EXHIBIT 10.72
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN PORTIONS
OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION.
AMENDMENT TO THE WORLDSPAN SUBSCRIBER ENTITY AGREEMENT
THIS Amendment to the Worldspan Subscriber Entity Agreement dated the 1st
of October, 2001 ("Amendment"), is by and between Worldspan, L.P. ("Worldspan"),
a Delaware limited partnership with principal place of business located at 300
Galleria Parkway, N.W., Atlanta, Georgia 30339, for itself and its subsidiaries,
and priceline.com Incorporated ("Customer"), a Delaware corporation with
principal place of business located at 800 Connecticut Avenue, Norwalk,
Connecticut 06854, for itself and its Affiliates.
WHEREAS, Worldspan and Customer entered into the Worldspan Subscriber
Entity Agreement dated the 1st of October, 2001 (the "Subscriber Entity
Agreement") with an effective date of October 1, 2001 (the "Effective Date").
WHEREAS, Worldspan and Customer now desire to amend the Subscriber Entity
Agreement.
NOW, THEREFORE, it is agreed:
1. Worldspan and Customer acknowledge that they have been parties to the
Worldspan Subscriber Entity Agreement dated the 1st of January 1999, as amended
by Amendments to the Worldspan Subscriber Entity Agreement dated the 1st of
January 1999, the 5th of January 2000, and the 5th of July 2000 (collectively,
the "Prior Subscriber Agreement"). The parties acknowledge that (i) Customer
generated [**] Bookings from January 1, 1999 to June 30, 2001, and (ii)
Worldspan provided services and paid various incentives to Customer, all under
the terms of the Prior Subscriber Agreement. The Subscriber Entity Agreement as
amended by this Amendment replaces and supersedes the Prior Subscriber
Agreement, subject to paragraph 46 of this Amendment.
2. "Booking Evaluation Period" shall mean each of the time periods defined
below:
<Table>
<Caption>
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BOOKING
EVALUATION
PERIOD TIME PERIOD
---------------------------------------------------
[**] [**]
---------------------------------------------------
[**] [**]
---------------------------------------------------
[**] [**]
---------------------------------------------------
[**] [**]
---------------------------------------------------
[**] [**]
---------------------------------------------------
</Table>
3. Customer and/or the Affiliates shall generate a minimum of [**]
Bookings through the Worldspan GDS during the Term. At the end of the Term, in
the event that the combined total of Worldspan Bookings by Customer and the
Affiliates is less than [**] Bookings, Customer shall not be deemed to be in
breach of its obligation under this paragraph provided that (i) Customer
executes an amendment extending the Term by an additional [**] (the "Additional
Booking Evaluation Period") and preserving all other terms and conditions of the
Subscriber Entity Agreement except the obligation set forth in this paragraph,
and (ii) Customer has performed all other material obligations under the
Subscriber Entity Agreement. Upon Customer's execution of such an amendment,
Worldspan agrees that the failure to generate [**] Bookings shall not (i)
constitute a breach of the Subscriber Entity Agreement, (ii) constitute the
default of any obligation of the Subscriber Entity Agreement, or (iii) give rise
to any cause of action or claim against, or liability on the part of, Customer
for any losses or damages of any kind. The parties acknowledge that the
foregoing provision has been negotiated at arms length between Worldspan and
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Customer and represents a reasonable compromise in the event of Customer's
failure to complete the specified obligation.
4. Customer shall generate a minimum of [**] of Customer's Bookings in the
United States of America and Canada (USA/Canada) through the Worldspan GDS in
each Booking Evaluation Period.
5. If Customer fails to comply with its obligations under paragraph 4 in
[**], then Worldspan may give Customer written notice that such an event has
occurred and that Worldspan is terminating the Subscriber Entity Agreement,
effective thirty (30) days from Customer's receipt of such notice.
a) Upon a termination pursuant to this paragraph following [**],
Customer shall be liable to Worldspan for liquidated damages calculated
according to the formula set forth below:
Liquidated Damages = The lesser of (i) the number of Expected Bookings,
multiplied by [**], or (ii) the amount, if any, that the
number of actual Bookings generated by Customer through
the Worldspan GDS from the beginning of the Term until
the effective termination date is less than [**]
Bookings, multiplied by [**]. For purposes of this
Amendment, "Expected Bookings" shall mean the average
number of Bookings generated by Customer through the
Worldspan GDS per month in the [**] months preceding the
event of default, multiplied by [**].
b) Upon a termination pursuant to this paragraph following [**],
Customer shall be liable to Worldspan for liquidated damages calculated
according to the formula set forth below:
Liquidated Damages = The amount, if any, that the number of actual Bookings
generated by Customer through the Worldspan GDS from the
beginning of the Term until the effective termination
date is less than [**] Bookings, multiplied by [**].
