticketed to an Orbitz Customer, net of cancellations, for transportation on an
airline’s flights, Codeshare flights or flights sold under an airline
designator. For clarification purposes: (a) one ticketed passenger on a one-way
or round-trip direct flight shall be counted as one Ticket, (b) one ticketed
passenger on a one-way or round-trip connecting flight shall be counted as one
Ticket, (c) one ticketed passenger on a one-way or round-trip combination of
direct and or connecting flights shall be counted as one Ticket and
(d) multiple ticketed passengers within the same PNR constitute multiple
Tickets.


 


1.43                        “True-Up
Report” means a monthly report created by Orbitz which compares
the previous month’s Forecast for each Participating Carrier against the actual
results achieved during such month and the Worldspan Segment Obligation.


 


1.44                        “Worldspan Segment Obligation” means
Orbitz’s obligation under Section 4.3 of the Amended and Restated Agreement for
CRS Access and Related Services between Orbitz, LLC and Worldspan, L.P. dated
November 1, 2001, and Sections 3.2 and 4.8(a) of the First Amendment to the Amended
and Restated Agreement for CRS Access and Related Services, dated December 13,
2002 as in effect on the date hereof (collectively, the “Orbitz/Worldspan
Agreement”) to book segments via the Worldspan Reservation System in order to
achieve the highest inducement level and avoid payment of any Minimum Segment
Fees (as defined in the Orbitz/Worldspan Agreement).


 


1.45                        “Worldspan
Segment” means a Segment booked and issued through the Worldspan
Reservation System.


 


1.46                        “Worldspan
Ticket” means a Ticket booked and issued through the Worldspan
Reservation System.


 


2.                                      GENERAL


 


2.1                               Engagement.
 During the term hereof and in
accordance with the provisions of this Agreement, Orbitz shall provide to
Airline, and Airline shall purchase from Orbitz the Network Services.


 


2.2                               Subcontractors.
 Upon prior written approval of
Airline, Orbitz may subcontract its performance of all or a portion of the
Services to one or more Subcontractors, provided that Orbitz remains
responsible for the work performed by such Subcontractor and for Subcontractor’s
compliance with all of its obligations pursuant to this Agreement. Prior to
performing any Services, each Subcontractor shall execute a written agreement
with Orbitz containing protections for Airline’s confidential information and
proprietary rights that are at least as protective as the terms and conditions
of this Agreement. Notwithstanding the foregoing, however, (i) Airline has the
right, in good faith, to deny any Subcontractor access to its facilities,
systems and Confidential Information; and (ii) Orbitz may not


 


5

















 


engage a Subcontractor who is then-currently providing any services to
a Competitor of Airline without first obtaining Airline’s written approval.


 


2.3                               Facilities.
 Airline will provide Orbitz with
Airline-supervised access to those portions of Airline’s premises and computer
systems that Orbitz may reasonably require to perform the Services. Such access
will be provided at mutually convenient times during Airline’s normal business
hours, unless otherwise agreed by the parties. While working at Airline’s
premises, Orbitz employees and Subcontractors will adhere to Airline’s rules
and regulations as they may exist from time to time; provided that such
Subcontractors shall be informed of such rules and regulations. Orbitz agrees
that it will immediately remove any employee or Subcontractor working at
Airline’s premises (a) who violates any of Airline’s workplace rules and
regulations, (b) whose action or inaction constitutes a breach under this
Agreement, or (c) as requested by the Airline.


 


3.                                      MANAGEMENT


 


3.1                               Relationship
Managers.  Each party will
designate a Relationship Manager to act as the primary point of contact between
the parties with respect to this Agreement. Each party from time to time may
also appoint one or more Project Managers to manage specific projects under
this Agreement. The Project Managers will serve as the primary interface points
between the parties with respect to such projects.


 


3.2                               Reports.
 Orbitz shall provide Airline with
the following reports, so that Airline can verify Orbitz’s compliance with its
obligations under this Agreement:


 


(i)                                     Starting
on the date Orbitz first issues a Ticket through the Network Services for
Airline, daily electronically-delivered reports that include, by date, (a) the
total number of Airline Tickets and Airline Segments issued by Orbitz on the
Site and (b) the total number of Supplier Link Tickets and Supplier Link
Segments issued by Orbitz.


 


(ii)                                  Starting
on the date Orbitz first issues a Ticket through the Network Services for Airline,
daily electronically-delivered reports that include, by date, (a) the total
number of Airline Tickets and Airline Segments issued by Orbitz on the Site,
(b) the total number of Supplier Link Tickets and Supplier Link Segments issued
by Orbitz, (c) the total number of Airline Worldspan Tickets and Airline
Worldspan Segments, (d) the total number of Airline Tickets and Airline
Segments Throttled by Orbitz, (e) the total number of Tickets and Segments
issued by Orbitz on the Site, (f) the total number of Tickets and Segments
booked and issued through the Network Services, (g) the total number of
Worldspan Tickets and Worldspan Segments, and (h) the total number of Tickets
and Segments Throttled by Orbitz.


 


(iii) Starting on the date Orbitz first issues a
Ticket through the Network Services for Airline, monthly
electronically-delivered reports that include, for such month and the calendar
year to date, (a) the total number of Airline Tickets and Airline Segments
issued by Orbitz on the Site, (b) the total number of Supplier Link Tickets and
Supplier Link Segments issued by Orbitz, (c) the total number of Airline
Worldspan Tickets and Airline Worldspan Segments, (d) the total number of Airline
Tickets and Airline Segments Throttled by Orbitz, (e) the total number of
Tickets and Segments issued by Orbitz on the Site, (f) the total number of
Tickets and Segments booked and issued by Orbitz through the Network Services,
(g) the total number of Worldspan Tickets and Worldspan Segments, and (h) the
total number of Tickets and Segments Throttled by Orbitz, (i) for each
Participating Carrier, the total number of Tickets and Segments issued by
Orbitz on the Site, (j) for each Participating Carrier, the total number of
Tickets and Segments booked and issued by Orbitz through the Network Services
for such Participating Carrier, (k) for each Participating Carrier, the total
number of Worldspan Tickets and Worldspan Segments for such Participating Carrier,
(l) for each Participating Carrier, the total number of Tickets and Segments
Throttled by Orbitz with respect to such Participating Carrier, such monthly
reports to be delivered by the 15th day of the month following the
month for which the report is being prepared.


 


(iv)  Starting
on the date Orbitz first issues a Ticket through the Network Services for Airline,
quarterly, electronically-delivered reports that include, for such quarter and
the calendar year to date, (a)


 


6

















 


the total number of Airline Tickets and Airline Segments issued by
Orbitz on the Site, (b) the total number of Supplier Link Tickets and Supplier
Link Segments issued by Orbitz, (c) the total number of Airline Worldspan
Tickets and Airline Worldspan Segments, (d) the total number of Airline Tickets
and Airline Segments Throttled by Orbitz, (e) the total number of Tickets and
Segments issued by Orbitz on the Site, (f) the total number of Tickets and
Segments booked and issued by Orbitz through the Network Services, (g) the
total number of Worldspan Tickets and Worldspan Segments, and (h) the total
number of Tickets and Segments Throttled by Orbitz , (i) for each Participating
Carrier, the total number of Tickets and Segments issued by Orbitz on the Site,
(j) for each Participating Carrier, the total number of Tickets and Segments
booked and issued by Orbitz through the Network Services for such Participating
Carrier, (k) for each Participating Carrier, the total number of Worldspan Tickets
and Worldspan Segments for such Participating Carrier, (l) for each
Participating Carrier, the total number of Tickets and Segments Throttled by
Orbitz with respect to such Participating Carrier, such monthly reports to be
delivered by the 15th day of the month following the completion of
the quarter for which the report is being prepared.


 


(v)  Starting on
January 1,              ,
annual, electronically-delivered reports that include, for the prior calendar
year, (a) the total number of Airline Tickets and Airline Segments issued by
Orbitz on the Site, (b) the total number of Supplier Link Tickets and Supplier
Link Segments issued by Orbitz, (c) the total number of Airline Worldspan
Tickets and Airline Worldspan Segments, (d) the total number of Airline Tickets
and Airline Segments Throttled by Orbitz, (e) the total number of Tickets and
Segments issued by Orbitz on the Site, (f) the total number of Tickets and
Segments booked and issued by Orbitz through the Network Services, (g) the
total number of Worldspan Tickets and Worldspan Segments, and (h) the total
number of Tickets and Segments Throttled by Orbitz , (i) for each Participating
Carrier, the total number of Tickets and Segments issued by Orbitz on the Site,
(j) for each Participating Carrier, the total number of Tickets and Segments
booked and issued by Orbitz through the Network Services for such Participating
Carrier, (k) for each Participating Carrier, the total number of Worldspan
Tickets and Worldspan Segments for such Participating Carrier, (l) for each
Participating Carrier, the total number of Tickets and Segments Throttled by
Orbitz with respect to such Participating Carrier, such annual reports to be
delivered by the 10th day of January each year for the prior year. For
the avoidance of doubt, the first such annual report is due on January 10,          ,
covering calendar          .


