Exhibit 10.2
FORM OF
ORBITZ SUPPLIER LINK AGREEMENT
THIS AGREEMENT is made this ____ day of __________, ____ (the "Effective
Date"), by and between __________________, a corporation organized and existing
under the laws of _________ ("Airline"), and Orbitz LLC, a limited liability
company organized and existing under the laws of Delaware ("Orbitz").
WHEREAS, Orbitz and Airline are parties to that certain Airline Charter
Associate Agreement dated ____________, as amended (the "Airline Charter
Associate Agreement"), and
WHEREAS, the parties have determined that it would be to their mutual
benefit for Orbitz to connect to Airline's reservation system, and
WHEREAS, Orbitz is willing to use reasonable business efforts to provide
such direct connections.
NOW THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS
The terms defined in this Section or elsewhere in this Agreement may
be used in the singular or plural, as the context requires. Terms not defined in
this Section One shall have the meanings set forth in the Specifications.
1.1 AGENCY ORBITZ. "Agency Orbitz" means the products and services
offered by Orbitz (its affiliates, successors or assigns), which
are governed by the Airline Charter Associate Agreement and where
Orbitz is the agent of record on the Ticket.
1.2 AIRLINE HOST SYSTEM. "Airline Host System" means the Airline's
central reservation system on which Airline stores Inventory and
records Bookings and Tickets, as identified in Schedule A.
1.3 AIRLINE SOFTWARE. "Airline Software" means that certain software
product referred to as ______________________________.
1.4 AIRLINE SPECIFICATIONS. "Airline Specifications" means the
specifications for any application, program or functionality
interface developed by Airline and provided to Orbitz from the
Airline that will be used for purposes of allowing the Network to
interface with the Airline Host System.
1.5 ARC. "ARC" means the Airline Reporting Corporation.
1.6 ATPCO. "ATPCO" means the Airline Tariff Publishing Company.
1.7 BOOKING. "Booking" shall mean an airline passenger reservation
created by (or secured to) an Orbitz Network Enabled Customer in
the itinerary portion of a PNR.
1.8 CHANGE REQUEST. "Change Request" means the form set forth as
Schedule B that will be used to request any modification of or
addition to the Services, in accordance with Section 8 of this
Agreement.
1.9 CODE SHARING. "Code Sharing" means the industry practice whereby
the Airline markets flights that are not operated by the Airline
but which can be sold, confirmed and ticketed in the Airline's
Airline Host System and which is booked in the same way as a
flight that is operated and marketed by the Airline.
1.10 COMMENCEMENT DATE. "Commencement Date" means the date set forth
in Schedule E when Orbitz intends to make the Network Services
available to Orbitz Network Enabled Customers.
1.11 INVENTORY. "Inventory" means the travel product with (i) Airline
or (ii) Code Sharing flight numbers that Airline offers in terms
of quantity and type, which is stored on the Airline Host System.
1.12 INVENTORY INFORMATION. "Inventory Information" means information
about the Inventory that is provided to an Orbitz Network Enabled
Customer, including but not limited to Availability.
1.13 NETWORK. "Network" means the hardware, Orbitz Software and
communication pathways under control of Orbitz that are used to
provide all or any part of the Network Services.
1.14 NETWORK FEES. "Network Fees" means the fees specified in
Schedule C (the "Network Fees Schedule".
1.15 NETWORK SERVICES. "Network Services" means the pricing,
availability, reservation placement and settlement services that
Orbitz provides to Orbitz Network Enabled Customers through the
Network, as mutually agreed by the parties in the Specifications.
1.16 ORBITZ NETWORK ENABLED CUSTOMER. "Orbitz Network Enabled
Customer" means a Person who accesses the Airline Host System
through the Network to review Inventory Information, make
Bookings or otherwise use the services and information made
available to Orbitz through the Network pursuant to this
Agreement, Orbitz agrees to use its commercially reasonable
efforts to ensure that Orbitz Network Enabled Customers shall not
include Persons who are not the intended beneficiaries of Fares
as described in the Fare Rules.
1.17 ORBITZ SOFTWARE. "Orbitz Software" means the software, owned by
or licensed to Orbitz, that Orbitz uses to provide the Network
Services.
1.18 PERSON. "Person" means any individual, entity, firm, corporation,
partnership, association, limited liability company, joint stock
company, trust or unincorporated organization.
1.19 PNR. "PNR" means a single passenger name record containing
sufficient information to reserve Inventory. A PNR may contain
more than one passenger's itinerary.
1.20 PROJECT MANAGERS. "Project Managers" means the employees of
Airline and Orbitz, or their replacements, who will manage
specific projects and take responsibility for project plans under
this Agreement.
1.21 QUERIES. "Queries" means a search of Inventory Information by an
Orbitz Network Enabled Customer through the Network based upon
parameters entered by an Orbitz Network Enabled Customer and the
return to such Orbitz Network Enabled Customer of Inventory
Information.
1.22 RELATIONSHIP MANAGERS. "Relationship Managers" means the
senior-level employees of Airline and Orbitz, identified in
Schedule D, or their replacements, who will manage the
relationship between Airline and Orbitz and will serve as the
single point of contact within either party responsible for
communications and problem resolution. Airline's Relationship
Manager shall have the rank of Vice President or higher.
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1.23 RESERVATION SYSTEM. "Reservation System" means Sabre, Galileo,
Worldspan and Amadeus/System One and any other computerized
reservation system within the meaning of 14 C.F.R. Sec. 255.
1.24 RESERVATION SYSTEM FEES. "Reservation System Fees" means all
booking fees, distribution costs and or other fees or charges
payable to a Reservation System or similar system in connection
with the sale of any tickets for air carriage, other than fees
paid by Airline for the Airline Host System.
1.25 SCHEDULE. "Schedule" means the timetable for performing and
completing the Set-Up Services in the form set forth in Schedule
E which will be finalized pursuant to Section 4.1.
1.26 SERVICES. "Services" means the Set-Up Services specified in
Schedule G, the Network Services and any other services that
Orbitz agrees to provide to Airline under this Agreement,
including any services required by Section 4.5 of this Agreement.
