Exhibit 10.8
SOFTWARE LICENSE AGREEMENT
SOFTWARE LICENSE AGREEMENT
(“Agreement”), dated as of July 23, 2007 by and between
Orbitz Worldwide, LLC, a Delaware limited liability company with
its address at 500 West Madison Street, Suite 1000, Chicago, IL
60661 (“Orbitz”) and ITA Software, Inc., a Delaware
corporation with its address at 141 Portland Street, 7
th
Floor, Cambridge, MA 02139 (“ITA”).
WHEREAS, ITA has developed a software product
known as “QPX” (as further defined below), which has a
capability to search, select, sort and price air fares;
and
WHEREAS, Orbitz operates the Orbitz Sites (as
further defined below); and
WHEREAS, Orbitz
wishes to license QPX to provide information for the Orbitz Sites
as well as for White Label Sites and Third Party Sites (as further
defined below) as further set forth herein;
WHEREAS, Orbitz and ITA are presently parties
to an Amended and Restated Software License Agreement dated as of
May 15, 2002, which agreement expires by its terms on September 30,
2007 (the “Existing Agreement”); and
WHEREAS, Orbitz
and ITA desire to extend the Existing Agreement and to enter into a
new agreement to become effective upon the expiration of such
extension, so as to assure Orbitz continued access to QPX following
such expiration;
NOW, THEREFORE, in
consideration of the foregoing the parties hereby agree as
follows:
1.
DEFINITIONS
(a)
“Agreement Month” means each one-month period during an
Agreement Year.
(b)
“Agreement Year” means each successive period of twelve
Agreement Months during the term of this Agreement, beginning on
the Commencement Date.
(c)
“Annual Minimum” has the meaning set forth in Section
8(a).
(d)
“Commencement Date” means January 1, 2008.
(e)
“CPI Increase” means the change (as of the date the
most recently available) in the Bureau of Labor Statistics Consumer
Price Index – All Items (as reported in the Wall Street
Journal) from a base of January of the immediately preceding year
through January of the year for which such change applies.
(f)
“Documentation” means the Application Program Interface
(API) for QPX attached hereto as Appendix 1 .
(g)
“End Users” means end users who access QPX at a
Site.
(h)
“Insolvency Event”, with respect to either party, means
any of the following: (i) such party at any time ceases to
conduct business in the ordinary course; (ii) such party files
a voluntary petition in bankruptcy or any voluntary proceeding
relating to insolvency, receivership, liquidation or composition
for the benefit of creditors; or (iii) such party becomes the
subject of an involuntary petition in bankruptcy or any involuntary
proceeding relating to insolvency, receivership, liquidation or
composition for the benefit of creditors, if such petition or
proceeding is not dismissed within sixty (60) days of filing.
(i)
“Look-to-Book Ratio”, with respect
to any Orbitz Site or White Label Site, means the ratio of Queries
from such Site (including Queries that are not User Queries, as
defined in Section 2(b)(vii)) to
PNRs created on such Site; and, with respect to
Third Party Sites, means the ratio of Queries (including Queries
that are not User Queries) on such Site to PNRs created on an
Orbitz Site as a result of referrals from such Third Party Site or
otherwise deriving from the information provided to such Third
Party Site by Orbitz.
(j)
“Online Users” means end users
(i.e. persons not in the business of providing travel services to
others) who access QPX at a Site for the purpose of viewing fares,
schedules, seat availability, or purchasing air travel, including
(without limitation) users who call an Orbitz customer service
agent who accesses QPX at an Orbitz Site.
(k)
“Orbitz Data” has the meaning set forth in Section
7.
(l)
“Orbitz Sites” means, collectively, the World Wide Web
travel sites located at the URLs www.orbitz.com,
www.cheaptickets.com, www.ebookers.com, www.hotelclub.com,
www.ratestogo.com, and other web sites owned and operated by Orbitz
that Use QPX. For the avoidance of doubt, a web site owned by
Orbitz that does not Use QPX will not be considered an
“Orbitz Site” for purposes of this Agreement.
(m)
“Orbitz White Label Customer” means the operator of a
White Label Site.
(n)
“Per-PNR Fee” has the meaning set forth in Section
4(d).