 


(vi) 
Notwithstanding the requirements set forth in Sections 3.2(ii) – (v)
above, if Orbitz does not Throttle for any consecutive four calendar quarters
and all Forecasts reflect that Throttling will not be required during the
following four calendar quarters, then Orbitz shall be entitled to discontinue
providing the reports specified in Sections 3.2(ii) – (v) until such time as
Orbitz again institutes Throttling or a Forecast reflects that Throttling may
be required at any time in the following four calendar quarters. In addition to
the reports described in (i) – (v) above, starting on January 1, 2005 (or such
earlier date as Orbitz institutes Throttling), Orbitz will prepare each month
and distribute to Airline a Forecast and a True-Up Report containing data
specific to Airline, Orbitz as a whole, and each Participating Carrier. With
respect to any of the requirements set forth in Sections 3.2(i) – (v) above, and
any Forecast and True-Up Report to be provided by Orbitz under this Agreement,
Airline agrees that Orbitz shall provide the required data on a Ticket basis
(and not a Segment basis) until such time as it is technologically feasible for
Orbitz to provide such data on a Segment basis, which in any event shall be no
later than the date Orbitz first institutes Throttling.


 


(vii) During the performance of any development
projects as contemplated in Section 5.11 of this Agreement, the Orbitz
Relationship Manager will provide the Airline Project Manager with weekly
status reports on Orbitz’ progress. Each such status report will describe
(i) the tasks performed since the prior status report, (ii) the tasks
performed as compared to the tasks scheduled, (iii) the tasks to be performed
during the next period and (iv) any actual or anticipated problems or
delays that may have arisen with respect to any further development. Furthermore,
the Project Managers will meet at least weekly at a mutually agreed upon time
to discuss the status of any further development projects.


 


3.3                               Project
Problems.  In the event of any
actual or potential problem or delay in the Network Services or other
development projects, the Relationship Managers will discuss the relevant
source of such problem or delay, possible remedies and the potential impact on
the Network Services or other development projects within twelve hours after
such problem or delay is identified or the beginning


 


7

















 


of the next business day (whichever is earlier). To assist in such
discussions, each Relationship Manager may invite any applicable Project
Managers or other persons to such discussions.


 


4.                                      SET-UP
SERVICES


 


4.1                               Development.
 Orbitz will integrate the Orbitz
Software with the Airline Host System and update the Orbitz Software with such
additional functionality as required in the Specifications for successful
implementation of the Network Services in accordance with the deadlines set
forth in the Schedule. Airline will be responsible for any increased costs or
expenses incurred in performing the Set-Up Services that are solely caused by
Airline’s failure to provide timely assistance and cooperation to Orbitz
pursuant to Section 6.2, provided that Orbitz has otherwise fully complied with
its obligations contained in this Agreement. Upon Orbitz’ implementation of the
Network Services, Orbitz will notify Airline that the Network Services have
been implemented and are available for acceptance testing.


 


4.2                               Testing.
 Within 15 business days of Orbitz’
notice that the Network Services are available for acceptance testing, Airline
and Orbitz will test the Network Services to determine whether the Network
Services conform to the Specifications. If the Network Services conform to the
Specifications, Airline will notify Orbitz that the Network Services have been
accepted and Orbitz will have no further Set-Up Services obligations. If the
Network Services fail to conform with the Specifications, Airline will provide
Orbitz with a written report specifying such non-conformity in reasonable
detail. In the event that Airline fails to notify Orbitz of any such
non-conformity within 21 days of notice that the Network Services are available
for testing, the Network Services will be deemed to be accepted. Upon receipt
of a non-conformity report, Orbitz will (a) correct and resubmit the Network
Services for testing or (b) notify Airline that the reported non-conformities
are actually change requests, to be handled pursuant to Section 8 within a
mutually agreed upon timeframe.


 


4.3                               Third
Party Co-Operation.  With respect
to any connectivity interface to a third party Reservation System that is
required under the Specifications to be developed by Orbitz, the parties
acknowledge that such development is dependent upon the cooperation of the
third party Reservation System owner. In the event that the Specifications
require connectivity to such third party Reservation System, Airline agrees to
use its commercially reasonable efforts to cause such Reservation System owner
to cooperate with Orbitz in developing the necessary connectivity interface.
The parties will use their commercially reasonable efforts to develop a work
around in the event that the connectivity interface cannot be developed due to
a lack of cooperation on the part of the Reservation System owner.


 


4.4                               Further Development.
 Orbitz
may provide development services to Airline following completion of the Set-Up
Services pursuant to a Change Request or a Statement of Work. Any such subsequent
development of additional functionality or requirements for the Network
Services not specified in the Specifications are outside the scope of the
Services. Notwithstanding the foregoing, the following provisions will apply to
the development of enhancements or modifications to the Services and to
maintaining compatibility between the Network Services and the Airline Host
System:


 


4.4.1.                  Changes or Modifications
at the Request of a Party. Upon either party’s request that the
Network Services be modified for compatibility with the Airline Host System, or
to accommodate enhancements to the Network Services proposed by either party,
Orbitz and Airline will mutually agree in writing to the parties’ respective
development obligations regarding such enhancements and any amounts to be paid
to Orbitz for the development or other services that it performs pursuant to
the procedures in Section 8 of this Agreement.


 


4.4.2                     Changes
or Modifications Required by Law or by Industry Standards.  Upon either party’s request that the Network
Services be modified for compatibility with any applicable law, regulation or
governmental or industry standards, Orbitz and Airline will mutually agree in
writing on the parties’ respective development obligations regarding such modifications
and any amounts to be paid by the parties for the development of such
modifications or other services that are performed, pursuant to the procedures
in Section 8 of this Agreement. In the event that the


 


8

















 


parties are unable to reach agreement on such changes
in good faith after reasonable deliberation and continued use of the Network
Services would violate applicable law, regulation, or government or industry
standards, either party may terminate this Agreement pursuant to Section 17 by
giving the other party at least 30 days notice of its intent to terminate.


 


5.                                      NETWORK
SERVICES


 


5.1                               Network
Services.  Upon the Commencement
Date and throughout the term of this Agreement, subject to Airline performing
its responsibilities set forth in this Agreement and the Specifications, Orbitz
will provide the Network Services in accordance with the Specifications. Subject
to Sections 5.3 and 5.4, if a Ticket is eligible for the Network Services and
complies with the Schedule and the Specifications, Orbitz shall issue the
Ticket through the Network Services. Orbitz will obtain from ATPCO (or such
other third party agreed upon by the parties) the fare and fare rules, which
apply to Airline’s flights, Codeshare flights or flights sold under the Airline’s
designator code in order to provide the Network Services in the event such
information is not available to Orbitz through the Network Services. To the
extent Orbitz is not able to issue Tickets through the Network Services and
such inability is not due to a failure by Orbitz to perform its obligations set
forth in this Agreement and the Specifications (not including any Throttling),
then Orbitz shall issue Tickets through an available Reservation System in
which Airline is a participant, and Airline will be charged and will pay the
corresponding Reservation System Fees payable by Airline with respect to any
such Tickets, subject to Section 3.2 of the Airline Charter Associate Agreement
(or similar provisions of any agreement that replaces the Airline Charter
Associate Agreement between Orbitz (or any of its Affiliates) and Airline in
effect from time to time pursuant to which Airline provides Orbitz with
published fare and inventory information for air transportation for inclusion
and sale on the Site), but Airline will not be responsible for any Network Fees
payable hereunder related to such Tickets. In the event either party becomes
aware that Tickets cannot be issued by Orbitz through the Network Services for
a continuous period of more than [***] ([***]) hours, such party will notify
the other party’s Project Manager or Relationship Manager immediately upon
becoming aware of such problem. Notwithstanding the foregoing, Orbitz shall
remain obligated at all times during the term of this Agreement to correct and
update the Orbitz Software and the integration of the Orbitz Software with the
Airline Host System to enable it to perform the Services in accordance with the
Specifications.


 


5.2                               Limitation
on Uses of the Network Services.  The
Airline Host System may be accessed only by Orbitz Customers who access the
Network Services to purchase Supplier Link Tickets through the Site. Any use of
the Network Services or access to the Airline Host System through the Network
not contemplated by this Agreement, including but not limited to third party
use or access to the Network, will be covered by a Change Request, a Statement
of Work, or a separate written agreement between the parties. Provided Airline
has consented to such third party use or access to the Airline Host System
through the Network for the issuance of Airline’s Tickets as contemplated in
the previous sentence, Orbitz shall provide such third party access to Airline’s
Tickets through the Network on terms and conditions, which shall be no less
favorable to Airline than the terms and conditions set forth in this Agreement,
subject to the negotiation of a mutually acceptable agreement between Orbitz
and such third party.


 


5.3                               Throttling
in 2004.


 


During the period from January 1, 2004 through
December 31, 2004 and only to the extent that Orbitz is subject to the
Worldspan Segment Obligation, then:


 


5.3.1                     Beginning on the date Orbitz first
issues a Ticket through the Network Services under a Supplier Link Agreement
with DL or UA (whichever is earlier), Orbitz shall limit Tickets booked and
issued through the Network Services for the following Participating Carriers to
the percentage of such Participating Carrier’s total Segments processed through
the Site (in each case including Codeshare Segments) specified as follows
(each, a “Cap” and collectively, the


 


9

















 


“Caps”): for AA,
[***]; for CO, [***]; for NW, [***]; for US, [***]; for HP, [***]. Orbitz will
manage the application of the Caps with the intent of reaching the specified
Caps for the time period between the date Orbitz first issues a Ticket through
the Network Services under a Supplier Link Agreement with DL or UA (whichever
is earlier) and December 31, 2004, on a cumulative basis.


