WORLDSPAN SYSTEM ACCESS AGREEMENT THIS System Access Agreement ("Agreement") is made this 4th day of August, 1997, between WORLDSPAN, L.P., having its principal place of business at 300 Galleria Parkway, N.W., Suite 2100, Atlanta, Georgia, 30339 ("WORLDSPAN"), and Priceline, L.L.C. having its principal place of business at Five High Ridge Park, Stamford, CT, 06905 ("Developer"). WHEREAS, WORLDSPAN provides and markets computerized reservation services and has developed and offers a computerized system which provides reservations, ticketing, and other services for air transportation and other businesses (the "System"); and WHEREAS, Developer desires to gain access to the System for the purposes of developing and testing proposed software program(s) to be used in connection with the System (the "Program") and WORLDSPAN is willing to make access to the System available to Developer according to the terms of this Agreement. NOW, THEREFORE, IT IS AGREED; 1. Term. This Agreement shall become effective upon the date first written above and will continue until terminated by either party at any time thereafter upon not less than thirty (30) days prior written notice to the other, or until otherwise terminated pursuant to this Agreement. 2. Access to System and Use of Data. (a) WORLDSPAN hereby grants to Developer access to the System through an interchange address and one or more terminal addresses identified on Schedule A of this Agreement and Developer accepts such access, all according to the terms set forth herein. Developer agrees to pay to WORLDSPAN the fees and other charges pursuant to this Agreement, including but not limited to, those included on Schedule A. (b) Developer agrees that the System will be used solely for the purposes and functions contemplated by this Agreement. Developer agrees that it will limit its access to development and testing of the Product and for no other purpose. Improper use shall include, but is not limited to, generation of message activity with the System of such speed or volume that may lead to malfunctions or degradation of System performance. In the event that during the term of this Agreement Developer is provided access to the System as a travel agent subscriber for the purpose of performing reservations and ticketing functions. Developer acknowledges that access is provided hereunder solely for the purposes set forth herein. Developer further acknowledges that the ability to access the System as a travel agent subscriber does not entitle Developer to perform its travel agent functions with the access provided hereunder, nor may Developer access the System pursuant to its Subscriber Agreement as a travel agent, or provide any third party with any service for the uses contemplated herein. (c) Developer shall not copy, publish, disclose or otherwise make available any compilations of air carrier service, data or any other information obtained from WORLDSPAN to anyone in any form; provided, however, that the foregoing shall not be construed to prevent Developer from preparing and distributing to its customers reports normally generated through the use of Developer's system. Improper use of the System shall include, but is not limited to, speculative booking or reservation of space in anticipation of demand or improper creation or modification of records. WORLDSPAN reserves the right to inhibit Developer's access to the System for system maintenance or repairs or for any other reason at WORLDSPAN's discretion. (e) Within thirty (30) days after the commencement of this Agreement, Developer agrees to provide WORLDSPAN, in writing, with a list of all of Developer's customers where any product, software or device provided by Developer is being used in conjunction with the System. This list shall be updated every six (6) months or as otherwise reasonably requested by WORLDSPAN. Nothing herein shall be construed to require Developer to provide services to any customer, but Developer agrees to abide by all the terms of this Agreement regarding provision of such services in the event that it elects to so provide them. 2. Equipment Lease -- Repairs. (a) WORLDSPAN leases to Developer, and Developer leases from WORLDSPAN, the equipment (including hardware, peripherals, software and technical specifications, configurations or addresses), if any, described on Schedule A (collectively the "Equipment") at the fee set forth thereon. WORLDSPAN shall retain title to and ownership of the Equipment, and the same shall be returned to WORLDSPAN, shipping prepaid, at the termination of this Agreement in the same condition as provided to Developer, normal wear and tear excepted. Developer agrees to use the Equipment for the purposes of this Agreement only at Developer's location identified above. (b) WORLDSPAN will install the Equipment at Developer's location, following Developer's preparation of the installation area at Developer's expense. Developer shall be solely responsible for establishing electricity for the Equipment, installing cables, and such other matters as are necessary to prepare the area for installation consistent with applicable laws, regulations, building codes and any real property lease(s) of Developer. Developer will not move or modify the Equipment without the prior written consent of WORLDSPAN. (c) WORLDSPAN or its service representative will provide repair services for the Equipment during WORLDSPAN'S normal repair service hours, which are 8:30 a.m. through 5:00 p.m. local time, Monday through Friday, excluding WORLDSPAN holidays. WORLDSPAN shall not pay for repair services if the Equipment malfunction is caused by negligence, misuse, accident, fire, variation or interruption of electricity, or any attempt to service the Equipment other than by WORLDSPAN'S service representative (including the addition or removal of any third party hardware, peripherals or software). (d) Developer shall take all necessary precautions to protect the System. 4. Installation. Within sixty (60) days following the execution of this Agreement, or as soon thereafter as reasonably possible, WORLDSPAN shall cause the System to be available at the Developer location identified above according to this Agreement. Developer shall be solely responsible for procuring and paying for the cost of the installation and maintenance of any personal computer, other equipment and software necessary to enable Developer to access to the System contemplated herein. 5. Disclaimer of Warranties (a) WORLDSPAN DISCLAIMS AND DEVELOPER HEREBY WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, ANY WARRANTY OF COMPATIBILITY BETWEEN THE SYSTEM, EQUIPMENT, SOFTWARE OR DATA PROVIDED BY WORLDSPAN AND CUSTOMER OWNED EQUIPMENT OR SOFTWARE, OR ANY LIABILITY IN NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE SYSTEM, EQUIPMENT, SOFTWARE, DATA OR SERVICES FURNISHED HEREUNDER, DEVELOPER AGREES THAT WORLDSPAN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, EVEN IF ADVISED OF THE RISK OF SUCH DAMAGES IN ADVANCE. (b) WORLDSPAN shall not be liable to Developer nor deemed to be in default of this Agreement, on account of any delays, errors, malfunctions, compatibility problems or breakdowns with respect to the System, Equipment, data or services provided hereunder, unless such delay, error, -2- malfunction or breakdown results solely from the gross negligence or willful misconduct of WORLDSPAN. (c) Developer acknowledges that the installation or use of the Program or the Developer's communications hardware (including peripherals) or software may result in loss of or damage to Developer's hardware, software or data. Developer agrees to take all reasonable precautions to prevent such loss and damage, including copying data prior to installation and other reasonable and customary measures, and adherence to manufacturer's instructions. Developer further agrees to release and hold WORLDSPAN and its past and present directors, affiliates, partners, officers, employees, agents and contractors harmless from and against any losses, damages, liabilities, suits or fines caused by or arising from the installation or use of the Program or the communications hardware (including peripherals) or any other similar hardware or software utilized to permit access to the System. 