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EXHIBIT 10.6
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT.
THE SYMBOL "[*]" HAS BEEN INSERTED
IN PLACE OF THE PORTIONS SO OMITTED.
MARKETING COOPERATION
AND SALES REPRESENTATION AGREEMENT
between
UNITED AIR LINES, INC.
and
GALILEO INTERNATIONAL, INC.
Dated as of __________________ __, 1997
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MARKETING COOPERATION
AND SALES REPRESENTATION AGREEMENT
Table of Headings
Section Page
1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2 Sales Agency and Territories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1 Sales to NTP Subscribers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1.1 Sales Agency Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1.2 Designated Subscribers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.1.3 Multinational Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.2 Sales to CTMS Customers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Other Sales Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Territorial Reassignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Trade Names . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3 The Administration of this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.1 GI-Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3.2 United . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.3 Meetings and Coordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4 Responsibilities of United . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.1 NTP Sales Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.2 Multinational Sales Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.3 CTMS Sales Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.4 Support Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.5 Responsibilities With Respect to Excluded Subscribers . . . . . . . . . . . . . . . . . . . . . . . . 10
4.6 Sales Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.7 Staffing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.7.1 Staffing Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.7.2 Review of Staffing Levels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.7.3 Employee Proficiency and Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.7.3.1 Introductory Training . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.7.3.2 Employee Proficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.7.3.3 Training and Test Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5 GI-Inc Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.1 Marketplace Competitiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.2 GI-Inc Support of Sales Services and Support Services . . . . . . . . . . . . . . . . . . . . . . . . 12
5.3 Services of GI-Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.4 New Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5.5 CTMS Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5.5.1 Base Products . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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5.5.2 Demonstrations . . . . . . . . . . . . . . . . . . 13
5.6 Technical Support . . . . . . . . . . . . . . . . . . . . . 13
5.7 Technical Assistance Offices . . . . . . . . . . . . . . . . 13
5.8 Help Desk . . . . . . . . . . . . . . . . . . . . . . . . . 13
6 Reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7 Other Marketing Rights . . . . . . . . . . . . . . . . . . . . . . . 14
7.1 GI-Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.2 United . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
8 Terms of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . 14
9 Currency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
10 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . 15
11.1 Confidential Information . . . . . . . . . . . . . . . . . . 15
11.2 Service . . . . . . . . . . . . . . . . . . . . . . . . . . 16
12 Service Marks, Patents, Third Party Data . . . . . . . . . . . . . . 16
12.1 Use of Service Marks . . . . . . . . . . . . . . . . . . . . . 16
12.1.1 GI-Inc Marks . . . . . . . . . . . . . . . . . . . . 16
12.1.2 United Marks . . . . . . . . . . . . . . . . . . . . 16
12.2 Patent Indemnity . . . . . . . . . . . . . . . . . . . . . . 16
12.2.1 Actions . . . . . . . . . . . . . . . . . . . . . . 16
12.2.2 Limitation . . . . . . . . . . . . . . . . . . . . . 17
12.3 Third Party Data . . . . . . . . . . . . . . . . . . . . . . 17
13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
13.1 GI-Inc Responsibilities . . . . . . . . . . . . . . . . . . 17
13.2 Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14 Limitation of Liability . . . . . . . . . . . . . . . . . . . . . . 18
15 Consequential Damages . . . . . . . . . . . . . . . . . . . . . . . 18
16 Termination for Breach . . . . . . . . . . . . . . . . . . . . . . . 18
17 Force Majeure, Delay . . . . . . . . . . . . . . . . . . . . . . . . 18
18 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . 19
19 Guarantee of Performance . . . . . . . . . . . . . . . . . . . . . . 19
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20 Third Party Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
21 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
22 Relationship of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
23 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
24 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
25 Governing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
26 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
27 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
28 Entirety of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
29 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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Table of Attachments
Appendix I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Certain Terms
Appendix II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Budgets and Compensation
Attachment A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Defined Terms
Attachment B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dispute Resolution Procedure
Exhibit A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Area of Primary Sales Responsibility
Exhibit B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of Excluded Subscribers
Exhibit C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Designated Subscribers
Exhibit D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sales Representative Reports
Exhibit E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certain Territories
Schedule 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Certain Information Relating to 1997
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MARKETING COOPERATION AND SALES REPRESENTATION AGREEMENT
UNITED AIR LINES, INC. AND GALILEO INTERNATIONAL, INC.
This Marketing Cooperation and Sales Representation Agreement (this
"Agreement") effective as of the ___ day of _______, 1997 (the "Effective
Date"), by and between GALILEO INTERNATIONAL, INC., a Delaware corporation
("GI-Inc") with offices at Xxxxx 000, 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxx, 00000, and UNITED AIR LINES, INC., a Delaware corporation ("United")
with offices at 0000 X. Xxxxxxxxx Xxxx, Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000.
RECITALS
WHEREAS United and Apollo Travel Services Partnership, a Delaware
general partnership ("Apollo Partnership"), are parties to a Sales
Representative Agreement, dated as of January 1, 1994 (the "Original
Agreement"); and
WHEREAS GI-Inc generates computerized reservations services through
GI-Inc's computer reservation system and distributes such services
worldwide for use by travel-related business entities, by CTMS Customers, and by
individual consumers; and
WHEREAS GI-Inc desires to appoint Sales Representatives that will be
responsible for the sale of GI-Inc's reservations services to such
persons and for the provision of ongoing support services to certain of such
persons; and
WHEREAS The parties hereto agree that, because of the competitiveness of
the products and services of GI-Inc vis-a-vis like products and services
of all other companies within the CRS Industry, United is desirous of entering
into this Agreement; and
WHEREAS The parties hereto agree that, because of United's knowledge of
and contact with a substantial portion of the community of travel agents
within the Territory, GI-Inc is desirous of entering into this Agreement; and
WHEREAS United and Apollo Partnership intend to terminate the Original
Agreement and United desires to be a Sales Representative for GI-Inc under the
terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants set forth in
this Agreement, GI-Inc and United hereby agree as follows:
1 Definitions.
Capitalized terms used as defined terms in this Agreement have, unless
otherwise defined elsewhere in this Agreement, the meanings provided for each
in Attachment A hereto.