 


5.3.2                     Subject
to Section 5.3.3, beginning on the date Orbitz
first issues a Ticket through the Network Services under a Supplier Link
Agreement with DL or UA (whichever is earlier) until such time as all of the
Remaining Segment Carriers have each reached their respective Cap (the Cap for
each Remaining Segment Carrier shall be [***], in each case including the
Remaining Segment Carrier’s Codeshare Segments), Orbitz shall allocate all
Remaining Segments as follows: (i) while only one of DL or UA is processing
Tickets through the Network Services, all Remaining Segments will be allocated
among the Remaining Segment Carriers then issuing Tickets through Network
Services in accordance with each of their relative proportion of the total
Tickets during the previous 3-month period and (ii) beginning on the date or
dates that other Remaining Segment Carriers commence issuing Tickets through
the Network Services but before they have all reached their respective Caps,
all Remaining Segments will be allocated among the Remaining Segment Carriers
then issuing Tickets through Network Services in accordance with their relative
proportion of the total Tickets during the previous 3-month period.


 


5.3.3                     Notwithstanding
the requirements in Section 5.3.2, Orbitz shall have the right to limit the
number of Remaining Segments available to be allocated to the Remaining Segment
Carriers as necessary (based on the Forecast) in order to meet the Worldspan
Segment Obligation. In determining the number of Remaining Segments, Orbitz
shall use reasonable commercial efforts to ensure that the Worldspan Segment
Obligation is satisfied using as few Segments from the Remaining Segment as
possible, and Orbitz shall use reasonable commercial efforts to allow Remaining
Segments to exist, while at the same time satisfying the Worldspan Segment
Obligation.


 


5.3.4                     If
all Participating Carriers have reached their respective Caps, then all
additional Segments shall be divided among all Participating Carriers in
accordance with their respective Supplier Link Share.


 


5.3.5                     Subject
to Section 5.3.1,  if any Participating Carrier is
unable to reach its Cap (other than as a result of a failure of the Network
Services or Throttling) any Segments which would have been available to such
Participating Carrier to attain such Participating Carrier’s Cap will be
treated as additional Segments under Section 5.3.4.


 


5.3.6                     During
2004, Orbitz may not Throttle Tickets with respect to AA, CO and NW
(collectively, the “FILT Carriers”)
below their respective Caps (set forth in Section 5.3.1) unless Orbitz has
first completely Throttled all carriers that are not FILT Carriers
(collectively, “non-FILT Carriers”). If all non-FILT Carriers have been
completely Throttled, then Orbitz shall Throttle the FILT Carriers below their
respective Caps in the reverse order of the date on which Orbitz first
processed Tickets through the Network Services for each FILT Carrier, so that
CO would not be Throttled until NW had been completely Throttled and AA would
not be Throttled until NW and CO had been completely Throttled.


 


5.4                               Throttling
in 2005 and Beyond.


 


5.4.1                     Subject
to Section 5.4.2, beginning on January 1, 2005 and continuing thereafter, no
Caps shall apply to Airline (or any Participating Carrier), and subject to
Section 5.4.2, Airline (and each Participating Carrier) shall be allowed to
process an unlimited number of Tickets through the Network Services in
accordance with the Specifications.


 


5.4.2                     Subject
to the restrictions set forth in Section 5.4.3 and 5.4.4, beginning on January
1, 2005 and continuing thereafter, during such periods of time and to the
extent that


 


10

















 


Orbitz is subject to the Worldspan Segment Obligation,
Orbitz shall have the right to Throttle Tickets with respect to all
Participating Carriers as necessary (based on the Forecast) in order to meet
the Worldspan Segment Obligation, on a pro rata basis in accordance with each
Participating Carrier’s Supplier Link Share.


 


5.4.3                     From
January 1, 2005 through December 31, 2006, Orbitz shall not Throttle Tickets
with respect to any FILT Carrier below the percentage of Segments set forth
below (“Floor”) unless Orbitz has first ceased
processing Tickets through the Network Services for all non-FILT Carriers. The
Floor applicable to AA is [***], to CO is [***], and to NW is [***] (in each
case including Codeshare Segments). If all non-FILT Carriers have been
completely Throttled, then Orbitz shall Throttle the FILT Carriers below their
respective Floors in the reverse order of the date on which Orbitz first
processed Tickets through the Network Services for each FILT Carrier, so that
CO would not be Throttled until NW had been completely Throttled and AA would
not be Throttled until NW and CO had been completely Throttled.


 


5.4.4                     Orbitz
may not Throttle Tickets with respect to Airline (or any Participating Carrier)
in any month unless Orbitz has completely ceased processing Tickets through the
Network Services for any carrier that is not a Participating Carrier.


 


5.5                               Throttling
Payments.  For any Throttling
that occurs on or after January 1, 2005, Orbitz will reimburse Airline (and
each Participating Carrier) in the amount of [***] for each Segment Throttled,
subject to the limitations of Section 5.6 (the “Throttling
Payment”). Orbitz will pay Airline the Throttling Payment on a
quarterly basis within 30 days following the end of the calendar quarter and
shall include with such quarterly payment a report of the Throttling Payments
made to each Participating Carrier since the date of the last report, provided
that if no Throttling Payments were made for any particular quarterly period,
then no report shall be issued with respect to such quarterly period.


 


5.6                               Limitations
to Throttling Payments.  The sum
of all Throttling Payments provided by Orbitz to all Participating Carriers
shall not exceed $[***] for 2005, $[***] for 2006, $[***] for 2007 and $[***]
per year for any year beyond 2007.


 


5.7                               Excess
Throttling; 4th Quarter Adjustments.  If the number of Tickets subject to Throttling
was overestimated by Orbitz in the Forecast and as a result Airline was
Throttled by a number of Tickets in excess of the number actually necessary to
meet the Worldspan Segment Obligation for any calendar quarter, Orbitz will use
commercially reasonable efforts to make available to Airline an additional
allocation for Supplier Link Tickets in a future calendar quarter during the
same calendar year equal to such excess amount. Orbitz acknowledges that
over-Throttling will cause Airline economic harm and will therefore endeavor to
manage Throttling so as to avoid over-Throttling and will delay Throttling to
the extent possible until the second half of the year to reduce the risk that
more Segments are Throttled than are necessary based on the Worldspan Segment
Obligation.


 


5.8                               Throttling
Due to a Safe Harbor Event.  Notwithstanding
any of the procedures for Throttling set forth in Sections 5.3 or 5.4, but
subject to Orbitz’s obligation to make Throttling Payments in Section 5.5 (as
limited by Section 5.6), in the event Orbitz provides Worldspan notice of a
Safe Harbor Event and invokes its ability to avoid the payment of Minimum
Segment Fees by availing itself of such Safe Harbor Event, then for so long as
Orbitz is required to discontinue processing any and all Tickets through the
Network Services in order to avoid the payment of Minimum Segment Fees, then
Orbitz shall cease processing Tickets through the Network Services for all
Participating Carriers, including Airline. Notwithstanding the foregoing,
Orbitz hereby acknowledges and agrees that Orbitz’ cessation of processing
Tickets through the Network Services in connection with its declaration of a
Safe Harbor Event pursuant to Orbitz’ agreement with Worldspan will cause
Airline economic harm and therefore, in the event of any such cessation, Orbitz
agrees to reinstate processing Tickets through the Network Services on the
first date following such cessation that a Forecast, if then prepared by Orbitz
in good faith and based upon reasonable assumptions, would reflect that, for
the year in which the cessation occurred, Orbitz would be able to comply with
the Worldspan Segment Obligation if on such date Orbitz again


 


11

















 


commenced processing
Tickets through the Network Services for all Participating Carriers, including
Airline.


 


5.9                               Change
to Worldspan Segment Obligation. Orbitz shall not agree to any increase
in the Worldspan Segment Obligation so long as any Supplier Link Agreement
remains in effect, and Orbitz shall notify Participating Carriers of any
reduction to, or other modification that affects in any way, directly or
indirectly, the Worldspan Segment Obligation, which notice shall contain
specificity as to the reduction or modification. Orbitz’ right to Throttle
shall be updated to reflect any reduction in the Worldspan Segment Obligation,
and this Agreement shall be amended to reflect the full benefit of the
reduction.


 


5.10                        Notice
of New Network Service Features and Functions.  Orbitz will, on an ongoing basis during
the term, notify Airline in writing of any new capabilities, features or
functions developed by Orbitz for the Network Services or any different
capabilities, features or functions made available to another carrier relating
to the Network Services. In addition, Orbitz shall notify Airline in writing
within ten (10) days of offering any new or different capabilities, features or
functions relating to the Network Services to any other carrier (including, but
not limited to, all of the specifications agreed upon between any carrier and
Orbitz applicable to the Network Services) and Airline will have the option to
participate in such new or different capabilities, features or functions on the
same terms and conditions which are no less favorable than those offered to any
other carrier. Notwithstanding the foregoing, Orbitz will not be required to
notify Airline of (i) any error, correction or minor change that Orbitz may
implement with respect to Network Services if such correction or change affects
all carriers at substantially the same time and in substantially the same
manner or (ii) any changes or additions to the specifications applicable to the
Network Services that are solely to accommodate the technology of a particular
carrier and do not result in more favorable treatment of such carrier .


