Maintenance, Data And Operations Service Level Agreement

Exhibit 10.28


MAINTENANCE, DATA AND OPERATIONS SERVICE LEVEL AGREEMENT


MAINTENANCE, DATA AND OPERATIONS SERVICE LEVEL AGREEMENT (" Agreement" ) entered into as of the 3rd day of October, 2002 by and between ITA Software, Inc. (" ITA" ) and Galileo International, L.L.C. (" Galileo" ).


1. Introduction

This Maintenance, Data and Operations Service Level Agreement covers standards for the provision of maintenance, data and data management and support, and operations by ITA to Galileo, in connection with that certain Software License Agreement dated as of October 3, 2002 between Galileo and ITA (the " License Agreement" ). Capitalized terms used but not defined herein will have the meaning ascribed thereto in the License Agreement.


In accordance with the License Agreement, ITA has granted to Galileo a license to use the Licensed Software to search, select, generate, sort and price air fares and determine seat availability, in order to provide travel planning and related services. ITA maintains its data center in the Exodus Communications facility in Waltham, Massachusetts and the WorldCom facility in Billerica, Massachusetts, and may establish alternate or additional data centers. ITA will operate the Licensed Software at its locations in Waltham and Billerica, Massachusetts (collectively, the " Data Center" , which shall include any other location to which ITA may, upon at least 90 days' prior written notice to and consultation with Galileo, move its data center in the future). To support Galileo, ITA will: (i) provide maintenance and support for the Licensed Software, pursuant to Section 2 of this Agreement (" Maintenance Services" ), (ii) provide data and data support relating to the Licensed Software, pursuant to Section 3 of this Agreement (" Data Services" ) and (iii) operate the Licensed Software, pursuant to Section 4 of this Agreement (" Operations Services" ).


2. Maintenance Services 2.1 Scope of Services

(a) The following are the Maintenance Services that will be provided by ITA in connection with the Licensed Software:


ITA shall:


(i) develop and provide corrections, changes, or workarounds (" Corrections" ) for any defects, errors, or malfunctions in the Licensed Software, discovered by, or made known to, Galileo or ITA; provided that " Corrections" shall not include development comprised within the definition of Customization contained in paragraph (c) below;


(ii) provide Galileo with all improvements, modifications and enhancements (other than Customization, third party customizations, and improvements, modifications or


PORTIONS OF THIS EXHIBIT MARKED BY AN (***) HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION


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enhancements which are developed by ITA for the exclusive use by its other customers and which ITA does not have the right to license) to the Licensed Software which ITA shall make or acquire from time to time and which ITA makes available to its licensees generally; provided, however, that Galileo and ITA acknowledge that ITA does not presently develop software comprising functionality or features for the exclusive use of individual customers; and


(iii) provide Galileo with any upgrade releases (" Upgrade Releases" ) to the Licensed Software, which ITA makes available to its licensees generally; provided, however, that if any Upgrade Release contains significant new or improved functionalities (including functionalities that may constitute changes in industry-standard practices and/or data formats but the absence of which does not prevent the Licensed Software from functioning as specified in the License Agreement), ITA shall have the right to make such Upgrade Release available to Galileo only upon the payment of additional license fees, or upon such other terms, as ITA requires of its licensees generally therefor; provided that in the event the effective price is lower, or the other terms are more favorable, than those pursuant to which ITA offers such Upgrade Release to any other licensee (provided that such price and terms shall be considered as a whole), ITA shall reduce the price to be charged to Galileo and/or revise the terms such that, considered as a whole, they are at least as favorable as that granted to such other ITA licensee.


(b) In the event that changes in industry-standard practices and/or data formats (such as ATPCO file formats, ATPCO processing, SSIM schedule formats and government or IATA mandates regarding taxes and passenger facility charges (PFCs)) prevent the Licensed Software from functioning as specified in the License Agreement, ITA shall, without charge to Galileo, deliver updates to the Licensed Software to permit operation of the Licensed Software in a manner equal to the functionality described in the License Agreement. Such updates will be considered " Improvements" for the purposes of this Section 2, and ITA shall effect such Improvements to the Licensed Software within a reasonable time prior to the effective date of such industry change so that such Improvements may be implemented no later than the effective date of such change.


