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Priceline / WorldSpan - System Access & Testing Agreement
WORLDSPAN SYSTEM ACCESS AGREEMENT
THIS System Access Agreement ("Agreement") is made this 4th day of August, 1997, between WORLDSPAN, L.P., ha
ving its principal place of business at 300 Galleria Parkway, N.W., Suite 2100, Atlanta, Georgia, 30339 ("WORLDSPAN"), and Priceline, L.L.C. having its principal place of business at Five High Ridge Park, Stamford, CT, 06905 ("Developer").
WHEREAS, WORLDSPAN provides and markets computerized reservation services and has developed and offers a computerized system which provides reservations, ticketing, and other services for air transportation and other businesses (the "System"); and
WHEREAS, D
eveloper desires to gain access to the System for the purposes of developing and testing proposed software program(s) to be used in connection with the System (the "Program") and WORLDSPAN is willing to make access to the System available to Developer acc
ording to the terms of this Agreement.
NOW, THEREFORE, IT IS AGREED;
1. Term.
This Agreement shall become effective upon the date first written above and will continue until terminated by either party at any time thereafter upon not less than thirty (30) days prior written notice to the other, or until otherwise terminated pu
rsuant to this Agreement.
2. Access to System and Use of Data.
(a) WORLDSPAN hereby grants to Developer access to the System through an interchange address and one or more terminal addresses identified on Schedule A of this Agreement and Developer a
ccepts such access, all according to the terms set forth herein. Developer agrees to pay to WORLDSPAN the fees and other charges pursuant to this Agreement, including but not limited to, those included on Schedule A.
(b) Developer agrees that the Sy
stem will be used solely for the purposes and functions contemplated by this Agreement. Developer agrees that it will limit its access to development and testing of the Product and for no other purpose. Improper use shall include, but is not limited to, g
e
neration of message activity with the System of such speed or volume that may lead to malfunctions or degradation of System performance. In the event that during the term of this Agreement Developer is provided access to the System as a travel agent subsc
r
iber for the purpose of performing reservations and ticketing functions. Developer acknowledges that access is provided hereunder solely for the purposes set forth herein. Developer further acknowledges that the ability to access the System as a travel ag
e
nt subscriber does not entitle Developer to perform its travel agent functions with the access provided hereunder, nor may Developer access the System pursuant to its Subscriber Agreement as a travel agent, or provide any third party with any service for
the uses contemplated herein.
(c) Developer shall not copy, publish, disclose or otherwise make available any compilations of air carrier service, data or any other information obtained from WORLDSPAN to anyone in any form; provided, however, that th
e foregoing shall not be construed to prevent Developer from preparing and distributing to its customers reports normally generated through the use of Developer's system. Improper use of the System shall include, but is not limited to, speculative booking
or reservation of space in anticipation of demand or improper creation or modification of records. WORLDSPAN reserves the right to inhibit Developer's access to the System for system maintenance or repairs or for any other reason at WORLDSPAN's discretion
.
(e) Within thirty (30) days after the commencement of this Agreement, Developer agrees to provide WORLDSPAN, in writing, with a list of all of Developer's customers where any product, software or device provided by Developer is being used in conjun
ction with the System. This list shall be updated
every six (6) months or as otherwise reasonably requested by WORLDSPAN. Nothing herein shall be construed to require Developer to provide services to any customer, but Developer agrees to abide by all the
terms of this Agreement regarding provision of such services in the event that it elects to so provide them.
2. Equipment Lease -- Repairs.
(a) WORLDSPAN leases to Developer, and Developer leases from WORLDSPAN, the equipment (including hardware,
peripherals, software and technical specifications, configurations or addresses), if any, described on Schedule A (collectively the "Equipment") at the fee set forth thereon. WORLDSPAN shall retain title to and ownership of the Equipment, and the same sha
l
l be returned to WORLDSPAN, shipping prepaid, at the termination of this Agreement in the same condition as provided to Developer, normal wear and tear excepted. Developer agrees to use the Equipment for the purposes of this Agreement only at Developer's
location identified above.
(b) WORLDSPAN will install the Equipment at Developer's location, following Developer's preparation of the installation area at Developer's expense. Developer shall be solely responsible for establishing electricity for the
Equipment, installing cables, and such other matters as are necessary to prepare the area for installation consistent with applicable laws, regulations, building codes and any real property lease(s) of Developer. Developer will not move or modify the Equ
ipment without the prior written consent of WORLDSPAN.
(c) WORLDSPAN or its service representative will provide repair services for the Equipment during WORLDSPAN'S normal repair service hours, which are 8:30 a.m. through 5:00 p.m. local time, Monday
through Friday, excluding WORLDSPAN holidays. WORLDSPAN shall not pay for repair services if the Equipment malfunction is caused by negligence, misuse, accident, fire, variation or interruption of electricity, or any attempt to service the Equipment othe
r than by WORLDSPAN'S service representative (including the addition or removal of any third party hardware, peripherals or software).
(d) Developer shall take all necessary precautions to protect the System.
4. Installation.
Within sixty (60) days following the execution of this Agreement, or as soon thereafter as reasonably possible, WORLDSPAN shall cause the System to be available at the Developer location identified above according to this Agreement. Developer shall
be solely responsible for procuring and paying for the cost of the installation and maintenance of any personal computer, other equipment and software necessary to enable Developer to access to the System contemplated herein.
