{"id":42222,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/development-agreement-expedia-inc-and-worldspan-l-p.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"development-agreement-expedia-inc-and-worldspan-l-p","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/development-agreement-expedia-inc-and-worldspan-l-p.html","title":{"rendered":"Development Agreement – Expedia Inc. and Worldspan L.P."},"content":{"rendered":"\nNote: Portions of this exhibit indicated by \"[*]\" are subject to a confidential\ntreatment request, and have been omitted from this exhibit. Complete, unredacted\ncopies of this exhibit have been filed with the Securities and Exchange \nCommission as part of Expedia's confidential treatment request.\n\n AMENDED AND RESTATED\n DEVELOPMENT AGREEMENT\n\n THIS AMENDED AND RESTATED DEVELOPMENT AGREEMENT (this \"Agreement\") is made\nand entered into as of June 28, 2001 (the \"Effective Date\") by and between\nExpedia, Inc. (\"EI\"), a Washington corporation, and Worldspan, L.P.\n(\"Worldspan\"), a Delaware limited partnership.\n\n Recitals\n\n i. Whereas, EI is in the business of providing online travel reservations\nand related services;\n\n ii. Whereas, Worldspan is in the business of providing a computerized\nreservation system, information and related transaction processing to airlines,\ntravel agents, and others in the travel industry;\n\n iii. Whereas, Worldspan and Microsoft Corporation (\"Microsoft\") entered\ninto a Development Agreement dated as of July 1, 1999 (the \"1999 Development\nAgreement\") with respect to the development and implementation of computer\nsoftware called BFS;\n\n iv. Whereas, Microsoft's rights and obligations under the 1999 Development\nAgreement have been assigned to and assumed by EI, which is the successor in\ninterest to Microsoft for all purposes relating to the 1999 Development\nAgreement;\n\n v. Whereas, Worldspan and EI wish to amend and supersede the 1999\nDevelopment Agreement in its entirety with this Agreement; and\n\n vi. Whereas, EI and Worldspan agree to develop and implement BFS and to\nundertake and carry out their respective responsibilities as set forth in this\nAgreement;\n\n Now, therefore, in consideration of the above recitals, the mutual\nundertakings of the parties as contained herein and other good and valuable\nconsideration, the parties hereby agree as follows:\n\n Agreement\n\n1. DEFINITIONS\n\n 1.1 \"Advanced BFS Functionality\" shall mean BFS functionality that\n --------------------------\nbuilds and prices more than one hundred (100) separate air travel itineraries\nfor a single trip before returning all or a subset of those itineraries in the\nresults set for the applicable query.\n\n 1\n\n\n \n 1.2 \"Advanced BFS Operational Period\" shall mean the period of time\n -------------------------------\ncommencing on July 1, 2001, and continuing for the remainder of the term of this\nAgreement.\n\n 1.3 \"Advanced BFS Operational Year\" shall mean a twelve (12) month\n -----------------------------\nperiod starting on July 1, 2001, and each subsequent twelve (12) month period\nthereafter during the term of this Agreement.\n\n 1.4 \"Advanced BFS Transaction\" shall mean an electronic transmission\n ------------------------\nthat (i) is received by the Worldspan System during the Advanced BFS Operational\nPeriod, (ii) requires the Advanced BFS Functionality, and (iii) is not initiated\nthrough Expedia or by EI or an ETT Customer.\n\n 1.5 \"Affiliate\" shall mean, with respect to any entity, any person,\n ---------\npartnership, joint venture, corporation or other form of enterprise, domestic or\nforeign, including but not limited to parent companies or subsidiaries, that\ndirectly or indirectly controls, is controlled by, or is under common control\nwith that entity. For purposes of the preceding sentence, \"control\" (including,\nwith its correlative meanings, \"controlled by\" and \"under common control with\")\nmeans possession, directly or indirectly, of the power to direct or cause the\ndirection of management or policies (whether through ownership of securities or\npartnership or other ownership interests, by contract or otherwise).\n\n 1.6 \"BFS\" or \"Best Fare Search\" shall mean computer software, running\n --- ----------------\non the Microsoft Windows NT operating system, developed by Microsoft and EI\nunder the 1999 Development Agreement and this Agreement that performs searches\nof airline fare databases and finds the lowest fares for a given flight route,\ntogether with all documentation relating to such software, such as object code,\nsource code, functional specifications, and operating instructions. In addition\nto other provisions in this Agreement, any updates to BFS provided to Worldspan\npursuant to Section 2.1(e) shall be considered part of BFS.\n\n 1.7 \"CRS\" shall mean a computerized reservation system, such as that \n ---\noperated by Worldspan, Amadeus, Sabre, or Galileo.\n\n 1.8 \"CRS Agreement\" shall mean that certain CRS Marketing, Services\n -------------\nand Development Agreement between Microsoft and Worldspan, dated December 15,\n1995, as amended from time to time, which agreement and amendments have been\nassigned from Microsoft to EI.\n\n 1.9 \"Derivative Technology\" shall mean: (i) for copyrightable or\n ---------------------\ncopyrighted material, any translation (including translation into other computer\nlanguages), portation, modification, correction, addition, extension, upgrade,\nimprovement, compilation, abridgment or other form in which an existing work may\nbe recast, transformed or adapted; (ii) for patentable or patented material, any\nimprovement thereon; and (iii) for material that is protected by trade secret,\nany new material derived from such existing\n\n 2\n\n \ntrade secret material, including new material which may be protected by\ncopyright, patent and\/or trade secret.\n\n 1.10 \"EI Independent Pricing System\" shall mean any computer software\n -----------------------------\nthat (i) is based on and either interfaces with or supplements BFS and (ii) is\nindependently developed by EI in accordance with the requirements set forth in\nSection 2.8(h) of this Agreement.\n\n 1.11 \"EI Independent Subsystem\" shall mean a subsystem that (i)\n ------------------------\ninterfaces with or supplements BFS, but does not constitute or include\nDerivative Technology based on BFS or the Worldspan BFS Software, other than as\na result of the incorporation (in either original or modified form) of any\ninterfaces, protocols, formats, or other structural elements of BFS or the\nWorldspan BFS Software that is necessary to achieve interoperability with BFS or\nthe Worldspan BFS Software, as applicable, and (ii) is independently developed\nby EI in accordance with the requirements set forth in Section 2.8(f) of this\nAgreement.\n\n 1.12 \"ETT Customer\" shall mean an entity (such as an airline, other\n ------------\ntravel agency or other travel service provider) that has a contractual\nrelationship with EI entitling such entity to use the Expedia platform to sell\ntravel bookings by means of the Internet or similar distribution channel.\n\n 1.13 \"Expedia\" shall mean the software code, informational databases,\n -------\nproducts, and other components that make up the travel services of EI and its\nAffiliates, which are marketed for use by individual end users in the United\nStates, Belgium, Canada, Germany, the United Kingdom and\/or such other locales\nas EI may elect to market its services, at its sole discretion, to enable such\nend users to shop for, reserve, book and pay for certain travel products and\nservices (including, at a minimum, air travel, hotel accommodations, and car\nrentals) via a personal computer, telephone or other interactive device. EI\ncurrently offers such service on the Web under the names \"Expedia,\"\n\"Travelscape,\" \"VacationSpot\" and \"Rent-a-Holiday,\" but such names may change\nfrom time to time. The term \"Expedia\" as used in this Agreement shall encompass\nall of the forgoing names and be deemed to refer to all future versions of the\nabove-described services, regardless of the name under which they are offered\nfrom time to time, and includes without limitation any and all additional,\nfollow-on, successor or replacement versions of such services. For purposes of\nthis Agreement, \"Expedia\" shall also include the travel-related platform\ninteractive electronic products created by or for EI, which EI may license to\nthird parties desiring to offer travel-related services and information via\nonline systems under third party trademarks.\n\n 1.14 \"Feedback\" shall mean suggestions, comments, ideas, information or\n --------\nother feedback given by one party to the other party with respect to the other\nparty's computer software and confidential information.