1.27 SET-UP FEES. "Set-Up Fees means the set-up fees specified in
Schedule F.
1.28 SET-UP SERVICES. "Set-Up Services" means the services required to
complete to the requirements definition, development and
implementation of the Network Services, pursuant to this
Agreement.
1.29 SPECIFICATIONS. "Specifications" means the mutually agreed upon
functional and technical specifications for the Network Services,
as set forth in Schedule H.
1.30 STATEMENT OF WORK. "Statement of Work" means the form of any
agreed upon obligations of the parties, which form shall be
mutually agreeable to both parties and may be either a separate
agreement or addendum to this Agreement, regarding any
modifications, adaptations, additional uses or other development
services tote provided by either or both parties in relation to
the Network Services.
1.31 SUBCONTRACTORS. "Subcontractors" means the subcontractors that
either party engages to provide services under this Agreement.
1.32 TICKET. "Ticket" means an airline passenger itinerary (in the
itinerary portion of a PNR) ticketed to an Orbitz Network Enabled
Customer and associated with a Booking made through the Network
Services for transportation on Airline's flights or Code Sharing
flights, but not including any refunded or exchanged portion of
such itinerary. All Tickets shall be in electronic form except as
expressly agreed by the parties in writing.
2. GENERAL
2.1 ENGAGEMENT. Orbitz hereby agrees to provide to Airline, and
Airline hereby agrees to receive from Orbitz, the Set-Up Services
and the Network Services, pursuant to the terms and conditions of
this Agreement. Orbitz will perform the Set-Up Services pursuant
to the Schedule, and will commence performance of the Network
Services by the Commencement Date set forth therein. During the
course of performance of the Services, Airline and Orbitz may
periodically modify the Schedule through the procedures specified
in Section 8 or may supplement, add to or otherwise revise the
Services pursuant to a Change Request or a Statement of Work.
2.2 SUBCONTRACTORS. Upon prior written notice to Airline, Orbitz may
subcontract its performance of the Services to one or more
Subcontractors. Airline may object to the use of any such
Subcontractor within 5 business days of receipt of Orbitz notice.
Prior to
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performing any Services, each Subcontractor must execute a
written agreement with Orbitz containing protections for
Airline's confidential information and proprietary rights that
are at least as protective as the terms and conditions of this
Agreement. Airline shall be named and hereby is designated an
express third party beneficiary of such agreements. Orbitz shall
remain primarily liable for work performed by any such
Subcontractor.
2.3 FACILITIES. As specifically set forth in the Specifications, a
mutually agreed Change Request or a Statement of Work, Airline
will provide Orbitz with access to those portions of Airline's
premises and computer systems that Orbitz may reasonably require
to perform the Services. Such access will be provided at mutually
convenient times during Airline's normal business hours, unless
otherwise agreed by the Relationship Managers. Airline will
provide Orbitz with Airline's internal rules and regulations as
they exist and as they are amended from time to time. While
working at Airline's premises. Orbitz employees and
Subcontractors will adhere to Airline's internal rules and
regulations as they exist and are amended from time to time.
Orbitz agrees that it will immediately remove any employee of
Subcontractor working at Airline's premises (i) who violates any
of Airline's workplace rules and regulations, or (ii) whose
action or inaction constitutes a breach under this Agreement.
Orbitz shall remove from Airline premises any Orbitz employee or
subcontractor upon request by Airline.
3. MANAGEMENT
3.1 RELATIONSHIP MANAGERS. Upon execution of this Agreement, each
party will appoint a Relationship Manager to act as the primary
point of contact between the parties with respect to this
Agreement. The Relationship Managers are specified in Schedule D.
Each party will designate an alternate Relationship Manager for
its primary Relationship Manager to act in his or her absence or
unavailability. No modification of the Specifications, the
Network Services, the Schedule or the scope of this Agreement
will be effective unless expressly approved by the primary or
alternate Relationship Managers of both parties pursuant to
Section 8 ("Change Requests"). Each Relationship Manager will
appoint Project Managers to manage specific projects under this
Agreement. The Project Managers will serve as the primary
interface points between the parties with respect to such
projects.
3.2 STATUS REPORTS. The Orbitz Relationship Manager will provide the
Airline Relationship Manager with periodic status reports on
Orbitz' progress during the performance of the Set-Up Services or
Further Development projects as contemplated in Section 4.5 of
this Agreement. Each status report will describe (i) the tasks
performed since the prior status report, (ii) the tasks performed
as compared to the tasks scheduled, (iii) the tasks to be
performed during the next period and (iv) any actual or
anticipated problems or delays that may have arisen in the
Schedule. The Relationship Managers will meet periodically at a
mutually agreed upon time frame that is at least once per month
to discuss the status of the Set-Up Services or Further
Development projects.
3.3 PROBLEMS OR DELAYS. Airline and Orbitz will promptly notify each
other if either party knows of or anticipates any actual or
potential problems or delay in the Set-Up Services, the Network
Services, the Schedule or Further Development projects. The
Relationship Managers will discuss the relevant source of such
problem or delay, possible remedies and the potential impact on
the Set-Up Services, the Network Services, the Schedule or
Further Development at the next scheduled status meeting or, at
either Relationship Manager's request, an emergency meeting, and
will promptly seek in good faith to determine and take the steps
that may be available to avoid or minimize the problem or delay
and its impact. To assist in such discussions, each Relationship
Manager may
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invite any applicable Project Managers or other persons to the
scheduled or emergency meeting. If a modification of the
Specifications or the Schedule is required as a result of the
problem or delay, the Relationship Managers will follow the
procedures specified in Section 8.
4. SET-UP SERVICES
4.1 PREPARATION. Within ___ days following the execution of this
Agreement, the Relationship Managers and their designees from
Orbitz and Airline will meet to discuss the implementation and
development activities which must be completed in order to
commence performance of the Set-Up Services and Network Services.
Such meetings may include discussion of specific timelines, work
schedules, and project plans for implementing the Set-Up Services
and Network Services and the technical and functional
requirements of the Set-Up Services and Network Services. The
Schedule will be finalized during the preparation phase.
