{"id":42338,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/hosting-services-agreement-expedia-inc-and-microsoft-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"hosting-services-agreement-expedia-inc-and-microsoft-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/hosting-services-agreement-expedia-inc-and-microsoft-corp.html","title":{"rendered":"Hosting Services Agreement &#8211; Expedia Inc. and Microsoft Corp."},"content":{"rendered":"<pre>\n                           HOSTING SERVICES AGREEMENT\n\n--------------------------------------------------------------------------------\n                                  CONFIDENTIAL\n--------------------------------------------------------------------------------\n\nThis Hosting Services Agreement (\"Agreement\") is made as of August 14, 2001,\n(the \"Effective Date\") by and between Expedia, Inc., a Washington corporation\nlocated at 13810 SE Eastgate Way, Suite 400, Bellevue, WA 98005 (\"Expedia\"), and\nMicrosoft Corporation, a Washington corporation with its chief executive offices\nat One Microsoft Way, Redmond, WA 98052 (\"Company\").\n\n                                    Recitals\n\nWHEREAS, Company is prepared to perform the required services pursuant to the\nterms and conditions set forth in this Agreement and its Exhibits.\n\nNOW, THEREFORE, in consideration of the foregoing and the mutual promises\ncontained herein, the sufficiency of which is hereby acknowledged, the parties\nhereby agree as follows:\n\n                                    Agreement\n\n1.   DEFINITIONS.\n\n     (a) \"Statement of Work\" shall mean the document attached hereto as Exhibit\nA and incorporated by reference.\n\n     (b) \"Services\" shall mean the non-exclusive facilities services performed\nby Company in accordance with the terms of this Agreement (the \"Expedia Sites\"),\nand as described further in the Statement of Work.\n\n     (c) \"Insolvent\" shall mean a financial condition such as to make the sum of\na party's debts greater than all of the party's assets, at fair valuation; or,\nwhen a party has incurred debts beyond that party's ability to pay such debts as\nthey mature; or, when a party is engaged in a business or transaction for which\nthe party has unreasonably small capital.\n\n     (d) \"Expedia Information\" shall mean all information provided by or on\nbehalf of Expedia to Company in accordance with this Agreement and any Expedia\ninformation obtained or created by Company in providing the Services, including,\nbut not limited to any information found in any Report provided by Company to\nExpedia, any correspondence between Expedia and Company including, without\nlimitation, e-mail transmissions.\n\n     (e) Other Terms. Certain other terms used herein are defined in the\nfollowing provisions:\n\n         Term                           Provision\n         Agreed Payment                 3(c)\n         Agreement                      Paragraph 1\n         Changes                        3(d)(i)\n         Change Proposal                3(d)(iii)\n         Collected Taxes                8(b)\n         Confidential Information       5(a)\n    \n         Default                        9(b)(ii)\n         Disputed Amounts               3(c)\n         Effective Date                 Paragraph 1\n         Exhibits                       14(g)\n       \n         Initial Term                   9(a)\n         Insolvency Event of Default    9(b)(ii)(D)\n         Intellectual Property          5(b)\n\n                                       1\n\n \n        NDA                            5\n        Renewal Term                   9(a)\n        Required Payment               3(c)\n        Reports                        2(b)\n        Service Fees                   3(a), Exhibit B\n        Subcontractor                  4\n        Taxes                          8(b)\n    \n2.   COMPANY SERVICES.\n\n     (a) Services. Company shall perform and assure that the Services are\nperformed consistent with the time requirements and specifications contained in\nthis Agreement and the Statement of Work, including, but not limited to the\nperformance standards identified therein.\n\n     (b) Reports. Company shall comply with all applicable time requirements in\nproviding Expedia with the reports specified in the Statement of Work (each a\n\"Report\"), and all other information requested from time to time with respect to\nall Services performed.\n\n     (c) Performance Standards\n\n         (i)   Company will have management systems in place to ensure that the\n     specified requirements set forth in the Statement of Work are met in\n     accordance with the performance standards set forth therein.\n\n         (ii)  Company must develop and maintain continuous improvement activity\n     aimed at improving Company's productivity and\/or ability to meet the\n     performance standards, as specified in the Statement of Work.