(o)
“Person” means any individual, firm, corporation,
partnership, limited liability company, trust, joint venture or
governmental or administrative agency or authority, or any other
entity, and shall include any successor (by merger or otherwise) of
such entity.
(p)
“QPX-Powered PNR” means a passenger name record
(“PNR”) created in a system (such as a reservations
system of an airline or a CRS) by or on behalf of any Online User;
provided, however, that a PNR in which the marketing carrier is one
with respect to which there are Booking Issues (as defined in
Section 8(c)) and with respect to which Orbitz is using another
data source, as permitted by such Section, shall not be considered
a QPX-Powered PNR. For the purposes hereof, a QPX-Powered PNR
“created” shall be deemed to refer to all QPX-Powered
PNRs created, whether or not subsequently cancelled; i.e. ,
“gross PNRs”, not “net PNRs”; except that
the following shall not be included within the definition of
QPX-Powered PNR: (1) PNRs cancelled during the same calendar day as
they are created; (2) PNRs created for test purposes, at Orbitz
Sites or White Label Sites, which are subsequently cancelled.
A passenger name record that is not a QPX-Powered PNR shall be
referred to as a “Non-QPX-Powered PNR.”
(q)
“QPX” means, at any time, the then-current version of
ITA’s Travel Planning Software product and related software
products, all as described more fully in the Documentation.
QPX includes ITA’s availability management system (both its
dynamic calculating availability system and its system for
processing other types of availability data such as so-called
“AVS” data), known as “DACS”, but
specifically excludes functionality for award travel and automated
refund/reissue.
(r)
“Query” means a query from Orbitz to QPX.
(s)
“Site” means an Orbitz Site, a White Label Site or a
Third Party Site.
(t)
“SOWs” has the meaning set forth in Section 4(a).
(u)
“Third Party Site” has the meaning set forth in Section
2(d).
(v)
“Upgrade Releases” shall have the meaning set forth in
Exhibit A.
(w)
“Use” of QPX means, with respect to an Online User,
that Orbitz provides information to such Online User which includes
any information derived from the response to a Query.
(x)
“White Label Site” has the meaning set forth in Section
2(c).
2
2. SERVICES TO BE PROVIDED;
RESTRICTIONS
(a) License
Grant. ITA grants Orbitz a worldwide, nonexclusive,
irrevocable (except as expressly set forth herein) license to use,
perform and display QPX in accordance with the terms of this
Agreement. Orbitz may use QPX to generate, sort, price and select
airline itineraries and determine availability of selected flights,
classes of service and booking codes, in order to provide travel
planning and related services to End Users.
(b) Rights and
Restrictions.
(i)
Except as provided in this Agreement, Orbitz
shall not have the right to sublicense or transfer QPX.
(ii)
Except as provided in Section 2(c), Orbitz
shall not have the right to use QPX to provide services to an
airline or to an affiliate of an airline which is engaged in the
business of selling travel on such airline.
(iii)
Orbitz may make copies of QPX executables for
hosting, staging, back- up, disaster recovery, testing or archival
purposes, and as necessary to utilize QPX in its business, subject
to the other terms and conditions of this Agreement.
(iv)
Orbitz shall be permitted to use (including via
a network) QPX on a worldwide basis and on an unlimited number of
machines without restriction as to the number of users, but only
subject to the restrictions and limitations contained
herein.
(v)
Orbitz agrees that it shall not reverse engineer, disassemble,
decompile, modify, profile or monitor QPX for any purpose
whatsoever, nor will Orbitz implement or permit procedures such as
“port scans”, “tiger attacks” or other
techniques designed to gain access to QPX (or to computers running
QPX) which have not been specifically authorized by ITA; provided,
however, that Orbitz may monitor the operation of the programs with
ITA’s prior consent, which will not be unreasonably withheld,
provided that such monitoring is in accordance with all the other
provisions of this Agreement. The foregoing provision shall not be
deemed to prohibit Orbitz from monitoring the inputs to or outputs
from ITA’s Application Program Interfaces (APIs). Without
limiting the foregoing, Orbitz specifically agrees that it will not
observe, read, copy, profile or monitor the contents of any
Packets, as defined below (or write or use any software program
which permits or enables any of such activities), for any purpose
whatsoever; provided, however, that Orbitz may monitor external
characteristics of Packets such as volume of Packets moving across
the network or the size of Packets. In addition, Orbitz shall have
the right to monitor, through the use of passive monitoring agents
that at no time during their operations would result in changing
configurations, changing the intended operation of the system, or
degrading performance, the performance (i.e, uptime, disk space
usage, bandwidth performance, memory utilization, etc.) of the
hardware and equipment on which QPX is running at the Orbitz data
center. As used herein, “Packet” means a file or packet
of data which is sent (either over a network or within a single
computer) from one program comprised in QPX to another program
comprised in QPX; provided that a “Packet” shall not
include any data input by an End User or Orbitz, any data output by
QPX to an End User or Orbitz, or any Orbitz Data.