4.2 DEVELOPMENT. Following Airline's acceptance of the Schedule for
the Set-Up Services and the Specifications, Orbitz will integrate
the Orbitz Software with the Airline Host System and update the
Orbitz Software with such additional functionality as required in
the Specifications for successful implementation of the Network
Services in accordance with the Schedule. Upon Orbitz'
implementation of the Network Services, Orbitz will notify
Airline that the Network Services have been implemented and are
available for acceptance testing.
4.3 TESTING. Within ___ business days after Orbitz notice that the
Network Services are available for acceptance testing. Airline
and Orbitz will test the Network Services to determine whether
the Network Services substantially conform to the Specifications.
Airline will notify Orbitz whether or not the Network Services
have been accepted within ___ business days after Orbitz' notice
that the Network Services are available for acceptance testing.
If the Network Services are accepted, Orbitz will have no further
Set-Up Services obligations. In the event Airline requires
additional time to complete acceptance testing, Airline will
provide Orbitz with a written request for such additional time,
not to exceed ___ business days. If such request will impact the
Schedule, the request will be handled pursuant to Section 8. if
the Network Services fail to conform with the Specifications,
Airline will provide Orbitz with a written report specifying such
non-conformity in reasonable detail. Upon receipt of a
non-conformity report, Orbitz will (a) correct and resubmit the
Network Services for testing or (b) notify Airline that the
reported non-conformities are actually a Change Request to be
handled pursuant to Section 8. If the resubmitted Network
Services do not substantially conform to the Specifications, such
failure to correct shall constitute a material breach of this
Agreement. In the event Orbitz determines that such
non-conformities are Change Requests, and that the Network
Services conform to the Specifications. Orbitz will provide
Airline with a written report specifying such determination in
reasonable detail.
4.4 FURTHER DEVELOPMENT. Orbitz may provide development services to
Airline following completion of the Set-Up Services pursuant to a
Change Request or a Statement of Work. Any such subsequent
development of additional functionality or requirements for the
Network Services not specified in the Specifications are outside
the scope of the Services. Notwithstanding the foregoing, the
following provisions will apply to the development of
enhancements or modifications to the Services and to maintaining
compatibility between the Network Services and the Airline Host
System:
4.4.1 CHANGES OR MODIFICATIONS AT THE REQUEST OF A PARTY.
Upon either party's request that the Network Services
be modified for compatibility with the Airline Host
System, or to accommodate enhancements to the Network
Services proposed by either party. Orbitz and Airline
will mutually agree in a Change
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Request to the parties' respective development
obligations regarding such enhancements.
4.4.2 CHANGES OR MODIFICATIONS REQUIRED BY LAW OR BY INDUSTRY
STANDARDS. Upon either party's request that the Network
Services be modified for compatibility with any
applicable law, regulation or governmental or industry
standards. Orbitz and Airline will mutually agree in a
Change Request on the parties' respective development
obligations regarding such modifications. In the event
that the parties are unable to reach agreement on such
changes in good faith after reasonable deliberation and
continued use of the Network Services would violate
applicable law, regulation, or government or industry
standards, either party may terminate this Agreement by
giving the other party at least 30 days notice of its
intent to terminate.
5. NETWORK SERVICES
5.1 NETWORK SERVICES. Upon the Commencement Date, Orbitz will provide
the Network Services to Airline and Orbitz Network Enabled
Customers. Orbitz will obtain from ATPCO, directly or indirectly,
the fare and fare rules which apply to Airline's and Airline's
Code Sharing flights in order to provide the Network Services. If
for any reason, Tickets cannot be issued through the Network
Services, then Orbitz may issue such Tickets through any
available Reservation System and Airline will be charged and will
pay the corresponding Reservation System Fees applicable to any
such Tickets, subject to Section 3.2 of the Airline Charter
Associate Agreement, but Airline will not be responsible for any
Network Fees payable hereunder related to such transaction.
Airline will provide complete and accurate documentation
regarding changes in Airline Host System e-Ticket rules,
restrictions, and capabilities.
5.2 COMPLIANCE. Orbitz will ensure that the Network Services comply
with the interline reservations policies, procedures and message
formats as set forth in applicable laws and regulations. Orbitz
will also ensure that the Network Services comply with the
interline reservations policies, procedures and message formats
as designated in the Specifications, and any amendments thereto.
Orbitz agrees that all Tickets and Inventory Information will be
marketed, displayed. filed, sold and settled through ARC in
accordance with its agreement with ARC and Airline's addendum
thereto. Orbitz shall process all Tickets created by Orbitz
Network Enabled Customers, and shall handle information relating
to Airline, with the same care and timeliness as the tickets and
information of all other airlines and without regard to the
Identity of the carrier. Orbitz will review rejected messages
and, where justified by volume, or as reasonably requested by
Airline, investigate methods of reducing such rejected messages.
Orbitz will not make changes to its functionality that result in
the generation of multiple separate tickets for travel to a
specific location, intended to increase the fees paid by Airline
to Orbitz under this Agreement. Orbitz will provide no incentive
to Customers that would motivate Customers to request the
issuance of multiple separate tickets for travel to a specific
location.
5.3 DISPLAY. Orbitz agrees to display Inventory Information in
accordance with the Charter Associate Agreement as amended.
5.4 DISCLOSURES. Orbitz shall provide, subject to any law,
regulations, court order or contract regarding the disclosure of
information, reasonable information to Airline to substantiate
the charges to Airline pursuant to this Agreement. Airline will
also have the right, at its sole expense and upon at least two
weeks notice, to examine the relevant books and records of Orbitz
to the extent such examination is necessary to verify such
charges. Any such examination by Airline will take place during
normal business hours. Airline agrees that it will notify Orbitz
promptly if Airline has knowledge that any Orbitz Network Enabled
Customer is using the Network Services in an improper fashion.