\n\n 1.15 \"Full Project Plan\" shall mean the detailed project plan and\n -----------------\ndevelopment schedule attached as Exhibit 1, which outlines each party's\ndeliverables under this\n\n 3\n\n \nAgreement. On at least an annual basis, the Full Project Plan will be reviewed,\nrevised and updated by the mutual agreement of the parties.\n\n 1.16 \"Independent Development Date\" shall mean the date, if any, that\n ----------------------------\n(i) is on or after the Restrictions Expiration Date, and (ii) is designated as\nthe Independent Development Date by the applicable party pursuant to Section\n2.8(g) and\/or Section 2.8(h) of this Agreement.\n\n 1.17 \"Orbitz\" shall mean [*] to their respective businesses. The\n ------\nfollowing entities shall constitute [*] for purposes of this definition: (a)\n[*]; or (b) [*].\n\n 1.18 \"Power Shopper\" shall mean the functionality to search for\n -------------\nmultiple separately priced air travel itineraries for a single trip as\nimplemented on the Worldspan TPF-based fares and pricing system.\n\n 1.19 \"Private Functionality\" shall mean Derivative Technology based on\n ---------------------\nBFS that is developed by one party (a) outside of the Full Project Plan or (b)\nat a more aggressive rate than is provided in the Full Project Plan.\n\n 1.20 \"Restrictions Expiration Date\" shall mean, (a) if this Agreement\n ----------------------------\nhas not been earlier terminated pursuant to Section 5.2(a) or 5.2(d) as a result\nof the default of Worldspan, the [*] the date upon which Worldspan and EI have\nachieved [*]; or, (b) otherwise, the [*] of the Effective Date.\n\n 1.21 \"Travelocity\" shall mean [*] to their respective businesses. [*]\n -----------\nshall constitute [*] for purposes of this definition. [*].\n\n 1.22 \"Worldspan BFS Software\" shall mean computer software, running on\n ----------------------\nthe Worldspan System, developed by Worldspan under the 1999 Development\nAgreement and this Agreement that is necessary to permit BFS to search data\nregarding fare and flight availability from the Worldspan System, together with\nall documentation relating to such software, such as object code, source code,\nfunctional specifications, and operating instructions. In addition to other\nprovisions in this Agreement, any updates to the Worldspan BFS Software provided\nto EI pursuant to Section 2.2(c) shall be considered part of the Worldspan BFS\nSoftware.\n\n 1.23 \"Worldspan Customer\" shall mean (a) an airline (whether an owner\n ------------------\nof Worldspan or a non-owner airline) for whom Worldspan provides air travel\ninventory, pricing, or reservation services, (b) a travel agency or corporate\ntravel department that accesses and books travel reservations via the Worldspan\nSystem, or (c) any other entity or person who accesses and books travel\nreservations via the Worldspan System.\n\n 1.24 \"Worldspan Independent Pricing System\" shall mean any computer\n ------------------------------------\nsoftware that (i) is based on and either interfaces with or supplements BFS and\n(ii) is independently developed by Worldspan in accordance with the requirements\nset forth in Section 2.8(g) of this Agreement.\n\n -------------------------------------------------\n [*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN\n OMITTED AND FILED SEPARATELY WITH THE COMMISSION.\n CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH\n RESPECT TO THE OMITTED PORTIONS\n -------------------------------------------------\n\n 4\n\n \n 1.25 \"Worldspan Independent Subsystem\" shall mean a subsystem that (i)\n -------------------------------\ninterfaces with or supplements BFS, but does not constitute or include\nDerivative Technology based on BFS or the Worldspan BFS Software, other than as\na result of the incorporation (in either original or modified form) of any\ninterfaces, protocols, formats, or other structural elements of BFS or the\nWorldspan BFS Software that is necessary to achieve interoperability with BFS or\nthe Worldspan BFS Software, as applicable, and (ii) is independently developed\nby Worldspan in accordance with the requirements set forth in Section 2.8(f) of\nthis Agreement.\n\n 1.26 \"Worldspan System\" shall mean the computer hardware and operating\n ----------------\nsystems, software applications running thereon, and related networks and devices\ncomprising Worldspan's CRS.\n\n2. DEVELOPMENT\n\n 2.1 EI Obligations.\n --------------\n\n (a) EI shall use commercially reasonable efforts to develop\nBFS in accordance with the Full Project Plan. EI shall develop and own a\nrequirements document, functional specification and deployment plan for BFS, all\nof which shall be reasonably acceptable to Worldspan. EI shall develop BFS to\ninterface with the Worldspan BFS Software as specified in the Full Project Plan.\n\n (b) Throughout development and operation of the Worldspan BFS\nSoftware, EI shall provide Worldspan with access to BFS, as reasonably necessary\nfor development, correction, and maintenance of the Worldspan BFS Software. EI\nshall provide Worldspan with access to testing and production facilities of EI,\nfor purposes of development, testing, correction, and maintenance of the\nWorldspan BFS Software in accordance with the Full Project Plan. EI shall\nprovide information and advice regarding BFS as reasonably requested by\nWorldspan to assist Worldspan in its efforts to develop, correct, and maintain\nthe Worldspan BFS Software.\n\n (c) EI will provide suitable training to Worldspan personnel\nwho are reasonably competent in the use of the Microsoft Windows NT operating\nsystem in order to enable those Worldspan personnel to operate and maintain BFS.\n\n (d) If the servers running BFS are located at the Worldspan\npremises, then EI shall pay Worldspan the hosting costs and servicing fees\nmutually agreed upon by the parties at that time, which agreement shall be a\ncondition to any obligation of Worldspan to locate such servers at the Worldspan\npremises.\n\n (e) EI will deliver a copy of the then current BFS, including\nrelated documentation, to Worldspan upon termination of this Agreement, and upon\nWorldspan's written request at any time on or after the Effective Date during\nthe term of this Agreement. In addition, if EI has previously delivered to\nWorldspan a copy of BFS, then\n\n 5\n\n \nEI shall thereafter deliver to Worldspan any updates EI may create to BFS during\nthe term of this Agreement, within a reasonable time after EI completes\ndevelopment of such updates. For purposes of clarity, any EI Independent\nSubsystem developed by EI pursuant to Section 2.8(f)(1) of this Agreement shall\nnot be considered an update to BFS, and EI shall not deliver copies of such EI\nIndependent Subsystem to Worldspan upon termination of this Agreement, nor at\nWorldspan's request during the term of this Agreement, unless such EI\nIndependent Subsystem has been designated as part of BFS by mutual agreement of\nthe parties.\n\n 2.2 Worldspan Obligations.\n ---------------------\n\n (a) Worldspan shall use commercially reasonable efforts to\ndevelop the Worldspan BFS Software in accordance with the Full Project Plan.\nWorldspan shall develop and own a requirements document, functional\nspecification and deployment plan for the Worldspan BFS Software, all of which\nshall be reasonably acceptable to EI. Worldspan shall develop the Worldspan BFS\nSoftware to interface with BFS as specified in the Full Project Plan.\n\n (b) During the term of this Agreement, Worldspan shall provide\nEI with access to the Worldspan BFS Software and other software running on the\nWorldspan System, as reasonably necessary for development, correction, and\nmaintenance of BFS. Worldspan shall provide EI with access to testing and\nproduction facilities of the Worldspan System, for purposes of development,\ntesting, correction, and maintenance of BFS in accordance with the Full Project\nPlan. Worldspan shall provide information and advice regarding the Worldspan BFS\nSoftware and the Worldspan System as reasonably requested by EI to assist EI in\nits efforts to develop, correct, and maintain BFS.