(c) When an Upgrade Release is available, ITA will make available to Galileo a server (and any other necessary equipment) with such Upgrade Release for testing by Galileo, and will notify Galileo thereof. Galileo will inform ITA, within 60 days of such notice from ITA, of its completion of any testing of such Upgrade Release and direct ITA as to whether or not to implement such Upgrade Release in the production version of the Licensed Software operated by ITA on behalf of Galileo. Galileo' s failure so to direct ITA within 90 days after receipt of notice from ITA regarding the availability of such Upgrade Release shall eliminate ITA' s obligation to provide Maintenance Services until such Upgrade Release is implemented, unless (i) Galileo has identified material defects, errors, or malfunctions in the Licensed Software caused by such Upgrade Release; or (ii) the version of the Licensed Software operated on behalf of Galileo is not more than one release older than the then-current version. If, as contemplated by Section 2.1(a)(iii) above, ITA has made an Upgrade Release available to Galileo which includes significant new or improved functionalities subject to an additional charge which (when


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considered in the aggregate with any other charges previously applied to other new or improved functionalities) exceeds (***) per year, and if Galileo elects not to accept such new or improved functionalities, then ITA will continue to make available to Galileo for the remainder of the initial term, pursuant to the process described in the first two sentences of this paragraph (c), Upgrade Releases that do not include such new or improved functionalities, as well as Maintenance Services with respect to such Upgrade Releases.


(d) Subject to the provisions of, and upon the conditions set forth in, Section 3(a) of the License Agreement, in the event Galileo wishes ITA to perform Customization (as defined below) of the Licensed Software, ITA will present Galileo with a proposed Statement of Work (SOW) containing a description of the services that ITA estimates will be required to perform such Enhancements or Customization, and the cost thereof. Such cost will be computed based on a rate for software developers of (***) per hour (or such lower rate as may be charged pursuant to the provisions of Section 6(c) of the License Agreement), as well as out-of-pocket expenses incurred. " Customization" means the addition of features, or other changes, to the Licensed Software, that are requested by Galileo to conform the Licensed Software to its specific needs, policies, practices and/or operating environment.


(e) ITA will provide Galileo, at no additional cost, with any revisions to the existing Documentation developed or necessary to reflect all Corrections, Improvements, Customization or Upgrade Releases for the Licensed Software.


(f) All computer programs delivered pursuant to the Maintenance Services shall, unless otherwise agreed, be considered " Licensed Software" and subject to all the terms and conditions of the License Agreement.


(g) ITA currently provides between three and four Upgrade Releases per year. ITA will not materially change its release schedule without prior notification to and consultation with Galileo. ITA will at all times provide Maintenance Services for at least the current and one (1) previous Upgrade Release of the Licensed Software; provided, however, that in the case of Improvements delivered pursuant to paragraph (b), ITA will not be obligated to provide Maintenance Services with respect to any prior Upgrade Release which does not incorporate the industry changes comprised in such Improvements.


(h) ITA shall provide Maintenance Services directly to Galileo but not to Online Users or Offline Travel Agents.


(i) ITA shall provide Maintenance Services to Galileo in a manner that is at least pari passu with the Maintenance Services ITA provides to its other licensees.


2.2 Maintenance

ITA shall maintain a technical support entry point in Massachusetts, identified by a dedicated phone number and e-mail address, which will be staffed by knowledgeable ITA employees capable of providing technical assistance regarding the Licensed Software, its functionality, databases, operations, utilities and supporting documentation. Such telephone or e-mail


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assistance will be available to Galileo on a daily basis during regular working hours (9:00 a.m. to 6:00 p.m. Eastern time Monday through Friday) for non-emergency problems (as defined in Section 5.1) and on a " 24/7" (365 days per year) basis for emergency problems. This technical support entry point will also coordinate problem resolution and keep Galileo apprised of efforts to remedy any problem situation until complete restoration of the service. First line of support will be Galileo' s Help Desk, which will contact and escalate problems to ITA when necessary.


3. Data Services 3.1 Scope of Services

(a) ITA manages data feeds for schedule and faring data and provides such data to the Licensed Software. ITA currently receives fare data from Airline Tariff Publishing Company (" ATPCO" ), schedule data from OAG Worldwide, Inc. (" OAG" ) and certain industry data from the International Air Transport Association (" IATA" ). ITA also receives availability data through the Worldspan GDS (" Worldspan" ) and maintains an availability cache for the purpose of providing availability data to its licensees. Subject to the conditions set forth in Section 3.2(c), ITA may receive availability data from other sources, and may substitute such availability data for availability data from Worldspan. In addition, ITA may receive seat availability information from Galileo and may process such availability data for use with the Licensed Software. The parties will consult with each other as to the feasibility of substituting, when appropriate, Galileo availability data for Worldspan or other availability in the cache that ITA provides to Galileo hereunder.