The parties acknowledge that the foregoing provision has been negotiated at arms
length between Worldspan and Customer and represents a reasonable measure of
liquidated damages in the event of Customer's default of the specified
obligations.
6. If Customer fails to comply with its obligations under paragraph 4 in
[**], Customer shall be liable to Worldspan for liquidated damages calculated
according to the formula set forth below:
Liquidated Damages = The amount, if any, that the number of actual Bookings
generated by Customer through the Worldspan GDS during
the Term is less than [**] Bookings, multiplied by [**].
The parties acknowledge that the foregoing provision has been negotiated at arms
length between Worldspan and Customer and represents a reasonable measure of
liquidated damages in the event of Customer's default of the specified
obligations.
7. Customer shall use good-faith efforts to cause the Affiliates, as a
whole, to generate a minimum of [**] of the Affiliates' aggregate Bookings
globally through the Worldspan GDS in each Booking Evaluation Period. This
obligation is subject to Worldspan's geographic and vendor-specific connectivity
capabilities. Customer shall give Worldspan the opportunity to develop new
technological capabilities in order to serve the Affiliates' international
needs. Worldspan agrees that the failure of Customer to meet its obligations
under this paragraph shall not (i) constitute a breach of the Subscriber Entity
Agreement, (ii) constitute the default of any obligation of the Subscriber
Entity Agreement, or (iii) give rise to any cause of action or claim against, or
liability on the part of, Customer for any losses or damages of any kind. The
parties acknowledge that the foregoing provision has been negotiated at arms
length between Worldspan and Customer and represents a reasonable compromise in
the event of Customer's failure to complete the specified obligation.
8. In each Booking Evaluation Period, Customer agrees to use good-faith
efforts to cause the Affiliates, as a whole, to complete [**] of their non-air
Bookings originating in countries other than USA/Canada through the
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Worldspan GDS. This obligation is subject to Worldspan's geographic and
vendor-specific connectivity capabilities. Customer shall give Worldspan the
opportunity to develop new technological capabilities in order to serve the
Affiliates' international needs. Worldspan agrees that the failure of Customer
to meet its obligations under this paragraph shall not (i) constitute a breach
of the Subscriber Entity Agreement, (ii) constitute the default of any
obligation of the Subscriber Entity Agreement, or (iii) give rise to any cause
of action or claim against, or liability on the part of, Customer for any losses
or damages of any kind. The parties acknowledge that the foregoing provision has
been negotiated at arms length between Worldspan and Customer and represents a
reasonable compromise in the event of Customer's failure to complete the
specified obligation.
9. Worldspan shall pay the following USA/CANADA BOOKING INCENTIVE to
Customer for each Booking generated by the Affiliates in each Booking Evaluation
Period through the Worldspan GDS in USA/Canada:
<Table>
<Caption>
----------------------------------------------------------------------
AIR HOTEL AND
BOOKINGS INCENTIVE CAR INCENTIVE
----------------------------------------------------------------------
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
----------------------------------------------------------------------
</Table>
Payment shall be made no later than forty-five (45) days following the end of
each calendar quarter, with any reconciliation, if necessary, completed upon the
end of the Booking Evaluation Period. The determination of the number of
Bookings shall be made solely by Worldspan from its books and records, subject
to paragraph 14 of this Amendment.
10. Notwithstanding the foregoing paragraph, if Customer fails to comply
with its obligations under paragraph 4 of this Amendment, the USA/CANADA BOOKING
INCENTIVE shall be reduced to [**] per air Booking and [**] per hotel and car
Booking for the Booking Evaluation Period in which Customer fails to comply. No
later than thirty (30) days following the end of the Booking Evaluation Period
in which Customer fails to comply with its obligations under paragraph 4 of this
Amendment, Worldspan shall conduct a reconciliation of the payments made to
Customer in the initial calendar quarters of the Booking Evaluation Period, the
amount owed to Customer for the final calendar quarter of the Booking Evaluation
Period, and the amount overpaid to Customer as a result of the higher
per-Booking incentives initially anticipated. No later than fifteen (15) days
after the completion of such reconciliation, Worldspan shall notify Customer of
the payment due to or from Customer. The applicable party shall make such
payment no later than thirty (30) days following the completion of the
reconciliation. The determination of the number of Bookings shall be made solely
by Worldspan from its books and records, subject to paragraph 14 of this
Amendment.