6. Indemnification. (a) Each party shall indemnify, defend and hold harmless the other party, its past and present directors, affiliates, partners, officers, employees and agents, from and against all liabilities, damages and expenses, and claims for damages, suits, proceedings, recoveries, judgments or executions (including but not limited to litigation costs, expenses, and reasonable attorneys' fees) arising out of or in connection with any claim that the use of the indemnifying party's system or data (including, without limitation, hardware, software, peripherals, technical specifications, configurations or addresses) by the other party infringes any third party patent, copyright, trademark or other property right. (b) Each party shall indemnify, defend and hold harmless the other party, its past and present directors, affiliates, partners, officers, employees and agents from and against all liabilities, damages and expenses, claims for damages, suits, proceedings, recoveries, judgments or executions (including but not limited to litigation costs, expenses, and reasonable attorneys' fees) which may be suffered by, accrued against, charged to or recoverable from the other party, its past and present directors, affiliates, partners, officers, employees or agents by reason of or in connection with the other party's performance or failure to perform, or improper performance of any of the other party's obligations under this Agreement. 7. Charges. (a) In addition to the fees and other charges described in Section 2 and Section 3 above, Developer shall pay WORLDSPAN at the rate described in Schedule A of this Agreement, for each message transacted by Developer pursuant to this Agreement. For the purposes of this Agreement, a "Message" shall include each electronic transaction generated by Developer to the System including, but not limited to, transactions initiated by an individual using the "enter" or similar key on a personal computer or terminal and those automatically or mechanically generated by a software or hardware device. Examples include, but are not limited to: o a request to display a record and the associated response o a request to store a remark and the associated response o a request to end a transaction and the associated response o a request to move the screen text down and the associated response (b) Developer shall pay to WORLDSPAN monthly, in advance, the nonvariable fees pursuant to this Agreement. Billing for Message and bridge fees, as defined herein, shall be made monthly after the end of the month in which such fees have been incurred. Failure of WORLDSPAN to issue any invoice or bill shall not relieve Developer of the obligation to pay for any charge owed WORLDSPAN pursuant to this Agreement. Developer shall pay all fees and other charges within fifteen (15) days of the date of each invoice. In the event that Developer fails to pay within fifteen (15) days of an Invoice, WORLDSPAN may levy a late payment charge computed at the rate of 1 1/2% per month on -3- the outstanding balance due hereunder from any month or fraction thereof that such payment is in default. (c) Developer shall pay all sales, use, personal property, excise, license and franchise taxes as well as any other similar fees, charges or assessments which arise as a result of this Agreement or which may be imposed in connection with the access to the System. (d) WORLDSPAN reserves the right to increase any charge to Developer under this Agreement once each calendar year upon not less than thirty (30) days prior written notice to Developer. (e) Developer agrees to advise each of its accounts of WORLDSPAN's fee that will be billed to the account, for any bridge relationship established by the account to the Developer. Developer agrees to pay WORLDSPAN for any bridge relationship established by Developer to any WORLDSPAN subscriber, vendor or contractor. This charge is set forth on Schedule A and may be modified by WORLDSPAN from time to time. 8. Developer Support to Customers. Developer acknowledges that WORLDSPAN does not agree to provide, and will not provide, any "help desk" assistance or similar user or technical support to Developer or its customers with regard to any hardware (including peripherals), software, product or services provided by Developer. Developer agrees that it will notify its customers and staff that WORLDSPAN does not provide such support, and Developer shall be solely responsible for all such support for the benefit of its staff and customers. 9. Termination. (a) Either party shall be entitled to terminate this Agreement upon the occurrence of any of the following events: (1) Except for Developer's failure to make timely payment, if the other party shall refuse, neglect or fail to perform, observe or keep any of the material covenants, terms or conditions contained herein to be performed, observed or kept, and such refusal, neglect or failure shall continue for a period of thirty (30) days including weekends, after written notice, the non-defaulting party shall have the right, in addition to any other right or remedy it may have, to terminate this Agreement; or (2) If the other party petitions for relief under the Bankruptcy Code of the United States, or any country or territory, or if voluntary bankruptcy proceedings are instituted by a party under any federal, state or foreign insolvency laws, or if such a proceeding is imminent, or if it is adjudged bankrupt, or if it makes any assignment for the benefit of its creditors of all or substantially all of its assets; or if an involuntary petition is filed or execution issued against it and not dismissed or satisfied within thirty (30) days; or if its interest hereunder passes by operation of law to any other person, except in case of merger or acquisition, the other party may, at its option, terminate this Agreement by written notice provided, however, that all monies owed hereunder prior to the date of termination shall be immediately due and payable. (b) WORLDSPAN shall be entitled to terminate this Agreement should Developer fail to pay any amount due hereunder, and Developer fails to cure such default within thirty (30) days after the date of written notice from WORLDSPAN. 10. Notices. All notices, requests, demands or other communications hereunder shall be in writing, hand delivered, sent by first class mail, overnight mail, or facsimile (upon electronic confirmation that the transmission was received) and shall be deemed to have been given when received at the following addresses: -4- if to WORLDSPAN: WORLDSPAN, L.P. 300 Galleria Parkway, NW Atlanta, Georgia 30339 U.S.A. Facsimile: (770) 563-7004 ATTN: Karen Lennon; Manager - Emerging Markets with a copy to: WORLDSPAN, L.P. 300 Galleria Parkway, NW Atlanta, Georgia 30339 U.S.A. Facsimile: (770) 563-7878 ATTN: Legal Department If to Developer: At the address first written above. Any notice provided by facsimile which is received after 4:00 p.m. local time shall be deemed received the following business day. A party may change its addresses for notice on not less than ten (10) business days' prior written notice to the other party. 