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2 Sales Agency and Territories.
2.1 Sales to NTP Subscribers.
2.1.1 Sales Agency Appointment.
With respect to the Assigned Subscribers, GI-Inc hereby
appoints United as the exclusive limited agent of GI-Inc to obtain
commitments from the Assigned Subscribers to subscribe for and lease Galileo
Services. Except as provided in Section 4.2 below, United will act as the sales
agent of GI-Inc only for the limited purposes of negotiating and obtaining
written commitments from NTP Subscribers on terms and in a form prepared and
approved in advance by GI-Inc.
2.1.2 Designated Subscribers.
Exhibit C hereto lists the NTP Subscribers with
locations in the sales territories of more than one sales representative
for whom United is the designated provider of Sales Services and Support
Services. United is the exclusive provider of Sales Services and Support
Services for all locations of such NTP Subscribers in the Territory. GI-Inc may
add or delete NTP Subscribers from such Exhibit C only with United's consent.
All NTP Subscribers listed on Exhibit C are "Excluded Subscribers" for all other
sales representatives of GI-Inc, including for GI-Inc itself.
2.1.3 Multinational Accounts.
An NTP Subscriber whose Headquarters is in the Territory
and that has outlets (whether owned, licensed, or otherwise) for its business
in both the Territory and outside of the Territory is, for the purposes of this
Agreement, a "Multinational Account". GI-Inc has overall responsibility with
respect to Multinational Accounts, including the provision of services to and
all payments of Financial Assistance to such Multinational Accounts, provided,
however, that United has responsibility for the negotiations with Multinational
Accounts with respect to the products and services of GI-Inc, and United and
GI-Inc agree that United together with GI-Inc shall undertake all such
negotiations pursuant to this Agreement, including, without limitation, the
Multinational Procedure as described in Section 4.2 below. Exhibit C to this
Agreement lists the Multinational Accounts as of the Effective Date. Subsequent
to the Effective Date, United shall assume the responsibilities described in
this Section 2.1.3 with respect to any National Account that, during the term of
this Agreement, becomes a Multinational Account, whether by growth, merger,
business combination, or otherwise. In the event that any Multinational Account
ceases to be a Multinational Account during the term of this Agreement (a
"Discontinued Multinational Account"), then such
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Discontinued Multinational Account shall no longer be deemed to be a
Multinational Account but shall be deemed to be a Designated Subscriber.
2.2 Sales to CTMS Customers.
With respect to CTMS Customers and CTMS Agents, GI-Inc hereby appoints
United as its non-exclusive limited agent to obtain commitments
from CTMS Customers and CTMS Agents to purchase, license, or lease CTMS
Services. Pursuant to Section 4.3 below, and except in those territories where
GI-Inc has granted exclusive distribution rights to third parties with respect
to Galileo Services and CTMS Services, as listed in Exhibit E hereto, United may
act as the sales agent of GI-Inc worldwide for the limited purposes of
negotiating and obtaining written commitments from CTMS Customers and CTMS
Agents on terms and in a form prepared and approved in advance by GI-Inc.
2.3 Other Sales Agents.
Subject to this Section 2 and to Section 3 below, GI-Inc may at its
discretion appoint other persons as sales agents of GI-Inc and GI-Inc may act on
its own behalf as sales agent. GI-Inc will treat each of its sales agents in a
fair and nondiscriminatory manner and as appropriate in a manner
proportionate to United's responsibilities hereunder with respect to the terms
and conditions of its appointment as a sales representative, including, but not
limited to, the provision of Sales Services, Support Services, training, the
criteria for approvals of Form Agreements, the compensation arrangements
provided by GI-Inc, and in all associated support functions that are GI-Inc's
responsibility hereunder.
2.4 Territorial Reassignment.
A "Territorial Reassignment" shall occur in the event of (i) a
reassignment by GI-Inc among its sales representatives of territories outside of
the APR but within the Territory, or (ii) the termination of any arrangement
regarding sales agency between GI-Inc and another sales representative of GI-Inc
who is performing as a sales agent within the Territory but not within the APR
(an "Other Agent"). In the event of a Territorial Reassignment, GI-Inc will
offer to United the right of first refusal to assume sales agent responsibility
within such reassigned territory or within the territory of such terminated
Other Agent. Before such territories are assigned to United, GI-Inc and United
will negotiate in good faith to adjust the performance objectives and the
compensation therefor as provided in Appendix II. If United and GI-Inc are
unable within ninety days (90 days) from the commencement of such negotiations
to agree on the terms of adjustment for the performance objectives and the
compensation then GI-Inc shall be free to make the Territorial Reassignment to
any other agent or GI-Inc may perform such sales function for itself.
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2.5 Trade Names.
During the term of this Agreement and except as otherwise provided in
this Agreement, with respect to the APR, GI-Inc will market, and United will
sell, the Reservations Services and CTMS Services of GI-Inc under the "Apollo"
trade name. Notwithstanding the foregoing, if, as a result of United's efforts
under this Agreement, a customer of GI-Inc commits to purchase GI-Inc products
or services outside of the Territory then GI-Inc will determine the trade name
for such products or services outside of the Territory. For the purposes of this
Agreement it is assumed, without obligation on GI-Inc's part, that such trade
name outside the Territory is "Galileo".
3 The Administration of this Agreement.
United and GI-Inc agree that the proper and efficient administration of
each party's obligations under this Agreement is essential to meeting
the objectives of the parties hereunder. To this purpose, the parties agree to
dedicate appropriate staff and resources at an executive level, and otherwise,
as follows:
3.1 GI-Inc.
At all times during the term of this Agreement GI-Inc will employ an
individual who shall have primary responsibility for meeting GI-Inc's
obligations under this Agreement, which person shall be a duly appointed officer
of GI-Inc (the "GI-Inc Executive"). The GI-Inc Executive shall report directly
to the President and Chief Executive Officer of GI-Inc. The GI-Inc Executive
shall be a person who has experience and background commensurate with his or her
responsibilities. The GI-Inc Executive will maintain an office in the Chicago
metropolitan region.