(vi) Except as expressly set forth in this
Agreement, Orbitz shall not have any right to make, prepare or
reproduce derivative works of QPX.
(vii) In
responding to a query from an Online User (a “User
Query”), Orbitz (and any Orbitz White Label Customer and any
Third Party Site) may only use information obtained as a result of
a “Live Query” – i.e., a Query to QPX that
directly results from and relates to the User Query. For the
avoidance of doubt, the foregoing shall be deemed to prohibit
Orbitz or an Orbitz White Label Customer
3
or Third Party Site
from answering User Queries using cached information. For the
purposes hereof, “cached information” means, with
respect to any Live Query from an Online User, information retained
or stored by Orbitz or an Orbitz White Label Customer or Third
Party Site that was originally obtained from (1) a User Query from
a different Online User, (2) User Queries that were performed at an
earlier time, or (3) Queries submitted by Orbitz or an Orbitz White
Label Customer or Third Party Site to QPX that do not directly
result from or relate to User Queries. Orbitz will not be
considered to have displayed cached information if it uses its
“Deal Detector” functionality ( i.e. , Orbitz
sends a destination and price, and possibly dates of travel, to an
Online User that has previously informed Orbitz of his or her
interest in such destination), lead pricing promotion ( i.e.
, Orbitz sends a destination and price to an Online User that it
believes may be interested in travel to such destination), or
“Orbitz Insider” desktop application ( i.e. ,
desktop version of Deal Detector) so long as, in each case, the
following conditions are met: (A) in each such case, Orbitz
proactively sends (via email or other similar means) to an Online
User information derived from a Query; (B) such Online User has not
made a User Query at the time when Orbitz provides such information
to such Online User; (C) the information provided to the Online
User does not include more than one price ( i.e. ,
“$179 one-way to Fort Lauderdale”), may (in the case of
Deal Detector or Orbitz Insider, but not lead pricing) include
dates but does not include times of travel, and does not include
information about more than one itinerary; (D) Orbitz makes a
unique Query with respect to each Online User to which information
is provided ( i.e. , if Orbitz wishes to provide information
about the same city-pair and dates to three Online Users, it
performs three Queries and not one Query); (E) the Online User is
unable to obtain the details of an itinerary, or information about
any other or similar itineraries, without going to an Orbitz Site
and performing a User Query; (F) the purpose of such functionality
is to cause a User to perform a Live Query and to promote booking
of a PNR by an Online User; and (G) the total number of such
Queries ( i.e. , Deal Detector; lead pricing, to the extent
lead pricing is automatically, rather than manually, shopped;
Orbitz Insider and any other Queries that are not Live Queries)
(“Non-Live Queries”) may not exceed (***)% of the total
number of Live Queries performed at the Orbitz Sites. If the
total number of Non-Live Queries exceeds (***)% of the total number
of Queries performed at the Orbitz Sites, then, subject to the last
sentence of Section 8(d) Orbitz will pay a fee (“Non-Live
Query Fee”) of $(***)/Non-Live Query for such Non-Live
Queries in excess of (***)% of the total number of Queries.