\n\n (c) Worldspan will deliver a copy of the then current\nWorldspan BFS Software, including related documentation, to EI upon termination\nof this Agreement, and upon EI's written request at any time on or after the\nEffective Date during the term of this Agreement. In addition, if Worldspan has\npreviously delivered to EI a copy of the Worldspan BFS Software, then Worldspan\nshall thereafter deliver to EI any updates Worldspan may create to the Worldspan\nBFS Software during the term of this Agreement, within a reasonable time after\nWorldspan completes development of such updates. For purposes of clarity, any\nWorldspan Independent Subsystem developed by Worldspan pursuant to Section\n2.8(f)(2) of this Agreement, shall not be considered an update to Worldspan BFS\nSoftware, and Worldspan shall not deliver copies of such Worldspan Independent\nSubsystem to EI upon termination of this Agreement, nor at EI's request during\nthe term of this Agreement, unless such Worldspan Independent Subsystem has been\ndesignated as part of the Worldspan BFS Software by mutual agreement of the\nparties.\n\n 6\n\n \n 2.3 Steering Committee.\n ------------------\n\n (a) To the extent that they have not already done so, within\nthirty (30) days after the Effective Date, EI and Worldspan shall each appoint a\nsenior executive responsible for performance and a technical manager responsible\nfor development under this Agreement. The EI technical manager shall have\nresponsibility for the overall day-to-day management of EI's obligations\nhereunder, and the Worldspan technical manager shall have responsibility for the\noverall day-to-day management of Worldspan's obligations hereunder. EI and\nWorldspan shall each have the right to replace their respective executives and\ntechnical managers upon written notice to the other. EI and Worldspan agree to\nmake reasonable arrangements for their respective technical managers to devote\nsuch time as is reasonably required of them to carry out their duties and\nresponsibilities under the Full Project Plan.\n\n (b) The four (4) persons appointed in accordance with the\nrequirements of Section 2.3(a), and others selected by either party, shall\ncollectively serve as the Steering Committee charged with the overall management\nand supervision of the development and deployment of BFS for Expedia. The\nSteering Committee shall meet in person at least once per calendar quarter\nduring the term of this Agreement (and more often by phone as mutually agreed in\nlight of the demands of the development project), to review each party's\nprogress and to coordinate development and\/or deployment efforts.\n\n 2.4 Testing and Acceptance. Both parties shall establish mutually\n ----------------------\nacceptable acceptance testing criteria for individual operability and the\ninterworking of applicable portions or versions of BFS, the Worldspan BFS\nSoftware and the Worldspan System. Such acceptance criteria shall be consistent\nwith the concepts outlined in the Full Project Plan. The parties shall test BFS\nand the Worldspan BFS Software, with simulated usage via Expedia and the\nWorldspan System, as set forth in the Full Project Plan. If any portion or\nversion of BFS and the Worldspan BFS Software meet the applicable acceptance\ncriteria, the parties shall deploy that portion or version of BFS and the\nWorldspan BFS Software, pursuant to Section 4 below.\n\n 2.5 No Obligation\/Independent Development. Nothing in this Agreement\n -------------------------------------\nwill be construed as restricting either party's ability to acquire, license,\ndevelop, manufacture or distribute for itself, or have others acquire, license,\ndevelop, manufacture or distribute for such party, similar technology performing\nthe same or similar functions as the technology contemplated by this Agreement,\nor to market and distribute such similar technology in addition to, or in lieu\nof, the technology contemplated by this Agreement; provided that such\nacquisition, license, development, manufacture or distribution does not violate\nthe confidentiality provisions in Section 9 of this Agreement.\n\n 2.6 Nonsolicitation and No Hire Covenants.\n -------------------------------------\n\n (a) During the term of this Agreement and for one (1) year\nthereafter (the \"Nonsolicitation Period\"), neither party (without the prior\nwritten consent of the \n\n 7\n\n \nother party) shall solicit (with knowledge that such solicitation is prohibited\nby this Section 2.6) for employment or independent contract service any of the\nother party's individual personnel directly engaged in projects hereunder. This\nSection 2.6 shall not apply to a party's employees who are no longer in the\nparty's employ at least three (3) months prior to the time the other party\nhereto solicits them. Furthermore, this Section 2.6 shall not restrict either\nparty from generally advertising available positions.\n\n (b) During the Nonsolicitation Period, (i) EI shall not hire or\nengage as an independent contractor any of the Worldspan employees listed in\nSection 1 of Exhibit 3 hereto, and (ii) Worldspan shall not hire or engage as an\nindependent contractor any of the EI employees listed in Section 2 of Exhibit 3\nhereto. Each party may update its respective list of names on Exhibit 3 from\ntime to time with thirty (30) days prior written notice to the other party. Any\nupdate, however, shall not increase the number of employees to more than fifteen\n(15) for each party.\n\n (c) Both parties shall use good faith and reasonable efforts to\ncommunicate, and will maintain consistent internal practices to communicate, the\nexistence and import of this Section 2.6 to applicable employees, and to resolve\nin a mutually satisfactory manner any issues that may arise under this Section.\n\n 2.7 Costs of Development. Except as set forth in Section 2.1(d), each\n --------------------\nparty shall be solely responsible for its own costs incurred as a result of its\nperformance under this Agreement.\n\n 2.8 Development Objectives and Procedures. In connection with the\n --------------------------------------\ndevelopment of BFS, the parties agree upon the following objectives and\nprocedures:\n\n (a) The parties acknowledge that one of their mutual objectives is to\n[*], and the parties agree to work together in good faith to achieve that\nobjective.\n\n (b) EI will have a right of first refusal for exclusive access to alpha\nand beta test periods for applicable portions or versions of BFS. EI may\nexercise its right of first refusal by giving Worldspan written notice thereof\nwithin thirty (30) days after EI is given written notice of the terms and\nconditions upon which the alpha or beta test period is to be conducted. If EI\ndoes not so exercise its right of first refusal, then Worldspan may arrange for\nthird parties to conduct the alpha or beta test period on such terms and\nconditions.\n\n (c) Worldspan will not make BFS available to [*] until the [*] of (i)\n[*], and (ii) [*].\n\n (d) Worldspan will not make BFS available to [*] at any time prior to\nthe [*], except with the prior written consent of EI. In addition, Worldspan\nwill not make BFS available to [*], and Worldspan shall not make BFS available\nto [*] until the [*] (i) [*], (ii) [*], which shall be no earlier than [*], and\n(iii) [*]. Worldspan may only\n\n -------------------------------------------------\n [*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN\n OMITTED AND FILED SEPARATELY WITH THE COMMISSION.\n CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH\n RESPECT TO THE OMITTED PORTIONS\n -------------------------------------------------\n\n 8\n\n \nmake BFS available to [*] under clause (ii) above for the purpose of [*] and\nonly upon thirty (30) days prior written notice to EI.\n\n (e) Each party acknowledges and agrees that either party may, at its\nown cost and expense, develop Private Functionality at any time in accordance\nwith the following:\n\n (1) The party developing the Private Functionality (the\n\"Developing Party\") shall be solely responsible for funding the development of\nthe Private Functionality, using resources additional to those resources that\nthe Developing Party is otherwise required to devote to the development of BFS\nunder this Agreement, without requiring any development, additional resources,\nor other contribution by the other party (the \"Non-Developing Party\"). All\nPrivate Functionality shall be considered part of BFS and, accordingly, each\nparty shall have the rights and obligations with respect to the Private\nFunctionality that are otherwise provided with respect to BFS in this Agreement,\nexcept that the parties may agree, on a case-by-case basis, to certain use\nrestrictions, or other special terms and conditions, with respect to a Private\nFunctionality.