Orbitz shall notify Airline promptly if Orbitz has knowledge that
any Orbitz Network
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Enabled Customer is using the Network Services in an improper
fashion. Upon receipt of such notice and confirmation of the
matters described therein, or if Orbitz discovers such improper
use independent of information supplied by Airline, Orbitz shall
take such action as it deems reasonably necessary to correct the
improper use of the Network Services by the identified Orbitz
Network Enabled Customer. Airline may terminate this Agreement
pursuant to Section 17.2 upon notice to Orbitz if Orbitz fails to
take action to correct the improper use of the Network Services
with respect an Orbitz Network Enabled Customer following a
request by Airline to take such action.
5.5 NETWORK SUPPORT AND SECURITY. For Network Services failures or
other reported problems, each party will provide, or have its
authorized agent provide, the technical support services
described in the Specifications. Airline agrees to assist Orbitz
in interpreting the ATPCO rules to the extent it does for other
ARC accredited agencies. Airline agrees to use commercially
reasonable efforts to maintain, or cause to be maintained, the
Airline Host System. Orbitz is solely responsible for hosting,
and agrees to maintain, the Network. Orbitz will provide security
for the Network in accordance with the security standards set
forth in the Specifications. Orbitz agrees to notify Airline as
soon as is reasonably possible whenever a suspected or actual
security breach has occurred.
5.6 CUSTOMER SUPPORT. Upon and after the Commencement Date, Orbitz
and Airline will be responsible for customer service in
accordance with this section. The parties agree that "First Level
Customer Support" means responding to web site questions posted
by Orbitz Network Enabled Customers, processing simple PNR
requests (i.e. confirmations, special service requests, seal
assignments, schedule changes and other requests set forth in the
Specifications), and processing Orbitz automated refunds,
reissues and exchanges. "Second Level Customer Support" includes
but is not limited to more agent intensive activities (i.e.
non-automated refund, reissue and exchange, schedule change
problems and as may otherwise be set forth in the
Specifications). Orbitz will handle First and Second Level
Customer Support at no additional cost to Airline.
5.7 OUT-OF-SCOPE SERVICES. Orbitz and Airline acknowledge and agree
that certain transactions will be considered as "normal
exclusions" from the Network Services, which exclusions shall
be expressly defined in the Specifications or handled as a
Change Request pursuant to Section 8 ("Normal Exclusions").
The parties agree that Normal Exclusions will not be supported
or processed by the Network Services and no effort will be made
or required to be made to enable Network Services to process
or support such transactions, unless otherwise agreed by the
parties in writing pursuant to Section 8.
5.8 AVAILABILITY DATA. Airline will provide complete, accurate, and
timely direct access to Airline Availability data such that the
quality of data is at least as good as that available via Orbitz'
Primary Booking GDS. Airline will work with Orbitz to define the
format,
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volume, and timing of Availability requests and responses. In the
event the parties mutually agree that Orbitz will use
Availability data, other than Availability data provided by the
Airline, to provide the Network Services, Airline will pay the
actual cost, if any, reasonably allocated by Orbitz for the use
of such data.
6. OBLIGATIONS OF THE PARTIES
6.1 AIRLINE CHARTER ASSOCIATE. Airline and Orbitz are parties in good
standing to the Airline Charter Associate Agreement. In the event
that either party ceases to be a party in good standing to the
Airline Charter Associate Agreement, this Agreement may be
terminated for cause pursuant to Section 17.2; provided, however,
if the parties have executed an agreement as contemplated by
Section 5.8.1 hereof, this Agreement shall not terminate as to
Network Services provided thereunder and shall remain in full
force and effect with respect to such Bookings unless such
agreement specifies otherwise.
6.2 ASSISTANCE AND COOPERATION. Airline will provide Orbitz with the
assistance and cooperation as specifically set forth in the
Specifications or a mutually agreed upon Change Request or
Statement of Work. Airline and Orbitz will each provide the other
party with reasonable assistance and cooperation in the
performance of this Agreement that such other party may request
from time to time. Each party agrees to provide the other party
reasonable advance notice of any software or system changes that
may affect the Network Services.
6.3 INVENTORY INFORMATION. Airline shall provide to Orbitz, at no
charge, Inventory Information including Availability data in
accordance with Section 5.9 hereof for use in the performance of
this Agreement.
6.4 FULFILLMENT. For any person with a Ticket, issued through the
Network Services and bearing an "OK" status, Airline will accept
such person for travel in accordance with Airline policies at the
time even if no record of the person's reservation exists in the
Airline Host System, and even if denied boarding compensation
might have to be paid to such Orbitz Network Enabled Customer.
Airline will not send unable to sell or unable to confirm
messages or any Ticket to any person more than twelve (12) hours
following receipt by Airline of the Ticket request through the
Network Services.
6.5 REFUNDS AND EXCHANGES. [Refund and Exchange Specifics]
7. FEES AND PAYMENT
7.1 FEES. Upon the execution of this Agreement, Airline will pay
Orbitz the initial Set-Up Fee. Airline will pay Orbitz the
Network Fees and other applicable fees as set forth in the
Network Fees Schedule.
7.2 PAYMENT TERMS. Orbitz will invoice Airline monthly for the
Network Fees in arrears Airline will pay all undisputed invoices
within 30 days of receipt of Orbitz' invoice.
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7.3 TAXES. The Set-Up Fees, Network Fees and Reimbursable Expenses
are exclusive of all sales, services or other taxes that Orbitz
may be legally obligated to charge Airline for performing the
Services. Airline will promptly pay or reimburse Orbitz for the
payment of any and all such properly invoiced taxes that may be
due or payable on the Set-Up Fees, the Network Fees and the
Reimbursable Expenses, other than taxes based on Orbitz' income.
8. CHANGE REQUESTS
8.1 CHANGE REQUEST. If either party wants to request a modification,
addition or change in the Services or Schedule, including without
limitation a modification to the Network Services, its
Relationship Manager will submit a completed Change Request to
the Relationship Manager of the other party. The Change Request
will adequately describe (i) the requested modification, (ii) the
estimated resources, including costs, required to implement the
modification, (iii) its impact on the Schedule, a new schedule or
a Statement of Work if it is a Further Development as
contemplated by Section 4.5.1, (iv) its impact on the Set-Up Fees
and the Network Fees, if any, and (v) any required information
and resources by Airline. Notwithstanding the foregoing, Orbitz
may, upon 30 days written notice to Airline, modify, add to or
change the Network Services upon prior notice to Airline, without
Airline's approval, if (i) Orbitz makes such modification,
addition or change to the Network Services it provides to all
other airlines and (ii) such modification, addition or change
does not increase the Set-Up Fees or Network Services Fees that
Orbitz charges Airline and does not adversely affect the
functionality of the Services; provided however that Orbitz may
correct bugs as necessary to maintain the Network Services
without providing such advance notice.
