Web Services And Travel Agreement

EXHIBIT 10.18

WEB SERVICES AND TRAVEL AGREEMENT



This Agreement is made and entered into as of September 10, 1999 (the "Effective Date") by and between American Express Travel Related Services Company, Inc., a New York corporation with offices at American Express Tower, World Financial Center, 200 Vesey Street, New York, New York 10285 ("AXP") and GetThere.Com, Inc., a California corporation, with offices at 445 Sherman Avenue, Palo Alto, CA 94306 ("GT").



THE PARTIES AGREE AS FOLLOWS:



ARTICLE I

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1.1 "Acceptance" shall have the meaning ascribed to it in Section 4.6 hereof.



1.2 "Affiliate" means a business entity controlling, controlled by or under common control with a specified party to the Agreement. With regard to AXP only, "Affiliate" also includes travel-related joint ventures, franchisees and representative offices.



1.3 "AXP Web Site(s)" shall mean the web sites to be used by AXP to provide branded and non-branded consumer online travel services accessible by the public through the public and private internet with restricted and unrestricted log-in. The AXP Web Site(s) include AXP Content hosted by AXP or other 3rd parties at AXP's discretion and the Consumer Site and all relevant links.



1.4 "AXP Content" shall mean the proprietary text, pictures, graphics, artwork and other content delivered by AXP to GT for incorporation exclusively and solely in the Site(s).



1.5 "All Work Orders" shall mean General Work Orders, AXP Unique Features Work Order and the AXP Restricted Features Work Order.



1.6 "Domains" shall mean the "itn.net" and "itn.com" domain names (and extensions of itn.net that are currently associated with Current GT Consumer Site as of the Effective Date) and the associated InterNic registrations associated with GT's consumer web sites.



1.7 "Corporate Sites" means both the Middle Market Sites and the Large Market Sites, bearing trade names and domain names determined by AXP in its sole discretion.



1.8 "Consumer Site(s)" means a set of web pages designed in accordance with Section 2.2 and the Consumer/Small Business Site Specifications and hosted by GT pursuant to this Agreement through which an individual may access a private labeled version or non-AXP branded version of the Reservation System with Consumer Phase I, Phase II and Phase III Functionality via screens displaying the AXP Content and operated on behalf of AXP.



1.9 "Small Business Site" means a set of web pages designed in accordance with Section 2.2 and the Consumer/Small Business Specifications and hosted by GT pursuant to this Agreement through which a Customer may access a private labeled version or non-AXP branded





[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATEMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.



version of the Reservation System with Consumer Phase I, Phase II and Phase III Functionality via screens displaying the AXP Content and Customer Content and operated on behalf of the small business.



1.10 "Middle Market Sites" shall mean a set of web pages designed in accordance with the Corporate Phase I and Corporate Phase II Specifications and hosted by GT pursuant to this Agreement through which an individual may access a Customer private labeled version of the Reservation System with Corporate Phase I and Corporate Phase II Functionality via screens displaying the AXP Content, the Customer Content and operated on behalf of the Customer.



1.11 "Large Market Sites" shall mean a set of web pages designed in accordance with the Corporate Phase I and Corporate Phase II Specifications and hosted by GT pursuant to this Agreement through which an individual may access a Customer private labeled version of the Reservation System with Corporate Phase I and Corporate Phase II Functionality via screens displaying the AXP Content, the Customer Content and operated on behalf of the Customer.



1.12 "Consumer/Small Business Site Specifications" shall mean the specifications/template set forth in Exhibit "A".



1.13 "Corporate Site Specifications" shall mean the specifications/template set forth in Exhibit "B".



1.14 "International Market Sites" shall mean Corporate Sites and Consumer Sites which have been localized for operation on behalf of Customers located in jurisdictions outside of United States, including localization for currency, language, and applicable laws and twenty four hour customer support (at the same level as customer support in the United States) for such jurisdictions, and otherwise designed and operational in accordance with the terms hereof.



1.15 "Current GT Consumer Site" means that website presently operated by GT at the Domain targeted at consumers which provides consumers access to the Reservation System.



1.16 "Net Transactions" shall mean the total number of online PNR bookings minus total number of online PNR cancellations minus un-ticketed PNRs minus total number of off-line PNR cancellations minus total number of off-line ticket refunds. Net pricing per transaction is inclusive of charges for all changes/additions made to a PNR, subsequent to initial booking. Each passenger traveling will be considered a PNR.