 


5.11                        Further Development.  Following the
Commencement Date, Orbitz shall provide additional development services with
respect to the Orbitz Software and the Interface as follows:


 


5.11.1.           Changes or Modifications
at the Request of Airline.  Upon Airline’s request and subject to mutually
agreeable terms and conditions, Orbitz may provide to Airline development
services (collectively, “Airline Development”)
that are in addition to any development required to be performed by Orbitz in
order to perform the Services in accordance with the Specifications or as
provided in Section 5.11.2 hereof. Any Airline Development shall be performed
pursuant to a Change Request or a Statement of Work entered into by the parties
in accordance with Section 8 hereof. The parties agree that in the event Orbitz
provides Airline with any Airline Development, Orbitz will charge Airline rates
that are no higher than those it charges to other carriers for similar types of
development services or for similar enhancements or modifications. Orbitz’
current hourly rates for Airline Development are set forth in Schedule D
hereto.


 


5.11.2              Changes
or Modifications Required by Law or by Industry Standards.  Upon either party’s request that the Network
Services be modified to meet or be compatible with any (a) applicable law
or regulation, including but not limited to any laws or regulations
administered or promulgated by the U.S. Department of Transportation, or (b)
governmental or industry standards, that have been adopted on an industry-wide
basis, Orbitz and Airline will mutually agree in writing on the parties’
respective development obligations regarding such modifications and any amounts
to be paid by the parties for the development of such modifications or other
services that are performed, pursuant to the procedures in Section 8 of this
Agreement. In the event that the parties are unable to reach agreement on such
changes in good faith after reasonable deliberation, and continued use of the
Network Services would violate applicable law or regulation, or government or
industry standards, either party may terminate this Agreement by giving the
other party at least 30 days notice of its intent to terminate.


 


12

















 


5.12                        Compliance.
 During the term of this Agreement,
Orbitz will ensure that the Network Services comply with all applicable
interline reservations policies, procedures and message formats and are in
accordance with the requirements set forth in the Specifications and in
accordance with any and all applicable laws, industry standard and governmental
regulations. Orbitz agrees that all Supplier Link Tickets and Inventory will be
marketed, displayed, filed, sold and settled (a) through ARC in accordance with
its agreement with ARC, Airline’s addendum thereto and any ARC policies and
procedures and (b) in accordance with any and all applicable laws, industry
standard and governmental regulations, including the Department of
Transportation’s Notice dated January 18, 2001
regarding the “Prohibition on Deceptive Practices in the Marketing of Airfares
to the Public using the Internet”. Orbitz will, at all times during the
term of this Agreement, remain in good standing with ARC. Orbitz shall process
all Supplier Link Tickets created by Orbitz Customers, and shall handle
information relating to Airline, with the same care and timeliness as the
Tickets and information of all other airlines and without regard to the
identity of the carrier but no less than what is reasonable. Orbitz will review
and work on rejected messages and, where justified by volume, investigate
methods of reducing and resolving such rejected messages. Without the prior
written consent of Airline, Orbitz will not (i) make changes to the
functionality of its system or services in a manner that increases the fees
payable by Airline to Orbitz under this Agreement (including, without
limitation, changes to functionality that result in the generation of multiple
separate tickets for travel to a specific location), or (ii) make changes to
its processes or procedures related to the Network Services in a manner that
materially increases the fees payable by Airline to the Airline Host System
provider. Orbitz will not provide any type of incentive to Customers that would
motivate Customers to request the issuance of multiple separate Tickets for
travel to a specific location.


 


5.13                        Display.
 Orbitz agrees to display Inventory
in an unbiased manner in accordance with Section 3.1 of the Airline Charter
Associate Agreement.


 


5.14                        Reporting;
Audit.  Orbitz shall provide to
Airline in electronic form all back-up documentation and information specified
in the Specifications or otherwise reasonably requested by Airline to
substantiate the charges to Airline pursuant to this Agreement, provided that
Orbitz may provide such documentation and information in a manner that protects
the confidentiality of any information that Orbitz by law or contract is
prohibited from disclosing to Airline. Airline will also have the right, at
anytime during the term of this Agreement, upon not less than five (5) days
prior written notice to conduct, or to cause an independent auditor retained by
Airline to conduct, an audit of Orbitz’ books and records with respect to the
Services provided to Airline hereunder to verify the amounts charged Airline
hereunder and Orbitz’ compliance with its obligations hereunder. If any such
audit reveals that the amounts paid to Orbitz by Airline pursuant to this
Agreement have been greater than or less than the amounts actually due to
Orbitz pursuant to this Agreement, then Orbitz shall promptly pay to Airline,
or charge Airline, for the amount by which such paid amounts are greater than,
or less than, such amounts actually due. Airline agrees that it will notify
Orbitz if Airline has knowledge that any Orbitz Customer is using the Network
Services in an improper fashion. Upon receipt of such notice and confirmation
of the matters described therein, or if Orbitz discovers such improper use
independent of information supplied by Airline, Orbitz shall report in writing
to Airline, the extent of the misuse discovered and shall take such action as
is reasonably necessary to correct the improper use of the Network Services. Airline
may terminate this Agreement pursuant to Section 17.2 upon notice to Orbitz if
Orbitz fails to take prompt action to correct the improper use of the Network
Services with respect to an Orbitz Customer following a request by Airline to
take such action. If the audit reveals an overpayment by Airline to Orbitz of
2% or more, the cost of the audit shall be borne by Orbitz.


 


5.15                        Support
and Security.  For Network
Services failures or other reported problems, each party will provide, or have
its authorized agent provide, the technical support services described in the
Specifications. Airline agrees to assist Orbitz in interpreting ATPCO rules to
the extent it does for other ARC-accredited agencies. Airline agrees to use
commercially reasonable efforts to maintain, or cause to be maintained, the
Airline Host System. Orbitz is solely responsible for hosting, and agrees to
maintain, the Network at Orbitz’s expense (except for any fees payable
hereunder). Orbitz will use its commercially reasonable efforts to promptly fix
or provide a work around solution for material, identifiable errors in the
Network Services at no additional charge. Orbitz will provide a secure
environment for the Network and Inventory provided to Orbitz by Airline in
accordance with the security standards set forth in the


 


13

















 


Specifications. Orbitz
agrees to notify Airline as soon as possible, but in any event within two (2)
hours or by 9 a.m. of the next business day, whichever is shorter, if it learns
of a suspected or actual security breach.


 


5.16                        Customer
Support.  Upon the Effective
Date, Orbitz will provide First and Second Level Customer Support as defined in
the Specifications; provided, however, that Airline may provide such support
from time to time in its sole discretion.


 


5.17                        Out-of
Scope Services.  Orbitz and
Airline acknowledge and agree that certain transactions identified in Section 4
of Schedule C to this Agreement will be considered as “normal exclusions” from
the Network Services. The parties agree that the Orbitz Software is not
currently designed to support or process these transactions through the Network
Services and Orbitz will not be required to enable the Network Services to
process or support such transactions unless otherwise agreed by the parties in
writing.


 


5.18                        Direct
Billing.  Airline may during the
term of this Agreement request that certain Orbitz Customers or other third
parties to be qualified for direct billing by Orbitz. Upon mutual agreement by
Orbitz and Airline, and provided such Orbitz Customer or other third party
executes an appropriate agreement with Orbitz, (i) Orbitz will invoice such
Orbitz Customer or other third party for the Network Fees for Tickets booked by
such Orbitz Customer or other third party and (ii) Airline will have no
obligation to pay the applicable Network Fees for Tickets booked by such Orbitz
Customer or other third party.


 


6.                                      AIRLINE
OBLIGATIONS.


 


6.1                               Airline
Charter Associate.  During the
term of this Agreement, each party agrees that it will not be in material
default of its Airline Charter Associate Agreement or any other commercial
agreement pursuant to which Airline provides Orbitz with published fare and
inventory information for air transportation for inclusion and sale on the Site
(provided that such party shall have the opportunity to cure any such default
within the cure period stated in such agreement). In the event that the Airline
Charter Associate Agreement (or another commercial agreement pursuant to which
Airline provides Orbitz with published fare and inventory information for air
transportation for inclusion and sale on the Site) is terminated as a result of
an uncured material default by either Airline or Orbitz, the non-defaulting
party may, following notice and expiration of the period to cure such default
provided in Section 17.2), terminate this Agreement for breach pursuant to
Section 17.2, and upon any such termination, neither party shall have any
further obligation under this Agreement.


 


6.2                               Assistance
and Cooperation.  Upon request by
Orbitz, Airline will provide Orbitz with reasonable assistance and cooperation
in the performance of the Services in accordance with the express provisions
contained in this Agreement and the Specifications. Airline agrees to provide
Orbitz with reasonable advance notice of any changes to the Airline Host System
that Airline reasonably believes will affect the Network Services.


 


6.3                               Inventory.
 Airline shall provide Orbitz with
access to Inventory information in accordance with the formatting and delivery
requirements set forth in the Specifications.


