GALILEOR INTERNATIONAL
ANCILLARY SERVICES AGREEMENT
This Ancillary Services Agreement
("Agreement") is made and entered into as of
this 28th day of August, 1995, between GALILEO
INTERNATIONAL PARTNERSHIP, a Delaware general
partnership whose principal place of business
is located at 0000 Xxxx Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 X.X.X. ("Galileo")
and CORPORATE TRAVEL LINK, INC., a
______________________ corporation whose
mailing address is 00 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx 00000 ("Customer").
W I T N E S S E T H
WHEREAS, Galileo provides computerized reservations and ticketing
services and other services ("Galileo Services") and is willing to
allow Customer to have limited access to its Galileo Services; and
WHEREAS, Customer desires to have limited access to Galileo
Services for the purpose of performing certain travel-related
functions and services.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations hereinafter set forth, Galileo and Customer agree as
follows:
1. DEFINITIONS
For the purposes of this Agreement, the following words and
terms shall have the following meanings:
A. "Ancillary Equipment" means all equipment, including
communications equipment, provided by Galileo which is
used in conjunction with Ancillary Services, such as
personal computer workstations, CRT sets, and printers.
For purposes of this Agreement, the term "Ancillary
Equipment" shall include all Software provided by Galileo
which is installed on the Ancillary Equipment.
B. "Ancillary Services" means limited access to Galileo
Services for the purpose of performing certain travel-
related functions and services, but specifically
excluding ticketing services.
C. "Charges" means all amounts payable by Customer to
Galileo under this Agreement.
D. "Confidential Information" means all trade secrets,
proprietary and confidential information of Galileo, its
affiliates, subsidiaries, successors or assigns
including, without limitation, the following: (i) any
and all hardware and software; (ii) any and all
algorithms, routines, subroutines, source code, object
code, software programs, computer processing systems and
techniques employed or used by Galileo, or its
affiliates, subsidiaries, successors or assigns, and any
related items such as specifications, layouts, flow
charts, manuals, instruction books, and other like
documentation together with all data and know how,
technical or otherwise included therein; (iii) all
documents, files, reports, drawings, plans, sketches,
equipment and the like related to the business of
Galileo, or its affiliates, subsidiaries, successors or
assigns; (iv) any and all upgrades, enhancements,
improvements or modifications to the Ancillary Services
or to the foregoing; (v) all customer pricing and
marketing information of Galileo, or its affiliates,
subsidiaries, successors or assigns; and (vi) this
Agreement.
E. "Galileo Services" or "Galileo" means Galileo's
computerized reservations and ticketing service and other
services. For purposes of this Agreement, Galileo
Services may include services of Galileo, ApolloR and the
Gemini Group Limited Partnership ("Gemini") and any other
computerized reservation system or authorized agent
thereof with whom Galileo has an agreement to distribute
such services or similar service ("Related CRS"). Said
parties shall not be considered third parties under this
Agreement.
F. "Software" means all computer software licensed by
Galileo to Customer.
G. "Transaction" means a message accessing Galileo Services
that is transmitted by Customer. For purposes of this
Agreement, "Peak Period" means the hours from 7:00 a.m.
to 7:00 p.m., Mountain Time, Monday through Friday, and
"Off Peak Period" means the remaining hours.
Any term not defined herein shall have the meaning given such term
elsewhere in the Agreement.
R "Galileo" and "Apollo" are registered service marks of Galileo
International.
2. INSTALLATION
A. Galileo shall install or cause to be installed the
Ancillary Equipment, as applicable, at each location set
forth on an Attachment A to this Agreement ("Location")
and shall provide Customer connection to Ancillary
Services. Galileo shall use its best efforts to install
and connect the Ancillary Equipment at the locations by
the planned installation dates set forth on each
Attachment A.
B. Each location shall be reviewed by a Galileo
representative to determine what, if any, physical
modifications shall be required to support the Ancillary
Equipment at that location. After the site review is
completed, Galileo shall issue a site survey for each
location. The site survey shall detail the layout of all
terminals, cables, and backroom support Ancillary
Equipment (e.g., transaction processing units and
modems). At its own cost and expense, Customer shall
implement, or cause to be implemented, any physical
modification required by the site survey, including,
without limitation, the furnishing of electrical power,
the installation of data cables, access to telephone
lines, and any inside wiring that may be necessary for
data line connectivity.
C. Customer shall not relocate any installed Ancillary
Equipment without first obtaining Galileo's written
consent. Any approved relocation must be accomplished by
Galileo or its designee at Customer's sole cost and
expense.
D. Customer represents and warrants that each location is
owned or controlled by Customer and that it has authority
to enter into this Agreement on behalf of each said
location.
3. TRAINING
A. Galileo shall provide Customer appropriate and sufficient
training in Customer's use of Ancillary Equipment and
Ancillary Services. Customer shall be responsible to
ensure that its employees complete all required training.
Galileo shall designate the time and location of and
shall bear the cost of providing a trainer and/or
materials used in such training program.
B. Only qualified personnel who have satisfactorily
completed Galileo's training program applicable to
Customer's use of Ancillary Equipment and Ancillary
Services (hereinafter "Designated Users"), and Customer
employees trained by Designated Users, shall be permitted
to use Ancillary Services and operate Ancillary
Equipment.