5. Disclaimer of Warranties
(a) WORLDSPAN DISCLAIMS AND DEVELOPER HEREBY WAIVES ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, ANY WARRANTY OF COMPATIBILITY BETWEEN THE SYS
T
EM, EQUIPMENT, SOFTWARE OR DATA PROVIDED BY WORLDSPAN AND CUSTOMER OWNED EQUIPMENT OR SOFTWARE, OR ANY LIABILITY IN NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE SYSTEM, EQUIPMENT, SOFTWARE, DATA OR SERVICES FURNISHED HEREUNDER, DEV
ELOPER AGREES THAT WORLDSPAN SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, EVEN IF ADVISED OF THE RISK OF SUCH DAMAGES IN ADVANCE.
(b) WORLDSPAN shall not be liable to Developer nor deemed to be in default of this Agreement, on account of any delays, errors, malfunctions, compatibility problems or breakdowns with respect to the System, Equipment, data or services provided hereunder
, unless such delay, error,
malfunction or breakdown results solely from the gross negligence or willful misconduct of WORLDSPAN.
(c) Developer acknowledges that the installation or use of the Program or the Developer's communications hardware (in
cluding peripherals) or software may result in loss of or damage to Developer's hardware, software or data. Developer agrees to take all reasonable precautions to prevent such loss and damage, including copying data prior to installation and other reasona
b
le and customary measures, and adherence to manufacturer's instructions. Developer further agrees to release and hold WORLDSPAN and its past and present directors, affiliates, partners, officers, employees, agents and contractors harmless from and against
any losses, damages, liabilities, suits or fines caused by or arising from the installation or use of the Program or the communications hardware (including peripherals) or any other similar hardware or software utilized to permit access to the System.
6. Indemnification.
(a) Each party shall indemnify, defend and hold harmless the other party, its past and present directors, affiliates, partners, officers, employees and agents, from and against all liabilities, damages and expenses, and claims for d
amages, suits, proceedings, recoveries, judgments or executions (including but not limited to litigation costs, expenses, and reasonable attorneys' fees) arising out of or in connection with any claim that the use of the indemnifying party's system or dat
a (including, without limitation, hardware, software, peripherals, technical specifications, configurations or addresses) by the other party infringes any third party patent, copyright, trademark or other property right.
(b) Each party shall indemnif
y, defend and hold harmless the other party, its past and present directors, affiliates, partners, officers, employees and agents from and against all liabilities, damages and expenses, claims for damages, suits, proceedings, recoveries, judgments or exec
u
tions (including but not limited to litigation costs, expenses, and reasonable attorneys' fees) which may be suffered by, accrued against, charged to or recoverable from the other party, its past and present directors, affiliates, partners, officers, empl
oyees or agents by reason of or in connection with the other party's performance or failure to perform, or improper performance of any of the other party's obligations under this Agreement.
7. Charges.
(a) In addition to the fees and other charges d
escribed in Section 2 and Section 3 above, Developer shall pay WORLDSPAN at the rate described in Schedule A of this Agreement, for each message transacted by Developer pursuant to this Agreement. For the purposes of this Agreement, a "Message" shall incl
u
de each electronic transaction generated by Developer to the System including, but not limited to, transactions initiated by an individual using the "enter" or similar key on a personal computer or terminal and those automatically or mechanically generate
d by a software or hardware device. Examples include, but are not limited to:
o a request to display a record and the associated response
o a request to store a remark and the associated response
o a request to end a transaction and the associated response
o a request to move the screen text down and the associated response
(b) Developer shall pay to WORLDSPAN monthly, in advance, the nonvariable fees pursuant to this Ag
reement. Billing for Message and bridge fees, as defined herein, shall be made monthly after the end of the month in which such fees have been incurred. Failure of WORLDSPAN to issue any invoice or bill shall not relieve Developer of the obligation to pay
for any charge owed WORLDSPAN pursuant to this Agreement. Developer shall pay all fees and other charges within fifteen (15) days of the date of each invoice. In the event that Developer fails to pay within fifteen (15) days of an Invoice, WORLDSPAN may l
evy a late payment charge computed at the rate of 1 1/2% per month on
the outstanding balance due hereunder from any month or fraction thereof that such payment is in default.
(c) Developer shall pay all sales, use, personal property, excise, lic
ense and franchise taxes as well as any other similar fees, charges or assessments which arise as a result of this Agreement or which may be imposed in connection with the access to the System.
(d) WORLDSPAN reserves the right to increase any charge to Developer under this Agreement once each calendar year upon not less than thirty (30) days prior written notice to Developer.
(e) Developer agrees to advise each of its accounts of WORLDSPAN's fee that will be billed to the account, for any brid
ge relationship established by the account to the Developer. Developer agrees to pay WORLDSPAN for any bridge relationship established by Developer to any WORLDSPAN subscriber, vendor or contractor. This charge is set forth on Schedule A and may be modifi
ed by WORLDSPAN from time to time.
8. Developer Support to Customers.
Developer acknowledges that WORLDSPAN does not agree to provide, and will not provide, any "help desk" assistance or similar user or technical support to Developer or its customer
s with regard to any hardware (including peripherals), software, product or services provided by Developer. Developer agrees that it will notify its customers and staff that WORLDSPAN does not provide such support, and Developer shall be solely responsibl
e for all such support for the benefit of its staff and customers.
9. Termination.
(a) Either party shall be entitled to terminate this Agreement upon the occurrence of any of the following events:
(1) Except for Developer's failure to make timely payment, if the other
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