11. Confidential Information. (a) Confidential information supplied by one party to another pursuant to this Agreement is for the exclusive use of the receiving party and shall not be disclosed or made available to any other person, firm, corporation or governmental entity in any form or manner whatsoever; provided, however, that in the event Confidential Information is subpoenaed or otherwise requested or demanded by any court or governmental authority, the receiving party shall give written notice to the disclosing party prior to furnishing the same and shall, at the request of the disclosing party, exercise reasonable business efforts in cooperation and at the sole expense of the disclosing party, to quash or limit such request, demand and/or subpoena. The receiving party's obligations include treating Confidential Information with at least the concern and protective measures accorded any trade secrets, proprietary or confidential information and materials of the receiving party. Nothing herein shall be construed to require the disclosure of Confidential Information to the receiving party, or to require the receiving party to accept Confidential Information. (b) Upon any termination of the Agreement, Developer agrees to deliver to WORLDSPAN all documentation, materials, information, Equipment, technical configurations and specifications supplied by WORLDSPAN and shall also certify in writing that all copies have been returned to WORLDSPAN. (c) Developer understands that the information it has access to through the System is confidential and proprietary and includes valuable trade secrets of WORLDSPAN and that WORLDSPAN would suffer irreparable harm if such confidential or propriety information or trade secrets are directly or indirectly (i) used by Developer for any purpose other than those specifically set forth herein, or (ii) disclosed to any third party including affiliates of Developer which may operate as ARC approved travel agents in direct or indirect competition with the travel agents subscribing to WORLDSPAN or software developers in direct or indirect competition with WORLDSPAN. Accordingly, Developer agrees not to use the information for other purposes, disclose, or allow access to such information to any third party. Developer agrees that a breach of these conditions shall be grounds sufficient for immediate termination of, or suspension of, services under this Agreement, inhibiting Developer's access to and use of the System, and appropriate legal relief. Upon termination of this Agreement for any cause or reason, Developer agrees to deliver to WORLDSPAN all materials or -5- information supplied pertaining to WORLDSPAN and shall also confirm that all copies of such material have been returned to WORLDSPAN or destroyed. (d) WORLDSPAN understands that the information it has access to through the right of access to Developer's facilities is of a confidential and proprietary nature, and WORLDSPAN may hereinafter have access to other information of Developer which is of a confidential and proprietary nature, and could result in irreparable harm to Developer if any such confidential or proprietary information is directly or indirectly (i) used by WORLDSPAN for any purpose other than as specifically set forth herein, or (ii) disclosed to any third party. Accordingly, WORLDSPAN agrees not to use the information for other purposes, disclose or allow access to such information to any third party. WORLDSPAN agrees that a breach of these conditions shall be grounds sufficient for immediate termination of this Agreement, and legal as well as injunctive relief. Upon termination of this Agreement for any cause or reason, WORLDSPAN agrees to deliver to Developer all materials or information supplied pertaining to Developer and shall also confirm that all copies of such material have been returned to Developer or destroyed. (e) WORLDSPAN and Developer agree that any and all non-disclosure and use covenants contained herein shall survive for a period of five years any termination of this Agreement. 12. Modifications. WORLDSPAN retains the right, in its sole discretion, to enhance, modify or alter the operation of the System at any time and further retains the right to make such enhancements, modifications or alterations generally available to other users of the System. WORLDSPAN shall use reasonable business efforts to give Developer written notice prior to loading of enhancements, modifications or alterations, other than those corrective in nature, which would materially adversely affect the services provided to Developer under this Agreement. 13. Title Title and full and complete ownership rights to all WORLDSPAN owned or developed software (including source and object code) and other technical specifications, addresses or configurations (collectively the "Software") associated with or contained in the System or used by WORLDSPAN in connection with this Agreement shall remain with WORLDSPAN. Developer understands and agrees that WORLDSPAN's owned or developed Software is WORLDSPAN's trade secret, proprietary information, and confidential information whether any portion thereof is or may be validly copyrighted or patented. Any Software provided to Developer is provided by license only and such license is personal, non-exclusive, non-transferable and limited to the right to use such Software during the term of this Agreement only according to guidelines established by WORLDSPAN from time to time. Such Software shall be utilized by Developer only in accordance with this Agreement and shall not be copied, duplicated, reproduced, manufactured, de-compiled, reverse engineered, incorporated into any software (including any source code, object code or algorithms), modified or disclosed in any form by any media to any other person or party. Developer agrees to abide by any terms imposed by any third party that has directly or indirectly licensed Developer to use Software pursuant to this Agreement. Upon termination of this Agreement. Developer shall immediately return to WORLDSPAN any Software provided by WORLDSPAN. Nothing herein shall be construed to require WORLDSPAN to deliver any Software to Developer or to require Developer to accept such Software. 14. No Endorsement. Nothing herein shall be construed to constitute an endorsement by WORLDSPAN of any product, software, device or service marketed, sold or provided by Developer. Developer shall not be entitled to use the name "WORLDSPAN" or any WORLDSPAN product mark or logo in any fashion, except as otherwise agreed in writing. 15. General Provisions. -6- (a) Nothing in this Agreement is intended or shall be construed to create or establish an agency, partnership, or joint venture relationship between the parties. (b) The captions in this Agreement are for convenience only and in no way define, limit, or enlarge the scope of this Agreement or any of the provisions therein. Capitalized terms shall have the meanings assigned in this Agreement. (c) No waiver by either party of any provision or any breach of this Agreement constitutes a waiver of any other provision or breach of this Agreement and no waiver shall be effective unless made in writing. The right of either party to require strict performance and observance of any obligations hereunder shall not be affected in any way by any previous waiver, forebearance or course of dealing. (d) Except for Developer's obligation to make payments hereunder, neither party will be deemed in default of this Agreement as a result of a delay in performance or failure to perform its obligations caused by acts of God or governmental authority, strikes or labor disputes, fire, acts of war, failure of third party suppliers, or for any other cause beyond the control of that party. (e) Developer shall not sell, assign, license, sub-license, franchise or otherwise convey in whole or in part to any third party this Agreement or the services provided hereunder without the prior written consent of WORLDSPAN, except that Developer may freely assign all rights, title, interest and obligations under this Agreement to any taker of all, or substantially all of Developer's assets. (f) This is a non-exclusive agreement. Similar agreements may be