C. Galileo may provide training to Customer's Designated
Users for use of any major enhancements or modifications
to Ancillary Services or Ancillary Equipment and may
provide additional training at Customer's request. Any
such training shall be a Customer's expense and at a time
and location designated by Galileo.
D. Galileo may, at its discretion, monitor or test the
proficiency level of Customer's employees in the use of
the Ancillary Equipment and Ancillary Services. If
Galileo determines that their proficiency levels are
insufficient for the proper use of the Ancillary
Equipment and Ancillary Services, then Customer must
arrange for its employees to undertake any further
training which Galileo determines necessary to bring
Customer's employees to the desired proficiency level.
Customer is responsible for all costs and expenses
associated with any such additional training.
E. If any training conducted pursuant to this Article 3 is
not performed on-site, Customer, not Galileo, shall bear
all living expenses of Customer's employees while
attending any of the above training programs.
4. SOFTWARE LICENSE - RESTRICTIONS
A. (i) Galileo hereby grants Customer a nonexclusive
license to use the software during the term of this
Agreement. The Software is the property of Galileo
and may not be used, in whole or in part, by
Customer on other than or with the Ancillary
Equipment set forth on the Attachment A(s) unless
otherwise agreed to by Galileo. This license
automatically terminates upon termination of this
Agreement.
(ii) Title and full ownership rights to the Software
remain with Galileo or such other party with whom
Galileo has a distributorship or licensing agreement
("Licensor"). The Software is the proprietary
information and trade secret of Galileo or its
licensor, whether or not any portion thereof is or
may be validly copyrighted or patented. Customer
shall maintain the confidential nature of the
Software and related materials which are provided
hereunder for its own internal use and protect them
as it does its own most valuable and strategic
assets and trade secrets.
B. (i) Except with prior written consent of Galileo, or as
set forth in Article 4.8(ii) hereof, Customer shall
not copy, reproduce, or duplicate the Software in
any way, nor shall it sell, lease, pledge, assign,
license, dispose of, or otherwise transfer or
encumber the Software.
(ii) Any Software provided by Galileo hereunder in
machine-readable form xxx be copied, in whole or in
part, in printed or machine-readable form solely for
Customer's internal use for backup and archival
purposes and may be used only in the event of
damage, destruction, or loss of the original
Software supplied. The original and all copies of
the Software, in whole or in part, remain the
property of Galileo or its licensor.
(iii) Except with the prior written consent of Galileo,
Customer shall not add to, modify, enhance, or alter
the Software. Customer shall not disassemble,
reverse assemble, reverse compile or otherwise
reverse engineer any portion of the Software.
(iv) Except with the prior written consent of Galileo,
Customer shall not provide or otherwise make
available the Software or any part thereof,
including, but not limited to, programs, diagrams,
flow charts, logic, and operating and training
manuals, to any person other than Customer's
employees, officers, or directors who require access
to the Software in the normal course of Customer's
business.
(v) Customer shall advise all persons who are permitted
to have access to the Software of the nondisclosure
provisions of this Article 4, and Customer shall
take all necessary precautions to ensure that these
persons comply with such provisions. Customer shall
be liable to Galileo for any violation by any such
person of said non-disclosure provisions.
C. Except with the prior written consent of Galileo,
Customer shall not use the Software for any functions
other than those set forth in the related operations
manuals. Galileo may revoke any such consent by giving
thirty (30) days prior written notice to Customer.
D. Galileo provides portions of the Software pursuant to
license agreements with various third party software
providers. Certain of these providers may require
Galileo to obtain Customer's agreement to and compliance
with software sublicenses. Customer agrees to abide by
all such sublicenses and, if required, agrees to execute
any such sublicense. Customer's failure to agree to
execute or abide by a sublicense shall constitute a
breach of this Agreement and in such event Galileo may
refuse to install, or may deinstall, the Software and any
related Ancillary Equipment and seek any other remedies
provided in this Agreement.
5. THIRD PARTY-PROVIDED PRODUCTS
A. Customer shall provide Galileo sixty (60) days prior
written notice of its intent to utilize a non-Galileo
provided software application which sends Transactions to
or interfaces with Galileo Services except where the
application (i) is created using a product provided by
Galileo; or (ii) has been previously designated by
Galileo as not being incompatible with Galileo.
B. Galileo may require that customer provide Galileo
information regarding the applications, configuration,
and operation of any hardware or software that is not
provided by Galileo which interfaces either directly or
indirectly with Ancillary Services or in connected to
Ancillary Equipment ("Third Party Hardware" or "Third
Party Software"; collectively "Third Party Products") and
may require that the Third Party Product be tested or
certified by Galileo, at Customer's expense.
Furthermore, Galileo may determine that certain terms and
conditions pertaining to Customer's use of the Third
Party Products must be agreed to by Customer as a
condition of Customer's permissible use.
C. Customer shall bear sole responsibility to ensure that
all Third Party Products meet the requirements and
guidelines established by galileo and contained in the
product documentation as it may be changed from time to
time.
D. Customer is strictly prohibited from disassembling
Ancillary Equipment for any reason, including, but not
limited to, the purpose of installing Third Party
Hardware within Ancillary Equipment.