Notwithstanding the foregoing, Orbitz or an Orbitz White Label
Customer or Third Party Site shall have the right to store or cache
information obtained as a result of a User Query made at one time
during a single user session for purposes of saving such
information for use at a later time within such session as long as
such use does not occur more than thirty minutes after such User
Query; provided, that in the event that the Online User that
performed the original User Query has commenced purchasing a ticket
and has not completed such process by the expiration of such
30-minute period, then such thirty-minute period may be extended
(with respect to the results of such Live Query only) for a period
sufficient for such Online User to complete such purchase, up to a
maximum of 60 minutes. The parties’ intention is that
Orbitz’s and/or Orbitz White Label Customers’ and/or
Third Party Sites’ use of information obtained from a User
Query by a User will never be used in such a way as to appear to
another User (“Other User”) in response to such User
Query of the Other User, and should not replace or reduce the
necessity for live queries, but rather will be intended to cause
the Other User to submit a new User Query.
(viii)
Orbitz may not provide any information derived from QPX (whether or
not combined with other information derived from another source) to
any third party other than an Online User of an Orbitz Site, except
as provided in sections 2(c) or 2(d) below.
(ix) If any
software provided by ITA to Orbitz is lost or damaged, then ITA
will provide another copy, free of charge.
(x) Orbitz
may not, except for carriers for which ITA does not have data and
except as permitted by Section 8(c), incorporate search results
that are not generated by QPX (each itinerary comprised in such
search results are referred to as a “Non-QPX Solution”)
into a matrix display that
4
includes results
generated by the Use of QPX. Further, Non-QPX Solutions
resulting from Booking Issues pursuant to Section 8(c) may not
comprise more than (***)% of the total number of itineraries
comprised in such matrix display, and Non-QPX Solutions resulting
from any combination of Booking Issues and carriers for which ITA
does not have data may not comprise more than (***)% of the total
number of itineraries comprised in such matrix display; provided
that ITA recognizes that such percentages may be exceeded in
individual markets as a result of the dominance of certain
carriers, and that such isolated instances will not be deemed to
violate this Section 2(b)(ix).
(c) White Label
Sites. Orbitz may incorporate QPX into a “white
label” travel web site, referred to hereunder as a
“White Label Site”. In order to be considered a
White Label Site, a web site must fulfill the following
conditions:
(i)
Orbitz must provide the site with a product incorporating both QPX
shopping and an Orbitz booking capability, and that consists of
materially greater functionality than that of QPX alone;
(ii) the site must not contain any air-related
functionality other than that provided by Orbitz, and must
otherwise have substantially the same functionality for the same
booking path as the Orbitz site but be branded with the Orbitz
White Label Customer’s brand;
(iii) Queries will not be submitted to QPX
directly from the White Label Site, but instead will go through the
Orbitz presentation layer code ( i.e. , all white label
customers will gain access to Orbitz via an Orbitz-provided
API);
(iv) the site must not contain any files
related to air functionality that are not supplied by Orbitz other
than static files such as .gif or .jpeg files; i.e. , the
white label customer may customize only the “front end”
appearance of the site.
In addition, the
following terms will apply to Orbitz’s provision of QPX to a
White Label Site:
(v)
Orbitz will provide written notice to ITA of any new arrangement to
provide a White Label Site.
(vi) Orbitz may not, without ITA’s
prior approval, use QPX to provide any services to airlines, except
that Orbitz may (A) offer a “packaged” product to a
niche portion of an airline web site (such as vacation travel),
where such packaged offerings consists, at a minimum, of
air-related services bundled with car and/or hotel, and (B)
continue to provide a niche corporate travel offering to United
Airlines and American Airlines substantially as currently
provided.
(vii) All the restrictions set forth in
Section 2(b) and this Section 2(c) will apply to any White Label
Site as well as to Orbitz, and Orbitz agrees that either (A) Orbitz
will be liable to ITA for violation by the Orbitz White Label
Customer of such restrictions or (B) it will enter into an
enforceable agreement with respect to such restrictions with the
Orbitz White Label Customer to which Orbitz is providing the White
Label Site, and ITA will be the intended third party beneficiary
thereof.