\n\n (2) In the event that the parties agree to any type of use\nrestriction for any Private Functionality as contemplated in paragraph (1)\nabove, the Developing Party for that Private Functionality shall defend,\nindemnify, and hold the Non-Developing Party harmless from and against, and\nshall reimburse the Non-Developing Party with respect to, any and all losses,\ndamages, liabilities, claims, judgments, settlements, fines, costs, and expenses\n(including attorneys' fees) of every nature whatsoever incurred by the\nNon-Developing Party by reason of or arising out of litigation or transactions\nin anticipation or avoidance of litigation in connection with any use of the\nPrivate Functionality by the Non-Developing Party that was not restricted by the\nmutual agreement of the parties. The Non-Developing Party shall provide the\nDeveloping Party reasonably prompt notice in writing of any such litigation and\nshall provide the Developing Party with reasonable information and assistance,\nat the Developing Party's expense, to help the Developing Party defend such\nlitigation.\n\n (f) Each of EI and Worldspan may, by giving the other party prior\nwritten notice thereof, elect to independently develop EI Independent Subsystems\nor Worldspan Independent Subsystems, respectively, as follows:\n\n (1) Each such EI Independent Subsystem shall be funded solely\nby EI, using resources additional to those resources that EI is otherwise\nrequired to devote to the development of BFS under this Agreement, without\nrequiring any development, additional resources, or other contribution by\nWorldspan. Notwithstanding anything to the contrary in this Agreement, any such\nEI Independent Subsystem shall not be considered part of BFS or the Worldspan\nBFS Software for purposes of this Agreement, and Worldspan shall have no rights\ntherein. Further, EI in its sole discretion shall have the right, but not the\nobligation, upon mutual agreement with Worldspan, to designate any EI\nIndependent Subsystem as part of BFS or the Worldspan BFS Software, in which\nevent Worldspan shall have the rights therein that are otherwise provided in\nthis Agreement.\n\n -------------------------------------------------\n [*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN\n OMITTED AND FILED SEPARATELY WITH THE COMMISSION.\n CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH\n RESPECT TO THE OMITTED PORTIONS\n -------------------------------------------------\n\n 9\n\n \n (2) Each such Worldspan Independent Subsystem shall be funded\nsolely by Worldspan, using resources additional to those resources that\nWorldspan is otherwise required to devote to the development of BFS under this\nAgreement, without requiring any development, additional resources, or other\ncontribution by EI. Notwithstanding anything to the contrary in this Agreement,\nany such Worldspan Independent Subsystem shall not be considered part of BFS or\nthe Worldspan BFS Software for purposes of this Agreement, and EI shall have no\nrights therein. Further, Worldspan in its sole discretion shall have the right,\nbut not the obligation, upon mutual agreement with EI, to designate any\nWorldspan Independent Subsystem as part of the Worldspan BFS Software or BFS, in\nwhich event EI shall have the rights therein that are otherwise provided in this\nAgreement.\n\n (g) In the event that [*] pursuant to this Agreement [*], then\nWorldspan may, by giving EI ninety (90) days prior written notice thereof,\ndesignate a date as the Independent Development Date (\"Worldspan Notice of\nIndependent Development Date\"). Upon the Independent Development Date, whether\ndesignated by Worldspan or EI, EI shall deliver a then-current copy of BFS,\nincluding source code, to Worldspan, and Worldspan may begin independent\ndevelopment of the Worldspan Independent Pricing System.\n\n (1) Notwithstanding anything to the contrary in this\nAgreement, effective on the Independent Development Date, (i) such independent\ndevelopment of the Worldspan Independent Pricing System shall be funded solely\nby Worldspan, (ii) neither party shall be obligated to provide any resources or\nother contributions for the joint development of BFS and the Worldspan BFS\nSoftware, (iii) the Worldspan Independent Pricing System shall not be considered\npart of BFS or the Worldspan BFS Software for purposes of this Agreement, and\n(iv) EI shall have no rights in the Worldspan Independent Pricing System.\nHowever, if and to the extent that the Worldspan Independent Pricing System\nincludes Derivative Technology based on BFS or the Worldspan BFS Software, then\nWorldspan's rights to use such Derivative Technology as part of the Worldspan\nIndependent Pricing System shall be subject to the same restrictions, if any, as\nthen currently apply to Worldspan's rights to use the portions of BFS or the\nWorldspan BFS Software, as applicable, upon which the Derivative Technology is\nbased.\n\n (2) If the Worldspan Notice of Independent Development Date is\ngiven [*], then, on the Independent Development Date, [*] the license amounts\nfor each Advanced BFS Operational Year (or portion of an Advanced BFS\nOperational Year) during the period from the Independent Development Date until\nthe end of the [*], where the [*] for each such Advanced BFS Operational Year\n(prorated on a per diem basis for any partial Advanced BFS Operational Year) is\nequal to the greater of (i) [*] (as defined below), and (ii) the [*]. For\npurposes of this Section, [*]. As an example of the calculation of the [*]\npursuant to this Section 2.8(g), if, as the result of a Worldspan Notice of\nIndependent Development Date, the Independent Development Date was at the end of\nthe [*] and the [*] payable under Section 4.6(a) for the six months immediately\n\n -------------------------------------------------\n [*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN\n OMITTED AND FILED SEPARATELY WITH THE COMMISSION.\n CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH\n RESPECT TO THE OMITTED PORTIONS\n -------------------------------------------------\n\n 10\n\n \npreceding the Independent Development Date were [*], then the [*] would be [*]\nand the [*].\n\n (3) In the event that Worldspan delivers the Worldspan Notice\nof Independent Development, resulting in the termination of this Agreement\npursuant to Section 5.2(b), Worldspan shall continue to provide data to EI in\naccordance with Section 4.4 of this Agreement.\n\n (h) In the event that [*] pursuant to this Agreement [*], then EI may,\nby giving Worldspan ninety (90) days prior written notice thereof, designate a\ndate as the Independent Development Date (the \"EI Notice of Independent\nDevelopment Date\"). Upon the Independent Development Date, whether designated by\nEI or Worldspan, EI may begin independent development of the EI Independent\nPricing System. Notwithstanding anything to the contrary in this Agreement,\neffective on the Independent Development Date, (i) such independent development\nof the EI Independent Pricing System shall be funded solely by EI, (ii) neither\nparty shall be obligated to provide any resources or other contributions for the\njoint development of BFS and the Worldspan BFS Software, (iii) the EI\nIndependent Pricing System shall not be considered part of BFS or the Worldspan\nBFS Software for purposes of this Agreement, and (iv) Worldspan shall have no\nrights in the EI Independent Pricing System. However, if and to the extent that\nthe EI Independent Pricing System includes Derivative Technology based on BFS or\nthe Worldspan BFS Software, then EI's rights to use such Derivative Technology\nas part of the EI Independent Pricing System shall be subject to the same\nrestrictions, if any, as then currently apply to EI's rights to use the portions\nof BFS or the Worldspan BFS Software, as applicable, upon which the Derivative\nTechnology is based.\n\n3. OWNERSHIP AND LICENSE\n\n 3.1 General. In general, each party shall own the intellectual property\n -------\nit owns prior to the Effective Date and that which it creates in the performance\nof its obligations under this Agreement, subject to the provisions set forth in\nSections 3.2 and 3.3. To be clear, EI shall own BFS, Expedia, the EI Independent\nSubsystems, and the EI Independent Pricing System, and Worldspan shall own the\nWorldspan BFS Software, the Worldspan System, the Worldspan Independent\nSubsystems, and the Worldspan Independent Pricing System.\n\n 3.2 Ownership of BFS.\n ----------------\n\n (a) Worldspan agrees that all copyrights in BFS shall be owned\nby EI and that any Worldspan contributions to BFS shall be a \"work made for\nhire\" for copyright purposes. Without limiting the generality of the foregoing,\nWorldspan hereby assigns to EI, its successors and assigns, all of Worldspan's\nrights, title, and interest in any U.S. copyrights that Worldspan may possess or\nacquire in BFS and all copyrights and equivalent rights in BFS throughout the\nworld, including all renewals and extensions of such rights that may be secured\nunder the laws now or hereafter in force and effect in the United States of\nAmerica or in any other country or countries. Worldspan shall execute\n\n -------------------------------------------------\n [*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN\n OMITTED AND FILED SEPARATELY WITH THE COMMISSION.