E. Galileo shall have no liability for any costs associated
with Customer's procurement or use of Third Party
Products and shall have no responsibility for installing
Third Party Products. In addition Galileo shall have no
liability whatsoever for and Customer releases Galileo
from any responsibility for (i) testing, certifying, or
assisting with the functional suitability, operation, or
compatibility of Third Party Products (unless the parties
have executed Galileo's standard product testing
agreement under which Customer agrees to pay Galileo's
then-current fees for such testing); (ii) enhancement or
modifications of Galileo Services rendering Third Party
Products incompatible with Galileo Services; (iii) any
defects, malfunctions, failure to perform, loss,
interruption, and errors of any kind by Third Party
Products; or (iv) provision of support or maintenance
services of any kind for Third Party Products. In the
event of system failure following the installation or use
of Third Party Products, at Customer's expense, Galileo
shall attempt to restore or reinstall Galileo-provided
Software so long as Customer has attempted and has been
unable to restore same. Galileo shall have no obligation
to restore or reinstall any of Customer's data files or
Third Party Products.
F. Customer shall (i) be liable to Galileo for any loss or
damage to Galileo Services, Ancillary Services or
Ancillary Equipment that is caused by the Third Party
Product's performance or failure to perform or by
Customer's installation, deinstallation or use of a Third
Party Product, including all costs incurred by Galileo
inn connection with the service and repair required to
restore Customer's connection to Galileo Services or
Ancillary Services; and (ii) indemnify and hold harmless
Galileo, its owners, officers, directors, agents, and
employees against and from any and all liabilities,
damages, losses, expenses, claims, demands, suits, fines
or judgments, including, but not limited to, attorneys'
fees, costs and expenses incident thereto, which may be
suffered by, accrue against, be charged to, or be
recovered from Galileo, its owners, officers, directors,
agents, or employees, by reason of any loss of, damage
to, or destruction of property, including loss of the use
thereof, or economic loss arising out of or in connection
with (a) any act, error or omission of Customer, its
officers, directors, agents, or employees in the
installation, deinstallation, or operation of a Third
Party Product; (b) any act, error, or omission of the
provider of a Third Party Product or any other third
party in the installation and operation of a Third Party
Product; and (c) any defect, malfunction, failure to
perform, and error of any kind caused or contributed to
by a Third Party Product.
G. In the event that Customer elects to utilize Third Party
Software which provides automatic transaction
capabilities, including, but not limited to, update,
query, retrieval, and download, Customer must install a
throttling mechanism to control the frequency of
Transactions transmitted through Galileo. Customer's
throttling mechanism must control such frequency to no
more than three (3) Transactions per second per line
interchange address (notwithstanding, Galileo makes no
representation that Galileo accepts a specified quantity
of Transactions for a given time period). Galileo may
further require that Customer maintain, at Customer's
expense, a telecommunication line for such application
separate and distinct from any other telecommunication
line used in conjunction with services provided by
Galileo.
H. In the event that any Galileo-provided Software is
installed on Third Party Hardware, Customer shall
promptly remove all liens and pay all assessments,
license fees, or other charges when levied or assessed on
or against the Third Party Hardware or the ownership or
use thereof.
I. Notwithstanding anything to the contrary herein, in order
to protect or maximize the operability of Galileo
Services, Galileo may direct Customer to (i) temporarily
or permanently discontinue its use of a Third Party
Product or (ii) prohibit direct or indirect access to
Ancillary Services by such Third Party Product, and
Customer must comply with such direction.
6. OPERATION OF ANCILLARY EQUIPMENT
A. To maintain an effective connection between Ancillary
Services and Ancillary Equipment and to prevent misuse of
Ancillary Services and Ancillary Equipment, Customer
agrees that Ancillary Services and Ancillary Equipment
shall be used and operated in strict accordance with
operating instructions provided by Galileo. Prohibited
uses include, but are not limited to, nonbusiness uses,
personal messages, providing services unauthorized by
this Agreement to third parties, training others in the
use of Ancillary Services, or other uses designated by
Galileo in writing as prohibited.
B. Customer may provide the Ancillary Services display only
to Customer's employees and may not provide Ancillary
Services to any other person or entity without the
written consent of Galileo. Customer expressly
acknowledges and agrees that, notwithstanding anything to
the contrary herein, all PNR, passenger and other data
and information entered into Galileo Services is owned by
Galileo.
C. Customer shall take all precautions necessary to prevent
unauthorized operation or use of Ancillary Services and
the Ancillary Equipment. Customer is liable and
responsible for any Transactions by Customer and its
employees using Ancillary Services and must ensure that
each agrees to use Ancillary Services and Ancillary
Equipment in accordance with the provisions set forth
herein. Galileo reserves the right to deny access to
Ancillary Services at an y time to any individual that
fails to comply with the provisions of this Agreement.