entered into by either party with any other person. (g) This Agreement shall be governed by, construed, interpreted and enforced according to the laws of the State of Georgia and of the United States of America, without regard to principles of conflict of laws and rules. Each party hereby consents to the non-exclusive jurisdiction of the courts of the State of Georgia and United States Federal Courts located in Georgia to resolve any dispute arising out of this Agreement. (h) Each party shall not make any use of the other party's company name, logo, trademarks or service marks, without the prior written consent of the party. (i) In the event that any material provision of this Agreement is determined to be invalid, unenforceable or illegal, then such provision shall be deemed to be superseded and the Agreement modified with a provision which most nearly corresponds to the intent of the parties and is valid, enforceable and legal. (j) This Agreement constitutes the final and complete understanding and agreement between the parties concerning the subject matter hereof. Any prior agreements, understandings, negotiations or communications written or otherwise are deemed superseded by this Agreement. This Agreement may be modified only by a further written agreement executed by an authorized representative of the parties hereto. -7- IN WITNESS WHEREOF, Developer and WORLDSPAN have executed this Agreement by their respective authorized representatives as of the day and year first above written. Priceline, L.L.C. WORLDSPAN, L.P. --------------------------------- (Legal Name of Person or Company) By: /s/ Jesse Fink By: /s/ Karen Lennon ----------------------------- ------------------------------- Print Name: Jesse Fink Name: Karen Lennon --------------------- Print Title: C.O.O. Title: Manager - Emerging Markets -------------------- -8- EX-10.15 8 EX 10.15 Exhibit 10.15 CALLTECH MASTER AGREEMENT FOR OUTSOURCING CALL CENTER SUPPORT THIS AGREEMENT (this "Agreement"), dated as of ____________, 1998, is between priceline.com LLC, a Delaware limited liability company with offices located at Five High Ridge Park, Stamford, Connecticut 06905-1325 (herein "PRICELINE"), and CALLTECH Communications, Incorporated, with offices located at 4189 ArlingGate Lane, Columbus, Ohio 43228 (herein "CALLTECH"). WHEREAS, PRICELINE is engaged in several businesses including the business of selling airline travel services through its Internet site priceline.com (the "Site") and through its toll-free telephone number 800-PRICELINE (the "Toll-Free Number"); and WHEREAS, PRICELINE desires to retain the services of CALLTECH to provide customer support and telemarketing services to customers and potential customers of PRICELINE's airline travel business (each, a "Customer"), and CALLTECH desires to provide such services, on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereby agree as follows: ARTICLE 1. ENGAGEMENT OF CALLTECH; DESCRIPTION OF SERVICES SECTION 1.1. ENGAGEMENT OF CALLTECH Subject to the terms and conditions of this Agreement, PRICELINE hereby retains CALLTECH to provide the Customer support and telemarketing services set forth below (collectively, the "Services"), and CALLTECH hereby accepts such engagement. (a) CALLTECH will provide PRICELINE inbound teleservice support for PRICELINE Customers who have purchased airline tickets through the Site. CALLTECH will provide such services in accordance with the specifications set forth on SCHEDULE A attached hereto and made a part hereof (collectively, the "Inbound Teleservices"). (b) In addition to the Inbound Teleservices, CALLTECH will provide inbound telemarketing services for Customers using the Site and/or the Toll-Free Number to complete airline ticket request transactions with PRICELINE. CALLTECH will provide such services in accordance with the specifications set forth on SCHEDULE B attached hereto PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT and made a part hereof (the "Inbound Telemarketing Services" and, together with the Inbound Teleservices and any other services provided by CALLTECH pursuant to paragraphs (c) and (d) of this Section 1.1, being collectively referred to herein as the "Services"). (c) During the Term (as hereinafter defined) of this Agreement, CALLTECH shall, at the option of PRICELINE, provide outbound up-sell telemarketing services to Customers on terms and conditions to be agreed upon in good faith by the parties. (d) CALLTECH will also provide such additional related services as set out in this Agreement (herein "Related Services") including, without limitation, the following: 1.1.1. CALLTECH agrees to notify PRICELINE on a daily basis of any information required by PRICELINE's Customers. The parties agree that PRICELINE is responsible for fulfilling such requests. Should CALLTECH's notice obligation significantly interfere with its primary Service activities, CALLTECH will notify PRICELINE. The parties agree that upon such notice, they will work cooperatively toward an amicable solution. 1.1.2. CALLTECH agrees to provide PRICELINE with such information and reports related to Services created by the CALLTECH telephone system. The initial list of reports are set forth on SCHEDULE C annexed hereto and made a part hereof. Additional reports, as agreed to by the parties, shall be provided by CALLTECH during the Term and shall be deemed included on SCHEDULE C annexed hereto effective as of the date agreed to by CALLTECH and PRICELINE. Report topics may include performance, users, applications and lost Contacts (as hereinafter defined), among others. 1.1.3. As set forth in SCHEDULES A and B annexed hereto, CALLTECH agrees to allow PRICELINE, through reasonable mechanisms to be made available by CALLTECH to PRICELINE, to monitor CALLTECH's service handling of Contacts for Products (as hereinafter defined), provided that this activity doesn't significantly interfere with primary Service activity. PRICELINE agrees to provide CALLTECH with any and all information, reports, or feedback related to Service quality, which are created by the monitoring of Contacts. SECTION 1.2. PRODUCTS CALLTECH will provide the Services for all airline related goods and services offered by PRICELINE through the Site and the Toll-Free Number (collectively, the "Products"), and any other products related thereto as designated from time to time by -2- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT PRICELINE (the "Related Products"). All terms and conditions herein apply to the Products and the Related Products. If Related Products (other than any usual and customary updates, upgrades, new versions, extensions or evolutionary developments to the Products as would typically be expected to occur in products and services such as the Products) are introduced during the Term of this Agreement, PRICELINE shall provide reasonable advance notice of and information about such additional Related Products to CALLTECH to enable CALLTECH to inform and train its CSRs (as defined in SCHEDULE A annexed hereto) as necessary and appropriate to provide quality Services with respect to such additional Related Products. The provision of any Services for such additional Related Products by CALLTECH may require an adjustment of the fees set forth on SCHEDULE F annexed hereto, but only if the additional Related Products designated by PRICELINE are of a nature so as to require materially more (or materially different and more expensive) resources from CALLTECH in order for CALLTECH to provide quality Services meeting the performance metrics set forth in this Agreement. SECTION 1.3. HOURS OF OPERATION (a) CALLTECH will provide the Inbound Teleservices 365 days per year from 9 a.m. to 9 p.m. Eastern Standard Time, Monday through Friday, and from 12 p.m. to 6 p.m. Eastern Standard Time, Saturdays and Sundays commencing on the Teleservices Launch Date (as