1.17 "Reservation System" shall mean GT's proprietary online booking engine that provides access to real time computer reservation systems ("CRS") in order to make air, car and hotel travel reservations via the world wide web and intranets or other private networks including all Upgrades, to the extent such Upgrades are acceptable and implemented by AXP. During the Term, Reservation System shall not include online booking engines that provide reservations for cruises, tours, membership miles redemption and packaged sales (a combination of more than one of the following: air, car and hotel reservations) even though such engines may permit booking of air, car or hotel reservations.



1.18 "AXP Restricted Features" shall have the meaning ascribed to it in Section 3.7 hereof.





1.19 "AXP Unique Features" shall have the meaning ascribed to it in Section 3.4 hereof.



1.20 "Force Majeure" shall mean causes that are beyond the reasonable control of the party claiming Force Majeure and that could not have been avoided or prevented by reasonable foresight, planning or implementation of the party claiming Force Majeure. Such causes shall include but not be limited to acts of God, war (declared or undeclared), insurrections, hostilities, strikes or lockouts (other than strikes by or lockouts of such party's employees, which strikes or lockouts shall be deemed not to be Force Majeure events), riots, fire, storm and interference or hindrance by any governmental authority. The failure of GT and/or any of its vendors or suppliers to achieve Year 2000 Compliance and (with respect to International Market Sites only) Euro Compliance as specified in Section 14.4 of this Agreement shall not be considered to be a Force Majeure event.



1.21 "GT Features" means all current and future technology, tools, content and applications, including those developed or acquired by GT during the Term and pursuant to this Agreement, and further including all thereto to the Corporate Site. The term "GT Features" specifically excludes any and all GT Restricted Features.



1.22 "GT Marks" means any trademark, trade name, service mark or logo of GT relating to any aspect of the Reservation System associated therewith.



1.23 "GT Restricted Features" means any updates, upgrades, additions and revisions to GT Features developed by GT for third parties on a "work for hire" or an exclusive basis such that GT is contractually restricted from providing the same to AXP, so long as AXP is not the only customer excluded.



1.24 "Hosting Services" mean the services described in Exhibit "E" and all collateral tasks associated with such services and as otherwise identified in the Agreement as being part of the Hosting Services.



1.25 "Intellectual Property Rights" means, with respect to any data, device, or other asset of any kind, all copyright, patent, trade secret, moral, authorship and other proprietary rights relating to any such data, device, object code, source code or other asset including, without limitation, all rights necessary for the worldwide development, manufacture, modification, enhancement, sale, licensing, use, reproduction, publishing and display of such data, device, object code, source code or other asset.



1.26 "Licensed New Features" means any new technology, tools, content and applications licensed by GT from a third party with the right to provide such Licensed New Feature through the Reservation System, or to GT's alliance partners such as AXP, or as an AXP Restricted Feature, together with all Updates thereto.



1.27 "Service Location" means the location owned, leased, or under the control of GT, as identified in Exhibit "E" hereto, from which GT will provide the Hosting Services.



1.28 "Work Order Specifications" means the description of the services to be performed and the version of the Reservation System to be developed and/or implemented by GT





pursuant to any Work Order under the Agreement, including the requirements for the Site(s) as specified in an Implementation Schedule and the Features associated therewith.



1.29 "International Phase I Functionality" means the functionality on Exhibit "J".



1.30 "AXP User Information" means data regarding the user and/or their personal information and regarding their use or interaction with the Sites either received, used or stored by GT through the operation or customization of the Sites or provided to GT by AXP pertaining to each separate AXP user of the Sites and all GT Customer Data and the Customer itself.



1.31 "Customer" means a third party that AXP contracts with to provide a Corporate Site or Consumer Site for such third party's use or, in the case of Consumer Sites, for use by its customers.



1.32 "Customer Content" means that pictorial, editorial or graphic content provided by Customers to AXP or GT for the purpose of inclusion in the Corporate or Consumer Sites.



1.33 "Consumer/Small Business Phase I Functionality" means the functionality on Exhibit "F".



1.34 "Consumer/Small Business Phase II Functionality" means the functionality on Exhibit "G".



1.35 "Consumer/Small Business Phase III Functionality" means the functionality on Exhibit "G".



1.36 "Corporate Phase I Functionality" means the functionality on Exhibit "H".



1.37 "Corporate Phase II Functionality" means the functionality on Exhibit "I".



1.38 "Minimum Revenue" means the amounts specified on Exhibit "C".