\n\n         (iii) Company will meet periodically, but no less than quarterly, with\n     Expedia to review Company's performance and any issues related to Company's\n     compliance with the Statement of Work's performance standards.\n\n     (d) Use of Expedia Equipment. In the event Expedia provides Company with\nExpedia equipment for use in the performance of Services, Company agrees to\nassume the risk of loss for all such Expedia equipment while in its care,\ncustody or control. Company shall take all reasonable precautions to protect the\nExpedia equipment against loss, damage, theft or disappearance while in its\ncare, custody or control. In addition, Company shall take no actions which\naffect Expedia's title or interest in such Expedia equipment.\n\n     (e) Non-Exclusivity; No Minimums. Notwithstanding anything contained herein\nto the contrary, the parties hereto agree that nothing contained in this\nAgreement or the Statement of Work shall be construed as creating an exclusive\nrelationship between the parties. Nothing in this Agreement shall prevent either\nCompany or Expedia from entering into the same or similar relationship with\nothers. Additionally, nothing herein shall be construed as creating a minimum\ncommitment for business on the part of Expedia to Company.\n\n3.   COMPANY COMPENSATION.\n\n     (a) Service Rates. Expedia agrees to pay Company for the performance of\nServices in accordance with the fee schedule attached as Exhibit B or as\nspecifically stated in the Statement of Work (\"Service Fees\"). In the event of a\nChange, pursuant to Section 3 (d) below, that reduces the scope of Services\nprovided by Company, any applicable fixed Service Fee shall be reduced by a\ncorresponding amount.\n\n     (b) Invoices\/Manner of Payment. Company will provide Expedia with a monthly\nsummary invoice stating all amounts due from Expedia to Company under this\nAgreement. Such monthly invoice shall include the monthly total and shall be\nsubmitted by Company to Expedia, Inc., Accounts payable, 13810 SE Eastgate Way,\n\n                                      -2-\n\n \nSuite 400, Bellevue, WA 98005. Except for Disputed Amounts and amounts withheld\nin good faith by Expedia, payment shall be made by Expedia to Company on a net\nthirty (30) days basis after receipt of properly submitted and correct\ninvoice(s) for Services and validation by Expedia.\n\n     (c) Disputed Amounts. As used herein \"Disputed Amounts\" means amounts that\nare subject to a bona fide dispute raised by Expedia in writing. All Disputed\nAmounts that Expedia subsequently agrees in writing to pay (\"Agreed Payment\") or\nthat are required to be paid pursuant to a proper court order or award from any\nmutually submitted arbitration (\"Required Payment\") shall be paid within thirty\n(30) days from the date of such agreement or determination.\n\n     (d) Revisions to Services.\n\n         (i)   Expedia Changes. Expedia reserves the right, from time to time\nduring the term of this Agreement, to expand, supplement, modify the Statement\nof Work and Services hereunder (a \"Change\") by written notice to Company.\n\n         (ii)  Company Changes. Company may also propose Changes in order to\npromote efficiency, safety, security, productivity or other good business\npractice.\n\n         (iii) Compensation for Change. All modifications to the amounts\npayable to Company as a result of any Changes shall be mutually agreed upon in\ngood faith by Expedia and Company. Company shall provide Expedia with a written\nproposal explaining the increase or decrease in the Service Fees for which it\nshall undertake the Change in Services (\"Company Change Proposal\"). If Expedia\naccepts a Company Change Proposal, Company's Services shall be revised\naccordingly, which revision shall be memorialized in a written amendment signed\nby Company and Expedia. If Expedia rejects a Company Change Proposal, Company's\nServices shall not be revised, and the proposed Change shall not be performed.\n\n         (iv)  Catastrophic and\/or Force Majeure Events. Services may be\nexpanded as necessary to meet a catastrophic or force majeure event. The parties\nagree to make a corresponding equitable adjustment in the Services Fees within a\nreasonable time after the occurrence of such event based upon such expanded\nServices.\n\n4.   SUBCONTRACTING OF SERVICES. Company shall have the right to subcontract all\nor any portion of the Services to third parties (\"Subcontractor\") without the\nexpress written consent of Expedia. Company agrees that in the event that\nCompany or its Subcontractor decides to move the Services from Company's\nfacility located at Canyon Park, Company or its Subcontractor will provide\nExpedia with at least one hundred and eighty (180) days prior written notice of\nsuch impending move, and Expedia, in its reasonable discretion, may agree to\nsuch re-location of Services, or at its option, terminate this Agreement.