7. INDEMNIFICATION
A. Customer hereby agrees to indemnify and hold harmless
Galileo, its owners, officers, directors, agents, and
employees against and from any and all liabilities,
damages, losses, expenses, claims, demands, suits, fines
or judgments, including, but not limited to, reasonable
attorneys' fees, costs and expenses incident thereto,
which may be suffered by, accrue against, be charged to,
or be recovered from Galileo, its owners, officers,
directors, agents, or employees, by reason of any
injuries to or deaths of persons or the loss or, damage
to, or destruction of property, including loss of the use
thereof or any other loss or claim whatsoever, whether in
contract or tort, law or equity, arising out of or in
connection with any act, failure to act, error or
omission of Customer, its officers, directors, agents, or
employees in the performance or failure of performance of
Customer's obligations under this Agreement.
B. To the extent of Galileo's representations and warranties
under Article 12.A, Galileo hereby agrees to indemnify
and hold harmless Customer, its officers, directors,
agents, and employees against and from any and all
liabilities, damages, losses, expenses, claims, demands,
suits, fines or judgments, including, but not limited to,
reasonable attorneys' fees, costs and expenses incident
thereto, which may be suffered by, accrue against, be
charged to, or be recovered from Customer, its officers,
directors, agents, or employees, by reason of any
injuries to or deaths of persons or the loss of, damage,
to, or destruction of property, including loss of the use
thereof, arising out of or in connection with any act,
error or omission of Galileo, its owners, officers,
directors, agents, or employees in the performance or
failure of performance of Galileo's obligations under
this Agreement.
8. INSURANCE AND SECURITY INTEREST
A. Customer shall take all necessary precautions to protect
the Ancillary Equipment owned by Galileo and installed on
Customer's premises.
B. Customer hereby grants to Galileo a purchase money
security interest in any purchased Ancillary Equipment to
secure payment of the purchase price therefor, and agrees
that a copy of this Agreement may be filed as a financing
statement to protect Galileo's security interest in such
Ancillary Equipment in all jurisdictions where the
Ancillary Equipment or Customer may be located. Upon
payment in full of the purchase price for such purchased
Ancillary Equipment, Galileo shall, upon Customer's
request, take all steps necessary to terminate its
security interest in such Ancillary Equipment.
C. (i) At its own cost, Customer shall procure and maintain
insurance, from an insurer nationally recognized and
acceptable to Galileo and on terms and conditions
acceptable to Galileo, insuring the Ancillary
Equipment against all risk of loss or damage,
including, without limitation, the risks of fire,
theft and such other risks as are customarily
insured in a standard all-risk policy. Such
insurance shall also provide the following:
(a) Full replacement value coverage for the Ancillary
Equipment, which value is stipulated to be not less
than the Insurance Value as specified on the
relevant Attachment A;
(b) An endorsement naming Galileo as a coinsured and as
a loss payee to the extent of its interest in the
Ancillary Equipment; and
(c) An endorsement requiring the insurer to give Galileo
at least thirty (30) days prior written notice of
any intended cancellation, nonrenewal, or material
change of coverage or any default in the payment of
a premium.
(ii) Prior to the installation of the Ancillary
Equipment, Customer shall cause the insurer to
provide Galileo with certificates of insurance
evidencing the insurance and endorsements specified
in Article 8.C(i) hereof.
(iii)If Customer fails to maintain or pay the premium on
the insurance required in Article 8.C(i) hereof,
then Galileo may secure equivalent insurance
coverage or pay an delinquent premium. If Galileo
elects to do so, then Galileo may, at its option,
demand that Customer immediately reimburse Galileo
to the extent of Galileo's cost of such equivalent
insurance or delinquent premium payment plus
interest at the rate of eighteen percent 918%) per
annum or the maximum interest rate allowed by law,
whichever is less, from the date of Galileo's
expenditure until the date of reimbursement to
Galileo and Customer shall immediately pay all such
amounts to Galileo.
D. (i) Notwithstanding anything stated herein to the
contrary, Customer shall be liable to Galileo for
any loss or damage to the Ancillary Equipment,
regardless of the cause thereof, occurring while
leased to Customer or while in the possession,
custody, or control of Customer.
(ii) If any Ancillary Equipment is lost, totally
destroyed, damaged beyond repair, or so damaged to
constitute a constructive total loss, then, within
sixty (60) days after such loss or damage, Customer
shall pay to Galileo an amount equal to the
replacement value of such equipment on the date of
such loss or damage less any insurance proceeds paid
to Galileo in accordance with Article 8.C hereof.
9. ENTRY AND INSPECTION
Galileo or its designee shall have the right, upon reasonable
notice, to enter upon any location during Customer's business
hours for the purpose of monitoring Customer's operation of
the Ancillary Equipment or Ancillary Services, inspecting the
Ancillary Equipment, performing such repairs or maintenance of
support services as may be necessary, or removing the
Ancillary Equipment; provided, however, that Galileo shall not
during the course of such monitoring, inspection, repair, or
removal unreasonably interfere with Customer's business.
10. REPAIR AND MAINTENANCE
A. Xxxxxxx x xxxx provide or cause to be provided to
Customer support, repair and maintenance services
required for the Ancillary Equipment and Ancillary
Services. The support, repair and maintenance services
shall be provided during Galileo's normal business hours
and through a service organization designated by Galileo.