1.39 "GT Customer Data" means all user data under the control of GT prior to the Release Date pertaining to all registered consumers of the Current GT Consumer Site.



1.40 "Release Date" means 12:01am on January 27, 2000 or the actual date on which the Current GT Consumer Site begins operation on behalf of AXP, whichever is later.



1.41 "Sites" shall mean the Consumer Sites, Small Business Sites, Middle Market Sites, International Sites and Corporate Sites.



1.42 "Initial Functionality" shall mean the functionality of the Reservation System delivered hereunder as described in the attached Exhibit "K".



1.43 "Market Country" means a country in which GT has a Reservation System for an International Market Site. Notwithstanding the foregoing, France, Germany, Norway, Denmark, Belgium, Netherlands and Luxembourg will not be a "Market Country" until the Reservation System also has rail functionality and in the case of Sweden, rail and ferry functionality.





1.44 "Percentage" shall mean 30% for Year One, 37.5% for Year Two and 45% for Year Three of the accessible Global 950. The Global 950 is defined as the 600 U.S. companies with the highest revenues as listed annually by Fortune Magazine plus the list of 320 global companies listed in Exhibit "M" (collectively, the "Global 950"). The "accessible Global 950" means the Global 950 less GT installed customers, less AXP installed online customers, less prospects in the GT Pipeline, less prospects in the AXP online travel customer Pipeline For the purposes of this Agreement, Pipeline shall mean the prospects who are 50% likely to close within 6 months, as defined in Exhibit "L".



1.45 "Year" shall mean a twelve-month period measured from the Release Date (in the case of the Consumer Site) and acceptance of Phase I development by AXP (in the case of the Corporate and International Sites) pursuant to Section 4.6.



1.46 "Middle Market" shall mean potential customers with annual air sales volume from $500,000 to $10 million for US Customers and annual air sales volume from $100,000 to $1 million for Customers outside of the US.



1.47 "Large Market" shall mean potential customers with annual air sales volume in excess of $10 million for US Customers and annual air sales volume in excess of $1 million for Customers outside of the US.



1.48 "GT Content" shall mean the content provided by GT or displayed pursuant to a license agreement with GT.



1.49 "Upgrade" shall mean any modifications, enhancements, revisions, corrections or updates to the Reservation System that GT makes generally commercially available to its customers (whether or not on maintenance) with no additional fee.



1.50 "New Product" shall mean any modifications, enhancements or revisions to the Reservation System that are sold by GT at a fee.



1.51 "Implementation Schedule" shall mean a template in the form specified in Exhibit "N".



ARTICLE II

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2.1 Corporate Phase I. Within forty-five (45) days of the Effective Date, the Project Coordinators will jointly develop a detailed engineering specifications for the tasks involved in the integration and development of the Corporate Phase I Functionality ("Corporate Phase I Specifications"). Once completed, and in any event after such 45 day period, the Corporate Phase I Specifications shall remain unchanged. Unchanged implies that there will be no significant changes in the functionality. If the development for the Corporate Phase I Functionality is not completed within 90 days after the date the Corporate Phase I Specifications have been completed and agreed to by the parties (subject to extensions as provided in Section 2.6), then the penalties in Section 2.6 will apply.





2.2 Consumer/Small Business Phase I. Within forty-five (45) days of the Effective Date, the Project Coordinators will jointly develop a detailed engineering specifications for the tasks involved in the integration and development of the Consumer/Small Business Phase I Functionality ("Consumer/Small Business Phase I Specifications"). Once completed, and in any event after such forty-five (45) day period, the Consumer/Small Business Phase I Specifications shall remain unchanged. Unchanged implies that there will be no significant changes in the functionality. If the development for the Consumer/Small Business Phase I Functionality is not completed by January 27, 2000 provided the Consumer/Small Business Phase I Specifications have been completed and agreed to by the parties (subject to extensions as provided in Section 2.6) by such forty (45) day period, then AXP can terminate the Consumer/Small Business part of this Agreement and/or withhold transaction fees until such Consumer/Small Business Phase I Functionality has been Accepted at which point all transaction fees must be paid in full.