 


6.4                               Fulfillment.
 Airline agrees that it will, in
accordance with and subject to its normal policies and procedures, treat
Supplier Link Tickets on an equal basis as Tickets issued on a Reservation System
so long as the Supplier Link Ticket for such passenger bears an “OK” status and
such “OK” status was, in Airline’s sole judgment, obtained in compliance with
Airline’s and Orbitz’ rules and regulations and was not obtained through misuse
of the Network Services. Notwithstanding the foregoing, Airline may deny any
person for travel due to non-compliance of fare rules, fraud, or security
reasons or as otherwise permitted under Airline’s Contract of Carriage; all
travel is subject to terms of Airline’s Contract of Carriage. Airline will not
send unable to sell or unable to confirm messages with respect to any Supplier
Link Ticket to any person more than twelve (12) hours following receipt by
Airline of the Supplier Link Ticket request through the Network Services.
Orbitz will be responsible for any such compensation or any


 


14

















 


costs or expenses
related to honoring a Supplier Link Ticket for which no record exists in the
Airline Host System if the lack of such record is solely attributable to a
failure of the Network Services.


 


6.5                               Availability
Data.  Airline will provide to
Orbitz, or such other party as Orbitz may, with Airline’s consent, which
consent shall be limited to use in connection with this Agreement, designate to
act on behalf of Orbitz, complete, accurate and timely direct access to Airline’s
availability data such that the quality of data is at least as good as that
available via Worldspan or any other Reservation System providing services to
Orbitz. In the event the parties mutually agree that Orbitz will use Worldspan
availability data to provide the Network Services (but not process
substantially all bookings though Worldspan), Airline will pay Orbitz the
amount owed by Orbitz to Worldspan as set forth in the Orbitz/Worldspan
Agreement to access through Worldspan availability data with respect to flights
sold under Airline’s designator code.


 


7.                                      FEES
AND PAYMENT


 


7.1                               Fees.
 Following the Commencement Date,
Airline will pay to Orbitz for each Supplier Link Ticket issued the Network
Fees set forth in the Network Fees Schedule attached hereto as Schedule B;  provided that, no Network Fees shall be due
or payable for any Ticket booked or issued through Worldspan.


 


7.2                               Reimbursable
Expenses.  If agreed to in
advance in writing by Airline, Airline will reimburse Orbitz for reasonable,
actual, out-of-pocket expenses incurred by Orbitz in conjunction with out of
town travel required for Orbitz to perform the Services. In the event Airline
approves any such travel by Orbitz, Airline will, at its option, provide Orbitz
with Coach Class space available or other tickets for air travel on Airline or
reimburse Orbitz the actual cost for Coach Class, round trip air travel. Orbitz
shall utilize Airline’s air transportation unless specifically approved
otherwise, on a case-by-case basis, by Airline’s Relationship Manager. Other
reimbursable expenses will be limited to reasonable and actual expenses for
lodging, meals, local transportation and incidentals only as are required by
Orbitz in the performance of its obligations hereunder. Unless specifically
agreed upon otherwise by Airline’s Relationship Manager, rental car expenses
will only be reimbursed if the car is necessary for Orbitz to complete its
obligations hereunder. Receipts will be required for any expenditure totaling
US $10.00 or more. Air travel, hotel and rental car expenses will only be
reimbursed if reservations are made through Airline, unless Airline declines to
make such reservations. Notwithstanding the foregoing, the parties may agree
upon, in advance of any travel, a per diem payment in lieu of reimbursement.


 


7.3                               Payment
Terms.  Orbitz will invoice
Airline monthly for any fees or expenses payable by Airline hereunder. Airline
will pay to Orbitz within 30 days of receipt of an Orbitz’ invoice all
undisputed amounts set forth on such invoice. In the event that Airline asserts
in good faith that any item or items on an invoice are not correct, then
Airline will within thirty (30) days of receipt of such invoice (a) deliver
written notice to Orbitz explaining in detail why Airline believes that an item
or items are not correct and (b) pay to Orbitz all amounts on the invoice that
are not the subject of a good faith dispute by Airline. The foregoing shall not
be deemed to restrict Airline’s ability to dispute an invoice at a later time.


 


7.4                               Most
Favored Buyer.  If prior to the
execution of, or during the term of this Agreement, Orbitz provides to another
airline services (including but not limited to the Network Services) that are
the same or substantially the same as those provided to Airline under this
Agreement: (i) under a more favorable fee schedule than the fee schedule in
effect for Airline but with substantially the same terms and conditions, then
Orbitz will immediately notify Airline of the existence of such agreement and
the more favorable fee schedule will apply immediately to Airline effective as
of the effective date of such agreement with the other airline; and/or (ii) on
terms and conditions that taken as a whole are more favorable to such other
airline than the terms hereof are favorable to Airline, then such more
favorable terms and conditions will apply to Airline and this Agreement;
provided that in determining whether the fee schedule and/or the terms and
conditions of such other agreement are more favorable to the other airline than
those set forth herein, any set-up fees associated with the initial development
of the Interface shall be disregarded; provided, however, that Orbitz agrees
that set-up fees associated with any Supplier Link Agreement shall reflect only
the actual costs attributable to implementation of Network Services.


 


15

















 


7.5                               Taxes.
 The Network Fees are exclusive of
all sales, use, customs, excise, value added, ad valorem or other similar tax,
assessment or duty (“Taxes”) that Orbitz may be legally obligated to charge
Airline on account of the payment of any amounts from Airline to Orbitz for the
provision of goods or for performing the Services pursuant to this Agreement.
Orbitz shall pay and be solely responsible for all taxes that are: (i) on,
based on, or measured by, gross or net income or gross or net receipts
(including any capital gains taxes or minimum taxes) of Orbitz, or taxes which
are capital, doing business, excess profits, net worth, or franchise taxes of
Orbitz; (ii) caused by or arising out of the willful misconduct or negligence
of Orbitz; or (iii) any interest, additions to tax, or penalties associated with
the taxes set forth in (i) or (ii) above. Orbitz shall be registered to collect
sales tax and shall be responsible for the collection of applicable sale and
use taxes in jurisdiction where such registration is required by law. Airline
shall pay or reimburse Orbitz for the payment of all Taxes that are lawfully
imposed by any governmental authority and are based on or measured by any
payments of Airline pursuant to this Agreement. All such Taxes shall be
separately stated on the invoice. Airline shall not pay any Taxes if: (i) a
specific exemption applies to (a) the products or services purchased hereunder,
or (b) any transaction occurring pursuant to this Agreement, (ii) Airline has
provided Orbitz with written confirmation that Airline is authorized to make
tax payments directly to the applicable taxing authorities, or (iii) Orbitz is
obligated to pay the taxes as set forth herein. Orbitz shall promptly, upon
receipt from any tax authority of any levy, notice, assessment, or withholding
of any tax for which Airline may be obligated, notify Airline in writing. If
under the applicable law of the taxing jurisdiction Airline is allowed directly
to contest such tax in its own name, then Airline shall be entitled, at its own
expense and in its own name, to contest the imposition, validity, applicability
or amount of such tax and, to the extent permitted by law, withhold payment
during pendency of such contest. If Airline is not permitted by law to contest
such tax in its own name, upon Airline’s request, Orbitz shall in good faith
and using best efforts, at Airline’s direction and expense, contest the
imposition, validity, applicability or amount of such tax. Orbitz shall in good
faith and using best efforts:  (i) supply
Airline with such information and documents reasonably requested by Airline as
are necessary or advisable for Airline to (a) recover or seek a refund of any
sales or use tax paid by Airline as a result of this Agreement; or (b) control
or participate in any proceeding to the extent permitted herein, and (ii)
reasonably assist Airline with evidentiary and procedural development of any
such proceeding or contest. If all or any part of any Taxes are refunded or
credited, Orbitz shall repay Airline such part thereof as Airline paid,
including any interest received thereon. Upon Airline’s request, Orbitz shall
delineate the fees among the component portions of the products and services
contracted for in this Agreement. The term “Component Portions” for purposes of
this paragraph shall include, but is not limited to: (i) maintenance, including
upgrades and enhancements, (ii) installation, (iii) support, and (iv) training
and related manuals.


 


8.                                      CHANGE
REQUESTS


 


8.1                               Change
Request.  If either party wants
to request a modification, addition or change in the Services, including
without limitation a modification to the Network Services, other than those
changes or modifications that Orbitz is required to perform pursuant to this
Agreement, its Relationship Manager will submit a completed Change Request to
the Relationship Manager of the other party. The Change Request will adequately
describe (a) the requested modification, (b) the estimated resources
required to implement the modification, (c) its impact on a Statement of
Work if it is a modification or development as contemplated by Section 5.4,
(d) its impact on the Network Fees, and (e) any required information and
resources by Airline. Notwithstanding the foregoing, Orbitz may modify, add to
or change the Network Services upon not less than thirty (30) days prior notice
to Airline, without Airline’s approval, if (i) the proposed modification,
addition or change is being made in the same manner to the Network Services
Orbitz provides to all other carriers, (ii) such modification, addition or
change does not increase the Network Services Fees, (iii) such modification,
addition, or change does not adversely affect the functionality or reliability
of the Services or the processes and procedures of Airline, and (iv) such
modification, addition, or change does not result in additional development
work for Airline.