B. To maintain an effective connection between the Ancillary
Equipment and Ancillary Services and to preserve the
functional integrity of the ancillary Equipment, neither
Customer nor any third party, other than a third party
designated by Galileo, shall perform or attempt to
perform maintenance, repair work, alterations,
modifications, support services or programming of any
nature whatsoever, to the Ancillary Equipment or
Ancillary Services. To obtain maintenance, repair, or
support services, Customer shall contact the Help
Desk/Galileo Technical Support Center. Customer may, in
the event of interruption in Ancillary Services, call the
Help Desk/Galileo Technical Support Center.
C. Galileo or its designated agent shall perform
maintenance, repair, and support services for any damage
resulting from (i) accident, transportation, neglect, or
misuse; (ii) failure or variation of electrical power;
(iii) failure to properly maintain the installation site,
air conditioning, or humidity control; (iv) causes other
than ordinary use; or (v) maintenance, repair, servicing,
or modification of the Ancillary Equipment or Ancillary
Services performed or provided by anyone other than
Galileo or its designated agent. Unless the aforesaid
damages are a result of the fault or negligence of
Galileo or its designated agent, Customer shall be
responsible for all costs and expenses associated with
such maintenance, repair, and support services.
D. Notwithstanding the provisions of this Article 10,
Galileo shall have no responsibility for support, repair,
and maintenance services relating to Galileo-provided
Software functionality and use thereof not directly
related to performing travel-related functions.
E. Customer shall be responsible for the support, repair,
and maintenance of Third Party Products. if repair and
maintenance is requested by Customer for Ancillary
Services or Ancillary Equipment, and Galileo or its
designated agent deems the problem to be attributed to a
Third Party Product, Galileo shall have no obligation to
perform the necessary repair and, further, Customer may
incur a service call fee.
11. ENHANCEMENTS OR MODIFICATIONS
A. Galileo retains the right to enhance or modify Ancillary
Services or Ancillary Equipment at Galileo's discretion
at any time during the term of this Agreement. Any such
enhancement or modification may be provided at Galileo's
sole discretion, subject to Galileo's charges, terms and
conditions. If Customer commences use of any such
enhancement or modification, Customer's use shall
constitute an agreement by Customer (i) to pay Galileo
the prevailing charges, if any, for such enhancement or
modification, (ii) to follow the written procedures and
instructions provided by Galileo for such enhancement or
modification; and (iii) that upon Customer's use of such
enhancement or modification this Agreement shall be
deemed to be supplemented thereby and all the terms and
provisions of this Agreement shall apply to Customer's
use of such enhancement or modification.
B. Notwithstanding anything to the contrary set forth in
Article 11.A hereof, Galileo may, at its sole discretion,
determine that certain enhancements or modifications to
Ancillary Services or Ancillary Equipment must be
accepted by Customer as a condition of Customer's
continued use of same. There shall be no additional
charge to Customer for such required modification or
enhancement. If Customer fails to accept such required
enhancement or modification in accordance with Galileo's
terms and conditions, Galileo shall have the option of
deinstalling the Ancillary Equipment or disconnecting the
Ancillary Service requiring the enhancement or
modification at the applicable locations and providing
Customer with an alternative that does not require such
required enhancement or modification, if one exists. If
such alternative does not exist, Customer must accept
such required modification or enhancement or shall be
deemed in breach of this Agreement.
12. REPRESENTATIONS AND WARRANTY
A. GALILEO REPRESENTS AND WARRANTS THAT:
(i) IT IS THE OWNER OR LICENSEE OF THE SOFTWARE PROVIDED
UNDER THIS AGREEMENT;
(ii) IT HAS THE RIGHT TO PROVIDE ANCILLARY SERVICES SET
FORTH HEREIN TO THE CUSTOMER; AND
(iii)IT SHALL USE ITS BEST EFFORTS TO MAXIMIZE THE UPTIME
OF THE ANCILLARY EQUIPMENT.
B. CUSTOMER'S REMEDIES FOR BREACH OF THE WARRANTIES SET
FORTH IN ARTICLE 12.A HEREOF SHALL BE SOLELY LIMITED TO
REPAIR OR REPLACEMENT OF THE SOFTWARE, ANCILLARY
EQUIPMENT OR ANCILLARY SERVICES CAUSING THE BREACH AND
INDEMNIFICATION UNDER ARTICLE 7.5 HEREOF.
C. THE WARRANTIES AND REMEDIES SET FORTH IN ARTICLE 12.A AND
12.B HEREOF ARE EXCLUSIVE AND GALILEO MAKES NO OTHER
WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE
SOFTWARE, ANCILLARY EQUIPMENT OR ANCILLARY SERVICES.
D. EXCEPT FOR A BREACH OF THE EXCLUSIVE WARRANTIES SPECIFIED
IN ARTICLE 12.A HEREOF AND EXCEPT FOR THE RIGHT TO
RECEIVE THE EXCLUSIVE REMEDIES SPECIFIED IN ARTICLE 12.B
HEREOF, CUSTOMER HEREBY WAIVES AND RELEASES GALILEO, ITS
OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM
ANY AND ALL OTHER OBLIGATIONS AND LIABILITIES AND ALL
RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST GALILEO,
ITS OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS,
EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, DUE TO
ANY DEFECTS OR INTERRUPTIONS OF SERVICE IN, OR ERRORS
(INCLUDING, WITHOUT LIMITATION, ANY ERRORS IN
RESERVATIONS AVAILABILITY RECORDS) OR MALFUNCTIONS BY
SOFTWARE, ANCILLARY EQUIPMENT, OR ANCILLARY SERVICES,
INCLUDING ALL LIABILITY, OBLIGATION, RIGHT, CLAIM, OR
REMEDY IN TORT, AND INCLUDING ALL LIABILITY, OBLIGATION,
RIGHT, CLAIM OR REMEDY FOR LOSS OF REVENUE OR PROFIT OR
ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES.