The GI-Inc Executive shall have full authority to bind GI-Inc in all
matters regarding this Agreement that may arise during the term of this
Agreement, subject to the provisions of the corporate by-laws and commitment
authorities of GI-Inc as approved by GI-Inc's Board of Directors or CEO,
including, without limitation:
(i) matters regarding Financial Assistance;
(ii) the approval of agreements with current and potential customers
of GI-Inc that are negotiated by United on GI-Inc's behalf
pursuant to this Agreement;
(iii) the negotiation with United of goals and targets related to
GI-Inc's and United's performance under this Agreement;
(iv) the compensation owed United by GI-Inc under this Agreement,
including the negotiation and payment thereof;
(v) the quantity, quality of performance and training of personnel
provided by GI-Inc pursuant to its obligations under this
Agreement;
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(vi) the coordination of GI-Inc's role in negotiations with
third party where such negotiations involve
the participation of parties other than GI-Inc, United,
and that third party; and
(vii) the coordination and resolution of any issues arising
under this Agreement that, in United's or
GI-Inc's estimation, are affected by actions that have
been or may be taken by other sales agents of GI-Inc or
by GI-Inc.
The GI-Inc Executive may delegate to employees of GI-Inc or to
persons under the control of GI-Inc such matters that are his or her
responsibility hereunder and as may be, in the GI-Inc Executive's discretion,
appropriate for delegation provided that, if United reasonably objects that such
delegation will result in a diminishment of GI-Inc's performance hereunder or in
a detriment to United's ability to perform its obligations hereunder, or both,
then GI-Inc will review the proposed delegation and inform United as to how
GI-Inc will address United's reasonable concerns.
3.2 United.
At all times during the term of this Agreement United will employ an
individual to have primary responsibility for meeting United's
obligations under this Agreement, which person shall be a duly appointed officer
of United (the "United Executive"). The United Executive shall be a person who
has experience and background commensurate with his or her responsibilities.
The United Executive will maintain an office in the Chicago metropolitan region.
The United Executive shall have full authority to bind United in all matters
regarding this Agreement that may arise during the term of this Agreement,
subject to the provisions of the corporate by-laws and commitment authorities of
United Air Lines, Inc., as approved by United Air Lines, Inc.'s Board of
Directors or CEO, including, without limitation:
(i) the conduct of United's negotiations with current and potential
customers of GI-Inc on GI-Inc's behalf pursuant to this
Agreement;
(ii) the negotiation with GI-Inc of goals and targets related to
GI-Inc's and United's performance under this Agreement;
(iii) the compensation owed United by GI-Inc under this agreement,
including the negotiation and payment thereof;
(iv) the quantity, quality of performance and training of
personnel provided by United pursuant to its obligations under
this Agreement;
(v) the coordination of United's role in negotiations with any
third party where such negotiations involve the participation
of parties other than GI-Inc, United, and that third party; and
(vi) the coordination and resolution of any issues arising under
this Agreement that, in United's or GI-Inc's estimation, are
affected by
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actions that have been or may be taken by other sales agents of
GI-Inc or by GI-Inc.
The United Executive may delegate to employees of United or to
persons under the control of United such matters that are his or her
responsibility hereunder and as may be, in the United Executive's estimation,
appropriate for delegation, provided that, if GI-Inc reasonably objects that
such delegation will result in a diminishment of United's performance hereunder
or in a detriment to GI-Inc's ability to perform its obligations hereunder, or
both, then United will review the proposed delegation and inform GI-Inc as to
how United will address GI-Inc's reasonable concerns.
3.3 Meetings and Coordination.
The GI-Inc Executive and the United Executive shall meet from
time to time, whether telephonically or in person and on a schedule to which
they mutually agree, to review the progress of each party's performance under
this Agreement as well as general economic and travel industry market conditions
or factors that may potentially affect one or the other party performance
hereunder.
4 Responsibilities of United.
4.1 NTP Sales Services.
Primarily using United's General Sales Personnel, United
will actively engage in the sale, marketing, and promotion of Galileo Services
to the Assigned Subscribers. To this end, United will perform the following
services for GI-Inc pursuant to this Agreement (such services are, collectively,
"NTP Sales Services"):
(i) Scope. United will engage in NTP Sales Services regarding only
those Galileo Services as directed or authorized in advance
by GI-Inc.
(ii) Contact. United will maintain current and establish new
personal and telephone contact and sales relationships,
including, where appropriate, in person or telephone sales
calls. At GI-Inc's expense, United may, on approval of GI-Inc,
undertake direct mail solicitations, promotions, and other sales
efforts, with NTP Subscribers within the APR. GI-Inc may
disapprove any sales promotion or solicitation with respect to
the Galileo Services that GI-Inc in its reasonable discretion
determines to be contrary to the objectives or policies of
GI-Inc.
(iii) Commitment Review Procedure. United shall follow the
Commitment Review Procedure described in Section 5.2 below.
(iv) Support Services. Subject to the NTP Form Agreement and within
the Negotiation Range, United shall offer to NTP Subscribers
within the APR such NTP Support Services as are approved in
advance by GI-Inc.
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(v) Discontinued Services. Upon receipt of a Discontinued Service
Notice, as such term is defined in Section 5.1 below, United
will cease Sales Services regarding such Galileo Service or
feature.
(vi) Changes to United Organization. United will give GI-Inc prompt
written notice regarding any significant re-organization,
redeployment or change of responsibilities of its General Sales
Personnel (an "Organization Change"). If such Organization
Change is likely to result in an inability of United to perform
NTP Sales Services in a metropolitan area in the APR that
provides a significant portion of Total Revenue then United will
notify GI-Inc as to whether
(a) United chooses to continue providing services under this
Agreement in such area, in which case United will propose to
GI-Inc how United will staff the necessary Sales Force
coverage for such area, and GI-Inc will review United's
proposal in good faith and determine whether it accepts the
proposal; or
(b) United chooses not to continue providing services under this
Agreement in such area.
In the event of (b), above, or of GI-Inc's rejection of United's
proposal in (a), above, then GI-Inc may reassign sales
responsibility in such area to another person, including to
GI-Inc itself.