 


8.2                               Change
Acceptance.  Upon receipt of a
completed Change Request, the recipient Relationship Manager will either (a)
expressly accept the proposed modification without qualification within thirty
(30) days after its receipt or (b) defer the request for discussion of the next
scheduled or emergency status meeting. The Relationship Managers will use good
faith efforts to resolve any deferred


 


16

















 


proposed modification expeditiously. Neither party shall have any
obligation to enter into a Change Request proposed by the other party, and no
proposed modification will be effective unless accepted in writing by the
authorized employees of both parties. Any Change Request that is accepted and
so executed will thereafter constitute a formal amendment of this Agreement.


 


9.                                      CONFIDENTIALITY.


 


9.1                               Protection
of Confidential Information.  Each
party agrees to maintain strict confidentiality regarding the subject matter of
this Agreement. Each party will take such measures that are necessary to
protect against the disclosure or use of the Confidential Information of the
other party as it takes to protect its own proprietary or confidential
information (but in any case no less than reasonable measures). Each party
agrees that the other party will have no adequate remedy at law if there is a
breach or threatened breach of this Section 9 and, accordingly, that either
party will be entitled (in addition to any legal or equitable remedies
available to such party) to injunctive or other equitable relief to prevent or
remedy such breach.


 


9.2                               Restrictions
on Disclosure and Use.  Unless
expressly authorized in writing by the Disclosing Party or as authorized by the
Airline Charter Associate Agreement, the Receiving Party agrees to retain the
Confidential Information in confidence and shall not copy or disclose the
Confidential Information to, or use the Confidential Information for, the
benefit of any third party, except as set forth in this Section 9.2. Confidential
Information may be disclosed on a need to know basis to the Receiving Party’s
employees, Affiliates, and independent contractors who are parties to a written
agreement with the Receiving Party which prohibits the disclosure of
Confidential Information, and limits its use to the benefit of the Receiving
Party and its Affiliates, using reasonable technical and organizational
measures to protect the confidentiality of the information.


 


9.3                               Exclusions.
 Notwithstanding any other provisions
of this Agreement, each party acknowledges that Confidential Information shall
not include any information which (a) is or becomes publicly known through no
wrongful act of the Receiving Party; (b) is at the time of disclosure, already
known to the Receiving Party without restriction on use or disclosure and was
not obtained from the Disclosing Party or its contractors under a duty of
confidentiality; or (c) is independently developed or obtained from a third
party by the Receiving Party without breach of this Agreement. In addition,
nothing contained in this Section 9 or elsewhere in this Agreement shall
restrict Orbitz from complying with ARC reporting requirements, or the
reporting requirements of any such other settlement company to which Orbitz is
required to report.


 


9.4                               Relief
from Obligations.  Either party
will be relieved of its confidentiality obligations hereunder if and to the
extent that Confidential Information (a) is disclosed pursuant to the lawful
requirement of a governmental agency, or disclosure is required by operation of
law, provided that the party making the disclosure requires reasonable measures
to protect the security of the information, has given timely notice to the
Disclosing Party and the Disclosing Party has been permitted at its expense to
interpose objections, defenses or obtain a protective order limiting disclosure
and use of the information; or (b) is explicitly approved for release by
written authorization of the Disclosing Party.


 


9.5                               Ownership
of Confidential Information.  No
license, express or implied, in the Confidential Information is granted by one
party to the other party other than to use such Confidential Information in the
manner and to the extent authorized by this Agreement. Each party shall retain
the title and full ownership rights to their respective Confidential
Information. Each party agrees that upon the request of the Disclosing Party,
it shall return to the Disclosing Party all of the Disclosing Party’s
Confidential Information in such party’s possession or control.


 


9.6                               No
Publicity.  Neither party will
issue a press release, advertisement or public statement concerning the
existence of this Agreement, its contents or the transactions contemplated by
it without the express written consent of the other for each such event.


 


17

















 


9.7                               Data
Privacy.  With respect to
any information provided by the other party that is processed under this
Agreement that relates to, or is about, an identified or identifiable person,
each party shall at all times (i) use reasonable efforts to protect such
information and (ii) comply with all applicable laws and regulations,
including but not limited to data privacy laws, in its use of such information.


 


10.                               LICENSE
GRANT.


 


10.1                  By
Airline.  Airline grants Orbitz a
limited, worldwide, non-exclusive, royalty-free right and license, without the
right to sublicense, to: (a) access, display, transmit and distribute Inventory
made available by Airline through the Network to Orbitz Customers in response
to Queries on the Site and (b) use any information owned and provided by
Airline hereunder about the Airline Host System, the Airline Specifications and
the Inventory solely for the purposes of meeting Orbitz’s obligations hereunder.
The foregoing is a license merely to access the Airline Host System and
exchange information with it. No rights are granted by or implied in this
Agreement for Orbitz or Orbitz Customers to modify in any manner or use
directly the Airline Host System, except as provided herein.


 


10.2                        By
Orbitz.  Orbitz grants Airline a
limited, worldwide, non-exclusive, royalty free right and license to: (a) use
the Network to access all Orbitz Customer records that contain at least one
Airline or Codeshare flight segment to allow Airline to test and validate the
operation, compliance and quality of the Network Services prior to
implementation of the Network Services and during mutually agreed upon testing
periods and (b) use the Network and any information provided by Orbitz
hereunder about the Orbitz Software solely for any purposes of obtaining the
Services contemplated by this Agreement and meeting Airline’s obligations to
Orbitz under this Agreement.


 


11.                               PROPRIETARY
RIGHTS.


 


11.1                        Orbitz.
 Subject to Sections 11.2 and 11.3,
as between Airline and Orbitz and to the extent of Orbitz’ prior ownership
rights, Airline acknowledges and agrees that Orbitz will own all patents
(including any business process patents), rights to file for patents,
inventions, copyrights, trademarks, trade secrets and all other right, title
and interest (including any renewals or extensions) in or to the Network, the
Orbitz Software and any interfaces, networks, configurations, programs
(including without limitation, those programs that integrate the Network
Services with the Airline Host System) and other systems developed by Orbitz or
its employees or Subcontractors during the performance of this Agreement, and
including, without limitation, any derivative works thereof created by Orbitz
or its employees or Subcontractors. Airline hereby assigns and agrees to assign
to Orbitz all rights that Airline may have or acquire in or to such works for
no additional consideration. No other person will acquire or retain any rights
in or to such works, unless Orbitz otherwise agrees on a case-by-case basis. At
Orbitz’ request, Airline will cause the execution of the instruments that may
be appropriate to give full legal effect to this Section for no additional
consideration.


 


11.2                        Developments.
 With respect to any development
performed by Orbitz at the request of Airline subsequent to the Commencement
Date, the parties will determine, in connection with such request, the
ownership of proprietary rights thereto.


 


11.3                        Prior
Agreements.  Nothing in
this Agreement will affect the proprietary rights of Airline in any
intellectual property that Orbitz has agreed in a prior agreement will be owned
by Airline.


 


11.4                        Airline
Information.  As between Airline
and Orbitz and to the extent of Airline’s prior ownership rights, Orbitz
acknowledges and agrees that Airline will own all patents (including any
business process patents), rights to file for patents, inventions, copyrights,
trademarks, trade secrets and all other right, title and interest (including
any renewals or extensions) in or to (a) the Inventory, the Airline
Specifications and the Airline Host System, and all modifications thereto and
derivatives of the foregoing, and (b) and the Airline Software and any
interfaces, networks, configurations, programs and other systems developed by
or on behalf of Airline or its employees or subcontractors during the
performance of this Agreement, and including without limitation any derivative
works thereof created by or on behalf of Airline or its employees or
subcontractors. Except as otherwise explicitly provided in this Agreement,
Orbitz shall have no right or license to use, reproduce, transfer, disclose,
display or distribute


 


18

















 


(electronically or otherwise) any technology or intellectual property
rights in the Airline Specifications, Inventory, Airline Host System or Airline
Software, and all other developments created by, on behalf of Airline. Orbitz
hereby assigns and agrees to assign and will cause its Subcontractor to assign,
to Airline all rights that Orbitz may have or acquires in or to such works or
rights for no additional consideration. At Airline’s request, Orbitz will cause
the execution of such instruments that may be appropriate to give full legal
effect to this Section 11.4 for no additional consideration.


 


11.5                        Interface.
 Except as otherwise agreed to by the
parties in this Agreement, the Specifications and any Change Request or any
Statement of Work or otherwise, as between Airline and Orbitz, each party shall
own all right, title and interest in such portions of the Interface and the
functionalities designed to integrate the Network with the Airline Host System
as such party creates and/or develops pursuant to this Agreement or any prior
agreement between the parties. Notwithstanding this Section 11.3, in no event
will Airline be deemed to have any right, title or interest in the Network, and
in no event will Orbitz be deemed to have any right, title or interest in the
Airline Host System, the Airline Software or the Airline Specifications as a
result of this Agreement.


 


12.                               NON-EXCLUSIVITY.
The relationship between Airline and Orbitz as set forth in this Agreement
will be non-exclusive. Nothing in this Agreement is intended to prevent either
party from entering into similar agreements with any other party. Airline may
participate in other Internet travel sites similar to the Network and may
obtain services from other entities similar to the Network Services. Orbitz may
permit other carriers to participate in the Network and may provide services
similar to the Services to other carriers. Orbitz and Airline may market,
maintain, service and support Internet travel sites that compete with or
provide functionality similar to the Network. This Agreement will not confer
any rights on one party to restrict the other party’s ability to offer fare
information or to do business, or choose not to do business, with any other
airline, Internet travel provider site, or any other entities.