13. FORCE MAJEURE
Except for any payment obligations, neither party shall be
deemed to be in default or liable for any delays in the event
and to the extent that performance thereof is delayed or
prevented by acts of God, public, enemy, war, civil disorder,
fire, flood, explosion, riot, labor disputes, work stoppage or
strike, unavailability of equipment, any act or order of any
governmental authority, or any other cause, whether similar or
dissimilar, beyond its control.
14. CHARGES
A. Customer shall pay to Galileo license, lease, purchase,
installation, and service fees; taxes; and other fees as
set forth in this Agreement, Attachment A, and all other
applicable attachments to this Agreement, without setoff
or counterclaim. Monthly fees commence upon the
Ancillary Services being operational.
B. For each location as of the effective date of the
Agreement and any location added thereafter in accordance
with the Agreement, Customer shall pay Galileo the
Charges as follows:
(i) Customer shall pay Galileo an Installation Charge as
set forth on Attachment A.
(ii) Customer shall pay to Galileo monthly, in advance,
a Monthly Fixed Charge for the Ancillary Equipment,
interconnection to Ancillary Services, and
associated maintenance, repair, and support
services, as set forth on Attachment A.
C. Customer acknowledges that a change in Customer's
hardware or software configuration may result in an
adjustment to the Charges. Except for such increases as
specified in Article 14.H hereof, such adjustments shall
be by written supplement hereto.
D. Customer shall be charged in accordance with each
Attachment A hereto for: (i) the installation or
deinstallation of hardware or software; (ii) relocation
of hardware or software within the location; (iii) each
location disconnect or relocation to different premises;
(iv) hardware or software modifications, upgrades, or
enhancements; (v) excess cable required for installation;
(vi) installation or peripheral devices requested by
Customer; and (vii) similar installation and
deinstallation related expenses.
E. When applicable, Customer shall pay all SITA (Societe
International Telecommunications Aeronautiques) charges
incurred in connection with Customer's use of Ancillary
Services under this Agreement.
F. Customer further agrees to pay an overtime premium for
maintenance or repair services provided outside of normal
business hours at Customer's request. Normal business
hours are 8:00 a.m. to 5:00 p.m., local time, Monday
through Friday, except holidays observed by Galileo.
G. Invoices shall be sent to each location address, as
specified on Attachment A, unless alternate written
instructions are provided by Customer to Galileo. All
amounts payable hereunder are due within ten 910) days
after the date of invoice and shall be paid in U.S.
dollars on a U.S. bank. Any past due amounts shall
accrue interest at a rate not to exceed one and one-half
percent (1-1 1/2%) per month compounded or the maximum rate
permitted by law, whichever is less. The accrual of such
interest shall not affect any of Galileo's rights or
remedies under this Agreement.
H. All Charges are subject to increase by Galileo upon
thirty (30) days prior written notice, except that
Galileo may not increase such Charges by more than twelve
(12) percent in any one calendar year. Notwithstanding
the foregoing, the communications cost elements of any of
the above Charges shall be subject to increase, at any
time and without limitation, to cover any increase in the
cost thereof incurred by Galileo.
15. TAXES AND FEES
Customer covenants and agrees to pay when due or reimburse and
indemnify and hold Galileo and its owners harmless from and
against all taxes, fees and other charges of every nature
whatsoever (together with any related interest or penalties
not arising from fault on the part of Galileo), now or
hereafter imposed or assessed against Galileo, its owners or
Customer by any Federal, state, county, or local governmental
authority, upon or with respect to this Agreement or upon or
with respect to the ordering, purchase, sale, ownership,
delivery, leasing, possession, use, operation, return or other
disposition of property and services thereof or upon the
rents, receipts or earnings arising therefrom (excepting only
Federal, state and local taxes based on or measured by the net
income of Galileo). Notwithstanding the foregoing, unless
otherwise specified, Galileo shall be responsible for the
filing of all personal property tax returns and shall pay all
taxes indicated thereon, Customer shall reimburse Galileo for
all such taxes, fees and charges within ten (10) days of
receipt of Galileo's invoice therefor.
16. TERM
A. The term of this Agreement shall commence on 9/15/95 and
shall continue until terminated by either party upon
thirty (30) days prior written notice.
B. Upon termination of this Agreement, for any reason
whatsoever, Customer shall allow Galileo onto its
premises to remove, at Customer's expense, all leased or
licensed Ancillary Equipment and Galileo Software, and
Customer shall return to Galileo all Confidential
Information, including, but not limited to, all manuals,
guides, and written materials provided to Customer and
all copies of such materials, whether in written or
computer readable form.