2.3 Consumer/Small Business Phase II and Consumer/Small Business Phase III. GT will notify AXP forty-five (45) days prior to the date by which complete engineering specifications are required in order to complete the tasks involved in the integration and development of the Consumer/Small Business Phase II Functionality ("Consumer/Small Business Phase II Specifications") and Consumer/Small Business Phase III Functionality ("Consumer/Small Business Phase III Specifications") as outlined in Exhibit "F". Once completed, and in any event after such forty-five (45) day period, the Consumer/Small Business Phase II Specifications or Consumer/Small Business Phase III Specifications will remain unchanged. Unchanged implies that there will be no significant changes in the functionality. Both parties will jointly develop the detailed engineering specifications together in good faith. GT will use diligent efforts to develop Consumer/Small Business Phase II Functionality and Consumer/Small Business Phase III Functionality. AXP will use diligent efforts to perform the Acceptance Tests as outlined in Section 4.6.



2.4 Phase II



(a) Corporate Phase II. Within 120 days of the Effective Date, the

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Project Coordinators will jointly coordinate the development of a task list

and a detailed engineering specifications for the tasks involved in the

integration and development of the Corporate Phase II Functionality

("Corporate Phase II Specifications") Once completed, and in any event

after such 120 day period the detailed engineering specifications for such

Corporate Phase II Specifications shall remain unchanged. Unchanged implies

that there will be no significant changes in the Corporate Phase II

Functionality. If the development for the Corporate Phase II Functionality

is not completed and ready for AXP to commence its Acceptance Testing

within ten (10) months from the Effective Date (subject to extensions as

provided in Section 2.6), then the penalties in Section 2.6 will apply

provided that Corporate Phase II Specifications have been completed and

agreed to by the parties within such 120 day period.



(b) International Phase II. Upon Acceptance of Corporate Phase II

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Functionality, it shall be made available to the International Market Sites

as International Phase II Functionality within six (6) months after the

Acceptance of Corporate Phase II Functionality assuming this does not

require any significant additional development for localization beyond

local language support.





(c) Subsequent Developments. Additional functionality implemented

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in the Corporate Site pursuant to this Agreement shall be made available to

the International Market Sites within six (6) months after the acceptance

of such new functionality assuming this does not require any significant

additional development for localization beyond local language support.



2.5 International Phase I. Within forty-five (45) days of the Effective Date, the project coordinators will jointly develop a detailed engineering specifications for the International Phase I Functionality ("International Phase I Specifications") as outlined in Exhibit "J". Once completed, and in any event after such forty-five (45) day period, the International Phase I Specifications will remain unchanged. Unchanged implies that there will be no significant changes in the International Phase I Functionality. If the development of the International Phase I Functionality is not delivered by GT and accepted by AXP for at least two (2) Market Countries from among Germany, United Kingdom, Sweden, France and Australia, in accordance with Section 4.6, by June 30, 2000, and then two (2) more Market Countries from among Germany, United Kingdom, Sweden, France and Australia by September 30, 2000, then, provided the International Phase I Specifications have been completed and agreed to by the parties (subject to extensions as provided in Section 2.6) by such forty (45) day period, the obligations applicable to AXP in Section 16.9 will cease to apply (subject to extensions as provided in Section 2.6). With respect to International Phase I Functionality, AXP acknowledges that GT shall not (unless otherwise agreed to by the parties) be required to exceed the functionality of competitive local products existing as of the date the parties agree on the International Phase I Specifications with regard to the specific Market Countries.



2.6 Consequences for Delays in Development. To the extent that the Corporate Phase I or Corporate Phase II development is not Accepted pursuant to Section 4.6 in accordance with the anticipated dates set forth above in Sections 2.1 and 2.4, respectively, for a delay to the extent attributable to the failure of GT and/or its sub-contractors, the Minimum Revenue will be decreased by an amount determined as stated below and applied to any year of the Minimum Revenue at AXP's discretion. Any delay in the parties mutually agreeing to specifications for a phase within the desired time-frame will result in a corresponding day for day change in GTs target date to deliver the corresponding functionality per specifications.



(a) Any delay up to 2 months will result in reduction of Minimum

Revenue by $2,055.00 per day of delay.



(b) Any delay greater than 2 months but less than 4 months will

result in reduction of Minimum Revenue by $4,110.00 per day of delay.



(c) Any delay greater than 4 months will result in reduction of

Minimum Revenue by $6,849.00 per day of delay.



2.7 Bug Fixes. GT intends to perform its work in a first class, workmanlike manner, in accordance with high professional standards in the field of internet software development. In the event of any failure to meet this standard, GT will, as AXP's sole remedy, work to resolve bugs in accordance with GT's standard procedure attached as Exhibit "X" at no cost to AXP. GT agrees to promptly notify AXP of any material errors in the Reservation System that it is





aware of. AXP shall keep GT informed as to any problems encountered with the Reservation System.