 


13.                               WARRANTIES
AND DISCLAIMERS 


 


13.1                        General
Warranty.  Each party represents
and warrants that (a) it has the full corporate authority to execute this
Agreement and perform its obligations hereunder, (b) the execution or
performance of this Agreement will not violate or be considered a breach of any
obligation of such party to any third party and (c) the execution or
performance of this Agreement will not violate any applicable law or
regulation.


 


13.2                        Specific
Warranty.  Orbitz represents and
warrants that (a) it has sufficient rights or license in or to the Network and
the Orbitz Software to perform the Services, (b) it will perform the Services
in a good and workmanlike manner and in accordance with the Specifications and
(c) the number of segments Orbitz must book via the Worldspan Reservation
System to achieve the highest inducement level is [***] air segments and Orbitz
is obligated to pay Minimum Segment Fees if Orbitz fails to book [***] total
air and car segments via the Worldspan Reservation System. Except as provided
in Section 5.4 hereof, during the term of this Agreement, Orbitz shall maintain
the availability of the Network Services for the issuance of Supplier Link
Tickets in accordance with the Specifications. In case of breach of the
warranty set forth in subsection (b) above, Orbitz will promptly correct or
re-perform the defective Services, or refund the fees actually paid to Orbitz
for the defective Services. Airline acknowledges and agrees that this Section
13.2 and Section 5.1 set forth its exclusive remedy and Orbitz’ exclusive
liability for any claim of breach of warranty with respect to the Services. The
limitations in the foregoing sentence shall not apply to any failure by Orbitz
to perform hereunder that results from the gross negligence or willful
misconduct of Orbitz, its officers, employees, representatives, agents,
contractors or subcontractors, the breach by Orbitz of its confidentiality
obligations pursuant to Section 9 and the indemnities set forth in Section 14
hereof.


 


13.3                        Limitation.
 The warranties and remedies
specified in this Section will not apply if the Services are defective due to
extrinsic causes outside the reasonable control of the warranting party, such
as (a) natural disasters, including without limitation fire, smoke, water,
earthquakes or lightning, (b) electrical power fluctuations or failures,
(c) neglect or misuse by Airline or a third party outside of Orbitz’ control,
(d) incorrect information provided by Airline regarding Inventory (e) a
correction or


 


19

















 


modification of a Service not provided or recommended by Orbitz, or (f)
the combination of the Services with other items or services (other than the
Airline Host System to the extent it is operated in accordance with the
Specifications) with which the Services are not intended to be used. In
addition, Airline shall not be responsible or liable for unavailability or
errors or omissions of the Interface, the Airline Host System or Inventory due
to (i) errors or omissions in Orbitz’s interpretation or transmission of
Inventory, except to the extent that such errors originated with Airline, (ii)
errors in HTML or other coding provided by Orbitz or its employees or
Subcontractors, (iii) third party information of any kind whatsoever, or (iv)
any matters listed in Section 19.5.


 


13.4                        WARRANTY
DISCLAIMER.  EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND
GUARANTEES WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION THE
ORBITZ SOFTWARE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL
OR WRITTEN STATEMENTS BY ORBITZ, ITS AGENTS OR OTHERWISE (INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTY OR CONDITION OF SATISFACTORY QUALITY, ACCURACY,
UNINTERRUPTED USE, TIMELINESS, SEQUENCE, TRUTHFULNESS, COMPLETENESS,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY
IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF
PERFORMANCE) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.


 


14.                               INDEMNITY.


 


14.1                        Indemnification.
 Orbitz will indemnify, defend, and
hold harmless Airline, its directors, officers, employees, and agents (each, an
“Indemnified Party”) from and against
all any and all costs, demands, losses, claims (including any claim by a third
party), liabilities, fines, penalties, assessments, damages, including, without
limitation, interest, penalties, reasonable attorneys’ fees and expenses and
all amounts paid in proceedings, claims, complaints, disputes, arbitrations,
investigations, defense or settlement of any of the foregoing, connected with
the furnishing of any services or data by Orbitz pursuant to this Agreement
(including but not limited to actual or alleged infringement or
misappropriation of any trade name, patent, copyright, trade secret or other
property right based on any software, program, service and/or other materials
furnished by Orbitz hereunder, including the Site); provided, the foregoing
shall not apply to the extent of claims or liabilities resulting from the
negligence or willful misconduct of Airline, its directors, officers, employees
or agents.


 


14.2                        Indemnification
Procedures.  If any action, claim
or other proceeding shall be brought against any Indemnified Party, and it
shall notify Orbitz of the commencement thereof, Orbitz shall be entitled to
assume the defense thereof at its own expense, with counsel satisfactory to
such Indemnified Party in its reasonable judgment; provided, however, that any
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense at its own expense. Notwithstanding the foregoing,
in any action, claim or proceeding in which both Orbitz, on the one hand, and
an Indemnified Party, on the other hand, are, or are reasonably likely to
become, a party, such Indemnified Party shall have the right to employ separate
counsel at the reasonable expense of Orbitz and to control its own defense of
such action, claim or proceeding if, in the reasonable opinion of counsel to
such Indemnified Party, a conflict or potential conflict exists between Orbitz,
on the one hand, and such Indemnified Party, on the other hand, that would make
such separate representation advisable; provided, however, that Orbitz shall
not be liable for the fees and expenses of more than one counsel to all Indemnified
Parties. Orbitz agrees that it will not, without the prior written consent of
the Indemnified Party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated hereby (if any Indemnified Party is a party thereto or
has been actually threatened to be made a party thereto) unless such
settlement, compromise or consent includes an unconditional release of the
Indemnified Party from all liability arising or that may arise out of such
claim, action or proceeding. Orbitz shall not be liable for any settlement of
any claim, action or proceeding effected against an Indemnified Party without
Orbitz’s written consent, which consent shall not be unreasonably withheld.


 


15.                               DAMAGES
LIMITATIONS. EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES
EXPRESSLY SET FORTH HEREIN AND CLAIMS ARISING OUT OF ANY BREACH OF SECTION 9,
WITH RESPECT TO EACH OF


 


20

















 


WHICH LIABILITY SHALL NOT BE LIMITED PURSUANT TO THIS SECTION 15, UNDER
NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR
UNFORESEEABLE, BASED ON THE OTHER PARTY’S CLAIMS (INCLUDING, BUT NOT LIMITED
TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY, USE OF THE NETWORK OR USE
OF THE SERVICES, INTERRUPTION IN USE OR AVAILABILITY OF INFORMATION, STOPPAGE
OF WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF
EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE,
STRICT LIABILITY IN TORT OR OTHERWISE. EXCEPT FOR THE INDEMNIFICATION
OBLIGATIONS OF THE PARTIES EXPRESSLY SET FORTH HEREIN, CLAIMS ARISING OUT OF
ANY BREACH OF SECTION 9 AND AIRLINE’S PAYMENT OBLIGATIONS, WITH RESPECT TO EACH
OF WHICH LIABILITY SHALL NOT BE LIMITED PURSUANT TO THIS SECTION 15, IN NO
EVENT WILL THE AGGREGATE LIABILITY WHICH EITHER PARTY MAY INCUR TO THE OTHER
PARTY IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT EXCEED THE GREATER
OF (a) THE TOTAL FEES PAYABLE BY AIRLINE TO ORBITZ DURING THE TWELVE (12) MONTH
PERIOD PRECEDING THE EVENT THAT RESULTED IN SUCH LIABILITY, OR (b) $1,000,000. THIS
SECTION 15 WILL APPLY IN ALL CASES EXCEPT AND TO THE EXTENT THAT APPLICABLE LAW
SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION AND
LIMITATION.


 


16.                               INSURANCE


 


16.1                        Minimums.
 Orbitz shall maintain insurance,
with an insurance company satisfactory to Airline, in the following amounts:


 


(a)                                  Worker’s
Compensation  -  Statutory Limit.


 


(b)                                 Employers
Liability  -  $1,000,000.


 


(c)                                  Commercial
General Liability  -  $5,000,000 
Combined Single Limit Insurance per occurrence (this is a minimum amount.
Airport requirements or the nature of the work may necessitate higher limits). Commercial General Liability insurance shall
include endorsements for: personal injury; contractual liability; completed
operations/product liability; naming Airline as an additional insured; and
provide severability of interest, cross liability, and independent contractors
coverage.


 


(d)                                 Internet
Media and Professional Liability - $5,000,000.


 


Orbitz agrees to insure (or self-insure) all losses to its owned or
leased tools and equipment used in the provision of the Services and agrees to
obtain an endorsement from its insurance carrier waiving its right of
subrogation against Airline. If requested by Airline, Certificates of Insurance
shall be delivered to Airline evidencing compliance with the insurance terms of
this Agreement. All of the above insurance shall be written through a company
or companies with an A.M. Best rating of A- (VIII) or better. Orbitz will
notify Airline in writing in advance of the effective date of any material
change in or cancellation of such insurance. Orbitz’ failure to provide or to
maintain the insurance required during the term of this Agreement shall be
deemed a material breach pursuant to Section 17.2 hereof.


 


16.2                        Endorsement.
 Orbitz agrees to insure (or
self-insure) all losses to its owned or leased tools and equipment used in the
delivery of the Products and provision of the Services and agrees to obtain an
endorsement from its insurance carrier waiving its right of subrogation against
Airline.