\nFurther, in the event that Company elects to change Subcontractors during the\nAgreement, Company agrees to provide Expedia with at least sixty (60) days prior\nwritten notice of such change. In the event that Company elects to use a\nSubcontractor, Company agrees to comply with all of the following conditions and\nrequirements:\n\n     (a) Company guarantees its Subcontractor's fulfillment of the applicable\nobligations imposed on Company by this Agreement; and\n\n     (b) Company shall indemnify Expedia for all damages and\/or costs of any\nkind, to the extent set forth in Section 7 herein, incurred by Expedia and\ncaused by Subcontractor's fulfillment of the applicable obligations imposed on\nCompany by this Agreement; and\n\n     (c) Company agrees to make all payments to the Subcontractor for Services\nperformed for which Subcontractor was hired. In the event Company fails to pay a\nSubcontractor for Services performed, Expedia shall have the right, but not the\nobligation, to pay such Subcontractor for such Services. In such case, Expedia\nshall have the right to offset any amounts due and owing to Company with the\namounts paid to such Subcontractor. Company shall indemnify Expedia for all\ndamages and\/or costs of any kind, without limitation, incurred by Expedia caused\nby a failure of Company to pay a Subcontractor for Services performed.\n\n                                      -3-\n\n \n5.   CONFIDENTIALITY AND PROPRIETARY RIGHTS.\n\n     (a) Scope. The parties understand and acknowledge that each of them (and\ntheir respective employees, consultants and subcontractors) may have disclosed\nto it, in connection with the rendition of services and performance of their\nobligations of this Agreement, confidential and\/or proprietary information of\nthe other party. The terms and conditions of that certain Non-Disclosure\nAgreement (\"NDA\") between the parties, dated October 1, 1999, shall apply to all\nsuch confidential and proprietary information.\n\n     (b) Press Releases\/Publicity. Company may list Expedia as a representative\ncustomer in tangible lists of representative clients delivered to potential\ncustomers and may issue press releases listing Expedia as Company's customer (in\nform, content and manner of distribution satisfactory to Expedia). No other\npublicity or press release may be made in relation to this Agreement by either\nparty without the other party's prior written approval.\n\n     (c) Security. In addition to the confidentiality obligations of the NDA,\nCompany agrees to implement security procedures, to Expedia's satisfaction,\nbased on industry standards, sufficient to prevent the disclosure of the Expedia\nInformation, data and\/or programs to unauthorized third parties. Company will\nalso be responsible for reporting to Expedia and assisting with the resolution\nof any problems arising from such unauthorized access.\n\n     (d) Ownership Rights. Both parties agree that each has and shall retain\nownership rights to its own Confidential Information and that upon completion or\ntermination of this Agreement and request from the other party, each party will\nreturn the other's Confidential Information regardless of the media in which it\nis stored.\n\n6.   WARRANTIES AND REPRESENTATIONS.\n\n     (a) By Company. Company represents and warrants to Expedia as follows:\n\n         (i)   Company has full and exclusive right and power to enter into and\nperform according to the terms of this Agreement, and that such performance will\nnot violate any other agreement or applicable law.\n\n         (ii)  Services provided, including any portion performed by any\nSubcontractor, will comply with the terms and conditions of this Agreement and\nall Exhibits attached hereto. Company will be responsible for the acts and\nomissions of Company, its employees, agents and Subcontractors.\n\n         (iii) Services provided in relation to this Agreement will meet the\nquality and performance standards established under this Agreement and the\nStatement of Work.\n\n         (iv)  Company shall at all times comply with its commitments and\n obligations as stated in this Agreement.\n\n     (b) By Expedia. Expedia hereby represents and warrants to Company as\nfollows:\n\n         (i)   Expedia has the full and exclusive right and power to enter into\n     and perform according to the terms of this Agreement.\n\n7.   LIMITATION OF LIABILITY AND INDEMNIFICATION.