(b) The operation of the Data Center (including all software running in such facilities) is the sole responsibility of ITA.


(c) As part of the data management services provided hereunder, ITA will (i) receive and manage availability data from Worldspan, Galileo or other sources, as applicable, (ii) receive and manage downloads of fare, schedule and industry data from ATPCO, OAG and IATA, respectively (or in each case from such other commercially reasonable industry accepted sources as ITA may reasonably determine), (iii) when and if available, receive and process fare data from SITA with respect to its carriers (provided that the ability to process SITA fare data may be considered a significant new or improved functionality, governed by the provisions of Section 2.1(a)(iii) above), (iv) process such data described in clauses (i), (ii) and (iii) such that it is in a form suitable for use with the Licensed Software, and (v) provide such availability, fare, schedule and industry data to the Licensed Software. ITA shall provide utilities to receive and manage downloads of fare, schedule, and industry data from Galileo. All fare, schedule, industry and availability data received from third parties is collectively referred to as " Licensed Data" ; and ATPCO, OAG, IATA, Worldspan, SITA and any other parties from which Licensed Data is obtained, are referred to as " Data Providers" . ATPCO fare data is presently received three times per day; OAG schedule data is presently received two to three times per week; IATA data is received regularly; and availability data will be received on a continuous basis.


(d) If so requested by Galileo, ITA will produce a Statement of Work, pursuant to Section 3(a) of the License Agreement, for the receipt and management of schedule, fare and/or industry data


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directly from Galileo. Such SOW will include determination of the feasibility of receiving such data from Galileo and will also set forth any resulting modifications to the cost and other provisions of this Agreement related to such data. In the event Galileo proceeds with such SOW, then ITA will receive schedule, fare and/or industry data directly from Galileo rather than from OAG, ATPCO and/or IATA, as the case may be.


(e) It is a condition of ITA' s providing Licensed Data and data services to Galileo hereunder that Licensed Data be used solely in connection with the operation of the Licensed Software. Therefore, Galileo agrees that it will not transfer or distribute the Licensed Data and that it will use the Licensed Data only in connection with its operation of the Licensed Software, and for no other purpose.


(f) The parties will develop a protocol to insure that ITA' s loading of fare and schedule data onto the servers that provide data for Galileo' s use of the Licensed Software occurs as directed by Galileo and substantially simultaneously with Galileo' s loading of the same data onto its own system; provided that all data shall be presented at once and ITA will not be obligated to conform to a " rolling update" protocol.


3.2 Data Providers

(a) ITA presently has in place and will use reasonable commercial efforts to maintain legal agreements, sufficient to cover ITA' s legal obligations to perform hereunder, with Data Providers for the provision of schedule, fare, industry and (subject to paragraph (b) below) availability data for the operation of the Licensed Software. However, Galileo acknowledges and agrees that such Data Providers are third parties which are not in ITA' s control and which are subject to delay or failure. While ITA agrees, as part of its obligations under this Agreement, to receive, load and manage such data, ITA does not warrant the accuracy of such data (except that the foregoing will not be deemed to relieve ITA from responsibility for problems with data which are caused by ITA and not by a Data Provider). In addition, ITA disclaims any and all liability resulting from or related to Data Providers' failure to provide data to ITA in a timely fashion.


(b) Notwithstanding any other provision of this Agreement, ITA disclaims any warranty as to the continued supply of availability data from Worldspan. In the event Worldspan ceases to provide ITA with availability data, ITA may take any actions which ITA in its sole discretion deems appropriate with respect to the provision of such data. . No such cessation by Worldspan will constitute a breach by ITA of this Agreement, nor will Galileo have any right to recover any damages, or take any other action against ITA (except as specifically provided in Section 7.3(c)(iv) of the License Agreement) as a result thereof; provided, that the foregoing will not be deemed to limit Galileo' s ability to exercise any other rights or remedies, up to and including termination, as a result of any breach by ITA of any other provision of this Agreement or the License Agreement. ITA agrees that it will exercise its best efforts (subject to ITA' s confidentiality obligations to third parties) to give Galileo the greatest possible notice of a contemplated or threatened or actual loss of Worldspan availability information.