defined in SCHEDULE A annexed hereto). (b) CALLTECH shall provide the Inbound Telemarketing Services twenty-four (24) hours per day, seven (7) days per week, 365 days per year commencing on the Telemarketing Launch Date (as defined in SCHEDULE B annexed hereto). SECTION 1.4. FACILITY CALLTECH will utilize its support facility at 4189 ArlingGate Lane, Columbus, Ohio (the "Facility") for delivery of Services for the Products. The Facility will be equipped with telephone systems, computer systems, and various CALLTECH support and call monitoring tools, such as documentation and knowledge bases, to be used in the delivery of the Services. CALLTECH shall bear all expenses of operating the Facility, including all expenses for equipment and systems necessary to connect to any telecommunications circuits or facilities utilized by PRICELINE to bring calls to the Facility. SCHEDULE C annexed hereto and made a part hereof identifies the minimum capabilities CALLTECH shall maintain with respect to the Facility. -3- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT ARTICLE 2. SERVICE LEVELS SECTION 2.1. DEFINITIONS; SERVICE LEVELS 2.1.1. CALL DEFINITIONS: ACTUAL HANDLING TIME: Shall mean (i) in the case of an Inbound Call (as hereinafter defined) by a CSR or an outbound Customer callback, the time that is measured from when the call is physically answered by the CSR or the PRICELINE Customer respectively until the call is physically terminated; and any additional wrap up work performed related to such call prior to becoming physically available to receive the next Inbound Call or to make the next Customer callback, and (ii) in the case of an Automated Call (as hereinafter defined), the time that is measured from when the caller enters the CallTech Voice Response Unit (VRU) until such caller leaves the VRU. AUTOMATED CALL: Shall mean an Inbound Call that is delivered to an electronic voice message rather than to a CSR as the means of providing Services as described in this Agreement. CONTACT: Shall mean a support incident, defined as a single in-coming support request via telephonic voice (a "Voice Contact"), fax or written or electronic correspondence (an "E-mail Contact") regarding any Product. INBOUND CALL: Is defined as a call that has physically arrived to CALLTECH's Interactive Voice Response Unit (an "IVR") or similar system by way of PRICELINE's IVR or other mechanism for the purpose of providing Services as described in this Agreement. MAXIMUM HOLD TIME: Shall be measured from the time an Inbound Call is placed in a call group queue, prior to being physically delivered and answered by a CSR or an automated voice response unit (a "VRU"). SECTION 2.2. SERVICE LEVELS SCHEDULE E annexed hereto and made a part hereof sets forth the performance requirements of CALLTECH applicable to its handling of Inbound Calls, Contacts and the Actual Handling Time for Inbound Calls for all Services. -4- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT SECTION 2.3. ESCALATION PROCEDURE PRICELINE recognizes that there may be instances where CALLTECH will not be able to resolve a Customer Contact without PRICELINE's assistance. Promptly following the execution of this Agreement, both parties will mutually agree to an escalation procedure for resolving support problems that require PRICELINE's technical personnel and/or a PRICELINE third party vendor. PRICELINE agrees to provide necessary and timely resources to CALLTECH to enable CALLTECH to resolve escalated problems in a timely manner. Examples of such resources include documentation, knowledgebase, escalation process, hardware, software and support technicians. SECTION 2.4. CUSTOMER CALLBACKS CALLTECH agrees that in the event a CALLTECH CSR is unable to resolve a support incident during an Inbound Call, the CSR will make all reasonable efforts to contact the Customer as soon as possible with the solution. All telecommunications costs for these callbacks shall be borne by Priceline. In the event Priceline selects to be billed on a per-call basis, these callbacks shall be considered a billable call. SECTION 2.5. CALL LENGTH PRICELINE and CALLTECH recognize that the amount of time a CSR spends on an individual voice Contact can impact both Service levels and fees. PRICELINE's expected average call length for Products is set out on SCHEDULE E annexed hereto. If CALLTECH experiences any significant increase in call length, CALLTECH agrees to notify PRICELINE and will work toward determining how to accommodate the increase by either modifying the Service level or increasing the staff as mutually agreed. ARTICLE 3. PRICELINE TOOLS, TELECOMMUNICATIONS AND TRAINING SECTION 3.1. PRICELINE TOOLS PRICELINE agrees to provide CALLTECH with sufficient copies of Products and related materials, including, but not limited to, copies of software, documentation, licenses and Product information as reasonably necessary to provide Services for the Products. CALLTECH acknowledges that its use of such tools may be subject to the terms of license agreements required by PRICELINE or its third party suppliers, and CALLTECH agrees to abide by all the terms and conditions of such licenses in connection with its use of such tools. PRICELINE shall only be obligated to supply one copy of any documentation or other such written materials relating to any such tools, and CALLTECH may make such -5- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT number of copies (and only such number of copies) of such materials as are necessary for it to provide Services hereunder. SECTION 3.2. TELECOMMUNICATIONS PRICELINE assumes all expenses related to the sending of Contacts to CALLTECH, including provision of telecommunication lines and the bearing of network costs associated with routing Inbound Calls to the Facility. CALLTECH is responsible for properly equipping the Facility with the necessary hardware to receive and handle Contacts as required by this Agreement. SECTION 3.3. TRAINING PRICELINE will provide one copy of necessary training materials to CALLTECH on all versions and aspects of Products that are unique or specific to PRICELINE's services at no charge to CALLTECH. CALLTECH trainers at CALLTECH's Facility will provide training for CALLTECH CSRs, unless otherwise agreed to in writing by the parties. Training will be delivered based on technical documentation for all aspects of the Products which are unique or specific to PRICELINE's services and all updates, upgrades and revisions thereto required to provide the Services will be provided to CALLTECH by PRICELINE at no charge to CALLTECH. CALLTECH agrees to use said documentation for Service purposes only. CALLTECH agrees to use all training materials for training and support purposes for the Services only. CALLTECH agrees to provide standard CALLTECH support training to its employees at the Facility, which shall include (at a minimum) training on the standard types of underlying hardware, operating system and application (e.g., browser) software required or typically used in conjunction with the Products. PRICELINE shall have the right to review and approve the level of proficiency to which the CSRs are to be trained by CALLTECH to facilitate the performance of quality Services, which approval shall not be unreasonably withheld. Except in an emergency and upon consultation with PRICELINE, CALLTECH shall not assign CSRs to provide Services hereunder unless they have received adequate training as approved by PRICELINE and otherwise meet the requirements applicable to CSR's as set forth on SCHEDULES A and B annexed hereto. ARTICLE 4. FEES SECTION 4.1. FEES FOR SERVICE CALLTECH agrees to perform the Services for the fees set forth on SCHEDULE E annexed hereto and made a part hereof. Except as provided in Section 5.1 of this Agreement, such fees cannot be modified by CALLTECH. -6- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT SECTION 4.2. PAYMENT Commencing with the end of the month of the Telemarketing Launch Date and each month thereafter during the Term (as hereinafter defined), CALLTECH will provide PRICELINE with a monthly itemized statement for the Services rendered during the preceding monthly period. In addition, CALLTECH will bill and PRICELINE will pay for Related Services and such other charges as are provided for herein on an as incurred basis (along with its regular monthly invoice). PRICELINE will pay net thirty (30) days from receipt of each invoice in United States dollars. If PRICELINE is delinquent in the payment of any invoice, and fails to remedy the delinquency within thirty (30) days after written notice of delinquency is received by PRICELINE, PRICELINE shall be obligated to pay late charges in a total amount not to exceed one and one-half percent (1 1/2%) per month on the unpaid balance of any undisputed portion of the invoice which is unpaid. In the event of a dispute with regard to a portion of any invoice, the disputed portion may be withheld until resolution of the dispute but any undisputed portion shall be paid as provided herein. SECTION 4.3. RECORD KEEPING CALLTECH agrees to keep accurate books of account and records (in accordance with generally accepted accounting principles consistently applied) at the address set forth on the first page of this Agreement detailing all fees for its Services. Such books and records shall be maintained by CALLTECH for a period of three (3) years after termination or expiration of this Agreement. Upon reasonable notice of not less than thirty (30) days, PRICELINE shall have the right, for each twelve (12) month period during the Term, to inspect and audit such books of account and records to verify the accuracy of the information contained in any invoice or the amount of fees for Services paid to all CALLTECH hereunder. The parties agree that any dispute as to the fees paid to or charged by CALLTECH for the Services that can not be resolved by the parties shall be settled by arbitration as provided in Section 7.11 of this Agreement. SECTION 4.4. TAXES CALLTECH shall be solely responsible for the preparation and submission to applicable authorities of its CSRs' or other employees' income tax and FICA forms and the payment of all of such persons' salaries, employer contributions and employee benefits. PRICELINE shall be solely responsible for all applicable federal, state and local taxes and charges arising out of or related to sales of the Products and any such taxes shall be assumed and paid for by PRICELINE. CALLTECH and PRICELINE shall be solely responsible for the preparation and submission to applicable authorities of their respective federal, state and local income taxes attributable to income derived by each such party in connection with the subject matter of this Agreement. -7- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT ARTICLE 5. TERM OF AGREEMENT SECTION 5.1. TERM The initial term of this Agreement shall commence on the date hereof and shall continue for a period of one (1) year from the Telemarketing Launch Date (the "Initial Term"). This Agreement shall automatically be extended for successive one (1) year terms (each a "Renewal Term") unless either party gives the other written notice of its intention not to extend this Agreement at least ninety (90) days prior to the end of the then current term, or unless terminated as provided elsewhere herein (the Initial Term, together with each Renewal Term, if any, being collectively referred to herein as the "Term"). Any time after expiration of the Initial Term, CALLTECH may change the prices and terms on which Services will be provided by providing at least one hundred twenty (120) days prior written notice to PRICELINE (the "Fee Notice Period"). PRICELINE shall have the right, in its sole discretion, to reject such changes and, in such case, this Agreement shall automatically terminate without penalty to either party upon expiration of the Fee Notice Period. SECTION 5.2. CONDITIONS FOR TERMINATION BASED ON NON-PERFORMANCE 5.2.1. PRICELINE may terminate this Agreement without penalty if CALLTECH fails to meet any of its performance obligations hereunder or otherwise commits a breach of any term or provision of this Agreement and fails to cure the same within thirty (30) days after written notice from PRICELINE. This Agreement shall automatically terminate forthwith without notice in the event CALLTECH's liabilities exceed its assets, or if CALLTECH is unable to pay its debts as they become due, or files or has filed against it a petition in bankruptcy, for reorganization or for the adoption of an arrangement under any present or future bankruptcy, reorganization or similar law (which petition if filed against CALLTECH shall not be dismissed within sixty (60) days from the filing date), or if CALLTECH makes a general assignment for the benefit of its creditors or is adjudicated a bankrupt, or if a receiver or trustee of the CALLTECH's business or all or substantially all of the CALLTECH's property is appointed, or if CALLTECH discontinues its business. 5.2.2. Any default claimed by CALLTECH against PRICELINE which cannot be resolved by negotiation between the parties shall be referred to binding arbitration by CALLTECH as provided in Section 7.11 of this Agreement, and CALLTECH shall not be entitled to terminate this Agreement or suspend, in whole or in part, the performance of its obligations hereunder on account of any such breach pending outcome of the arbitration. -8- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT SECTION 5.3. TERMINATION FOR CONVENIENCE PRICELINE may terminate this Agreement at any time during the Initial Term and any Renewal Term without cause upon at least ninety (90) days written notice to CALLTECH. In such event, PRICELINE shall pay an early termination fee to CALLTECH to compensate CALLTECH for all costs and expenses actually and reasonably incurred by CALLTECH for personnel and equipment engaged in providing Services to PRICELINE at the time of termination until such resources are either discharged or re-deployed by CALLTECH to provide services for other parties (but in any event for a period not to exceed sixty (60) days after termination). CALLTECH will promptly and in good faith attempt to re-deploy such resources as soon after termination as possible so as to reduce the amount of such early termination fee payable by PRICELINE to the extent reasonably possible. In no event shall the total amount of such termination fee exceed the amount billed to PRICELINE for the Services (excluding any Related Services) provided in the month immediately preceding the giving of the notice of termination by PRICELINE. ARTICLE 6. INDEMNITY; LIABILITY AND DISCLAIMERS; INSURANCE SECTION 6.1. INDEMNIFICATION BY CALLTECH Subject to the limitations of liability set forth in Section 6.3.2 of this Agreement, CALLTECH agrees to indemnify and save harmless PRICELINE and its affiliates, and their respective officers, directors, shareholders, members, partners, employees, agents and other personnel, from any liabilities, causes of action, lawsuits, penalties, damages, claims or demands (including the costs and expenses and reasonable attorneys' fees on account thereof) that may be made: (i) by any person or entity for injuries or damages of any kind or nature (including but not limited to personal injury, death, property damage and theft) resulting from or relating to (x) the negligent or willful acts or omissions of CALLTECH, those of persons or entities furnished by CALLTECH, or CALLTECH's employees, CSRs, agents or subcontractors, (y) the use of CALLTECH's Services furnished hereunder, (ii) CALLTECH's breach of this Agreement or its failure to perform any obligation hereunder, or (iii) by any employee or former employee of CALLTECH