4.2 Multinational Sales Services.
United will actively engage in the sale, marketing, and
promotion of Galileo Services to Multinationals. To this end, and
notwithstanding the provisions of Section 4.1 above, United will perform the
following services for GI-Inc pursuant to this Agreement (such services are,
collectively, "Multinational Sales Services"):
(i) Scope. United will engage in Multinational Sales Services
regarding only those Galileo Services as directed or authorized
in advance by GI-Inc.
(ii) Multinational Procedure; GI-Inc Lead; United Lead. With respect
to the management of the account of each Multinational, the
GI-Inc Executive shall appoint an individual (the "GI-Inc Lead")
and the United Executive shall appoint an individual (the
"United Lead") who shall have joint responsibility for the
preparation and conduct of negotiations with that Multinational.
The following procedure (the "Multinational Procedure") shall
apply to the preparation and conduct of such negotiations:
(a) US Deal. The United Lead shall be the lead negotiator in
negotiations with a Multinational that apply to Galileo
Services that are to be
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provided by GI-Inc in at least the United States of America (a "US
Deal").
(b) Sales Calls. All sales calls related to a US Deal and made in person
with the Multinational shall be made jointly by the United Lead and
the GI-Inc Lead. The GI-Inc Lead and the United Lead shall jointly
coordinate contacts and meetings, whether in person or telephonic or
via some other electronic means, with the Multinational. In the event
that the Multinational initiates contact with one Lead outside of the
presence of the other Lead, then the contacted Lead will promptly
provide the other Lead with information about such contact insofar as
it relates to the subject matter of this Agreement. In no case will
any GI-Inc employee or agent discuss any element of United's business
with the Multinational without United's prior knowledge and consent.
(c) Account Leads - Non-US Deals. In the case of negotiations with a
Multinational that are not related to a US Deal, this Agreement does
not apply, provided that, GI-Inc will regularly provide United with
any information related to such non-United States of America
negotiations or services that may reasonably be understood to be
related either to the conduct and maintenance of United's good
relations with such Multinational or to United's effective performance
under this Agreement, or both. GI-Inc will endeavor to provide to
United in advance of the presentation of proposals with respect to
non-US Deals to Multinationals, a summary of the terms of such
proposals. If United provides GI-Inc with United's reasonable
objections to such terms to the effect that such terms will, in United
estimate, have a negative effect on United ability to negotiate
acceptable US Deals in the future, with respect to Financial
Assistance or otherwise, then GI-Inc will take United's objections
into account. If GI-Inc negotiates a non-US Deal that includes a
level of Financial Assistance for a Multinational that is greater than
the level of Financial Assistance then currently agreed with that
Multinational under a US Deal then GI-Inc will not thereafter attempt
to increase the Revenue Goal or reduce the FA Budget to offset such
increased Financial Assistance.
4.3 CTMS Sales Services.
United will actively engage in the sale, marketing, and promotion of
CTMS Services to CTMS Customers and CTMS Agents. To this end, United will
perform the following services for GI-Inc pursuant to this Agreement (such
services are, collectively, "CTMS Sales Services"):
(i) Scope. United will engage in CTMS Sales Services regarding
only those CTMS Services as directed or authorized in advance
by GI-Inc.
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(ii) Product Licensing. As GI-Inc's non-exclusive sales agent
for the licensing of CTMS Services, subject to Section 2.2
above, United may market and license CTMS Services to CTMS
Customers and to CTMS Agents. The parties will work together
to develop marketing plans for CTMS Services, including the
name or names of products.
(iii) Contact. United will maintain current and establish new
personal and telephone contact and sales relationships,
including, where appropriate, in person or telephone sales
calls with CTMS Customers and CTMS Agents. At GI-Inc's
expense, United may, on approval of GI-Inc, undertake direct
mail solicitations, promotions, and other sales efforts, with
CTMS Customers and CTMS Agents. GI-Inc may disapprove any
sales promotion or solicitation with respect to the CTMS
Services that GI-Inc in its reasonable discretion determines
to be contrary to the objectives or policies of GI-Inc.
(iv) Commitment Review Procedure. United shall follow the
Commitment Review Procedure described in Section 5.2 below.
(v) CTMS Support Services. Subject to the CTMS Form Agreement
and within the Negotiation Range, United shall offer to CTMS
Customers or CTMS Agents, or both, as the case may be, such
CTMS Support Services as are approved in advance by GI-Inc.
(vi) Discontinued Services. Upon receipt of a Discontinued
Service Notice, as such term is defined in 5.1 below, United
will cease CTMS Sales Services regarding such CTMS Service.
4.4 Support Services.
In addition to the Sales Services, United will perform the following
services for GI-Inc pursuant to this Agreement for those NTP Subscribers with
annual HOL Flow in excess of $5 million (such services are, collectively,
"Support Services").
(i) Support Services Calls. Responses to inquiries from, and
regular premises visits and assistance to, NTP Subscribers in
order to establish and maintain good relations and to improve
relations between NTP Subscribers and GI-Inc, and to aid in
familiarization with and use of Galileo Services and CTMS
Services.
(ii) Technical Questions Received. United will relay promptly to
GI-Inc any technical questions received by United from
customers of GI-Inc and, as requested by GI-Inc, will
coordinate responses thereto.
(iii) Area of Support. United will be responsible for Support
Services for locations of NTP Subscribers within the APR, and
as designated by GI-Inc outside of the APR (although
associated revenue from non-APR Subscribers designated for
support will be included in Total Revenue).
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4.5 Responsibilities With Respect to Excluded Subscribers.
United will not enter into sales negotiations with Excluded
Subscribers except with the prior written approval of GI-Inc. GI-Inc may add or
delete NTP Subscribers as Excluded Subscribers on Exhibit B hereto after
consulting with and receiving the consent of all affected sales representatives,
including United. Revenues from all Assigned Subscribers who become Excluded
Subscribers will continue to be counted for that year in the Total Revenue.