\n CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH\n RESPECT TO THE OMITTED PORTIONS\n -------------------------------------------------\n\n 11\n\n \nand deliver such instruments and take such other action as may be reasonably\nrequested by EI to perfect or protect EI's rights in BFS and to carry out the\nassignments contemplated in this Section 3.2(a).\n\n (b) Further, Worldspan hereby grants EI a nonexclusive,\nroyalty-free, irrevocable license to make, use, sell, and import, all only as\npart of BFS or any derivatives thereof and not otherwise, any Worldspan\ninventions, ideas, designs, concepts, techniques, discoveries, or improvements,\nwhether or not patentable, embodied in BFS at or prior to the acceptance of BFS\nas provided in Section 2.4, including but not limited to all trade secrets,\nutility and design patent rights and equivalent rights in and to such inventions\nand designs throughout the world regardless of whether or not legal protection\nfor BFS is sought.\n\n 3.3 Ownership of Worldspan BFS Software.\n -----------------------------------\n\n (a) EI agrees that all copyrights in the Worldspan BFS\nSoftware shall be owned by Worldspan and that any EI contributions to the\nWorldspan BFS Software shall be a \"work made for hire\" for copyright purposes.\nWithout limiting the generality of the foregoing, EI hereby assigns to\nWorldspan, its successors and assigns, all of EI 's rights, title and interest\nin any U.S. copyrights that EI may possess or acquire in the Worldspan BFS\nSoftware and all copyrights and equivalent rights in the Worldspan BFS Software\nthroughout the world, including all renewals and extensions of such rights that\nmay be secured under the laws now or hereafter in force and effect in the United\nStates of America or in any other country or countries. EI shall execute and\ndeliver such instruments and take such other action as may be reasonably\nrequested by Worldspan to perfect or protect Worldspan's rights in the Worldspan\nBFS Software and to carry out the assignments contemplated in this Section\n3.3(a).\n\n (b) Further, EI hereby grants Worldspan a nonexclusive,\nroyalty-free, irrevocable license to make, use, sell, and import, all only as\npart of the Worldspan BFS Software or any derivatives thereof and not otherwise,\nany EI inventions, ideas, designs, concepts, techniques, discoveries, or\nimprovements, whether or not patentable, embodied in the Worldspan BFS Software\nat or prior to the acceptance of the Worldspan BFS Software as provided in\nSection 2.4, including but not limited to all trade secrets, utility and design\npatent rights and equivalent rights in and to such inventions and designs\nthroughout the world regardless of whether or not legal protection for Worldspan\nBFS Software is sought.\n\n 3.4 License as to BFS.\n -----------------\n\n (a) EI hereby grants Worldspan a perpetual, nonexclusive,\nworldwide, irrevocable license, effective as of the Effective Date, to make,\nuse, reproduce, modify, adapt, translate, create Derivative Technology based on,\nsublicense, rent, lease, transmit or otherwise distribute (directly or\nindirectly) BFS in source and object code form. Notwithstanding the foregoing,\nprior to the Restrictions Expiration Date, but not thereafter, (i) Worldspan's\nrights to make, use reproduce, modify, adapt, translate, or \n\n 12\n\n \ncreate Derivative Technology based on BFS in source and object code form BFS, or\nany Derivative Technology based thereon, shall be limited to doing so in\nconnection with the operation of the Worldspan System to provide services for\nWorldspan Customers, and (ii) Worldspan's rights to sublicense, rent, lease,\ntransmit or otherwise distribute (directly or indirectly) BFS, or any Derivative\nTechnology based thereon, shall be subject to Section 3.4(d) below.\n\n (b) Except with respect to Expedia and ETT Customers for whom\nEI has agreed to deliver BFS functionality, Worldspan shall be solely\nresponsible for the conversion, support and maintenance of BFS and the Worldspan\nBFS Software as used in the Worldspan System.\n\n (c) Prior to the Restrictions Expiration Date, but not\nthereafter, EI shall have [*] except upon thirty (30) days prior written notice\nto Worldspan of EI's request and upon Worldspan's prior written consent, which\nwill not be unreasonably withheld. For purposes of clarity, Worldspan may\nreasonably withhold its consent to [*]. Following the Restrictions Expiration\nDate, EI shall have [*].\n\n (d) Prior to the Restrictions Expiration Date, but not\nthereafter, Worldspan shall [*] except upon thirty (30) days prior written\nnotice to EI of Worldspan's request and upon EI's prior written consent, which\nwill not be unreasonably withheld; provided, however, that Worldspan may [*],\nbut only in instances where the agreement pursuant to which [*]. Each such [*]\nshall be subject to a [*]. For purposes of clarity, EI may reasonably withhold\nits consent to [*]. Following the Restrictions Expiration Date, Worldspan shall\nhave [*].\n\n 3.5 License as to Worldspan BFS Software.\n ------------------------------------\n\n (a) Worldspan hereby grants EI a perpetual, nonexclusive,\nworldwide, irrevocable license, effective as of the Effective Date, to make,\nuse, reproduce, modify, adapt, create Derivative Technology based on, translate,\ndistribute (directly and indirectly), transmit, license, rent, and lease the\nWorldspan BFS Software in source and object code form. Notwithstanding the\nforegoing, prior to the Restrictions Expiration Date, but not thereafter, EI may\nnot transfer or assign the Worldspan BFS Software without thirty (30) days prior\nwritten notice to Worldspan of EI's intention to transfer or assign the\nWorldspan BFS Software and then only with Worldspan's prior written consent to\nsuch transfer or assignment.\n\n (b) Subject to the provisions of Section 3.5(a), EI shall have [*],\nincluding the right to [*]. Worldspan acknowledges that EI may sublicense the\n[*] to other companies [*].\n\n 3.6 Joint Patent Procurement. Any inventions shall be owned by the\n ------------------------\nparty or parties whose employees or independent contractors are inventors\nthereof. In the event both EI and Worldspan have employees or independent\ncontractors who are inventors of \n\n -------------------------------------------------\n [*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN\n OMITTED AND FILED SEPARATELY WITH THE COMMISSION.\n CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH\n RESPECT TO THE OMITTED PORTIONS\n -------------------------------------------------\n\n 13\n\n \nan invention arising out of the development contemplated hereunder (a \"Joint\nInvention\"), the following procedure shall apply:\n\n (a) EI shall have the primary responsibility to prepare, file,\nand prosecute all patent applications in both the USA and foreign countries for\nJoint Inventions. If and to the extent that EI elects not to do so, then\nWorldspan may prepare, file, and prosecute such patent applications. The parties\nshall cooperate in making decisions on the filing and prosecution of patent\napplications for Joint Inventions, and, when possible, shall mutually consent to\nthe filing and prosecution of such patent applications, such consent not to be\nunreasonably withheld. However, consent of one party is not required for the\nother party to proceed with the preparation, filing and prosecution of such\npatent applications.\n\n (b) All costs associated with the preparation, filing,\nprosecution and maintenance of patent applications and patents for Joint\nInventions shall be borne equally by the parties; provided, however, that either\nparty may, at any time and by giving the other party written notice thereof,\nelect not to contribute, or continue to contribute, its share of such costs with\nrespect to any patent application or patent for any applicable country or\nregion. In the event that a party elects not to contribute, or continue to\ncontribute, its share of such costs for any such patent application or patent\nfor any applicable country or region, then that party, and its employees or\ncontractors designated as inventors or contributors, agree to assign, and by\nthis Agreement, hereby assign all right, title and interest in and to such\npatent application or patent to the party filing and paying for such patent\napplication or patent. In such event, the nonpaying party and its employees or\ncontractors further agree to execute any additional documents presented to them\nby the filing and paying party which may be necessary to perfect title to any\nsuch patent application or patent.