C. Those provisions of the Agreement which by their nature
and intent should survive expiration or termination of
the Agreement, including, but not limited to,
confidentiality and Software license restrictions, shall
so survive.
17. TERMINATION FOR CAUSE
A. If either party (the "Defaulting Party") becomes
insolvent; if the other party (the "Insecure Party") has
evidence that the Defaulting Party is not paying its
bills when due without just cause; if a receiver of the
Defaulting Party's assets is appointed; if the Defaulting
Party takes any step leading to its cessation as a going
concern; or if the Defaulting Party either ceases or
suspends operations for reasons other than a strike, then
the Insecure Party may immediately terminate this
Agreement on written notice to the Defaulting Party
unless the Defaulting Party immediately gives adequate
assurance of the future performance of this Agreement by
establishing an irrevocable letter of credit -- issued by
a U.S. bank acceptable to the insecure Party, on terms
and conditions acceptable to the insecure Party, and in
1an amount sufficient to cover all a mounts potentially
due from the Defaulting party under this Agreement --
amount sufficient to cover all amounts potentially due
from the Defaulting Party under this Agreement -- that
may be drawn upon by the Insecure Party if the Defaulting
Party does not fulfill its obligations under this
Agreement in a timely manner. If bankruptcy proceedings
are commenced with respect to the Defaulting Party and if
this Agreement has not otherwise terminated, then the
Insecure Party may suspend all further performance of
this Agreement until the Defaulting Party assumes or
rejects this Agreement pursuant to Section 365 of the
Bankruptcy Code or any similar or successor provision.
Any such suspension of further performance by the
Insecure Party pending the Defaulting Party's assumption
or rejection shall not be a breach of this Agreement and
shall not affect the Insecure Party's right to pursue or
enforce any of its rights under this Agreement or
otherwise.
B. If either party (the "Defaulting Party") refuses,
neglects, or fails to perform, observe or keep an of the
covenants, agreements, terms or conditions contained
herein on its part to be performed, observed and kept,
and such refusal, neglect or failure continues for a
period of thirty (30) days after written notice (except
in the case of any payments due where the period to cure
such nonpayment shall be five (5) days after notice) to
the Defaulting Party thereof, then without prejudice to
any other rights or remedies of the other party, this
Agreement shall, at the option of the non-defaulting
party, terminate as of the expiration of the notice
period. Notwithstanding anything to the contrary herein,
in the event Customer is the Defaulting Party, the
Galileo may, at its sole option and without prejudice to
any other of its rights or remedies, reduce or restrict
provision or services provided under the Agreement
without termination of the Agreement.
C. The right of either party to require strict performance
and observance of any obligations under this Agreement
shall not be affected in any way by any previous waiver,
forbearance or course of dealing. Exercise by either
party of its right to terminate under this Agreement
shall not affect or impair its right to bring suit for
any default or breach of this Agreement. All obligations
of each party that have accrued before termination or
that are of a continuing nature shall survive
termination.
D. If this Agreement includes more than one location and if
Customer's default or breach relates to fewer than all
locations, then Galileo may, at its sole option, exercise
its rights under this Article to terminate this entire
Agreement or only with respect to the location(s)
involved.
18. ASSIGNMENT, MERGER, AND SALE
A. Customer shall not assign, transfer, or sublease this
Agreement or any right or obligation hereunder unless the
assignee, transferee or sublessee expressly assumes all
of the liabilities and obligations of Customer hereunder
and Customer has obtained the prior written consent of
Galileo, which shall not be unreasonably withheld. Any
purported assignments,, transfers or subleases made
without such assumption and consent shall, at Galileo's
option, be null and void ab initio.
B. If Galileo consents to the assignment, transfer or
sublease, Customer may be required to pay Galileo a one-
time transfer fee and any sublicense distribution costs
that are incurred by Galileo in connection with the
assignment of Customer's use of Software. Customer's
failure to pay these fees shall result in the assignment
being rendered null and void ab initio.
C. In the event Customer acquires or gains control of
another entity or merges with or is acquired or becomes
controlled by any person or entity not presently owning
a controlling interest in Customer, then Galileo, at its
sole option, may immediately terminate this Agreement
without any obligation or liability to Customer, other
than past due amounts.
19. PUBLICITY, ADVERTISING AND PROMOTION
A. Except in any proceeding to enforce the provisions of
this Agreement or except as otherwise required by law,
neither party shall publicize or disclose to any third
party the provisions of this Agreement or any of the
Charges, terms, or conditions herein without the prior
written consent of the other party.
B. Neither party shall use the name or logo of the other in
publicity releases or advertising regarding or related to
this Agreement without securing the prior written
approval of the other party. Request for approval shall
be directed to the respective addresses set forth in
Article 22 hereof.
20. CONFIDENTIALITY
A. All Confidential Information, including all applicable
rights to patents, copyrights, trademarks, and trade
secrets inherent therein or related thereto, is and shall
remain the sole and exclusive property of Galileo or its
Licensor (as applicable).