8.2 CHANGE ACCEPTANCE. Upon receipt of a completed Change Request,
the recipient Relationship Manager will either (i) expressly
accept the proposed modification without qualification within 30
days after its receipt or (ii) defer the request for discussion
at the next scheduled or emergency status meeting. The
Relationship Managers will use good faith efforts to resolve any
deferred proposed modification expeditiously. No proposed
modification will be effective unless accepted in writing by the
primary or alternate Relationship Managers of both parties. If so
accepted, the Change Request will be executed by the Relationship
Managers of both parties and will then constitute a formal
amendment of this Agreement.
8.3 FEES. Billing rates for development or implementation services
provided by either party as agreed pursuant to Section 8.2 will
be governed by the rates and expense policies set forth in
Exhibit F.
9. CONFIDENTIALITY
9.1 CONFIDENTIAL INFORMATION. "Confidential Information" is defined
as any information of either party hereto (the "Disclosing
Party"), disclosed in writing or verbally to, or observed by, the
other party (the "Receiving Party") and which is. at the time of
disclosure, either (a) marked as being "Confidential" or
"Proprietary", (b) otherwise reasonably identifiable as the
confidential information of the Disclosing Party, or (c) under
the circumstances of disclosure should reasonably be considered
as confidential information of the Disclosing Party. Orbitz'
Confidential Information includes, but is not limited to, its
product plans, pricing and any personally identifiable
information obtained by Orbitz related to an Orbitz Network
Enabled Customer that is (i) not contained in a PNR submitted to
Airline or (ii) separately collected by Airline. Notwithstanding
any of the above: (A) nothing contained in this section or
elsewhere in this Agreement shall restrict Orbitz from complying
with ARC reporting requirements, or such other settlement company
as Orbitz is required to report to; (B) the terms of this
Agreement shall be considered the Confidential Information of
both parties; (C) an Airline Customer's names, travel
destinations, itineraries, traveler
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profiles, and travel contacts and all other information contained
in a PNR, after submission to Airline through the Network as well
as information collected by Airline from an Orbitz Network
Enabled Customer, shall be considered Confidential Information of
Airline, regardless of whether such information is labeled as
such; (D) the Inventory, Inventory Information, fare information,
the Airline Specifications or any other specifications relating
to the Airline Host System, all other information contained in
the Airline Host System, business plans and forecasts, and
similar information of itself, and its affiliates shall be
considered Confidential Information of Airline. The parties
acknowledge that the Interface and the Specifications embody
Confidential Information of both parties.
9.2 RESTRICTIONS ON DISCLOSURE AND USE. Unless expressly authorized
in writing by the Disclosing Party or as authorized by the
Airline Charter Associate Agreement, the Receiving Party agrees
to retain the Confidential Information in confidence and shall
not copy or disclose the Confidential Information to, or use the
Confidential Information for, the benefit of any third party,
except as follows. Confidential Information may be disclosed on a
need to know basis to the Receiving Party's employees,
affiliates, and Independent contractors who are parties to a
written agreement with the Receiving Party which prohibits the
disclosure of Confidential Information, and limits its use to the
benefit of the Receiving Party and its affiliates, using
reasonable technical and organizational measures to protect the
confidentiality of the information.
9.3 EXCLUSIONS. Notwithstanding any other provisions of this
Agreement, each party acknowledges that Confidential Information
shall not include any information which (i) is or becomes
publicly known through no wrongful act of the Receiving Party;
(ii) is at the time of disclosure, already known to the Receiving
Party without restriction on use or disclosure and was not
obtained from the Disclosing Party or its contractors; or (iii)
is independently developed by the Receiving Party without
reference to the Confidential Information or breach of this
Agreement.
9.4 RELIEF FROM OBLIGATIONS. Either party will be relieved of its
confidentiality obligations hereunder if and to the extent that
Confidential Information (i) is disclosed pursuant to the lawful
requirement of a governmental agency, or disclosure is required
by operation of law, provided that the party making the
disclosure requires reasonable measures to protect the security
of the information, has given timely notice to the Disclosing
Party and the Disclosing Party has been permitted at its expense
to interpose objections, defenses or obtain a protective order
limiting disclosure and use of the information; or (ii) is
explicitly approved for release by written authorization of the
Disclosing Party.
9.5 OWNERSHIP OF CONFIDENTIAL INFORMATION. No license, express or
implied, in the Confidential Information is granted by one party
to the other party other than to use such Confidential
Information in the manner and to the extent authorized by this
Agreement. Each party shall retain the title and full ownership
rights to their respective Confidential Information. Each party
agrees that upon the request of the Disclosing Party, it shall
return to the Disclosing Party all of the Disclosing Party's
Confidential Information in such party's possession or control.
10. LICENSE GRANT
10.1 BY AIRLINE.
10.1.1 Airline grants Orbitz a limited, worldwide,
non-exclusive, royalty-free right and license, without
the right to sublicense, to: (i) access, display,
transmit and distribute Inventory Information made
available by Airline through Agency Orbitz via the
Network to Orbitz Network Enabled Customers in response
to Queries using the Interface and (ii) use any
information owned and provided by Airline
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hereunder about the Airline Host System, the Airline
Specifications and the Inventory Information solely for
the purposes of meeting its obligations hereunder. The
foregoing is a license merely to access the Airline
Host System through the Airline Software and exchange
information with it. No rights are granted by or
implied in this Agreement for Orbitz or Orbitz Network
Enabled Customers to modify in any manner or use
directly the Airline Host System, except as provided
herein.