\n\n (c) In the event that patent protection is sought for Joint\nInventions, both parties agree to cooperate fully and promptly during the term\nof and after expiration or termination of this Agreement in the filing and\nprosecution of any patent applications in the USA and foreign countries. Both\nparties shall promptly execute and deliver such instruments and documents and\ntake such other action as may be necessary, during the term of and after\nexpiration or termination of this Agreement, to secure and maintain all such\nrights in such patents in any and all countries. Each party shall ensure that\neach of its employees and contractors involved in the development contemplated\nhereunder is contractually obligated to assign to the party all patent rights\nthat such employee or contractor may obtain pursuant to such development.\n\n (d) If a party desires to sue a third party for infringement\nof any patent for Joint Inventions, such party shall consult with the other\nparty prior to filing any such suit.\n\n (e) Unless a nonpaying party assigns its rights to the filing\nand paying party pursuant to Section 3.6(b) above, the parties shall have an\nundivided, joint ownership interest in any patents for any Joint Inventions.\nNeither party shall be \n\n 14\n\n \nobligated to pay the other any royalties or other consideration, nor account to\nthe other for any royalties or other consideration it may receive, for any use,\nlicenses, assignment, sale, lease or other grant of such patents.\n\n4. DEPLOYMENT\n\n 4.1 EI. EI may deploy BFS, or any portion or version thereof, on\n --\nExpedia at any time, in EI's sole discretion. The parties acknowledge that EI\nhas already deployed BFS on Expedia.\n\n 4.2 Worldspan.\n ---------\n\n (a) During the term of this Agreement and for so long\nthereafter as EI continues to use Worldspan as a CRS for Expedia pursuant to the\nCRS Agreement, Worldspan shall maintain the related Worldspan BFS Software on\nthe Worldspan System for use by EI and\/or its ETT Customers in connection with\nExpedia for applicable air bookings via the Worldspan System. Throughout\ndeployment and for so long thereafter as EI continues to use Worldspan as a CRS\nfor Expedia pursuant to the CRS Agreement, Worldspan shall use commercially\nreasonable efforts to correct any errors in the Worldspan BFS Software, or the\nWorldspan System with respect to the operation of BFS, in accordance with the\nperformance standards set forth in Exhibit 2. In the event the parties provide\nfor a reduction in capacity under the terms of the CRS Agreement and BFS and\/or\nthe Worldspan BFS Software fails within two (2) months thereafter, EI may switch\nrouting of Expedia search requests to Power Shopper or Power Availability\nsearches on the Worldspan System in accordance with the capacity requirements\nprovided immediately prior to the most recent such reduction of capacity, as set\nforth in the CRS Agreement. If such failure occurs more than two (2) months\nafter such a reduction in capacity, then Worldspan shall use reasonable business\nefforts to make capacity available to EI at the level provided immediately prior\nto such reduction, in accordance with the CRS Agreement.\n\n (b) Worldspan shall have the right to deploy BFS, or any\nportion thereof, in connection with the operation of the Worldspan System as\ncontemplated by Section 3.4.\n\n 4.3 Debit Memos. If any travel provider issues a debit memo with\n -----------\nrespect to an error in customer charges arising out of BFS or the Worldspan BFS\nSoftware running on the Worldspan System, Worldspan shall investigate the\nalleged error and make the initial response to the travel provider. EI shall\nhave the right to investigate the alleged error upon request. If the error\noccurs in connection with a transaction initiated through Expedia or by an ETT\nCustomer using the Expedia platform for such transaction, EI shall pay the debit\nmemo. If the error occurs in connection with a transaction initiated by\nWorldspan or a Worldspan Customer using the Worldspan platform for such\ntransaction, Worldspan shall pay the debit memo.\n\n 15\n\n \n 4.4 Data.\n ----\n\n (a) Except as provided in subsection (b) below, as of the Effective\nDate and for so long as EI continues to use Worldspan as a CRS for Expedia\npursuant to the CRS Agreement, Worldspan shall via the Worldspan BFS Software on\nthe Worldspan CRS [*] and (ii) to the extent that it is not contractually\nprohibited from doing so, [*]. If and to the extent that Worldspan's providing\nEI with access to any of the foregoing data or associated support therefor [*].\nEI and Worldspan agree to work together in good faith to develop procedures for\nsuch data [*].\n\n (b) In the event that [*] as part of the Worldspan System and for so\nlong as EI continues to use Worldspan as a CRS for Expedia pursuant to the CRS\nAgreement, in the event that Worldspan [*] in connection with providing access\nto any of the foregoing data as provided in subsection (a) above, [*], or (ii)\n[*].\n\n (c) Notwithstanding anything to the contrary, none of the data to which\nWorldspan provides access hereunder shall, except with the prior written consent\nof Worldspan, be used by EI in connection with any bookings that are not\nprocessed on Worldspan's CRS.\n\n 4.5 CRS for Expedia. For purposes of this Agreement, EI shall be deemed\n ---------------\nto \"continue to use Worldspan as a CRS for Expedia pursuant to the CRS\nAgreement\" for so long as EI uses Worldspan as a CRS for Expedia for U.S. point\nof sale, whether or not any ETT Customers use Worldspan as a CRS.\n\n 4.6 [*].\n\n (a) During the [*], within [*] of each Advanced BFS Operational Year\nand subject to the provisions of Section 4.6(c) below, [*] as determined in\naccordance with the following:\n [*] \n================================================================================\n ------------------------------------------------------------\n ------------------------------------------------------------\n================================================================================\n--------------------------------------------------------------------------------\n--------------------------------------------------------------------------------\n--------------------------------------------------------------------------------\n--------------------------------------------------------------------------------\n================================================================================\n\n (b) In addition to [*] set forth in Section 4.6(a) above and subject to\nthe provisions of Section 4.6(c) below, [*] the amount, if any, by which (i)\n[*]. The [*] for each Advanced BFS Operational Year [*] in the following chart:\n[*]\n\n -------------------------------------------------\n [*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN\n OMITTED AND FILED SEPARATELY WITH THE COMMISSION.\n CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH\n RESPECT TO THE OMITTED PORTIONS\n -------------------------------------------------\n\n 16\n\n \n ===========================================================================\n Advanced BFS [*]\n Operational Year\n ===========================================================================\n [*] [*] \n ---------------------------------------------------------------------------\n [*] [*] \n ---------------------------------------------------------------------------\n [*] [*] \n ---------------------------------------------------------------------------\n [*] [*] \n ---------------------------------------------------------------------------\n [*] [*] \n ---------------------------------------------------------------------------\n [*] [*] \n ===========================================================================\n\n (c) Notwithstanding the foregoing provisions of this Section 4.6, [*]\npursuant to subsections (a) and (b) of this Section 4.6 [*].\n\n (d) In order to illustrate the application of the foregoing provisions\nof this Section 4.6, the following is an example of the amounts that could be\npayable pursuant to this Section 4.6 [*]:\n\n<\/pre>\n
\n\n===========================================================================================================
\n [*] [*] [*] [*]
\n Quarter under 4.6(a) under 4.6(b) under 4.6(c) under 4.6
\n===========================================================================================================
\n
\n [*] [*] [*] [*] [*]
\n———————————————————————————————————–
\n [*] [*] [*] [*] [*]
\n———————————————————————————————————–
\n [*] [*] [*] [*] [*]
\n———————————————————————————————————–
\n [*] [*] [*] [*] [*]
\n===========================================================================================================