\n\n     Microsoft and its subcontractors (if any), and its and their respective\nofficers, directors, agents or designees, shall not be liable for any loss\nincurred by Expedia occasioned by acts performed (or not performed) by them, or\nadvice or assistance given by them, in good faith in the performance of their\nduties hereunder, and in any event shall be liable only for willful wrongdoing\nor gross negligence and not for honest errors of judgment; provided, however,\nthat in no event shall Microsoft or such subcontractors be held liable for any\nconsequential damages or for any loss of profits suffered by Expedia or by any\nthird party, and provided further that the amount of damages claimed in respect\nof all breaches of contract that may occur during one fiscal year in regard to\nExpedia shall not exceed the amount of compensation which Expedia owes and\/or\nhas paid to Microsoft for the fiscal year during which the\n\n                                      -4-\n\n \nbreach of contract has occurred. Expedia agrees to indemnify and hold harmless\nMicrosoft and its subcontractors, and its and their respective officers,\ndirectors, agents and designees, from and against all costs, damages, judgments,\nattorneys' fees, expenses, obligations and liabilities of every kind and nature\nwhich they or any of them may incur, sustain or be required to pay in connection\nwith or arising out of the performance of their obligations hereunder (unless\nsuch costs, damages, judgments, fees, expenses, obligations or liabilities are\nincurred in connection with or arise out of willful wrongdoing or gross\nnegligence). This Section 7 shall survive the termination of this Agreement.\n\n8.   TAXES.\n\n     (a) The Service Fees to be paid by Expedia to Company herein do not include\nany foreign, U.S. federal, state, local, municipal or other governmental taxes,\nduties, levies, fees, excises or tariffs, arising as a result of or in\nconnection with the transactions contemplated under this Agreement including,\nwithout limitation, any state or local sales or use taxes or any value added tax\nor business transfer tax now or hereafter imposed on the provision of goods and\nservices to Expedia by Company under this Agreement, regardless of whether the\nsame are separately stated by Company. All such taxes (and any penalties,\ninterest, or other additions to any such taxes), with the exception of taxes\nimposed on Company's net income or with respect to Company's property ownership,\nshall be the financial responsibility of Expedia. Expedia agrees to indemnify,\ndefend and hold Company harmless from any such taxes or claims, causes of\naction, costs (including, without limitation, reasonable attorneys' fees) and\nany other liabilities of any nature whatsoever related to such taxes.\n\n     (b) Expedia will pay all applicable value added, sales and use taxes and\nother taxes levied on it by a duly constituted and authorized taxing authority\non the services or other items provided under this Agreement or any transaction\nrelated thereto in each country in which the services and\/or property are being\nprovided or in which the transactions contemplated hereunder are otherwise\nsubject to tax, regardless of the method of delivery. Any taxes that are owed by\nExpedia, (i) solely as a result of entering into this Agreement and the payment\nof the Service Fees hereunder, (ii) are required or permitted to be collected\nfrom Expedia by Company under applicable law, and (iii) are based upon the\namounts payable under this Agreement (such taxes described in (i), (ii), and\n(iii) above are referred to herein as the \"Collected Taxes\"), shall be remitted\nby Expedia to Company whereupon, upon request, Company shall provide to Expedia\ntax receipts or other evidence indicating that such Collected Taxes have been\ncollected by Company and remitted to the appropriate taxing authority. Expedia\nmay provide to Company an exemption certificate acceptable to Company and to the\nrelevant taxing authority (including without limitation a resale certificate) in\nwhich case, after the date upon which such certificate is received in proper\nform, Company shall not collect the taxes covered by such certificate.\n\n     (c) Expedia agrees that each payment to be made hereunder shall be free of\nall withholding imposed by any jurisdiction, and if any such withholding is\nrequired, Expedia shall pay an additional amount such that after deduction of\nall amounts required to be withheld, the net amount of the payment will equal,\non an after tax basis, the amount of the payment that would be due absent such\nwithholding.\n\n     (d) This Section 8 shall govern the treatment of all taxes arising as a\nresult of or in connection with this Agreement notwithstanding any other section\nof this Agreement.\n\n     (e) In addition to the other undertakings of Expedia set forth in this\nAgreement, Expedia shall be responsible to reimburse Microsoft for any and all\nWashington Business and Occupation tax liability imposed on Microsoft with\nrespect to the payments received from Expedia by Microsoft. Such reimbursement\nshall be paid by Expedia to Microsoft through a tax reimbursement payment. Such\ntax reimbursement payments shall each be in an amount such that after Microsoft\npays all Business and Occupation taxes imposed with respect to both the payments\nrequired elsewhere in this Agreement, and the payments called for in this\nparagraph, the net amount of the aggregate of all payments made by Expedia to\nMicrosoft under this agreement will equal, on an after tax basis, the amount of\nthe payment that is due under this Agreement excluding this Section 8(e).