ARTICLE III

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ADDITIONAL DEVELOPMENT.

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3.1 General Development beyond Phase I and II. It is expected that AXP will have significant input into the development of the Reservation System beyond both Corporate, Consumer/Small Business and International Phase I and II and Consumer/Small Business Phase III, the process and actual feature set of the Reservation System, subject to the provisions of this Agreement. AXP may make requests for additional features and functionality provided that such requests are delivered at least four (4) months prior to scheduled completion date. In GT's experience, four months is the minimum development cycle required to do proper development (other than for site implementation). Any feature request with a suggested completion date of less than four (4) months will be developed at GT's discretion.



3.2 GT Annual Release Schedule. GT will use diligent efforts to release at least two (2) product upgrades of the Reservation System annually during the term of the Agreement for the purpose of maintaining the competitiveness of the Reservation System in the market. GT will provide AXP with approximately three (3) months advance notice of all significant functional, platform, system and database changes related to the Reservation System. AXP has the right to refuse such changes. If AXP does not elect to effect release of an upgraded version of the Reservation System, then GT will only be required to support that prior version of the Reservation System for a period of one year from release of the upgraded version and will provide enhancements to the prior version only with respect to resolving critical (i.e. Level 1) bugs as defined in Exhibit "X". GT will continue to implement the functionality of the Reservation System that is dictated by the integration of AXP-specific functionality as long as there are no changes to the AXP-specific functionality.



3.3 GT Commitment to Enhance. GT agrees that it will use commercially diligent efforts to commit at least fifteen (15) person year professional development resources, annually for development of the Reservation System. The fifteen person years does not include any customization done for a third party which does not benefit the generally available Reservation System.



3.4 AXP Unique Features. AXP may, from time to time, provide GT with ideas and/or specifications for a new feature it desires to be implemented in the Sites; provided that (i) GT accepts such new feature development in writing (ii) AXP fully funds the development thereof (at GT's rates set forth in Exhibit "C") pursuant to an AXP Unique Feature Work Order, then such new feature will be considered a "AXP Unique Feature" and AXP shall own all right, title and interest in and to the AXP Unique Feature and all Intellectual Property Rights therein. Such AXP Unique Feature shall be considered a "work made for hire." Any such "work made for hire" shall belong exclusively to AXP, with AXP having the sole right to obtain, hold and renew, in its own name and/or for its own benefit, patents, copyrights, registrations and/or other appropriate protection. To the extent that exclusive title and/or ownership rights in the AXP Unique Feature may not originally vest in AXP as contemplated hereunder (e.g., may not be deemed works made for hire), GT hereby agrees to irrevocably assign, transfer and convey to





AXP all right, title and interest therein. GT and its personnel shall give AXP, and/or any AXP designee, all reasonable assistance and execute all documents necessary to assist and/or enable AXP to perfect, preserve, register and/or record its rights in any such materials, products and/or modifications. GT shall, immediately upon request of AXP, or upon the termination, cancellation or expiration of each such AXP Unique Feature Work Order solely for the AXP Unique Feature, turn over to AXP all materials, information and deliverables comprising such AXP Unique Feature. GT agrees not to offer any AXP Unique Feature to any third party. Each AXP Unique Feature shall be developed pursuant to an AXP Unique Feature Work Order (the form of which is attached hereto as Exhibit "P") which clearly indicates the nature of the AXP Unique Features to be developed thereunder.



3.5 Intentionally left blank.



3.6 Disclosure of Deliverables. For the benefit of both parties, GT shall promptly make a complete written disclosure to AXP of each invention, technique, device, discovery or procedure, whether patentable or not (a "Disclosed Subject"), conceived or first actually reduced to practice, solely or jointly by GT and/or AXP and/or their respective employees and agents, that comprises the AXP Unique Features. As to each Disclosed Subject, GT shall use reasonable efforts to specifically point out the features or concepts that GT believes to be new or different.



3.7 AXP Restricted Feature. AXP may, from time to time, provide GT with ideas and/or specifications for a new feature it desires to be implemented in the Sites; provided that (i) GT accepts such new feature development in writing, and (ii) the parties jointly fund the development thereof pursuant to an AXP Restricted Feature Work Order, then the such new feature will be considered an "AXP Restricted Feature." AXP Restricted Features and all Intellectual Property Rights therein shall be owned entirely by G ...