10.2 BY ORBITZ. Orbitz grants Airline a limited, worldwide,
non-exclusive, royalty free right and license to: (i) use the
Network to access all records in the Network with at least one
Airline or Code Sharing flight segment to allow Airline to test
and validate the operation, compliance and quality of the Network
Services prior to implementation of the Network Services and
during mutually agreed upon testing periods and (ii) use the
Network and to use any information provided by Orbitz hereunder
about the Orbitz Software solely for the purposes of obtaining
the Services contemplated by this Agreement and meeting Airline's
obligations to Orbitz under this Agreement.
11. PROPRIETARY RIGHTS
11.1 ORBITZ. Except as set forth in Section 11.3, as between Airline
and Orbitz, Airline acknowledges and agrees that Orbitz will own
all patents (including any business process patents), rights to
file for patents, inventions, copyrights, trademarks, trade
secrets and all other right, title and interest (including any
renewals or extensions) in or to the Orbitz Software, the
Network, and including without limitation any derivative works
thereof created by Orbitz or its employees or Subcontractors.
Except as otherwise explicitly provided in this Agreement,
Airline shall have no right or license to use, reproduce,
transfer, disclose, display or distribute (electronically or
otherwise) or sublicense any technology or intellectual property
rights in the Orbitz Software or the Network. In addition, Orbitz
shall retain exclusive ownership of any interfaces,
configurations, programs and other systems developed by Orbitz or
its employees or Subcontractors independently of this Agreement.
11.2 AIRLINE. Except as set forth, in Section 11.3, Orbitz
acknowledges and agrees that Airline will own all patents
(including any business process patents), rights to file for
patents, inventions, copyrights, trademarks, trade secrets and
all other right, title and interest (including any renewals or
extensions) in or to the Airline Software, Inventory Information,
the Airline Specifications and the Airline Host System including
without limitation any derivative works thereof created by
Airline or its employees or Subcontractors. Except as otherwise
explicitly provided in this Agreement, Orbitz shall have no right
or license to use, reproduce transfer, disclose, display or
distribute (electronically or otherwise) or sublicense any
technology or intellectual property rights in the Airline
Software, Airline Specification, Inventory Information or the
Airline Host System. In addition, Airline shall retain exclusive
ownership of any interfaces, configurations, programs and other
systems developed by Airline or its employees or Subcontractors
independently of this Agreement.
11.3 INTERFACE. [Details on ownership of the Interface and
intellectual property rights thereto.]
12. NON-EXCLUSIVITY
The relationship between Airline and Orbitz as set forth in this
Agreement will be non-exclusive. Nothing in this Agreement is intended to
prevent either party from entering into similar agreements with any other party,
subject to the confidentiality restrictions contained herein. Airline may
participate in other Internet travel sites similar to the Network and may obtain
services from other entities similar to the Network Services; [provided that in
the event Airline plans to obtain services substantially similar to the Network
Services from a third party, Airline will offer to make the Network Services
available to such third
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party in a manner and on terms and conditions satisfactory to Airline.] Orbitz
may permit other airlines to participate in the Network and may provide services
similar to the Services to other airlines. Orbitz and Airline may market,
maintain, service and support entities or Internet travel sites that compete
with or provide functionality similar to the Network. This Agreement will not
confer any rights on one party to restrict the other party's ability to offer
fare information or to do business, or choose not to do business, with any other
airline, internet travel provider site, or any other entities.
13. WARRANTIES AND DISCLAIMERS
13.1 GENERAL WARRANTY. Each party represents and warrants that (i) it
has the full corporate authority to execute this Agreement and
perform its obligations hereunder, (ii) the execution or
performance of this Agreement will not violate or be considered a
breach of any obligation of such party to any third party and
(iii) the execution or performance of this Agreement will not
violate any applicable law or regulation.
13.2 SPECIFIC WARRANTY. Orbitz represents arid warrants that it will
perform the Services in a good and workmanlike manner, using only
qualified personnel, and that the Network will function in all
material respects in accordance with the applicable
Specifications, and will be free from material defects in design,
materials, and workmanship. In case of a breach of warranty,
Orbitz will correct or re-perform the defective Services or
correct the Network or, at Orbitz' discretion, refund the fees
actually paid to Orbitz for the defective Services or the
Network. Airline acknowledges and agrees that this Section and
Section 5.1 set forth its exclusive remedy and Orbitz' exclusive
liability for any claim of breach of warranty with respect to
Section 13.2.
13.3 LIMITATION. The warranties and remedies specified in this Section
will not apply if the Services are defective due to extrinsic
causes, such as (i) natural disasters. including without
limitation fire, smoke, water, earthquakes or lightning, (ii)
neglect or misuse by Airline, (iii) incorrect or corrupted
Inventory Information delivered by Airline, (iv) a correction or
modification of a Service not approved by Orbitz, or (v) the
combination of the Services with other items or services with
which the Services are not intended to be used.
13.4 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS,
INDEMNITIES AND GUARANTEES RELATING TO EITHER PARTY'S PERFORMANCE
INCLUDING WITHOUT LIMITATION THE ORBITZ SOFTWARE, INTERFACE,
PIPELINE HOST SYSTEM, AIRLINE SPECIFICATIONS, INVENTORY
INFORMATION, AND AIRLINE SOFTWARE, WHETHER EXPRESS OR IMPLIED,
ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY
EITHER PARTY, ITS AGENTS OR OTHERWISE (INCLUDING, BUT NOT LIMITED
TO ANY WARRANTY OR CONDITION OF SATISFACTORY QUALITY, ACCURACY.
UNINTERRUPTED USE, TIMELINESS, TRUTHFULNESS, SEQUENCE,
COMPLETENESS, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR
NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM TRADE
USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE) ARE HEREBY
OVERRIDDEN, EXCLUDED AND DISCLAIMED.