(d) Third Party
Sites. Orbitz may, as part of its online marketing activities
the principal purpose of which is to generate traffic for bookings
on the Orbitz Sites, provide to a third party site or downloadable
tool ( i.e. , which enables Online Users to perform Queries
and have information provided to the desktop) provided by a third
party (each such site or downloadable tool to be referred to
hereunder as a “Third Party Site”) the ability to
submit Queries to QPX and display information therefrom. In
order to be considered a Third Party Site, a web site must fulfill
the following conditions:
(i) The business model of the site must
be similar to that of Orbitz, viz. , to allow an Online User
to receive information that is intended to lead to the creation of
a QPX-Powered PNR, such that a majority of the revenue of the site
is derived from referral of customers to sites that perform
bookings (rather than, for example, a business model that is based
on using search to generate advertising revenue or any other form
of benefit other than a booking). In determining
5
whether a Third Party
Site satisfies the requirement of this Section 2(d)(i), Orbitz will
initially make a good faith determination of the business model of
such site. In the event ITA informs Orbitz that it does not
believe such site satisfies the requirement of this Section
2(d)(i), then the parties will use the dispute resolution
provisions set forth in Section 18 to determine whether such site
satisfies such requirement.
(ii) The site must not have the ability
to fulfill a booking; rather, in order to create a booking an
Online User must be required to go to another web site.
(iii) The site must be required to
display information derived from QPX in a manner which requires the
Online User to go to an Orbitz Site in order to create a PNR using
such information, and Orbitz must provide the site with a product
incorporating both QPX shopping and a requirement to direct the QPX
shopping results to an Orbitz booking capability.
(iv) If Orbitz wishes to enter into a
Third Party Site arrangement with (***) or another entity of
similar size in the search field or similar prominence in the
search field (in each case including their respective subsidiaries
or affiliates, any of which is referred to as a “Prohibited
Site”), Orbitz will provide ITA with prior notice thereof and
ITA and Orbitz will jointly determine the provisions (including
economic terms) that will apply to such entity’s Use of
QPX. Notwithstanding the foregoing, Orbitz has informed ITA
that (***) is a Third Party Site, and ITA agrees that (***) may
continue as a Third Party Site notwithstanding the provisions of
this Section 2(e)(iv).
(v) A list of all existing Third Party
Sites is attached hereto as Exhibit B . For the
avoidance of doubt, the Third Party Sites listed on Exhibit B shall
be deemed to satisfy the condition set forth in Section
2(d)(i). Following the date hereof, Orbitz will provide
written notice to ITA of any new arrangement to provide QPX to a
Third Party Site.
(vi) a site owned (in whole or material
part) or operated (in whole or material part) by one or more
airlines may not be a Third Party Site; provided, however, that if
following the date a site becomes a Third Party Site, such site
receives a passive investment ( i.e. , an equity investment
of not more than 20% in aggregate pursuant to which the airline
investor(s) do not obtain any control rights or other right to
direct or materially influence the management or operation of the
third party) by one or more airlines that does not result in a
Third Party Site violating any of the conditions set forth in this
Section 2(d), such investment will not in and of itself be deemed
to cause such Third Party Site to be in violation of this Section
2(d)(vi); and provided further, that if a Third Party Site enters
into a transaction that causes it to be in violation of the
provisions of this Section 2(d)(vi), ITA and Orbitz will mutually
agree as to the financial and other terms that should apply to such
Third Party Site’s use of QPX.
(vii) Orbitz may not provide to a Third
Party Site a greater number of results per Query than Orbitz
displays in response to Queries at Orbitz Sites. In no case may
Orbitz provide to a Third Party Site in excess of 300 results per
Query.
(viii) All the restrictions set forth in
Section 2(b) and Sections 2(d)(i), (ii), (iii), (vi) and (vii) will
apply to any Third Party Site as well as to Orbitz, and Orbitz
agrees that either (A) Orbitz will be liable to ITA for violation
by the operator of such Third Party Site of such restrictions or
(B) it will enter into an enforceable agreement with respect to
such restrictions with the operator of such Third Party Site, and
ITA will be the intended third party beneficiary thereof; provided,
however, that (1) with respect to (***), ITA will be responsible,
pursuant to ITA’s agreement with (***), to enforce such
provisions and (2) without limiting the applicability of Section
2(d)(iv) to Orbitz, if Third Party Site(s), other than (***),
permit Prohibited S ite(s) (as defined in Section 2(d)(iv))
to perform Queries, or provide any information derived from QPX to
Prohibited Site(s) (each, a “Prohibited Site Query”),
and the total number of Prohibited Site Queries in any Agreement
Month exceeds (***)% of the total number of Third Party Queries in
such Agreement Month, then the number of Prohibited Site Queries in
excess of such (***)% threshold
6
shall be deducted from the number of Included
Third Party Queries (as defined in Section 8(e)) for the purpose of
calculating the Third Party Excess License Fee pursuant to
Section 8(e).