\n\n9.   TERM OF AGREEMENT; DEFAULT.\n\n     (a) Duration. Subject to Section 9(b) hereof, the period of time during\nwhich this Agreement shall be in effect (the \"Initial Term\") commences on the\nEffective Date and shall continue for a period of four (4) years\n\n                                      -5-\n\n \nthereafter. This Agreement shall be renewable in one (1) year terms on the\nmutual written agreement of the parties (\"Renewal Term\").\n\n     (b) Early Termination and Default. The Initial Term and any Renewal Term is\nsubject to early termination of the Agreement in accordance with the following:\n\n         (i)   This Agreement shall terminate automatically upon a Default under\nSection 9(b)(ii)(D) below. Either party shall have the right to terminate this\nAgreement immediately upon a Default under Section 9(b)(ii)(A). Expedia may\nterminate this Agreement upon a Default under Section 9(b)(ii)(B) and Company\nmay terminate this Agreement upon a Default under Section 9(b)(ii)(C), if the\ndefault has not been cured within fifteen (15) business days after the non-\ndefaulting party provides notice to the defaulting party describing the\nDefault(s) in reasonable detail. Company may terminate this Agreement as to\nExpedia upon a Default by Expedia under Section 9(b)(ii)(E). Expedia may\nterminate this Agreement upon a default by Company under Section 9(b)(ii)(E).\nWhere a party terminates this Agreement under this Section 9(b)(i), such\ntermination shall be effective on service of written notice on the other party\nby the party terminating.\n\n         (ii)  Each of the following is a Default or event of default:\n\n               (A) Company's or Expedia's failure to (i) comply with a provision\nof Sections 5(a), 5(b) 5(c) or 14(f);\n\n               (B) The acquisition of a substantial part or all of Company's\nassets by or its merger with another company;\n\n               (C) Expedia's failure to pay the Service Fees (excluding Disputed\nAmounts) as required under Section 3 of this Agreement, after the expiration of\nforty-five (45) days from the due date;\n\n               (D) The occurrence of any of the following (each an \"Insolvency\nEvent of Default\"): (i) any party admits in writing its inability to pay its\ndebts generally or makes a general assignment for the benefit of its creditors;\n(ii) a proceeding is instituted, voluntarily or otherwise, by or against any\nparty seeking to adjudicate it a bankrupt or insolvent, or seeking\nreorganization, arrangement, adjustment or composition of it or its debt, which\nis not dismissed within thirty (30) days; (iii) a proceeding is initiated\nagainst any party seeking to appoint a receiver, trustee or other similar\nofficial for it or for any substantial part of its property; (iv) a party ceases\nto pay its debts as they become due; or (v) any party becomes Insolvent, as\ndefined elsewhere herein; and\n\n               (E) The failure of either party to perform any of the party's\nobligations contained in this Agreement, which failure has not been cured within\nfifteen (15) days after the non-defaulting party provides notice to the\ndefaulting party describing the Default(s) in reasonable detail. This right of\ncure shall not apply to Defaults described in Section 9(b)(ii)(A) above.\n\n         (iii) At any time following the first twelve (12) months of the\nInitial Term, Expedia may elect to terminate this Agreement without cause or\nwithout the occurrence of a Default, which termination shall be effective thirty\n(30) days after such notice. In the event that Expedia does elect to terminate\nthis Agreement in accordance with the terms of this Section 9(b)(iii), and as a\nresult of such termination Company incurs actual charges, Expedia shall\nreimburse Company for any such actual charges that Company can verify.\n\n     (c) Effect of Termination and Survival. Notwithstanding termination of this\nAgreement, Expedia shall pay to Company all Services Fees earned prior to\ntermination that are not Disputed Amounts and each party shall return any\nConfidential Information or property of the other party within ten (10) days\nfrom the date of such termination. The terms and conditions of Sections 2(b), 5,\n7, 8, 9(c), 9(d), 9(e), 10, 12, 14 will survive any termination or expiration of\nthis Agreement. With respect to tax matters, the provisions of Section 8 shall\nsurvive termination until the expiration of any applicable statute of\nlimitations or extension thereof.\n\n     (d) Effect of Default. In the event of a Default, the parties shall have\nall rights and remedies provided in this Agreement or otherwise available under\nlaw as limited by this Agreement.