14. INDEMNITY
14.1 INDEMNITY. If an action is brought against Airline claiming that
the Orbitz Software, Network or Services infringe a patent,
copyright, trademark, service ▇▇▇▇, or trade secret, or claiming
that data provided hereunder by Orbitz violates any law, rule or
regulation related to privacy, Orbitz will defend, indemnify and
hold harmless Airline, its parent, subsidiaries, affiliates under
common control, officers, directors and employees and their
respective successors and assigns at Orbitz' expense and, pay all
amounts finally
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awarded against Airline or paid to settle the infringement action
(including reasonable attorneys' fees), but only if (i) Airline
notifies Orbitz promptly upon learning that the claim might be
asserted, (ii) Orbitz has sole control over the defense of the
claim and any negotiation for its settlement or compromise and
(iii) Airline reasonably cooperates with Orbitz in its defense or
settlement of the claim at Orbitz expense. Airline reserves the
right to retain counsel of its own choosing at its own expense in
any indemnified action.
14.2 OPPORTUNITY TO CURE. If a claim described in Section 14.1 may be
or has been asserted, Airline will permit Orbitz, at Orbitz
option and expense, to (i) procure the right to continue to use
the Orbitz Software, Network or Services, (ii) replace or modify
the Orbitz Software, Network or Services to eliminate the
infringement or (iii) terminate this Agreement and refund to
Airline any pre-paid and unused amounts actually paid to Orbitz
for the Services.
14.3 LIMITATION. Orbitz shall have no indemnity obligation to Airline
under this Section if an infringement claim results solely from
(i) the Inventory Information. Airline Software or Airline Host
System or (ii) from use of the Services in a manner outside the
scope of this Agreement. Airline acknowledges that this Section
sets forth Airline's exclusive remedy and Orbitz' sale liability
in connection with any infringement claim.
14.4 AIRLINE INDEMNITY. If an action is brought against Orbitz
claiming that the Airline Specifications. Airline Software or
Airline Host System infringe a patent, copyright, trademark or
trade secret, or claiming that data provided hereunder by Airline
violates any law, rule or regulation related to privacy, Airline
will defend, indemnify and hold harmless Orbitz, its parent,
subsidiaries, affiliates under common control, officers,
directors and employees and their respective successors and
assigns at Airline's expense and, pay all amounts finally awarded
against Orbitz in the infringement action (including reasonable
attorneys' fees), but Only if (i) Orbitz notifies Airline
promptly upon learning that the claim might be asserted, (ii)
Airline has sole control over the defense of the claim and any
negotiation for its settlement or compromise and (iii) Orbitz
reasonably cooperates with Airline in its defense or settlement
of the claim at Airline's expense. Orbitz reserves the right to
retain counsel of its own choosing at its own expense in any
indemnified action, If a claim described in Section 14.4 may be
or has been asserted, Orbitz will permit Airline, at Airlines
option and expense, to (i) procure the right to continue to use
the Airline Specifications, Airline Software or Airline Host
System, (ii) replace or modify the Airline Specifications,
Airline Software or Airline Host System to eliminate the
infringement or (iii) terminate this Agreement. Airline shall
have no indemnity obligation to Orbitz under this Section if an
infringement claim results solely from (i) the Orbitz Software or
Services or (ii) the use of the Airline Specifications. Airline
Software or Airline Host System in a manner outside the scope of
this Agreement. Orbitz acknowledges that this Section sets forth
Orbitz' exclusive remedy and Airline's sole liability in
connection with any infringement claim.
15. NO CONSEQUENTIAL DAMAGES
EXCEPT FOR ANY DAMAGES ARISING OUT OF SECTION 14, OR OF ANY BREACH OF
SECTION 9, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE FOR ANY
CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST
PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON THE OTHER PARTY'S
CLAIMS(INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF
MONEY, USE OF THE NETWORK OR USE OF THE SERVICES, INTERRUPTION IN USE OR
AVAILABILITY OF INFORMATION, STOPPAGE OF WORK OR IMPAIRMENT OF OTHER ASSETS),
ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF
CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE.
EXCEPT FOR EITHER PARTY'S INDEMNIFICATION OBLIGATIONS EXPRESSLY SET FORTH HEREIN
OR CLAIMS UNDER SECTION 9, IN NO EVENT WILL THE AGGREGATE LIABILITY WHICH
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EITHER PARTY MAY INCUR TO THE OTHER PARTY IN ANY ACTION OR PROCEEDING EXCEED
__________________. THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT
APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY, DESPITE THE FOREGOING EXCLUSION
AND LIMITATION.
16. INSURANCE
Orbitz will be solely responsible for obtaining and maintaining
appropriate insurance coverage for its activities under this Agreement,
including, but not limited to, comprehensive general liability (bodily injury
and property damage) insurance and professional liability insurance and
requiring its Subcontractors to have similar insurance coverage. At Airline's
request, Orbitz will provide Airline with copies of the certificates of
insurance.
17. TERMINATION
17.1 TERM. This Agreement shall have an initial term of __________
following the Effective Date (the "Initial Term"). Any renewal or
extension of this Agreement will be subject to the good faith
negotiation of the parties.
17.2 TERMINATION FOR CAUSE. Either party may terminate this Agreement
for cause in the event that the other party fails to cure a
material breach of this Agreement within ___ days after receiving
written notice of such breach from the non-breaching party. If
voluntary bankruptcy proceedings are instituted by a party under
any federal, state or foreign insolvency laws, or if an
involuntary petition is filed or executed against it and not
dismissed or satisfied within ___ days; the other party may, at
its option, terminate this Agreement by written notice; provided,
however, that all monies owed hereunder prior to the date of
termination shall be immediately due and payable. In the event of
termination for cause, Airline will have no right to refund of
Set-Up Fees paid to and incurred by Orbitz.
17.3 TERMINATION. [Additional Termination Specifics]
17.4 CONSEQUENCES OF TERMINATION. If this Agreement expires or is
terminated by either party for convenience, Airline will promptly
pay Orbitz any undisputed amounts due hereunder as of the date of
termination. All rights Airline may have in and to the Services
will immediately cease upon expiration or termination of this
Agreement. The provisions of Section 7 (to the extent accrued
prior to termination), 9, 11, 13.5, 14 (for acts or omissions
occurring prior to termination) 15, 17 and 19 will survive the
termination of this Agreement for any reason.