11. The following incentives shall be determined solely by Bookings
generated by the Affiliates through the Worldspan GDS in countries other than
USA/Canada:
a) INTERNATIONAL BASE AIR INCENTIVE. Worldspan shall pay [**] per
air Booking to Customer for air Bookings generated by the Affiliates through the
Worldspan GDS in countries other than USA/Canada.
b) INTERNATIONAL CAR AND HOTEL INCENTIVE. Worldspan shall pay [**]
per car or hotel Booking to Customer for car and hotel Bookings generated by the
Affiliates through the Worldspan GDS in countries other than USA/Canada.
Payment shall be made no later than forty-five (45) days following the end of
each calendar quarter. Customer shall provide documentation to Worldspan on a
quarterly basis, which in Worldspan's sole opinion, substantiates Customer's
international car and hotel Bookings. The determination of the number of
Bookings shall be made solely by Worldspan from its books and records, subject
to paragraph 14 of this Amendment.
12. Provided that Customer complies with its obligations under paragraph 4
of this Amendment, each of the following bonus incentives will apply.
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a) In the event the Affiliates (as a whole) generate more than [**]
Bookings through the Worldspan GDS in any Booking Evaluation Period, Worldspan
shall pay Customer an additional bonus of [**] no later than forty-five (45)
days following the end of the Booking Evaluation Period.
b) In the event the Affiliates (as a whole) generate more than [**]
Bookings through the Worldspan GDS in any Booking Evaluation Period, Worldspan
shall pay Customer an additional bonus of [**] no later than forty-five (45)
days following the end of the Booking Evaluation Period.
c) In the event the Affiliates (as a whole) generate more than [**]
Bookings through the Worldspan GDS in any Booking Evaluation Period, Worldspan
shall pay Customer an additional bonus of [**] no later than forty-five (45)
days following the end of the Booking Evaluation Period.
d) In the event the Affiliates (as a whole) generate more than [**]
Bookings through the Worldspan GDS in any Booking Evaluation Period, Worldspan
shall pay Customer an additional bonus of [**] no later than forty-five (45)
days following the end of the Booking Evaluation Period.
e) In the event the Affiliates (as a whole) generate more than [**]
Bookings through the Worldspan GDS in any Booking Evaluation Period, Worldspan
shall pay Customer an additional bonus of [**] no later than forty-five (45)
days following the end of the Booking Evaluation Period.
f) In the event the Affiliates (as a whole) generate more than [**]
Bookings through the Worldspan GDS in the time period from [**] to [**],
Worldspan shall pay Customer an additional bonus of [**] no later than [**].
13. Worldspan and Customer acknowledge that the incentives provided in the
foregoing paragraphs are dependent on Worldspan's booking fee rates charged to
travel suppliers remaining at levels comparable to the rates charged to travel
suppliers as of the Effective Date. In the event that (i) the booking fee rates
charged by Worldspan should decrease by [**] or more compared to the rates
charged to airlines or to car/hotel suppliers as of the Effective Date due to
causes beyond the direct control of Worldspan or (ii) Worldspan, Customer, and a
travel supplier agree to implement a substantially modified pricing structure
with respect to that travel supplier, then Worldspan and Customer agree to
negotiate in good faith to revise the Subscriber Entity Agreement to conform
with the new industry practice. In the event that such negotiations do not
result in a modification to the Subscriber Entity Agreement, then Worldspan
reserves the right (i) to eliminate the Customer incentives provided for in
paragraphs 9, 10, 11, and 12 of this Amendment with respect to such Bookings, or
(ii) to immediately terminate the Subscriber Entity Agreement in its entirety,
notwithstanding any provision of the Subscriber Entity Agreement to the
contrary; provided, however, that in the event that Worldspan eliminates any
such incentives, Customer shall have the right to immediately terminate the
Subscriber Entity Agreement.
14. Either party may, upon reasonable prior written notice to the other
party, request a meeting for the purpose of documenting and verifying Booking
records with respect to Customer. Each party shall be solely responsible for its
costs incurred with respect to this meeting. Each party shall make available to
the other party the documentation or records reasonably requested by the other
party to document and verify Customer's Bookings. In the event of any material
disagreement on Booking counts, Customer shall have the right to appoint an
independent third party acceptable to both parties to audit the books and
records used by Worldspan in determining Booking counts.