\n\n                                      -6-\n\n \n     (e) Transition of Services. In the event of termination, Company will make\nits staff available to assist with the transition. Company will be compensated\nbased on mutually agreeable hourly rates for these transition services.\n\n10.  RECORDS and AUDIT. Company shall keep all usual and proper records related\nto the Services described in this Agreement and the Statement of Work. Expedia\nreserves the right, upon one (3) weeks' notice, to audit Company's records and\nconsult with Company's accountants as is reasonable for the purpose of verifying\nCompany's compliance with the terms of this Agreement and for a period of one\n(1) year thereafter, provided that any such audits shall be conducted during\nnormal business hours in such a manner as to not unreasonably interfere with the\nnormal business operations of Company. Any such audit shall be paid for by\nExpedia. Company agrees to promptly correct any deficiencies detected in the\naudit and shall promptly refund any overpayments disclosed by such an audit, or\nExpedia may, at its election, set off any such overpayment against any money\nsubsequently due by Expedia to Company.\n\n11.  EXPEDIA TRADEMARKS. Company shall not use the Expedia name and other\nExpedia trademarks in connection with the performance of Services under this\nagreement.\n\n12.  NOTICES. Each notice required or permitted under this Agreement shall be\ngiven in writing. Such notice shall be (a) personally delivered; (b) sent by\nfirst class mail, postage prepaid and marked for delivery by certified or\nregistered mail, return receipt requested; (c) sent by nationally-recognized\novernight courier; (d) sent by facsimile; or (e) sent by electronic mail\n(\"email\"). Such notice shall be deemed delivered upon (a) personal delivery; (b)\nfive (5) days after deposit in the U.S. mail; (c) one (1) day after deposit\nduring business hours with a nationally recognized overnight courier; (d) upon\nactual confirmation of receipt of a facsimile; or (e) upon actual confirmation\nof receipt of an email. In each case, such notice shall be addressed to the\nparties listed below at their respective places of business, or at such other\naddress of which prior written notice has been given to the addressing party.\n\n\n               to Company:      Microsoft Corporation\n                                One Microsoft Way\n                                Redmond, WA  98052-6399\n                                Attention: Director of America Services\n                                Phone: (425) 882-8080\n                                Fax: (425) 936-7329\n\n               Copy to:         Law and Corporate Affairs\n\n               to Expedia:      Expedia, Inc.\n               \n               Address:         13810 SE Eastgate Way, Suite 400\n                                Bellevue, WA  98005     \n\n               Attention:       Steve Haugen\n\n               Phone:           (425) 564-7200\n\n               Fax:             (425) 564-7240\n\n               Copy to:         General\n\n               Fax:             (425) 564-7251\n\nEither party may change the above information by giving notice to the other\nparty pursuant to this Section 12.\n\n13.  FORCE MAJEURE. If Company or any Company Subcontractor is unable to perform\nthe Services due to the occurrence of any force majeure event, and such\ninability continues for a period of one (1) month or more, Expedia shall have\nthe right, upon notice to Company, to terminate this Agreement or with respect\nto any affected Services, which termination shall be effective on the date\nspecified in Expedia's notice.\n\n                                      -7-\n\n \n14.  OTHER PROVISIONS\n\n     (a) Relationship of Parties. This Agreement is not intended to create any\nrelationship other than Company as an independent contractor performing Services\ncovered by this Agreement and Expedia as the party contracting with Company for\nthose services. No party is a partner for any purpose whatsoever. Company\nacknowledges that it is not authorized to make any contract, agreement or\nwarranty on behalf of Expedia. Under no circumstance shall one party's employees\nbe construed to be employees of the other party, nor shall one party's employees\nbe entitled to participate in the profit sharing, pension or other plans\nestablished for the benefit of the other party's employees.\n\n     (b) Governing Law. This Agreement shall be governed by and construed in\naccordance with the laws of the state of Washington.\n\n     (c) No Inadvertent Waiver. Failure of any party to exercise its rights\nunder this Agreement shall not be construed as a waiver thereof and shall not\nprevent said party from thereafter enforcing strict compliance with any of the\nterms thereof.