\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n[*] <\/p>\n
5. TERM AND TERMINATION<\/p>\n
5.1 Term. The term of this Agreement shall commence on the Effective
\n —-
\nDate and, unless terminated earlier as provided herein, shall continue for ten
\n(10) years after the Effective Date of this Agreement.<\/p>\n
5.2 Termination.
\n ———–<\/p>\n
(a) In the event either party materially fails to perform or
\ncomply with this Agreement or any provision thereof, and fails to remedy the
\ndefault within thirty (30) days after the receipt of written notice to that
\neffect, then the other party shall have the right, at its sole option and upon
\nwritten notice to the defaulting party, to terminate this Agreement upon written
\nnotice.<\/p>\n
(b) In the event that either party gives the other a notice
\ndesignating an Independent Development Date pursuant to Section 2.8(g) or
\nSection 2.8(h), as applicable, then this Agreement shall terminate as of the
\nIndependent Development Date designated in such notice, provided that any such
\nIndependent Development Date shall be no earlier than the Restrictions
\nExpiration Date.<\/p>\n
————————————————-
\n [*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN
\n OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
\n CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
\n RESPECT TO THE OMITTED PORTIONS
\n ————————————————-<\/p>\n
17<\/p>\n
(c) At quarterly review meetings under Section 2.3(b) above,
\nif by mutual consent, it is decided further progress towards implementation of
\nthe Full Project Plan is either technically or financially not feasible, the
\nparties may mutually terminate this Agreement upon written agreement.<\/p>\n
(d) In the event that the CRS Agreement is terminated for any
\nreason, then this Agreement shall automatically terminate contemporaneously
\ntherewith without further notice.<\/p>\n
(e) Worldspan may, at any time, terminate this Agreement for
\nits convenience and without cause by giving EI written notice thereof. In the
\nevent that Worldspan terminates this Agreement pursuant to this Section 5.2(e),
\nthen, notwithstanding anything in this Agreement to the contrary, (i) Worldspan
\nshall not have a license or any other rights in or to BFS, (ii) EI shall not be
\nrequired to provide to Worldspan a copy of BFS or any updates thereto, (iii)
\nWorldspan shall not have the right to deploy BFS, or any portion thereof, in
\nconnection with the operation of the Worldspan System, except in support of EI
\nor any ETT Customers using Worldspan as a CRS, and (iv) Worldspan shall not be
\nrequired to provide any resources or other contributions for the development of
\nBFS or to pay any additional amounts pursuant to Section 4.6.<\/p>\n
(f) Any notice of default hereunder shall be prominently
\nlabeled “NOTICE OF DEFAULT,” and (i) if to EI, shall be copied to EI’s General
\nCounsel, and (ii) if to Worldspan, shall be copied to Worldspan’s General
\nCounsel. The rights and remedies provided in this Section shall not be exclusive
\nand are in addition to any other rights and remedies provided by law or this
\nAgreement.<\/p>\n
5.3 Survival. The following provisions shall survive termination or
\n ——–
\nexpiration of this Agreement: Sections 2.6, 2.7, 2.8(c), 2.8(d), 2.8(e), 2.8(f),
\n2.8(g), 2.8(h), 4.2, 4.4, 4.6, and 5.3, Article 3, and Articles 6 through 10.
\nSections 2.1(b) and 2.2(b) shall survive termination of this Agreement for the
\nremainder of the term of the CRS Agreement, but only with respect to BFS and the
\nWorldspan BFS Software developed at the time of termination of this Agreement.<\/p>\n
5.4 Further Deployment. The parties anticipate that they may agree to
\n ——————
\ncontinue development and\/or expand deployment of BFS after the expiration of
\nthis Agreement. However, such continued efforts shall require the separate
\nwritten agreement of the parties.<\/p>\n
6. REPRESENTATIONS AND WARRANTIES<\/p>\n
Each party hereby represents and warrants as follows:<\/p>\n
6.1 Corporate Power. Such party is duly organized and validly existing
\n —————
\nunder the laws of the state of its organization and has full power and authority
\nto enter into this Agreement and to carry out the provisions hereof.<\/p>\n
18<\/p>\n
6.2 Due Authorization. Such party is duly authorized to execute and
\n —————–
\ndeliver this Agreement and to perform its obligations hereunder.<\/p>\n
6.3 Binding Agreement. This Agreement is a legal and valid obligation
\n —————–
\nbinding upon such party and is enforceable against such party in accordance with
\nits terms. The execution, delivery and performance of this Agreement by such
\nparty does not conflict with any agreement, instrument or understanding, oral or
\nwritten, to which it is a party or by which it may be bound, nor violate any law
\nor regulation of any court, governmental body or administrative or other agency
\nhaving jurisdiction over it.<\/p>\n
6.4 Intellectual Property.
\n ———————<\/p>\n
(a) EI represents and warrants that BFS, excluding any Feedback
\nprovided by Worldspan, does not infringe any copyright or misappropriate any
\ntrade secret of any third party.<\/p>\n
(b) Worldspan represents and warrants that the Worldspan BFS
\nSoftware, excluding any Feedback provided by EI, does not infringe any copyright
\nor misappropriate any trade secret of any third party.<\/p>\n
7. LIMITATION OF WARRANTY<\/p>\n
EXCEPT AS EXPRESSLY WARRANTED IN SECTION 6 ABOVE, EACH PARTY EXPRESSLY DISCLAIMS
\nANY FURTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO,
\nTHE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.<\/p>\n
8. INDEMNIFICATION AND LIMITATION OF LIABILITY<\/p>\n
8.1 Indemnification by Worldspan. Worldspan shall, at its expense and
\n —————————-
\nEI’s request, defend any third-party claim or action brought against EI, and
\nEI’s Affiliates, directors, officers, employees, licensees, agents and
\nindependent contractors, (i) relating to the Worldspan System or the marketing
\nthereof, and (ii) to the extent it is based upon a claim that, if true, would
\nconstitute a breach of a Worldspan warranty, representation or covenant set
\nforth in this Agreement (collectively, “Worldspan Claims”), and Worldspan shall
\nindemnify and hold EI harmless from and against any costs, damages and fees
\nreasonably incurred by EI, including but not limited to fees of attorneys and
\nother professionals, that are attributable to such Worldspan Claims. EI shall
\nprovide Worldspan reasonably prompt notice in writing of any such Worldspan
\nClaims and provide Worldspan with reasonable information and assistance, at
\nWorldspan’s expense, to help Worldspan defend such Worldspan Claims.<\/p>\n
8.2 Indemnification by EI. EI shall, at its expense and Worldspan’s
\n ———————
\nrequest, defend any third-party claim or action brought against Worldspan, and
\nits Affiliates, directors, officers, employees, licensees, agents and
\nindependent contractors, (i) relating to Expedia or the marketing thereof, and
\n(ii) to the extent it is based upon a claim that, if <\/p>\n
19<\/p>\n
true, would constitute a breach of a EI warranty, representation or covenant set
\nforth in this Agreement (collectively, “EI Claims”), and EI shall indemnify and
\nhold Worldspan harmless from and against any costs, damages and fees reasonably
\nincurred by Worldspan, including but not limited to fees of attorneys and other
\nprofessionals, that are attributable to such EI Claims. Worldspan shall provide
\nEI reasonably prompt notice in writing of any such EI Claims and provide EI with
\nreasonable information and assistance, at EI’s expense, to help EI defend such
\nEI Claims.<\/p>\n
8.3 Limitation of Liability. BOTH PARTIES AGREE THAT NEITHER PARTY
\n ———————–
\nWILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
\n(INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING FROM BREACH OF CONTRACT OR
\nWARRANTY OR FROM NEGLIGENCE OR STRICT LIABILITY), OR FOR INTERRUPTED
\nCOMMUNICATIONS, LOST BUSINESS, LOST DATA OR LOST PROFITS, ARISING OUT OF OR IN
\nCONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF (OR KNOWS
\nOR SHOULD KNOW OF) THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CLAIMS ARISING
\nFROM BREACH OF THE LICENSES GRANTED HEREUNDER OR BREACH OF NONDISCLOSURE
\nOBLIGATIONS, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER OR
\nANY THIRD PARTY FOR AN AMOUNT GREATER THAN ONE MILLION DOLLARS (US$1,000,000).<\/p>\n
9. CONFIDENTIALITY; MEDIA COMMUNICATIONS<\/p>\n
9.1 NDA. EI and Worldspan agree that the terms of the Nondisclosure
\n —
\nAgreement between EI and Worldspan dated as of the date hereof shall be deemed
\nincorporated herein (including without limitation the provisions regarding use
\nof “residuals” as described therein). Further, all terms and conditions of this
\nAgreement shall be deemed Confidential Information as defined therein. The
\nparties hereby agree to extend the term of such Nondisclosure Agreement during
\nthe term of this Agreement and for three years thereafter.<\/p>\n
9.2 Press Release. EI and Worldspan agree that any press release or
\n ————-
\ncommunication to the press and\/or public regarding this Agreement and the
\nparties’ relationship shall be made only after prior consultation with and
\napproval of the other party.<\/p>\n
10. GENERAL<\/p>\n
10.1 Governing Law; Venue; Attorneys Fees. This Agreement shall be
\n ————————————
\nconstrued and controlled by the laws of the State of Washington, and each party
\nfurther consents to jurisdiction by the state and federal courts sitting in the
\nState of Washington. Process may be served on either party by U.S. Mail, postage
\nprepaid, certified or registered, return receipt requested, or by such other
\nmethod as is authorized by law. If either EI or Worldspan employs attorneys to
\nenforce any rights arising out of or relating <\/p>\n
20<\/p>\n
to this Agreement, the prevailing party shall be entitled to recover reasonable
\nattorneys’ fees and costs, including expert witness fees.<\/p>\n
10.2 Force Majeure. If the performance of this Agreement or any
\n ————-
\nobligation hereunder is prevented, restricted or interfered with by any act or
\ncondition whatsoever beyond the reasonable control of the affected party, the
\nparty so affected, upon giving prompt notice to the other party, shall be
\nexcused from such performance, except for the making of payments hereunder, to
\nthe extent of such prevention, restriction or interference.<\/p>\n
10.3 Notices; Requests. All notices and requests in connection with
\n —————–
\nthis Agreement shall be deemed given as of the day they are (i) deposited in the
\nU.S. mails, postage prepaid, certified or registered, return receipt requested;
\nor (ii) sent by overnight courier, charges prepaid, with a confirming fax; and
\naddressed as follows:<\/p>\n
Worldspan: Worldspan, L.P.