United may negotiate with NTP Subscribers regarding sales commitments outside of
the APR (i) after prior notice to GI-Inc, (ii) after a reasonable period of time
in which GI-Inc has had the opportunity to coordinate such sales calls with its
own sales force and with GI-Inc's other sales representatives, and (iii) after
consent of GI-Inc. Only those sales outside of the APR approved in advance by
GI-Inc will be included in Total Revenue totals.
4.6 Sales Planning.
Subject to Appendix II, and in no event later than February 28 of each
year, GI-Inc and United jointly will develop a sales plan for such year, which
sales plan will be designed to increase business opportunities, procure
profitable NTP Subscriber accounts for GI-Inc and attain or exceed the Revenue
Goal.
4.7 Staffing.
4.7.1 Staffing Commitment.
As described in Appendix I, United will staff a Sales Force who
will provide Sales Services to GI-Inc under this Agreement.
4.7.2 Review of Staffing Levels.
United will consult with GI-Inc from time to time as requested
by either party to review the job descriptions, minimum qualifications, career
paths, and other matters in connection with the Sales Force. United will
consult with GI-Inc regarding the staffing of Dedicated Personnel and Active
Support Personnel positions to be provided under this Agreement. Such
consultations will include review of job descriptions and necessary
qualifications, consideration of possible applicants from GI-Inc and United as
well as third parties, and full consultation and review of proposed training
schedules for each Dedicated Personnel and Active Support Personnel.
4.7.3 Employee Proficiency and Training.
4.7.3.1 Introductory Training.
Prior to commencing any Sales Services on behalf of GI-Inc
hereunder, all Sales Force personnel of United must attend a five-day
introductory training course and, thereafter, a two-day refresher
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training course at least once annually, at a location or locations to be
mutually agreed between United and GI-Inc. As new GI-Inc products or services
are released by GI-Inc for Sales Services hereunder, GI-Inc will provide
training with respect thereto to the Sales Force at a location or locations as
agreed by the parties. GI-Inc will bear its own expenses in providing the
training and United will bear its own expenses of the Sales Force in attending
such training.
4.7.3.2 Employee Proficiency.
United will take all reasonable steps to ensure that all of
the Sales Force who are authorized to sell or support the products and services
of GI-Inc hereunder have been trained appropriately and are proficient to
provide Sales Services in accordance with the terms of this Agreement. GI-Inc
shall have the right to test the proficiency of individual Sales Force personnel
at the time of their refresher training and to require additional training for
such individuals as do not demonstrate minimum proficiency. GI-Inc will provide
all course materials, test materials, and training facilities necessary to
provide such additional training, and United and GI-Inc will mutually establish
a reasonable schedule for the administration of such additional training. Sales
Force personnel who have completed such additional training will be again tested
and those who again demonstrate an inability to achieve the minimum level of
proficiency will not be counted toward the required staffing levels prescribed
in this Section 4.7.
4.7.3.3 Training and Test Materials.
GI-Inc will provide to United in advance of their use copies of
all introductory training materials, refresher training materials, and
proficiency test vehicles to he used pursuant to this Section 4.7.3
(collectively, the "Training Materials"). The Training Materials will always be
constructed according to the best practices for Training Materials then employed
by U.S. industry and shall be related solely to the reasonable skills required
of a person engaged in the sales of products and services such as those of
GI-Inc. United may, at its request, review such Training Materials in advance of
their use hereunder and GI-Inc will make all reasonable changes requested by
United to the Training Materials.
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5 GI-Inc Responsibilities.
5.1 Marketplace Competitiveness.
GI-Inc will at all times during the term of this Agreement use
its best efforts to ensure that Galileo Services maintain a superior level of
competitiveness in the CRS Industry. GI-Inc will give United as much notice as
is reasonably practicable if GI-Inc discontinues general distribution or
provision of any particular Galileo Service or CTMS Service or major feature
thereof (a "Discontinued Service Notice")
5.2 GI-Inc Support of Sales Services and Support Services.
With the objective of ensuring the proper level of GI-Inc
support for Sales Services and for Support Services provided by United under
this Agreement, GI-Inc will provide the following support to United
(collectively, the "GI-Inc Support"):
(i) Copies. GI-Inc will ensure that United at all times has a
current copy of each version of the Form Agreements together with such
commentary or explanation of the Form Agreements as may be reasonably required
by United for the comprehension and understanding of the Form Agreements.
(ii) Changes to Form Agreements. GI-Inc will provide United with no
less than 30 days written notice in the event that GI-Inc modifies or
discontinues the use of any of the Form Agreements.
5.3 Services of GI-Inc.
GI-Inc will provide Galileo Services, CTMS Services and New Services to
NTP Subscribers, CTMS Customers and CTMS Agents, subject to the terms of the
Form Agreements as negotiated by Untied and approved by GI-Inc pursuant to this
Agreement.
5.4 New Services.
GI-Inc will not distribute any Galileo Service (but excluding
enhancements or replacements of any Galileo Service) that did not exist as of
the Effective Date (a "New Service") through any sales representative in the
Territory, and including GI-Inc itself, without first offering United the right
of first refusal to become the exclusive sales agent for such New Service for
the APR. GI-Inc and United shall negotiate on the reasonable terms of such
agency, including the performance objectives and the compensation therefor as
provided in Appendix II. Failing agreement with United within ninety days (90
days) of the inception of such negotiations, GI-Inc may, upon giving notice to
United pursuant to Section 26, below, make the other sales representative
arrangements for the New Service within the Territory.
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5.5 CTMS Products.
5.5.1 Base Products.
GI-Inc has the ultimate role in determining product
specifications and features of any CTMS Service, and GI-Inc will ensure
that such specifications and product implementations of such
specifications meet prevailing market needs. To that end, the GI-Inc
Executive shall consult regularly with the United Executive as to
information that United may gather in the course of its business that
United believes is relevant to ensuring that the CTMS Service is
competitive with like services and products provided by other service
providers.
5.5.2 Demonstrations.
Upon United's request, subject to GI-Inc's agreement, GI-Inc,
at its expense, will provide demonstrations of CTMS Services to CTMS
Customers and/or CTMS Agents. GI-Inc will coordinate the content and
scheduling of such demonstrations with United.