\n\n     (d) Compliance with Applicable Law. Company shall comply at its own\nexpense, with the provisions of all laws which are applicable to Company's\nperformance of the Services. Expedia shall comply, at its own expense, with the\nprovisions of all laws that are applicable to Expedia.\n\n     (e) Binding Nature. This Agreement shall inure to and bind all successors,\nassigns, receivers and trustees of the respective parties hereto.\n\n     (f) No Assignment. Each party acknowledges that the services to be rendered\nhereunder and each party's rights under this Agreement are personal and unique.\nAccordingly, each party acknowledges and covenants that it shall not and may not\nsell, assign, transfer, pledge or encumber any of its rights or delegate any of\nits duties or obligations under this Agreement without the prior written consent\nof the other party. This is a contract for personal services, and Expedia relies\nupon the qualifications, reputation and expertise of Company to perform all\nobligations hereunder, as well as Company's affirmative representation that it\nhas the resources and expertise to perform all of the Services required under\nthis Agreement.\n\n     (g) Exhibits. The following exhibits, as amended from time to time, are\nincorporated into this Agreement by this reference (\"Exhibits\"):\n\n                        Exhibit                   Description\n                       ---------    --------------------------------------   \n                           A        Statement of Work\n                           B        Services Fees\n\nAll references to the \"Agreement\" are references to this Agreement and all\nExhibits, all as amended from time to time. To the extent that any provision\ncontained in any Exhibit is inconsistent or conflicts with this Agreement\nexclusive of the Exhibits, the provisions of this Agreement (exclusive of the\nExhibits) shall control.\n\n     (h) Section Headings. Headings used in this Agreement are intended for\nconvenience and shall not be deemed to supersede or modify any provisions.\n\n     (i) Severability. If for any reason any court or governmental authority\nshould determine, rule or decide that any clause or provision contained herein,\nor any similar clauses or provisions, are improper, unenforceable or violative\nof any rule, regulation, policy or statute, then this Agreement shall\nimmediately be deemed amended or modified to exclude such clause or provision\nand the remainder of this Agreement shall continue in full force and effect.\n\n                                      -8-\n\n \n     (j) Amendment. This Agreement may be amended only in writing signed by all\nparties, except that Expedia reserves the right to change, by fifteen (15) days'\nprior notice to Company, any Exhibit to reflect changes in Expedia' corporate\ncampus policies, as such changes occur from time to time.\n\n15.  ENTIRE AGREEMENT. This Agreement contains the entire agreement between the\nparties with respect to the subject matter hereof and supersedes all oral\nunderstandings, representations, prior discussions and preliminary agreements.\nAny representations, warranties, promise or conditions not expressly contained\nin this Agreement shall not be binding upon the parties.\n\n\nEXPEDIA INC.                                MICROSOFT CORPORATION\n\n(\"EXPEDIA\")                                 (\"Company\")\n\nBy \/s\/ Steve Haugen                         By \/s\/ Clinton France\n  -----------------------------------         --------------------------------\n\nName Steve Haugen                           Name Clinton France\n    ---------------------------------           ------------------------------\n\nTitle Director of Internet Operations       Title Director\n     --------------------------------            -----------------------------\n\nSignature Date 8\/15\/01                      Signature Date 8\/15\/2001\n              ---------------------                       --------------------\n\n                                            Reviewed by\n                                            Microsoft Legal\n                                            \/s\/ Christopher Breunig 8\/14\/01\n                                            Christopher Breunig\n\n                                      -9-\n\n \n                                    EXHIBIT A\n                                    ---------\n                                STATEMENT OF WORK\n                                -----------------\n\nTHIS EXHIBIT \"A\" is a continuation of that certain Hosting Services Agreement\n(the \"Agreement\") by and between Expedia, Inc. (\"Expedia\") and Microsoft\nCorporation (\"Company\"). All capitalized terms not defined herein shall have the\nmeanings that are ascribed in the Agreement.