or any of its CSRs, agents or subcontractors for which CALLTECH's liability to such person or entity would otherwise be subject to payments under state workers' compensation or similar laws. CALLTECH, at its own expense, agrees to defend PRICELINE, at PRICELINE's request, against any such liability, cause of action, lawsuit, penalty, claim, damage or demand. PRICELINE agrees to notify CALLTECH promptly of any written claims or demands against PRICELINE for which CALLTECH is responsible hereunder. The foregoing indemnity shall be in addition to any other indemnity obligations of CALLTECH set forth in this Agreement. -9- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT SECTION 6.2. INDEMNIFICATION BY PRICELINE Subject to the limitations of the liability provisions of Section 6.3.2 of this Agreement, provided that CALLTECH cooperates with PRICELINE, PRICELINE agrees to indemnify and hold CALLTECH and its affiliates, and their respective officers, directors, shareholders, members, partners, employees, agents and other personnel, harmless from any loss, liability, damages or costs based on the operations of any Products or any infringement by the Products of any patent or proprietary right of a third party. CALLTECH agrees to notify PRICELINE promptly of any written claims or demands against CALLTECH for which PRICELINE is responsible hereunder. PRICELINE shall have no liability for, and CALLTECH shall indemnify and hold PRICELINE and its affiliates, and their respective officers, directors, shareholders, members, partners, employees, agents and other personnel, harmless from and against, any claim based upon CALLTECH's conduct, if such infringement, cause of action or other damage would have been avoided but for that conduct. SECTION 6.3. WARRANTY; LIMITATION OF LIABILITY 6.3.1. CALLTECH warrants to PRICELINE that the Services furnished under this Agreement will be furnished in a professional and workmanlike manner and in conformance with the metrics set forth in this Agreement. 6.3.2. Except for liabilities described in clauses (i) and (ii) below, CALLTECH's and PRICELINE's total liability hereunder will be limited to a maximum amount of FIVE MILLION DOLLARS ($5,000,000.00). The limitations of this Section shall not apply to: (i) any damage or loss to PRICELINE arising from any misappropriation of PRICELINE's confidential information in breach of this Agreement or (ii) damages resulting from personal injury or death or damage to tangible real or personal property caused by CALLTECH or resulting from CALLTECH's negligence. SECTION 6.4. INSURANCE CALLTECH currently maintains at its sole cost and expense worker's compensation insurance as required by applicable law, general liability insurance with limits of not less than $1,000,000 bodily injury per occurrence (including death) and $500,000 property damage per occurrence. In addition, CALL TECH currently maintains automobile liability insurance with a limit of not less than $1,000,000 bodily injury (including death) per occurrence. CALLTECH currently maintains Contractual Liability coverage to cover liability assumed under this Agreement. At all times under this Agreement CALLTECH shall maintain appropriate insurance coverages or that which is required by law for a business of like kind. CALLTECH shall provide PRICELINE with -10- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT copies of certificates of such insurance from time to time during the Term upon request by PRICELINE. ARTICLE 7. GENERAL PROVISIONS SECTION 7.1. NON-DISCLOSURE 7.1.1. As used in this Section 7.1, "Confidential Information" means private, confidential, trade secret or other proprietary information (whether or not embodied or contained in some tangible form) relating to any actual or anticipated business of PRICELINE or CALLTECH, as applicable, and their respective affiliates, or any information which, if kept secret, will provide the party disclosing such Confidential Information (in each case a "Discloser") an actual or potential economic advantage over others in the relevant trade or industry. As defined herein, Confidential Information includes, without limitation, formulae, compilations, computer programs and files, devices, methods, techniques, know-how, inventions, research and development, business data (including cost data), strategies, methods, prospects, plans and opportunities, customer lists, marketing plans, specifications, financial information, invention disclosures, patent applications (whether abandoned or not), techniques, products and services of the Discloser and identified orally or in writing by the Discloser as confidential, proprietary or trade secret information. Confidential Information further includes any information or material received in confidence by the Discloser from a third party, and/or information held in confidence by a third party and made available to the party receiving Confidential Information (in each case a "Recipient"). 7.1.2. Except as required in the performance of its obligations under this Agreement or with the prior written authorization of the Discloser, the Recipient shall not directly or indirectly use, disclose, disseminate or otherwise reveal any Confidential Information and shall maintain Confidential Information in confidence for a period of five (5) years from the date of termination or expiration of this Agreement, for whatever reason. Recipient shall use the same care and discretion to protect Confidential Information of the Discloser as Recipient uses to protect its own confidential information, but not less than a reasonable standard of care. Recipient shall restrict use of the Discloser's Confidential Information to its employees, and to those consultants who have been pre-approved in writing by Discloser, who have a need to know the Confidential Information and who have a written agreement with Recipient sufficient to comply with this Agreement. 7.1.3. Nothing contained in this Section 7.1 shall in any way restrict Recipient's rights to use, disclose, or otherwise dispose of any information which: -11- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT (a) At the time of disclosure by Discloser was already in the possession of Recipient (provided such information had not been previously furnished to Discloser by Recipient), as shown by a written record; (b) Is independently made available to Recipient by an unrelated and independent third party whose disclosure does not constitute a breach of any duty of confidentiality owed to Discloser; (c) Is generally available to the public in a readily-available document; or (d) Is compelled to be disclosed pursuant to a court order, provided that Discloser shall first have the opportunity to request an appropriate protective order. 7.1.4. Nothing in this Agreement shall be construed as granting any rights or licenses in any Confidential Information to any person or entity. 7.1.5. Upon termination or expiration of this Agreement for any reason whatsoever, PRICELINE and CALLTECH shall leave with or return to the other all documents, records, notebooks, computer files, and similar repositories or materials containing Confidential Information of the other party and such other party's affiliates, including any and all copies thereof. 7.1.6. CALLTECH and PRICELINE agree that the terms of this Section 7.1 are reasonable and necessary to protect their respective business interests and that the other party would suffer irreparable harm from a breach of this Section 7.1. Thus, in addition to any other rights or remedies, all of which shall be deemed cumulative, CALLTECH and PRICELINE and/or their respective affiliates, as applicable, shall be entitled to obtain injunctive relief to enforce the terms of this Section 7.1. SECTION 7.2. INTELLECTUAL PROPERTY 7.2.1. CALLTECH agrees to disclose and furnish promptly to PRICELINE any and all technical information, computer or other apparatus programs, inventions, specifications, drawings, records, documentation, works of authorship or other creative works, ideas, knowledge or data, written, oral or otherwise expressed, first made or created for and paid for by PRICELINE under this Agreement (hereinafter "Work Product"). The Work Product specifically includes, without limitation, any scripts, lists of frequently asked questions and responses thereto, etc., prepared and utilized by CALLTECH in connection with providing Services regarding the Products. 