(e) Except
as specifically set forth in Sections 2(c) and 2(d), Orbitz may not
provide to any web site other than the Orbitz Sites (i) the ability
to submit Queries (or to permit Online Users to submit Queries) to
QPX, or (ii) information generated by QPX in response to
Queries.
3.
DOCUMENTATION
When delivering QPX
(including any Upgrade Releases) to Orbitz, ITA shall supply
applicable Documentation in printed and/or electronic formats, as
requested by Orbitz. Such Documentation shall be provided at no
additional charge. If Documentation is developed specifically for
or at the request of Orbitz, then the preparation of such
Documentation shall be undertaken pursuant to an SOW. Orbitz shall
have the right, as part of the license granted herein, to make as
many additional copies of the Documentation for its own internal
use as it may reasonably determine are necessary.
4. SERVICES
(a) Statements
of Work. ITA may (but will not be obligated to) furnish to
Orbitz such services as Orbitz may request from time to time,
including services relating to customization of QPX, at ITA’s
then-current rates. The provision of such services shall be
governed by statements of work executed by the parties, a form of
which is attached hereto as Exhibit C
(“SOWs”).
(b)
Reports. The parties anticipate that provisions relating to
progress reporting will be included in SOWs. Unless otherwise
agreed in the SOW, ITA shall present to Orbitz or Orbitz’s
designated project manager or project management company a progress
report on a monthly basis in ITA’s standard form and
containing, with respect to each active project, information
relating to ITA’s progress toward completion of that project,
and deliverables for the coming month.
(c) Access to
Electronic Resources. Each party shall strictly follow all of
the other party’s security rules and procedures for use of
the other party’s electronic resources. All user
identification numbers and passwords disclosed by each party to the
other party shall be deemed to be, and shall be treated as, the
disclosing party’s Confidential Information pursuant to
Section 14 of this Agreement. In addition, any information obtained
by either party as a result of its access to, and use of, the other
party’s computer and electronic storage systems shall be
deemed to be, and shall be treated as, the other party’s
Confidential Information pursuant to Section 14 of this
Agreement.
(d) Software
Maintenance and Data Services. ITA shall provide the
maintenance and technical support services set forth in Exhibit A
in accordance with the service levels also set forth
therein.
5. PERSONNEL
(a) ITA
Personnel. It is understood and agreed that ITA’s
employees and contractors shall not be considered employees of
Orbitz within the meaning or the applications of any federal, state
or local laws or regulations including, but not limited to, laws or
regulations covering unemployment insurance, old age benefits,
worker’s compensation, industrial accident, labor or taxes of
any kind. ITA’s employees shall not be entitled to benefits
from Orbitz that may be afforded from time to time to
Orbitz’s employees, including without limitation, vacation,
holidays, sick leave, worker’s compensation and unemployment
insurance. Further, Orbitz shall not be responsible for withholding
or paying any taxes or social security on behalf of ITA’s
employees. ITA shall be fully responsible for any such withholding
or paying of taxes or social security. Notwithstanding the
foregoing, Orbitz may at any time require ITA to remove from any
Orbitz-related activity any personnel which Orbitz, in its
reasonable discretion, deems to be unsatisfactory
7
(by way of example but
not limitation, unprofessional or inappropriate conduct). Any such
request for removal shall be sent in writing to ITA.
(b)
Staffing. ITA shall staff each such project with personnel
with sufficient skill, experience and ability to complete the
project on the schedule specified in the applicable SOW.
6. OWNERSHIP
(a) QPX.
Orbitz acknowledges that ITA is the sole and exclusive owner of all
rights in and to QPX and that other than the license granted
hereby, no proprietary rights, including but not limited to
copyrights and patents, in QPX are being transferred to
Orbitz.