\n\nCompany shall provide the following Services to Expedia in accordance with the\nAgreement:\n\nServices\n\nCompany will provide to Expedia all services and support as listed and described\nin the Internet Hosting Services - HI 1 FY02 (\"IHS\") Product Portfolio, which\nshall be updated from time to time as set forth below. These services and\nsupport are to be provided in the Canyon Park Data Center, as per Expedia's\nrequest, through the end of Fiscal Year 2002 (\"FY02\"). At the end of this\nperiod, Company and Expedia will determine the need to expand delivery of\nservices to additional Data Centers based on existing capacity in Canyon Park,\nand Expedia projections, said projections to be delivered by Expedia on a six\nmonth cycle, to occur on or about April and November.\n\nExpedia will select, on a per-server basis, those services which it requires, as\nappropriate to the service offering (\"SO\") Level accorded each server, the SO to\nbe designated by Expedia. Expedia will also select, as appropriate, all services\nlisted as optional in the IHS Product Portfolio. Company will deliver, upon any\nchange to the listing of services and support in the Product Portfolio,\nnotification and content of said changes. Company will also provide updated\nnotification and escalation path information in conjunction with Product\nPortfolio notifications. The change notifications and reviews will occur with a\nfrequency of no less than six (6) months, concurrent with scheduled revision to\nthe Product Portfolio.\n\nIn the event that Expedia requires services not assigned to a server's\ndesignated SO level, Expedia will notify Company that the server is to be\npromoted to the appropriate SO level. The terms and limitations of such a\npromotion to be as follows:\n\n     1.  Servers built out to a requested SO level must remain at that SO level\n         or higher for a period of no less than six (6) months.\n\n     2.  Servers promoted to a higher SO level must remain at that promoted SO\n         level or higher for a period of no less than six months.\n\nNon-Company Data Center Standard Support:\n\nCompany will permit Expedia to deploy non-Company standard hardware and software\ntechnology into Company Data Centers barring physical constraints which prevent\nproper deployment. At Expedia's request, Company will review the feasibility of\nadopting such technology as a Company Data Center standard. Support of such\ntechnology will be determined based on the following conditions:\n\n     1.  In the event that Company determines the technology can be adopted as a\n         Company Data Center standard, technology and support standards will be\n         added to the Product Portfolio, and Expedia will agree to meet all\n         support requirements as listed in the Product Portfolio,\n\n    2.   In the event that Company determines the technology cannot be adopted\n         as a Company Data Center standard, Expedia will assume all support of\n         the system beyond power and network connectivity.\n\nReporting Services:\n\nCompany will provide Expedia access to all reporting services and data delivery\nprovided to all other Company Data Center Hosting Customers.\n\n                                Exhibit A at 1\n\n \n                                    EXHIBIT B\n                                    --------- \n                                  SERVICE FEES\n                                  ------------\n\nTHIS EXHIBIT \"B\" is a continuation of that certain Services Agreement (the\n\"Agreement\") by and between Expedia, Inc. (\"Expedia\") and Microsoft Corporation\n(\"Company\"). All capitalized terms not defined herein shall have the meanings\nthat are ascribed in the Agreement.\n\nCompany guarantees that the Service Fees charged to Expedia for the provision of\nthe Services shall be at Company's cost, and shall be the same as the pricing\nprovided to all other internal Company customers. The parties agree that the\nService Fees can be adjusted by Company no more than twice annually during the\nterm of the Agreement.\n\nCompany agrees to provide Expedia with sixty (60) days advance written notice of\nany price increase of more than five percent (5%). In the event that Company,\nitself, has less than sixty (60) days notice of such price increase, Company\nshall provide Expedia with notice as soon as reasonably possible.\n\n\n                                Exhibit G at 1\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7491,8221],"corporate_contracts_industries":[9513,9525],"corporate_contracts_types":[9613,9620],"class_list":["post-42338","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-expedia-inc","corporate_contracts_companies-microsoft-corp","corporate_contracts_industries-technology__software","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\/42338","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=42338"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42338"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42338"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42338"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}