 


16.3                        Rating.
 If requested by Airline,
Certificates of Insurance shall be delivered to Airline evidencing compliance
with the insurance terms of this Agreement. All of the above insurance shall be
written through a company or companies with an A.M. Best rating of A- (VIII) or
better. Orbitz will notify Airline in writing in advance of the effective date
of any material change in or cancellation of such insurance; provided Orbitz
receives such advance notice from the insurer. Orbitz’ failure to provide or to
maintain the insurance required during the term of this Agreement shall be
deemed a material breach of this Agreement.


 


21

















 


17.                               TERMINATION.


 


17.1                        Term.
 This Agreement shall commence on the
Effective Date and shall continue until the 10th anniversary of the
Effective Date; provided that, Airline may terminate this Agreement upon prior
written notice to Orbitz, at any time after the completion of the 2nd
anniversary of the Effective Date; and further provided that, Airline shall
have the option to extend the term of this Agreement beyond the 10th
anniversary of the Effective Date (on the same terms and conditions as in
existence at such time) to a date coterminous with the Airline Charter
Associate Agreement (or replacement commercial agreement), if Airline and
Orbitz have extended the Airline Charter Associate Agreement (or replacement
commercial agreement) between them to a date beyond such 10th
anniversary date.


 


17.2                        Termination
for Cause.  In addition to all
other termination rights set forth herein, either party may terminate this
Agreement for cause in the event that the other party fails to cure a breach of
this Agreement within thirty (30) days after receiving written notice of such
breach from the non-breaching party. If voluntary bankruptcy proceedings are
instituted by a party under any federal, state or foreign insolvency laws, or
if an involuntary petition is filed or executed against it and not dismissed or
satisfied within sixty (60) days; 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.
Airline may terminate this Agreement for cause in the event Orbitz is acquired
and/or its ownership changes such that a Competitor acquires a controlling
interest in Orbitz. For purposes of this provision, “control” means the power
to direct or cause the direction of the management and policies of Orbitz,
whether through the ownership of voting securities, by contract or otherwise.


 


17.3                        Effect
of Termination.  If this
Agreement terminates or expires for any reason, Airline will promptly pay
Orbitz any undisputed amounts payable by Airline hereunder for Services
rendered prior to the effective date of such termination. The provisions of
Sections 9, 11, 14, 15, 17, and 19 will survive the termination of this
Agreement for any reason. In the event of any termination of this Agreement for
any reason, the parties shall have no further obligations hereunder other than
those that expressly survive termination of this Agreement or are otherwise
specified herein.


 


18.                               LEGAL
STATUS. Airline and Orbitz are independent parties. Nothing in this
Agreement will be construed to create any agency, employee, franchisee, joint
venture, partnership or legal representative relationship between the parties. The
parties expressly disclaim any such relationship, and agree that the parties
have no fiduciary duty to one another or any other special or implied duties
that are not expressly stated herein. Orbitz is solely and exclusively
responsible for the salaries, wages, benefits, fees or other compensation that
Orbitz, its Subcontractors or its or their agents or employees may be entitled
to receive.


 


19.                               MISCELLANEOUS


 


19.1                        Notices.
 Any notice required or permitted
under the terms of this Agreement or required by law must be in writing and
must be (a) delivered in person, (b) sent by first class registered
mail, or air mail, as appropriate, (c) sent by overnight air courier, or
(d) sent by electronic mail (with a follow-up copy of such electronic mail
message being sent by first class mail), in each case properly posted and fully
prepaid to the appropriate address set forth on the signature page of this
Agreement. Either party may change its address for notice by notice to the
other party given in accordance with this Section 19.1. Notices will be
considered to have been given as of the date received by the intended recipient.
Notwithstanding the foregoing, in the case of notices required by Section 5.1
or Section 5.15, or notices related to Network Services or Airline Host System
outages as provided in the Specifications, notice sent by electronic mail shall
be considered to have been given as of the date sent and a follow-up copy of
such electronic mail message shall not be required. Such communications will be
sent to the address specified below or to any other address that may be
designated by prior notice.


 


22

















 


If to Airline:


 


[Address]


Attn:


Email:


Telephone:


Fax:


 


With copy to:


 


[Address]


Attn:


Email:


Telephone:


Fax:


 


If to Orbitz:


 


Orbitz, LLC


200 South Wacker Drive


Suite 1900


Chicago, Illinois 60606


Attn:


Email:


Telephone:


Fax: (312) 894-5001


 


With a copy to:


 


Orbitz, LLC


200 South Wacker Drive


Suite 1900


Chicago, Illinois 60606


General Counsel


Email:


Telephone: 
312-894-5000


Fax:  312-894-4855


 


19.2                        Waiver,
Amendment and Modification.  Except
as otherwise provided above, any amendment or other modification of this
Agreement will not be effective unless in writing and signed by the party
against whom enforcement is sought. No waiver of breach of any provision of
this Agreement by either party will constitute a waiver of any subsequent
breach of the same or any other provision, and no waiver will be effective
unless made in writing and signed by an authorized representative of the other
party.


 


19.3                        Severability.
 If any provision of this Agreement
is held to be unenforceable, in whole or in part, such holding will not affect
the validity of the other provisions of this Agreement.


 


19.4                        Assignment.
 Except as set forth in this
Agreement, neither party may assign, delegate, sub-contract or otherwise
transfer this Agreement or any of its rights or obligations without the other
party’s prior approval, which will not be unreasonably withheld or delayed. Notwithstanding
the foregoing, either party may assign this Agreement, upon prior written
notice to the other party, to (a) an Affiliate of the assigning party, or (b)
to an unaffiliated Person (but not to a competitor of the non-assigning party)
pursuant to a merger, consolidation or sale of substantially all of the
assigning party’s assets, but only if such assignee assumes in writing all of
the obligations of the assignor and provides a copy of such assumption to the
non-assigning party. Further, Orbitz may not assign, sell or otherwise transfer
the


 


23

















 


Orbitz Software or its ownership interest in the Interface in whole or
substantial part unless Orbitz (i) maintains sufficient rights to use the
Orbitz Software to provide the Network Services as provided in this Agreement
or (ii) without also assigning this Agreement in accordance with this Section
19.4. Subject to the foregoing, this Agreement shall be binding on the parties
and their respective successors and permitted assigns.


 


19.5                        Force
Majeure.  Except to the extent
the Services, the Orbitz Software or the Network are designed to accommodate
for such failures or delays, neither party will be liable for any failure or
delay in performing an obligation under this Agreement that is due to causes
beyond its reasonable control, such as an act of God, natural disasters, acts
of terrorism, outbreak or escalation of hostilities, governmental acts or
omissions, laws or regulations, labor strikes or difficulties, transportation
stoppages or slowdowns or the inability to procure parts or materials. If any
of these causes continue to prevent or delay performance for more than
one-hundred eighty (180) days, the non-delaying party may terminate this
Agreement, effective immediately upon notice to the delaying party.


 


19.6                        Governing
Law.  This Agreement will be
governed by and interpreted exclusively in accordance with the laws of the
state of Delaware exclusive of conflict of laws provisions.


 


19.7                        Counterparts.
 This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original and
all of which together shall constitute one and the same instrument.


 


19.8                        Integration.
 This Agreement and all Schedules,
Exhibits and attachments hereto, and together with the Airline Charter
Associate Agreement, constitute the complete and entire statement of all terms,
conditions and representations of the agreement between Airline and Orbitz with
respect to its subject matter. Notwithstanding the foregoing, nothing in this
Agreement will be deemed to modify or supersede any of the provisions of any
agreement between Orbitz and ARC, including Airline’s addendum thereto).


 


19.9                        Conflicts
with Other Agreements.  Except as
set forth in Section 19.8, nothing in this Agreement is intended to alter,
amend or in any manner affect any rights, obligations or duties granted or
imposed on either Party under any other agreement that was executed prior to
the date hereof.


 


[Signature Page Follows]


 


24

















 


 


IN WITNESS WHEREOF, Airline and Orbitz cause this
Agreement to be executed by their duly authorized representatives identified
below.


 


 


	
  [       ]

  	
   

  	
   

  	
  ORBITZ, LLC

  	
   

  	
   

  
	
  (“Airline”)

  	
   

  	
   

  	
  (“Orbitz”)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  	
   

  
													



 


Schedules:


Schedule A:                               Change
Request


Schedule B                                    Network
Fees


Schedule C:                                 Specifications


Schedule D:                                Current
Rates for Airline Development


Schedule E:                                  Airline
Host System


 


 


[Orbitz Supplier Link Agreement]


 

















 


Schedule A


Change Request


 


Scope Change Request


 


1                                          Title:


 


2                                          Requested
By:


 


3                                          Status:           Unapproved, Approved,
Rejected, or Implemented.


 


4                                          Business
Need Detail:


 


5                                          Impact
on Project:


 


6                                          Impact
on Schedule:


 


7                                          Services
Impacted:


 


8                                          Approvals:


 


	
  [        
  ]

  	
   

  	
  ORBITZ, LLC

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  



 

















 


Schedule
B


Network
Fees


 

















 


Schedule C


SPECIFICATIONS


 

















 


Schedule D


Set Up Fees and Current Rates for Airline
Development


 

















 


Schedule E


Airline Host System


 


The Airline Host
System is residing in                               .