15. Worldspan shall provide up to [**] hours of consulting and development
services to assist Customer with design of [**] and other issues relating to the
GDS, Customer's operations, and back-office functions. In the event that
Customer requires additional consulting and development services beyond the
hours provided in this paragraph, upon Customer's request, Worldspan shall
provide qualified individuals to provide other technical services. These
services shall be charged to Customer at the rate of [**] per hour or
Worldspan's then current standard rate for consulting services, whichever is
higher.
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16. Worldspan shall provide [**] to Customer in conformity with Customer's
reasonable design requirements. Worldspan shall discount by [**] its fees [**]
per month for this service.
17. Worldspan shall discount its then current standard fees [**] for [**]
hours of annual mainframe or distributed systems development resources for
Worldspan system enhancements requested by Customer, subject to timelines as
agreed by the parties. Customer acknowledges that these resources have a value
of [**] per year.
18. Worldspan shall make available its Executive Support Help Desk and
Message Support Team to Customer. These groups will provide consultation
relating to programming interface development and usage.
19. Should Customer choose Worldspan to host its application and web
servers at Worldspan's data center pursuant to a separate Hosting Agreement,
Worldspan shall discount its then current monthly fee for this service [**],
subject to a maximum monthly discount of [**].
20. Worldspan shall offer, pursuant to a separate licensing agreement, its
customizable consumer Internet booking engine to Customer upon the product's
general release. Worldspan agrees to discount its initial license fee for this
product by [**].
21. No later than October 1 of each calendar year, Customer shall provide
written documentation to Worldspan of the total number of planned, budgeted
and/or projected Bookings to be generated by the Affiliates through the
Worldspan GDS during the following calendar year.
22. [**].
23. Customer and Worldspan shall use their best efforts to negotiate a
mutually acceptable service level agreement applicable to the services provided
under the Subscriber Entity Agreement. In the event that an agreement cannot be
reached in such negotiations, then the Subscriber Entity Agreement shall remain
in full force and effect.
24. "Affiliates," in reference to Customer, shall mean [**], [**].,[**],
and [**] any of their successor entities.
25. "Location" shall mean each of the following physical locations where
Customer or its Affiliates conduct business:
[**]
26. Notwithstanding any provision of the Entity Agreement to the contrary,
solely with respect services provided to Customer's Affiliates located in a
country of the European Union (the "EU Affiliates"), Customer and Worldspan may
at their respective discretion terminate services to such EU Affiliate without
penalty on giving at least ninety (90) days' prior written notice, to expire no
earlier than the end of the first year of the Term of the Entity Agreement.
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27. The first sentence of Section 4.A. of the Subscriber Agreement
Standard Terms and Conditions is hereby deleted in its entirety and replaced
with the following:
Worldspan or its service representative will provide, at Worldspan's expense,
normal repairs and maintenance for the Worldspan Equipment at the Locations
during Worldspan's normal repair hours.
28. The first sentence of Section 5.C. of the Subscriber Agreement
Standard Terms and Conditions is hereby deleted in its entirety and replaced
with the following:
Customer shall give Worldspan at least thirty (30) days' prior written
notice of its request to relocate or remove the Worldspan Equipment.
29. Section 5.D. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
Worldspan reserves the right to levy an additional charge over and above the
Standard Fees for installations, relocations or removals that are requested with
less than thirty (30) days' prior written notice, or those that are requested
outside of normal business hours in accordance with the attached Table of
Services and Charges.
30. Section 5.E. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
Upon any termination of the Subscriber Agreement, Worldspan shall waive its then
current charges for deinstallation and return of the Worldspan Equipment.
31. Section 6.B. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
For the business activity of the EU Affiliates, "Bookings" shall mean the total
of net billable airline bookings, net billable rail bookings, and net billable
car, hotel, tour, cruise, and ferry bookings as further defined below.
1. Airline Bookings. "Net billable airline bookings" shall mean those
ticketed airline segments properly booked by an EU Affiliate through the
GDS for which Worldspan charges and collects a fee, less cancellations
through the GDS prior to date of departure. "Ticketed airline segments"
shall mean airline segments (i) for which an EU Affiliate has issued
tickets through the GDS or (ii) for which an EU Affiliate has
systematically informed Worldspan of valid ticket numbers associated with
the segments.