5.6 Technical Support.
GI-Inc will provide in a good and workmanlike manner all installation,
connection, and testing of all Galileo Services, CTMS Services and any field or
technical support or field maintenance required by NTP Subscribers, CTMS
Customers, or CTMS Agents. GI-Inc will maintain ongoing and appropriate contact
with NTP Subscribers, CTMS Customers and CTMS Agents to facilitate user
operation of the Galileo Services and CTMS Services. Technical sales consulting
support will also be provided by GI-Inc to the Sales Force.
5.7 Technical Assistance Offices.
GI-Inc will maintain regional Tech Offices for the use of its sales
representatives that will be staffed by knowledgeable employees capable of
providing technical assistance regarding Galileo Services and CTMS Services.
Such assistance will be available to United during normal GI-Inc business hours.
5.8 Help Desk.
GI-Inc, at its expense, will maintain a telephone call center or centers
for use by the Sales Force, NTP Subscribers, CTMS Customers, and CTMS Agents
during normal business hours for each of those persons in their places of
business. The call centers will be staffed by knowledgeable persons under the
control of GI-Inc who are capable of providing prompt, thorough, courteous, and
professional technical assistance regarding the products and services of GI-Inc.
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6 Reporting.
United will furnish, at no cost to GI-Inc, the reports and documents set
forth in Exhibit D hereto.
7 Other Marketing Rights.
7.1 GI-Inc.
GI-Inc reserves the right to market and to support services in the Sales
APR. During the term of this Agreement, and except as otherwise provided in this
Agreement, GI-Inc will not designate the Sales APR of United as the area of
primary sales responsibility of any other sales agent of GI-Inc, including
GI-Inc itself.
7.2 United.
Subject to the provisions of the Non-Competition Agreement, while United
is the sales agent of GI-Inc under the terms of this Agreement, United will not
act as a sales agent for the reservations or accounting services of another
entity in the CRS Industry in the APR without the prior consent of GI-Inc,
provided, however, that nothing in this Agreement will prevent United from:
(i) having United Group Products and Services displayed or listed in
any person's computer reservation system, schedule, other
electronic or paper communications medium, or otherwise;
(ii) providing to any person any technological or computerized
means of delivering information and automation functionality;
(iii) authorizing any person to use United's trademarks and trade names
in connection with advertising United's participation in such
person's computer information or reservation system, or otherwise;
(iv) endorsing the products or services of another member of the CRS
Industry, provided, however, that United may not endorse such
products or services of such other member of the CRS Industry as
being preferred to those of GI-Inc, provided, however, (a) if
GI-Inc does not itself provide such products or services, or (b)
GI-Inc provides such products or services but they do not meet
United's needs, then, subject to the provisions of the
Non-Competition Agreement, United may endorse such products or
services of such other member of the CRS Industry in any manner.
8 Terms of Payment.
GI-Inc will pay United quarterly in arrears, upon receipt and acceptance
by GI-Inc of United's reports pursuant to Section 6 above for the preceding
quarter and of its invoice therefor, an amount equal to one quarter of the Base
Compensation. Invoices will be
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prepared and mailed on the first work day of April, July, October and January
of each year. After the end of each calendar year, following receipt and
acceptance by GI-Inc of United's report pursuant to Section 6 above with
results for the year as a whole, adjustments will be made as required by
Appendix II, and GI-Inc or United, as appropriate, will make payment to the
other in an amount determined in accordance with the application of such
Section. All payments hereunder will be made within 30 days of date of invoice
by wire transfer, banking instructions to be given by the recipient thereof in
advance of each such transfer. All amounts due and payable hereunder and not
paid within 30 days of date of invoice shall be subject to late payment
interest subject to the following: (i) the Interest Rate shall be fixed as of
the due date of the invoice, and (ii) interest shall be calculated, on the
basis of a 360-day year, from the due date.
9 Currency.
For the purposes of this Agreement all currency calculations shall be in
US Dollars and, to the extent paid in a currency other than US Dollars, revenue
received by GI-Inc or expenses incurred by GI-Inc will be converted to US
Dollars at the exchange rate in effect at the date of the receipt of such
revenue or payment of such expense, as the case may be.
10 Term.
This Agreement is effective as of the Effective Date, and will continue
until the termination of the Non-Competition Agreement. GI-Inc may issue, no
earlier than July 1 of each year a conditional notice of termination if GI-Inc
has reasonably determined that United may, as a result of its own failure to
perform and not as a result of a Material Change, not meet its then current
Revenue Goal; if, as of 120 days after such conditional notice, GI-Inc
reasonably determines that United will not meet such Revenue Goal and so
notifies United, this Agreement will terminate 90 days after such determination
(with no sales exclusivity during the last 30 days of the 90 day period) and
United will be paid for sales services during the last 30 days only at direct
labor cost (adjusted to reflect time devoted to GI-Inc) and associated
expenses.
11 Confidentiality.
11.1 Confidential Information.
Confidential information, including, without limitation, source code,
object code, manufacturing, financial and marketing data, orders, forecasts,
plans, designs, drawings and specifications of either United or GI-Inc, which is
contained in tangible records designated as "CONFIDENTIAL", "TRADE SECRET" or
"PROPRIETARY", or which is otherwise communicated on the express basis that the
information is confidential, and which is provided to the other party during the
performance of this Agreement (hereafter "Confidential Information"), will be
treated
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as confidential and not further disclosed to any third party without the prior
written consent of the providing party, except as provided under the terms of
this Agreement, for five years from the date such Confidential Information was
first received, unless such Confidential Information was already in the
possession of the other party, is placed in the public domain through no fault
of the party receiving such information, or becomes rightfully available to the
other party through other sources without restriction on disclosure.
11.2 Service.
If either party is served with a subpoena or other legal process requiring
the production or disclosure of any Confidential Information or United
Information, then that party will immediately notify the owner thereof, and will
in good faith attempt to permit the owner at the owner's expense to intervene
and contest such disclosure or production.
