After reviewing the Sandbox Testing agreement, the Legal Department of US Airways has the following questions/concerns:
· How will IATA will safeguard our Data and what happens in the event such Data is compromised by IATA or any of its subcontractors and we incur damages from third party claims as a result?
· What happens if the Testing Tool infringes some third party’s IP rights and by our use of it, we get brought into an infringement suit as typically IATA would indemnify us (see 11.2 of the SIS Participation Agreement where IATA does provide)?
· IATA should be giving similar representations and warranties in this agreement as they do in the SIS Participation Agreement (see, for e.g., Sections 10.2.3, 10.2.5, 10.2.6, 10.2.7)
· Section 10.4—Liability should not be limited for damages due to IP infringement, indemnification of third party claims or breach of confidentiality (these are standard exceptions/carveouts to limitations on liability)
· There is some confusion around the appropriate use of certain defined terms with some terms not even defined (for e.g., is “IATA Property” and “Participant Property” “Intellectual Property” as defined in the agreement or something else? “Property” and “Results” do not look like they are defined per se)
· Section 3.2—the reference to section “4.1” should be “ 3.1”. Why don’t we have the right to terminate the agreement as IATA does?
· Section 11.1—IATA wants to use Canadian law and courts whereas we generally use NY law and courts (Note: the SIS Participation Agreement uses NY law)