2. Rail Bookings. "Net billable rail bookings" shall mean those ticketed rail
segments properly booked by an EU Affiliate through the GDS for which
Worldspan charges and collects a fee, less cancellations through the GDS
prior to date of departure, adjusted by any applicable correction ratios
to reflect the value of those bookings to Worldspan. "Ticketed rail
segments" shall mean rail segments (i) for which an EU Affiliate has
issued tickets through the GDS, (ii) for which an EU Affiliate has
systematically informed Worldspan of valid travel documentation associated
with the segments, or (iii) which are not sold through the principal
display of the GDS.
3. Car, Hotel, Tour, Cruise, and Ferry Bookings. "Net billable car, hotel,
tour, cruise, and ferry bookings" shall mean bookings for car, hotel,
tour, cruise, and ferry services for which Worldspan charges and collects
a fee, which are not cancelled and which do not result in "no-shows,"
adjusted by any applicable correction ratios to reflect the value of those
bookings to Worldspan. Bookings of car rentals or hotels for a continuous
period (e.g., one hotel client for five continuous nights or one car
client for five continuous days) shall be treated as one Booking.
For Bookings made by the Affiliates in countries not included in the European
Union, net billable airline bookings mean those segments properly booked by such
Affiliates through the GDS for which Worldspan charges a fee less cancellations
through the Worldspan GDS prior to date of departure, excluding unticketed
passive bookings. Net billable car, hotel, Tour Source, Cruise Line Source,
CruiseMatch and Worldspan Travel Suppliers bookings mean
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those segments properly booked by such Affiliates through the GDS for which
Worldspan charges a fee, which are not canceled and which do not result in
"no-shows." Bookings of car rentals or hotels for a continuous period (e.g., one
hotel client for five continuous nights or one car client for five continuous
days) shall be treated as one Booking. Customer consents to any retroactive
adjustment by Worldspan of incorrect Booking counts. The determination of the
number of Bookings shall be made solely by Worldspan from its books and records,
subject to paragraph 14 of this Amendment.
32. Section 6.D. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
Worldspan may enhance or modify the GDS at its discretion at any time; provided,
however, that any such enhancement or modification does not materially adversely
affect the services provided to Customer pursuant to the Subscriber Agreement.
Worldspan reserves the right to migrate Customer to new computer reservation
systems used by Worldspan.
33. Section 6.H.i. of the Subscriber Entity Agreement is hereby amended to
add the following:
"Power Shopper" means a fares-and-pricing productivity tool that provides
Customer the ability to retrieve up to four (4) low-fare itinerary alternatives
and confirm flights with a single keystroke.
34. Section 6.H.ii. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
Message Limit: The "Message Limit" is [**] Messages per Booking. The total
monthly permitted Messages ("Allowable Messages") is calculated by multiplying
the [**] Messages per Booking by the number of Bookings for that month.
35. Section 6.H.iii. of the Subscriber Agreement Standard Terms and
Conditions is hereby amended to add the following:
Worldspan agrees to discount its then current standard Power Shopper message fee
per PNR [**] for one (1) Power Shopper message per PNR. In the event Customer
generates an average of more than one (1) Power Shopper Message per PNR in any
calendar month, Customer shall be charged for each additional Power Shopper
Message at the rate of [**] per Power Shopper message in excess of the agreed
level.
36. Section 8.D. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
Each party will implement and maintain appropriate security measures for its
operations in accordance with technological developments and its evolving
security needs. Those appropriate security measures for each party will include,
without limitation, establishing a security policy for its computer network,
preventing unauthorized access to its computer systems, implementing
administrative security controls for its computing operations, installing
firewalls in its communications network, protecting its computer resources from
insider abuse, having appropriate administrative procedures to ensure that
system access capability to its computer systems is given to only authorized
users and is promptly withdrawn from terminated employees or other persons who
are no longer authorized, establishing a single point of control for responses
to incidents involving its security, and monitoring the effectiveness of the
security of its computer network.
37. Section 9.A.iv. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
it will use its best efforts to maintain the uptime of the GDS.
38. Section 11.D. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
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Any reduction, waiver or discounting of any fee in the Subscriber Agreement by
Worldspan is specifically conditioned upon Customer's generation of Bookings
sufficient to meet the Booking Goal to qualify for a one hundred percent (100%)
Productivity Discount under Article III.A. of the Subscriber Entity Agreement.
39. Section 12. of the Subscriber Agreement Standard Terms and Conditions
is hereby deleted in its entirety and replaced with the following:
This Agreement will be binding upon, and inure to the benefit of, the parties
and their respective successors and assigns. However, neither party may, without
the prior written consent of the other, assign or transfer this Agreement, or
any of its rights or obligations under this Agreement, to any person or entity
other than one who (i) merges, consolidates, or otherwise combines with that
party or otherwise acquires all or substantially all of the operating assets of
that party, and (ii) agrees or otherwise becomes legally obligated to comply
with and be bound by the provisions of this Agreement to the same extent as that
party.