12 Service Marks, Patents, Third Party Data.
12.1 Use of Service Marks.
12.1.1 GI-Inc Marks.
United will use and display the GI-Inc trade and service marks in the
form specified by GI-Inc. United will market the Galileo Services and CTMS
Services under product names established by GI-Inc and must identify all
such Galileo Services and CTMS Services as the products or services of
GI-Inc. United may include its name and identifying marks in association
with the name "GI-Inc". GI-Inc reserves the right to disapprove any use of
the trade and service marks and other proprietary rights of GI-Inc if
GI-Inc determines in its reasonable discretion that such use is contrary to
the objectives or policies of GI-Inc.
12.1.2 United Marks.
GI-Inc will not use the trade or service marks of United without
United's prior written consent. United reserves the right to disapprove any
use of the trade and service marks and other proprietary rights of United
if United determines in its reasonable discretion that such use is contrary
to the objectives or policies of United.
12.2 Patent Indemnity.
12.2.1 Actions.
GI-Inc will defend at its expense any suit or proceeding against
United based on a claim that any product or service of GI-Inc ("GI-Inc
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Product") constitutes an infringement of the patent, trademark, or copyright
laws of the United States, provided that GI-Inc is notified promptly in writing
and given full and complete authority, information, and assistance for the
defense of such suit or proceeding. If the foregoing provision is complied
with, GI-Inc will pay damages and costs awarded against United, but GI-Inc will
not be responsible for any compromise or settlement made without its prior
written consent. If any GI-Inc Product is held to constitute infringement of
such patent, trademark, or copyright and its use is enjoined, GI-Inc will, at
its election and expense, either obtain for United the right to continue using
such GI-Inc Product, modify such GI-Inc Product so that it is not infringing, or
remove such GI-Inc Product.
12.2.2 Limitation.
GI-Inc will not be liable to United with respect to any claim of
infringement which is based upon (a) combination or utilization of a
GI-Inc Product with products or services not supplied by GI-Inc; (b) the
unauthorized modification by United or a person other than GI-Inc or its
designated representatives of any GI-Inc Product or (c) the use of any
GI-Inc Product not in accordance with GI-Inc's specifications or
recommendations.
12.3 Third Party Data.
GI-Inc makes no representation or warranty regarding the accuracy or
reliability of any schedule, fare, quote, or other information provided to
GI-Inc by airlines or by hotels, car rental companies or other vendors of
travel related services. GI-Inc will not be responsible for, and United
hereby releases and waives any claims against GI-Inc conceding, the
accuracy or reliability of any such information provided by such third
parties.
13 Taxes.
13.1 GI-Inc Responsibilities.
GI-Inc will pay any sales, use, or personal property taxes (except for
any tax levied upon or measured by United's gross receipts) imposed by any
taxing authority and required to be paid by GI-Inc or United as a result of
services provided to GI-Inc under this Agreement. GI-Inc will not be
liable for any tax levied upon or measured by the income of United.
13.2 Claims.
If a claim is made against United for any taxes that are to be paid by
GI-Inc, United will timely notify GI-Inc. If GI-Inc so requests in
writing, United will, at GI-Inc's expense, take such action as GI-Inc may
reasonably direct with respect to such taxes, including payment of such
taxes under protest. If the tax has been paid,
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and if requested by GI-Inc, United will, at GI-Inc's expense, take such action
as GI-Inc may reasonably direct, including allowing GI- Inc to file a claim or
commence legal action in United's name, to recover such tax payment. In the
event of refund or recovery of any tax, or part thereof, United will pay to
GI-Inc promptly that portion of the tax paid by GI-Inc, including any interest
received thereon.
14 Limitation of Liability.
Except as provided under Section 18 below ("Indemnification"), each
party's total liability regarding any claim by the other party for breach of
this Agreement is limited to the amount of compensation earned by United for
the year in which the claim arises or, if based on obligations of a continuing
nature and arising after termination, then the final year of this Agreement,
and each party hereby releases and waives any claims against the other party
for such breach in excess of such amount.
15 Consequential Damages.
NEITHER PARTY WILL BE LIABLE FOR, AND EACH PARTY WAIVES AND RELEASES
ANY CLAIMS AGAINST THE OTHER PARTY FOR, ANY SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, INCLUDING DAMAGE TO OR DESTRUCTION OF PROPERTY, LOST
REVENUES, LOST PROFIT, OR LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE, RESULTING
FROM PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT.
16 Termination for Breach.
If either party (the "Defaulting Party") breaches any of its duties or
obligations under this Agreement, and such breach continues for thirty days
(ten days regarding failure to pay amounts due) after written notice of such
default from the other party, then the other party may terminate this Agreement
at any time thereafter, effective immediately upon written notice of
termination to the Defaulting Party, without prejudice to any other rights or
remedies the non-defaulting party may have. Upon notice of such termination,
the Defaulting Party will return immediately to the non-defaulting party any
and all confidential or proprietary information, programs, materials, or other
data, and any copies thereof, in the possession or control of the Defaulting
Party.
17 Force Majeure, Delay.
Neither party will be responsible for delays in performance caused by
acts of God or governmental authority, strikes or labor disputes, fires or
other loss of manufacturing facilities, breach by suppliers of supply
agreements, or any other cause beyond the reasonable control of that party.
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18 Indemnification.
Each party (the "Indemnitor") will indemnify the other party, its
officers, employees, and agents (collectively "Indemnitees") against and hold
each Indemnitee harmless from all claims, suits, judgments, losses, damages,
fines or costs (including reasonable legal fees and expenses) resulting from
any claim, suit, or demand by any third party for injuries to or deaths of
persons or loss of or damage to property arising out of the Indemnitor's
performance or willful misconduct of the Indemnitor, its employees, officers,
or agents in connection with the Indemnitor's performance of this Agreement,
except to the extent caused by the negligence of any Indemnitee. The
Indemnitor's obligations under this paragraph will survive the termination of
this Agreement.