7.2.2. Subject to the provisions of this Section 7.2.2, CALLTECH agrees to assign and does hereby assign to PRICELINE all right, title and interest in and to any Work -12- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT Product. To the extent such Work Product qualifies as a "work made for hire", it shall be deemed to be such. Notwithstanding the foregoing, (i) CALLTECH retains for itself a perpetual, nonexclusive, royalty-free, unrestricted right and license to any structure, architectures, ideas and concepts subsisting in such Work Product, and (ii) CALLTECH shall be free to independently develop software and other works similar to any works developed by the performance of the Services under this Agreement, whether by other employees of CALLTECH, in collaboration with third parties, or for other customers. 7.2.3. CALLTECH agrees to take all reasonable steps, at PRICELINE's expense, to assist PRICELINE in the perfection of the rights assigned hereunder. 7.2.4. CALLTECH shall not acquire any right to any tradename, trademark, servicemark, copyright, patent or other form of intellectual property of PRICELINE. CALLTECH shall not use such intellectual property of PRICELINE in any manner except in the performance of its obligations hereunder as permitted or contemplated in connection therewith. SECTION 7.3. SEVERABILITY; WAIVER If any of the provisions of this Agreement a shall be held invalid or unenforceable by reason of the scope or duration thereof or for any other reason, such invalidity or unenforceability shall attach only to the particular aspect of such provision found invalid or unenforceable and shall not affect any other any other provision of this Agreement. To the fullest extent permitted by law, this Agreement shall be construed as if the scope or duration of such provision had been more narrowly drafted so as not to be invalid or unenforceable. SECTION 7.4. NO OTHER AGREEMENTS The parties acknowledge having read this Agreement and agree to be bound by its Terms. This Agreement and the Schedules attached hereto and supersedes and replaces any existing agreement, written or otherwise, entered into between or among PRICELINE and CALLTECH relating to the subject matter hereof except that the provisions of that certain Nondisclosure Agreement, dated December 19, 1997, between PRICELINE and CALLTECH, shall remain in full force and effect as it relates to the exchange of information between the parties from the date of such Nondisclosure Agreement through the date of this Agreement. -13- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT SECTION 7.5. ASSIGNABILITY This Agreement shall not be assigned by either party without the prior written consent of the other party, which shall not be unreasonably withheld or delayed, except that PRICELINE may assign this Agreement or any of its rights and responsibilities hereunder, in whole or in part, to any affiliate or any entity which acquires all or substantially all of the assets or operations of its Internet-related services business dealing with the Products, with notice to but without the consent of CALLTECH. Any such attempted assignment lacking consent where required shall be null and void. SECTION 7.6. GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, with regard to its choice of law provisions. SECTION 7.7. FORCE MAJEURE; DISASTER RECOVERY Each party shall be released from and shall have no liability for any failure beyond its reasonable control, including, but not limited to, acts of God, labor troubles, strikes, lockouts, severe weather, delay or default of utilities or communications companies or accidents. SECTION 7.8. INDEPENDENT CONTRACTOR With respect to all matters relating to this Agreement, CALLTECH shall be deemed to be an independent contractor. CALLTECH shall not represent itself or its organization as having any relationship to PRICELINE other than that of an independent agent for the limited purposes described in this Agreement. SECTION 7.9. AUTHORIZED REPRESENTATIVES CALLTECH shall designate and maintain at all times hereunder a project manager to serve as a single point of contact for PRICELINE to assist in the resolution of all technical, operational and implementation-related matters. CALLTECH shall endeavor not to change such project manager without PRICELINE's approval, and in any event shall notify PRICELINE of any such changes. In addition, each party shall, at all times, designate one representative who shall be authorized to take any and all action and/or grant any approvals required in the course of performance of this Agreement. Such representations shall be fully authorized to act for and bind such party including the approval of amendments to this Agreement. Until written notice to the contrary (as delivered in accordance with Section 7.9), the authorized representatives of the parties are as follows: -14- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT For PRICELINE: For CALLTECH: Ginny L. Taylor Robert J. Massey Priceline.com LLC CallTech Communications 5 High Ridge Park Incorporated Stamford, CT 06905-1326 4189 ArlingGate Lane Columbus, OH 43228 SECTION 7.10. NOTICES Any notice required or permitted hereunder shall be deemed sufficient if given in writing and delivered personally, by facsimile transmission, by reputable overnight courier service or United States mail, postage prepaid, to the addresses shown below or to such other addresses as are specified by similar notice, and shall be deemed received upon personal delivery, upon confirmed facsimile receipt, two (2) days following deposit with such courier service, or three (3) days from deposit in the United States mails, in each case as herein provided: If to PRICELINE: If to CALLTECH: Priceline.com LLC CallTech Communications 5 High Ridge Park Incorporated Stamford, CT 06905-1326 4189 ArlingGate Lane Attention: Jesse Fink Columbus, OH 43228 Attention: Robert J. Massey Phone: 203-705-3025 Phone: 614-621-5514 Fax: 203-595-8264 Fax: 614-461-5626 -15- PRIVATE/PROPRIETARY ------------------- CONTAINS PRIVATE AND/OR PROPRIETARY INFORMATION. MAY NOT BE USED OR DISCLOSED OUTSIDE PRICELINE.COM LLC AND CALLTECH COMMUNICATIONS, INCORPORATED EXCEPT PURSUANT TO A WRITTEN AGREEMENT With a Copy to: With a Copy to: Jeff Brandt, Esq. C.J. Pettiti Priceline.com LLC CallTech Communications Incorporated 5 High Ridge Park 4189 ArlingGate Lane Stamford, CT 06905-1326 Columbus, OH 43228 Phone: 203-705-3011 Phone: 614-621-5512 Fax: 203-595-8264 Fax: 614-461-5626 A party may change its address and the name of its designated recipient of copies of notices for purposes of this Agreement by giving the other parties written notice of the new name and the address, phone and facsimile number of its designated recipient in accordance with this Section 7.9. SECTION 7.11. REPRESENTATIONS Except as noted herein, no employee, agent or representative of either party will have the authority to bind the other party to any representation, oral or written, or any warranty concerning the Services or the performance of the Services. SECTION 7.12. ARBITRATION Any disputes or controversy, which this Agreement expressly provides to be resolved by arbitration, shall be settled by arbitration in accordance with the Center for Public Resources Rules for Non-Administered Arbitration of Business Disputes.