\n 300 Galleria Parkway, N.W.
\n Atlanta, Georgia 30339<\/p>\n
Attention: Senior Vice President and General
\n Manager- Worldwide E-Commerce
\n Fax: (770) 563-7003
\n Phone: (770) 563-6987<\/p>\n
with a cc to: Worldspan, L.P.
\n 300 Galleria Parkway, N.W.
\n Atlanta, Georgia 30339<\/p>\n
Attention: General Counsel
\n Fax: (770) 563-7878<\/p>\n
EI: Expedia, Inc.<\/p>\n
13810 SE Eastgate Way, Suite 400
\n Bellevue, WA 98005<\/p>\n
Attention: Sr. Vice President,
\n Transportation and Core
\n Development
\n Fax: (425) 564-7321
\n Phone: (425) 564-7200<\/p>\n
with a cc to: Expedia, Inc.
\n 13810 SE Eastgate Way, Suite 400
\n Bellevue, WA 98005<\/p>\n
Attention: General Counsel
\n Fax: (425) 564-7251<\/p>\n
21<\/p>\n
or to such other address as the party to receive the notice or request so
\ndesignates by written notice to the other.<\/p>\n
10.4 Assignment. Neither party may assign its interest in this
\n ———-
\nAgreement; provided, however, that either party may assign this Agreement upon
\nthirty (30) days prior written notice to a wholly-owned subsidiary or to an
\nentity to which substantially all the assets of the assigning party are being
\ntransferred if such assignee assumes and agrees to perform all the obligations
\nof the assignor. This Agreement shall be binding upon the parties hereto and
\ntheir successors and permitted assigns and all persons claiming under or through
\nthem or any such successor or permitted assign.<\/p>\n
10.5 Severability. In the event that any provision of this Agreement is
\n ————
\nfound invalid or unenforceable pursuant to judicial decree or decision, the
\nremainder of this Agreement shall remain valid and enforceable according to its
\nterms. The parties intend that the provisions of this Agreement be enforced to
\nthe fullest extent permitted by applicable law. Accordingly, the parties agree
\nthat if any provisions are deemed not enforceable, they shall be deemed modified
\nto the extent necessary to make them enforceable.<\/p>\n
10.6 Entire Agreement; Modification; No Offer. The parties hereto agree
\n —————————————-
\nthat this Agreement (including the Exhibits attached hereto and referred to
\nherein, each of which is hereby incorporated into this Agreement for all
\npurposes), the CRS Agreement, and the Non-Disclosure Agreement referenced in
\nSection 9.1 constitute the entire agreement between the parties with respect to
\nthe subject matter hereof and merges all prior and contemporaneous
\ncommunications, including the 1999 Development Agreement. This Agreement shall
\nnot be modified except by a written agreement dated subsequent hereto signed on
\nbehalf of Worldspan and EI by their duly authorized representatives. Neither
\nthis Agreement nor any written or oral statements related hereto constitute an
\noffer, and this Agreement shall not be legally binding until executed by both
\nparties hereto.<\/p>\n
10.7 Binding Effect. Subject to the limitations herein before
\n ————–
\nexpressed, this Agreement will inure to the benefit of and be binding upon the
\nparties, their successors, administrators, heirs, and permitted assigns.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
\nas of the dates indicated below.<\/p>\n
EXPEDIA, INC. WORLDSPAN, L.P.<\/p>\n
\/s\/ Byron Bishop \/s\/ Sue Powers
\n—————————– ————————————
\nBy (sign) By (sign)<\/p>\n
Byron Bishop Sue Powers
\n—————————– ————————————
\nName (Print) Name (Print)<\/p>\n
Sr. Vice President Senior Vice President & General
\n—————————– Manager Worldwide e-Commerce
\nTitle ————————————
\n Title
\nJuly 5, 01
\n—————————– June 29, 2001
\nDate ————————————
\n Date<\/p>\n
22<\/p>\n
Exhibit 1<\/p>\n
Full Project Plan<\/p>\n
[*] <\/p>\n
————————————————-
\n [*]-TWELVE PAGES HAVE BEEN OMITTED AND FILED
\n SEPARATELY WITH THE COMMISSION. CONFIDENTIAL
\n TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
\n OMITTED PAGES
\n ————————————————-<\/p>\n
1 – 1<\/p>\n
Exhibit 2<\/p>\n
Performance Standards<\/p>\n
Response varies according to severity of problems:<\/p>\n
Severity 0: [*]
\n Required response: [*].<\/p>\n
Severity 1: [*]
\n Required response: [*].<\/p>\n
Severity 2: [*]
\n Required response: [*].<\/p>\n
Severity 3: [*]
\n Required response: [*].<\/p>\n
Severity 4: [*].
\n Required response: [*].<\/p>\n
————————————————-
\n [*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN
\n OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
\n CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
\n RESPECT TO THE OMITTED PORTIONS
\n ————————————————-<\/p>\n
2 – 1<\/p>\n
Exhibit 3<\/p>\n
Employees Covered by Non-Hire Provision<\/p>\n
1. Worldspan Employees.<\/p>\n
[*] <\/p>\n
2. EI Employees.<\/p>\n
[*] <\/p>\n
————————————————-
\n [*]-CERTAIN INFORMATION ON THIS PAGE HAS BEEN
\n OMITTED AND FILED SEPARATELY WITH THE COMMISSION.
\n CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH
\n RESPECT TO THE OMITTED PORTIONS
\n ————————————————-<\/p>\n
3 – 1<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7491],"corporate_contracts_industries":[9525],"corporate_contracts_types":[9613,9620],"class_list":["post-42222","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-expedia-inc","corporate_contracts_industries-transportation__services","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42222","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42222"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42222"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42222"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42222"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}