18. LEGAL STATUS
Airline and Orbitz are independent parties. Nothing in this Agreement
will be construed to make Orbitz an agent, employee, franchisee, joint venturer,
partner or legal representative of Airline. Orbitz is solely and exclusively
responsible for the salaries, wages, benefits, fees or other compensation that
Orbitz, its Subcontractors or its or their agents or employees may be entitled
to receive.
19. MISCELLANEOUS
19.1 NOTICES. Any notice, approval or other communication required or
permitted under this Agreement will be given in writing. Such
communications will be sent to the address specified below or to
any other address that may be designated by prior notice.
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If to Airline: If to Orbitz:
___________________ Orbitz LLC
___________________ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
___________________ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
___________________ Attn: V.P. Business Services
___________________ Telephone: ▇▇▇-▇▇▇-▇▇▇▇
___________________ Telefax: ▇▇▇-▇▇▇-▇▇▇▇
19.2 WAIVER, AMENDMENT AND MODIFICATION. Except as otherwise provided
above, any waiver, amendment or other modification of this
Agreement will not be effective unless in writing and signed by
the party against whom enforcement is sought.
19.3 SEVERABILITY. If any provision of this Agreement is held to be
unenforceable, in whole or in part, such holding will not affect
the validity of the other provisions of this Agreement.
19.4 ASSIGNMENT. Except as set forth in this Agreement, neither party
may assign, delegate, sub-contract or otherwise transfer this
Agreement or any of its rights or obligations without the other
party's prior approval, which will not be unreasonably withhold
or delayed. Notwithstanding the foregoing, either party may
assign all, but not less than all, of its rights and obligations
under this Agreement, upon prior written notice to the other
party, to (i) an affiliate of the assigning party, or (ii) to an
unaffiliated Person (but not to a competitor of the non-assigning
party) pursuant to a merger, consolidation or sale of
substantially all of the assigning party's assets, but only if
such assignee assumes in writing all of the obligations of the
assignor and provides a copy of such assumption to the
non-assigning party. Further, Orbitz may not assign, sell or
otherwise transfer the Orbitz Software or its ownership interest
in the Interface in whole or substantial part without also
assigning this Agreement in accordance with this Section 19.4.
Subject to the foregoing, this Agreement shall be binding on the
parties and their respective successors and permitted assigns.
19.5 FORCE MAJEURE. Neither party will be liable for any failure or
delay in performing an obligation under this Agreement that is
due to causes beyond its reasonable control, such as natural
catastrophes, governmental acts or omissions, laws or
regulations, labor strikes or difficulties, transportation
stoppages or slowdowns or the inability to procure parts or
materials. If any of these causes continue to prevent or delay
performance for more than 180 days, the non-delaying party may
terminate this Agreement, effective immediately upon notice to
the delaying party.
19.6 GOVERNING LAW. This Agreement will be governed by and interpreted
in accordance with the laws of the state of Delaware exclusive of
conflict of laws provisions.
19.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and
all of which together shall constitute one and the same
instrument.
19.8 INTEGRATION. This Agreement and its Exhibits constitute the
complete and entire statement of all terms, conditions and
representations of the agreement between Airline and Orbitz with
respect to its subject matter, and supercede and replace all
prior understandings between the parties, whether oral or in
writing (provided that, notwithstanding the foregoing, nothing in
this Agreement will be deemed to modify or supersede any of the
provisions of any agreement between Orbitz and ARC, including
Airline's addendum thereto).
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IN WITNESS WHEREOF, Airline and Orbitz cause this Agreement to be
executed by their duly authorized representatives identified below.
AIRLINE, INC. ORBITZ LLC
("Airline") ("Orbitz")
By: By:
--------------------------------- -----------------------------
Name: Name:
--------------------------------- -----------------------------
Title: Title:
--------------------------------- -----------------------------
Date: Date:
--------------------------------- -----------------------------
Schedule A: Airline Host System
Schedule B: Change Request
Schedule C: Network Fees
Schedule D: Relationship Managers
Schedule E: Schedule
Schedule F: Set-Up Fees
Schedule G: Set-Up Services
Schedule H: Specifications
SCHEDULE A
AIRLINE HOST SYSTEM
The Airline Host System is residing in _________.
SCHEDULE B
CHANGE REQUEST
Scope Change Request
1. Title:
2. Requested By:
3. Status: Unapproved, Approved, Rejected, or Implemented.
4. Business Need Detail:
5. Impact on Project:
6. Impact on Schedule:
7. Services Impacted:
8. Approvals:
AIRLINE, INC. ORBITZ LLC
By: By:
-------------------------------- -----------------------------
Name: Name:
-------------------------------- -----------------------------
Title: RELATIONSHIP MANAGER Title: RELATIONSHIP MANAGER
-------------------------------- ----------------------------
Date: Date:
-------------------------------- ----------------------------
SCHEDULE C
NETWORK FEES
Airline will pay to Orbitz the following Network Fees for Net Tickets
(`Net Tickets mean all Tickets less all refunded/exchanged Tickets):
_____ Network Switching Fee per Net Ticket
_____ Network Incentive Fee per Net Ticket booked through
Agency Orbitz.
In the event that the Network Fees paid by Airline to Orbitz for any
year that this Agreement is in effect are less than ________, Airline will pay
Orbitz the difference between the aggregate Network Fees paid to Orbitz by
Airline and __________ within 30 days of the end of such year and receipt of a
correct invoice. This amount is to be prorated in the first year and any partial
years.
In addition to the per Ticket charges above, Airline will pay to
Orbitz one half of the actual costs incurred by Orbitz for the communications
services required for the interface between the Airline Host System and the
Network servers.
SCHEDULE D
RELATIONSHIP MANAGERS
The Orbitz Relationship Manager is _________. The Alternative
Relationship Manager is _________.
The Airline Relationship Manager is __________. The Alternate
Relationship Manager is ________.
SCHEDULE E
SCHEDULE
TASK DATE
---- ----
SCHEDULE F
SET-UP FEES
SCHEDULE G
SET-UP SERVICES
SCHEDULE H
SPECIFICATIONS
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