40. Section 14.A.iv. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
Customer commits any material violation(s) of any laws, ordinances or
regulations related to the products or services provided under the Subscriber
Entity Agreement;
41. Section 14.E. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
Upon any termination of the Subscriber Entity Agreement pursuant to this Section
14, as a consequence of any default as set forth herein, the non-defaulting
party shall be entitled to recover its damages at law from the defaulting party,
in addition to any other rights or remedies that the non-defaulting party may
have at law, equity, or otherwise.
42. Section 14.F. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
The parties acknowledge that the provisions of this Section 14 shall not apply
to any failure by Customer to comply with the obligations of paragraph 3 or
paragraph 4 of this Amendment.
43. Section 14. of the Subscriber Agreement Standard Terms and Conditions
is hereby amended to include the following new Section 14.G.:
Notwithstanding anything in the Subscriber Entity Agreement to the contrary,
Customer's liability under this Agreement shall not exceed [**].
44. Section 17.B. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
Customer and Worldspan agree not to disclose the terms and conditions of the
Subscriber Agreement without the prior written consent of the other except as
required by law. Notwithstanding the foregoing, either party may disclose the
terms and conditions of the Subscriber Agreement to its attorneys and
accountants who have a need to know and who are advised of such party's
obligation contained in this Section 17.B. In addition, in the event that
Customer determines that public disclosure of the Subscriber Agreement is
required by the securities laws of the United States, Customer shall so notify
Worldspan immediately and the parties shall confer to determine the legally
permissible means to protect the competitively sensitive material set forth
herein. Notwithstanding the foregoing, the parties agree to issue a joint press
release announcing the existence of the Subscriber Entity Agreement and the
parties' expanded global relationship. The content of such release shall be
subject to mutual agreement.
45. Section 17.E. of the Subscriber Entity Agreement is hereby amended to
add the following:
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Worldspan shall use reasonable business efforts to ensure that notices and
communications to be served by Worldspan to Customer shall be sent to the
attention of the Chief Information Officer, with a copy to the attention of
Senior Vice President of Development.
46. Section 17.H. of the Subscriber Agreement Standard Terms and
Conditions is hereby deleted in its entirety and replaced with the following:
The Subscriber Agreement constitutes the full and final agreement between the
parties with respect to the subject matter hereof, and unless otherwise
provided, any prior agreements and understandings, whether written or oral, are
hereby superseded upon the beginning of the Term of the Subscriber Agreement.
The parties agree that all prior obligations contained in any prior agreements
between Worldspan and Customer are deemed, as of the date hereof, satisfied.
Worldspan agrees that all prior thresholds pertaining to Customer incentives
contained in any prior agreements between Worldspan and Customer are deemed met,
as of the date hereof. Except as provided herein, the Subscriber Agreement may
not be modified, altered or amended except by agreement and/or consent by
authorized representatives of both parties; provided however that the Table of
Services and Charges may be modified, altered or amended by Worldspan upon
thirty (30) days' prior notice to Customer; and further provided that the
Customer Equipment Support Responsibility may be modified, altered or amended by
Worldspan upon notice to Customer.
47. Except to the extent the Subscriber Entity Agreement is amended
herein, the Subscriber Entity Agreement remains in full force and effect. To the
extent the terms of this Amendment are inconsistent with the terms of the
Subscriber Entity Agreement, for purposes of this Amendment the terms of this
Amendment shall apply.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized undersigned representatives as of the day and
year first above written.
CUSTOMER, WORLDSPAN, L.P.,
FOR ITSELF AND ITS AFFILIATES: FOR ITSELF AND ITS SUBSIDIARIES:
priceline.com Incorporated
- ------------------------------
(Customer Legal Name)
- ------------------------------
(dba)
By: /s/ Jeff Boyd By: /s/ Susan J. Powers
- ------------------------------ -------------------------------------------
(Signature) (Signature)
Jeff Boyd Susan J. Powers
- ------------------------------ -------------------------------------------
(Print Name) (Print Name)
President Senior Vice President, Worldwide E-Commerce
- ------------------------------ -------------------------------------------
(Title) (Title)
12/03/01
- ------------------------------ -------------------------------------------
(Date) (Date)
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