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(c) In the event ITA elects to receive availability data from a source other than or in addition to Worldspan or Galileo, the availability information generated by the Licensed Software shall not differ materially, in scope or quality, from that generated using the data currently obtained from Worldspan. ITA shall notify Galileo not less than 30 days (or such lesser period as is commercially practicable under the circumstances, in ITA' s reasonable judgment) prior to switching or adding an availability data provider. ITA shall provide reasonable cooperation and assistance to Galileo to enable it to evaluate the quality of the alternate availability data. In the event Galileo reasonably determines that the alternate availability data is materially different, in scope or quality, than the availability data obtained from Worldspan, Galileo shall so notify ITA and the parties shall endeavor in good faith to resolve the deficiencies. In the event such deficiencies are not resolved within thirty (30) days after delivery of such notice, Galileo shall have the right to terminate this Agreement, provided that no termination shall be effective until the dispute resolution procedures set forth in Section 15 of the License Agreement have been completed.

4. Operations Services 4.1 Data Center

(a) ITA will operate and maintain the Data Center and provide " Operations Services" , which will include, without limitation, the acquisition, installation, maintenance, upgrading, monitoring and all aspects of the operation of all computer hardware and equipment, and all services related thereto necessary in connection with the operation of the Licensed Software and the provision by ITA of the Data Services provided hereunder.


(b) Initially, ITA will operate the Hardware (as defined in Section 4.2) and provide Operations Services from its Billerica facility. Galileo may hereafter request that ITA provide Operations Services from an additional location(s). In such event, ITA will prepare a proposal to Galileo for the establishment of such additional location(s), which will include the anticipated schedule and cost thereof.


(c) Appendix A sets forth ITA' s procedures currently in place for the protection of the confidentiality of private fare information relating to Galileo or its users which may be transmitted to ITA. From time to time, as requested by either party, ITA and Galileo may consult with respect to the modification of such procedures. ITA agrees that it will use commercially reasonable efforts to follow such procedures as may be in place from time to time.


(d) The parties acknowledge that they do not intend that ITA have access to any personally identifiable user information, such as phone numbers and addresses, credit card information, and/or employee account information of Galileo' s users (" Galileo User Information" ). In the event that ITA specifically agrees, in connection with the performance of an SOW or otherwise, that ITA will have access to Galileo User Information (provided that ITA may in its sole discretion reject any SOW that would require it to receive Galileo User Information), such information will be considered " Confidential Information" for the purposes of Section 12 of the License Agreement, and ITA agrees to hold such information in confidence, and protect such information, in accordance with the provisions of such Section 12 of the License Agreement and applicable law. In addition, prior to and as a condition of receiving any such Galileo User


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Information, ITA shall comply with Galileo' s reasonable policies, standards, and guidelines for privacy, information protection, and information and system security applicable thereto (which policies, standards, and guidelines will be made available upon ITA' s reasonable request).


4.2 Hardware


Simultaneously with the execution of this Agreement, Galileo will inform ITA of the initial number of fare searching/pricing servers it wishes ITA to operate exclusively on its behalf. During the term of this Agreement, ITA will advise Galileo as to changes in the Licensed Software or available hardware which would affect Galileo' s server requirements. From time to time, Galileo may determine (with such assistance from ITA as Galileo may reasonably request) to acquire additional servers, and ITA will acquire such number of additional servers as Galileo may direct. In connection therewith, ITA shall consult with Galileo and will advise Galileo as to changes in settings or parameters that may result in ITA' s requiring a smaller number of servers to perform the Operations Services. ITA will determine, in its reasonable discretion in consultation with Galileo, the servers, and other hardware and equipment (including ancillary equipment such as availability servers and query distributors, etc.) (the " Hardware" ) appropriate for Galileo' s use of the Licensed Software at the Data Center and the provision by ITA of the Data Services provided hereunder. ITA will replace Hardware when and as warranted in its reasonable judgment ( e.g. , to take advantage of developments in technology, computing speed, memory, etc.) ITA shall, to the extent reasonably possible, notify Galileo in advance of any software, data, technology changes, or the like that would impact Galileo' s Hardware requirements for operation of the Licensed Software.


4.3 Operation of Software


ITA will be responsible for all aspects of the operation of the Licensed Software on behalf of Galileo, including the installation of Upgrade Releases provided under the License Agreement. ITA will also monitor the Licensed Software at the Data Center. ITA will not be responsible for Galileo' s operation of Galileo' s web site or for the operation of any software or hardware which is not located at the Data Center.


4.4 Communications

(a) ITA will receive queries from Galileo and transmit responses from the Licensed Software, from the Data Center via communications channels which may include either a virtual private network or dedicated point-to-point circuits.


(b) All hardware, software and services associated with communications between the Data Center and any facility from which Galileo may initiate queries to the Licensed Software (" Galileo Facility" ), including maintenance thereof, will be provided by Galileo at its own expense.


(c) Galileo expressly acknowledges that the flow of data to or from the Data Center will depend in large part on the perfor ...