B. Customer shall maintain the confidentiality of the
Confidential Information using the highest degree of
care. Customer shall not use, sell, transfer, publish,
disclose, display, or otherwise make available to others,
except as authorized in this Agreement, the Confidential
Information or any other material relating to the
Confidential Information at any time before or after the
termination of this Agreement nor shall Customer permit
its officers, directors, employees, agents, or
contractors to divulge the Confidential Information or
use the Confidential Information other than as authorized
in this Agreement without the prior written consent of
Galileo.
C. Customer shall ensure that each of its employees,
officers, directors, agents or contractors who has access
to the Confidential Information provided under this
Agreement is aware of this confidentiality requirement
and agrees to be bound by it. Customer shall be liable
to Galileo for any violation by any such person of any of
the provisions of this Article 20.
21. ANCILLARY EQUIPMENT
A. It is understood that: (i) all Ancillary Equipment shall
remain the sole property of Galileo; (ii) Customer shall
not remove any identifying marks from any such Ancillary
Equipment; (iii) Customer shall not subject the Ancillary
Equipment to any lien or encumbrance; and (iv) Galileo
may enter Customer's premises to remove the Ancillary
Equipment immediately upon termination of this Agreement.
B. Customer agrees to make, execute, acknowledge and
deliver, any time or from time to time, all documents,
instruments, and assurances, including, without
limitation, financing statements under the Uniform
Commercial Code, as may be requested by Galileo to
preserve Galileo's ownership rights and title in and to
the Ancillary Equipment, and hereby authorizes Galileo,
where permitted b law, to file financing statements and
amendments thereto relating tot he Ancillary Equipment
without Customer's signature where desirable in Galileo's
judgment to preserve Galileo's ownership rights and title
in and to the Ancillary Equipment. Upon deinstallation
of the Ancillary Equipment, Galileo shall, upon
Customer's request, take all steps necessary to terminate
any Uniform Commercial Code filing made with respect
thereto.
22. NOTICES
Notices given or required hereunder shall be deemed sufficient
if sent by first class mail, postage prepaid, or any more
expedient written means to the address of Customer as
specified in the preamble of this Agreement; notices to
Galileo should be sent to:
GALILEO INTERNATIONAL
0000 XXXX XXXXXXX XXXX
XXXXXXXX, XX 00000
ATTN: COVZL - CONTRACT NOTICES
Notices sent via electronic means (e.g., telex, facsimile)
shall be effective immediately if received on a business day
prior to 5:00 p.m. local time of the recipient. All other
notices shall be effective the first business day after
receipt.
23. GOVERNING LAW
This Agreement and any dispute arising under or in connection
with this Agreement, including any action in tort, shall be
governed by the internal laws of the State of Illinois,
without regard to its conflict of laws principles. All
actions brought to enforce or arising out of this Agreement
shall be brought in federal or state courts located within the
County of Xxxx, State of Illinois, the parties hereby
consenting to personal jurisdiction and venue therein.
24. SEVERABILITY
If any provision of this Agreement is held invalid or
otherwise unenforceable, the unenforceability of the remaining
provisions shall not be impaired thereby.
25. CAPTIONS
The captions appearing in this Agreement have been inserted as
a matter of convenience and in no wa define, limit or enlarge
the scope of this Agreement or any of the provisions of this
Agreement.
26. INDEPENDENT CONTRACTORS
This Agreement is not intended to and shall not be construed
to create or establish an agency, partnership, or joint
venture relationship between the parties hereto.
27. ADDITIONAL COVENANTS
The individual signing this Agreement or any amendments to
this Agreement, on behalf of the Customer, or if more than
one, each of them, represents and warrants that: (i) he or
she is duly authorized to execute this Agreement on behalf of
Customer; (ii) he or she has full power and authority to bind
Customer to t he terms and conditions hereof; (iii) no
representations or warranties of Customer or the undersigned,
nor any statements written or oral, made or furnished to
Galileo either herein or with respect tot he organization or
business of Customer, contains any untrue statement of a
material fact or omits a material fact necessary to make the
representation, warranty, or statement not misleading; and
(iv) this Agreement constitutes a legal, valid, and binding
agreement of Customer, enforceable in accordance with its
terms. Customer shall be liable for and agrees to reimburse
Galileo for all attorneys' fees and court costs incurred by
Galileo to enforce this Agreement or to seek remedies for
breach of this Agreement by Customer.
28. ENTIRE AGREEMENT
A. The following Attachments are part of this Agreement: A.
This Agreement constitutes the entire agreement and
understanding of the parties on the subject matter hereof
and, as of the effective date, supersedes all prior
agreement, whether written or oral, between the parties
hereto concerning the subject matter hereof, excluding
amounts due Galileo which may have accrued under a prior
agreement between the parties. Any such prior amounts
due shall be deemed an obligation of this Agreement for
which all provisions herein shall apply.
B. This Agreement may be modified only by further written
amendment or supplement signed by all parties to this
Agreement.
C. If any non-English interpretive version of the Agreement
is created, then, in the event of a conflict between the
English version and any non-English version, the English
version shall control.
IN WITNESS WHEREOF, Customer and Galileo have executed this
Agreement as of the day and year first above written.
CUSTOMER GALILEO INTERNATIONAL PARTNERSHIP
By By
Name XXXXXX XXXXXXX Name Xxxxxxx X. Foliot
Title President Title Sr. Vice President
Date August 4, 1995 Date August 28, 1995