(b) Orbitz
Interfaces. Orbitz shall have the right to interface to QPX and
to use it in conjunction with other software, programs, routines
and subroutines developed or acquired by Orbitz, except that, other
than as set forth in Section 2(b)(v), (i) Orbitz shall use QPX as a
whole and shall not have the right to substitute other software for
portions of QPX and (ii) any interfaces between those portions of
QPX comprising the low-fare search servers and availability
servers, on the one hand, and other such software, programs, etc.
of Orbitz, on the other hand, will occur via ITA’s documented
XML Application Program Interface (API) or another API provided by
or approved in advance by ITA. ITA shall have no ownership interest
in any other software, program, routine or subroutine developed by
Orbitz or acquired by Orbitz from a third party by virtue of its
having been interfaced with or used in conjunction with QPX.
In addition, Orbitz may request that ITA enter into an SOW to
modify QPX for Orbitz (but not for ITA’s other customers) in
the event ITA is able to obtain availability information from
airlines which airlines do not make generally available. In
the event such modification would not degrade the performance of
availability caching for ITA’s other customers, ITA may (but
will not be obligated to) enter into such an SOW and the provisions
of this Agreement will not be deemed to prohibit Orbitz’s use
of QPX as so modified. For the avoidance of doubt, ITA shall
have sole discretion to make the determination of whether it will
enter into an SOW to perform services in order to obtain
availability information that ITA is not permitted to make
generally available to its customer.
(c)
Orbitz-Developed Source Code. ITA acknowledges that Orbitz
shall be the exclusive owner of all right, title and interest,
including all intellectual property rights, in and to any and all
source code developed solely by Orbitz or by third parties (other
than ITA) for Orbitz, related to or in support of any object code
of QPX, including, but not limited to, source code that improves
the scalability of QPX. The foregoing will not be deemed to alter
the rights of the respective parties under applicable law and shall
not preclude either party from filing patents regarding inventions
or discoveries invented or discovered by such party.
7. DATA
ITA understands and
acknowledges that Orbitz may (i) manage, modify, maintain and
update pre-existing data and information about End Users for use
with (or resulting from use of) QPX, and (ii) generate, manage,
modify, maintain and update additional such data and Information
(such pre-existing data and information and such additional data
and information are referred to collectively as “Orbitz
Data”; provided that schedule, fare and availability data
used by QPX shall not constitute Orbitz Data). Orbitz Data shall be
treated as Orbitz Confidential Information, and Orbitz shall retain
all right, title and interest in and to all Orbitz Data.
Notwithstanding the foregoing, Orbitz agrees that ITA will have
access to Orbitz Data comprising aggregated statistics relating to
both the usage of QPX and the traffic data (such as patterns of
usage over times of day, statistical information about the types of
queries being asked (i.e., origin, destination, travel times, etc.)
for the sole purpose of improving the performance of QPX. In
no
8
event shall ITA be
permitted to access any Orbitz Data containing personally
identifiable information regarding End Users. All such Orbitz Data
relating to any End Users, including without limitation, aggregated
information, usage and traffic data, transactional or financial
information, End User names and addresses, passwords, registration
information, and cookie information, shall be subject to
Orbitz’s privacy policy as set forth on the Orbitz Sites, and
ITA shall at all times comply with the most current version of such
privacy policy (advance notice of any modifications to which Orbitz
agrees to provide to ITA).
8. FEES AND
EXPENSES
(a) Per-PNR
Fee. The license fee for Orbitz’s use of QPX will
be based upon a per-PNR charge for all QPX-Powered PNRs created at
any Orbitz Sites and White Label Sites. The Per-PNR Fee will
be $(***) for all PNRs created, except as set forth in Section
8(c). The Per-PNR Fee will be subject to a minimum (the
“Annual Minimum”) of $(***) per Agreement, representing
(***) PNRs per year. For the avoidance of doubt, Orbitz will
not owe ITA a per-PNR Fee for a Non-QPX-Powered PNR displayed in
the same matrix display as a QPX-Powered PNR in accordance with
Section 8(c).
(b) White Label
Sites. The Per-PNR Fee will apply to all QPX-Powered PNRs
created on White Label Sites, pursuant to Section 2(c), except that
in the event the business model for a White Label Site does not
consist primarily of using search to generate bookings on Orbitz,
t