19 Guarantee of Performance.
If either party (the "Insolvent Party") becomes insolvent; if the
other party (the "Insecure Party") has evidence that the Insolvent Party is not
paying its bills when due without just cause; if a receiver of the Insolvent
Party's assets is appointed; if the Insolvent Party takes any step leading to
its cessation as a going concern; or if the Insolvent Party either ceases or
suspends operations for reasons other than a strike, then immediately upon
receipt of written notice from the Insecure Party the Insolvent Party will
provide adequate assurance, satisfactory to the Insecure Party, of the future
performance of this Agreement. If bankruptcy proceedings are commenced with
respect to the Insolvent Party, then the Insecure Party may suspend all further
performance of this Agreement until the Insolvent 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 Insolvent Party's assumption or rejection will not
be a breach of this Agreement and will not affect the Insecure Party's right to
pursue or enforce any of its rights under this Agreement or otherwise
20 Third Party Rights.
Nothing contained in this Agreement establishes or creates, or is
intended or will be construed to establish or create, any right in or any duty
or obligation to any third party.
21 Assignment.
United may assign or transfer this Agreement or any rights granted or
provided for hereunder, in whole or in part, to any person or entity that is
controlled by United, otherwise United may not assign or transfer this
Agreement or any rights granted or provided for hereunder, in whole or in part,
without the written Agreement of GI-Inc. GI-Inc may assign or transfer this
Agreement or any rights granted or provided for hereunder, in whole or in part,
to any person or entity that is controlled by GI-Inc, otherwise GI-Inc may not
assign or
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transfer this Agreement or any rights granted or provided for hereunder, in
whole or in part, without the written Agreement of United.
22 Relationship of the Parties.
The relationship of the parties is that of principal and limited
agent. United may bind GI-Inc only as specifically provided in this
Agreement.
23 Severability.
If any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect, then the Agreement shall he construed to exclude
such provision and to be enforceable in all other respects, unless to do so
would prejudice the rights of either party or result in such a material change
as to cause performance by either party to be unreasonable.
24 Survival.
All provisions of this Agreement which by their terms survive
termination thereof will continue thereafter in full force and effect.
25 Governing Law.
This Agreement, and any dispute arising under or in connection with
this Agreement, including any action in tort, will be governed by the internal
laws of the State of Illinois. Any action brought to (i) preserve the status
quo pending arbitration or (ii) enforce an arbitration proceeding or decision
shall be brought in courts located within Xxxx County, Illinois, the parties
hereby consenting to personal jurisdiction and venue therein.
26 Notices.
All notices to either party under this Agreement must be in writing
and sent to the following addressee and at the following address:
for GI-Inc:
Galileo International Incorporated
Xxxxx 000
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: President
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for United:
United Airlines Department WHQSS
0000 X. Xxxxxxxxx Xxxx
Xxx Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Attn: Vice President and General Sales Manager
Notices will be deemed effective on the date received. Notices by
certified or registered mail (return receipt requested) will be deemed received
on the date shown on the return receipt. Notices sent by telex or facsimile
will be deemed received on the date transmitted if transmitted before 3:30 p.m.
time of recipient, otherwise on the next business day following transmission.
27 Headings.
The section headings and captions used in this Agreement are for
convenience of reference only and do not constitute a part of this Agreement
and will not be deemed to limit, characterize or in any way affect any
provision of this Agreement, and all provisions of this Agreement will be
enforced and construed as if no heading or caption had been used in this
Agreement.
28 Entirety of Agreement.
This Agreement including any Exhibits or attachments, supersedes all
prior oral or written representations or communications between the parties and
constitutes the entire understanding of the parties regarding the subject
matter of this Agreement. This Agreement may be modified only in a writing
signed by both parties.
29 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which shall be considered one and
the same instrument.
27
IN WITNESS WHEREOF, the parties have agreed to and executed this
Agreement by their authorized representatives as of the Effective Date first
set forth above.
GALILEO INTERNATIONAL, INC. UNITED AIR LINES, INC.
By: By:
--------------------------- -------------------------------
Name: Name:
------------------------- -----------------------------
Title: Title:
------------------------ ----------------------------
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Appendix I
Certain Terms
1. NTP Sales Services.
(i) Quotation. Except as provided in paragraph 1(iii) below,
using the NTP Form Agreement United will quote NTP Subscribers
those terms of the NTP Form Agreement as are appropriately
related to that NTP Subscriber's business.
(ii) Negotiation. On the basis of the NTP Form Agreement United
shall negotiate with NTP Subscribers and attempt to obtain
commitments from NTP Subscribers to purchase Galileo Services
from GI-Inc.
(iii) [*]
2. Multinational Sales Services.
(i) Terms: US Deals. With respect to US Deals, the GI-Inc Lead
shall have responsibility for preparing terms, whether
financial terms or otherwise, related to the provision of
GI-Inc services to the Multinational. The GI-Inc Lead will
consult with the United Lead on such terms and will take into
account United's reasonable business judgment regarding such
terms. Such terms shall be the subject of the negotiations
relating to a US Deal described in this Multinational
Procedure.
(ii) US Deal Approvals. United and GI-Inc shall jointly approve
any final agreement negotiated with the Multinational with
respect to a US Deal.
(iii) Resolution of Differences. In the event United and GI-Inc
cannot reach agreement on any matter relating to a US Deal,
including without limitation the terms thereof, then such
disagreement shall be resolved (a) by the Independent
Directors, in the case of a US Deal that applies solely to the
United States of America, or (b) the Galileo Board, in the
case of a US Deal that applies both to the United States of
America and elsewhere.
(APPENDIX I-1)
29
3. CTMS Services.
(i) Quotation. Except as provided in paragraph 3(iii) below,
using the Form Agreements for CTMS Services, United will quote
CTMS Customers or CTMS Agents, or both, as the case may be,
those terms of the CTMS Form Agreement as are appropriately
related to that CTMS Customer's or CTMS Agent's business.
(ii) Negotiation. On the basis of the CTMS Form Agreement United
shall negotiate and attempt to obtain commitments from CTMS
Customers or CTMS Agents, or both, as the case may be, to
purchase, lease or license CTMS Services from GI-Inc.
(iii) [*]
4. Staffing.
(i) Dedicated Personnel. United will provide [*] Dedicated
Personnel (minimum [*] PMEs on average per year as measured by
OPS) who will be dedicated [*] of their time to Sales Services;
(ii) Active Support Personnel. With respect to the Territory,
excluding Mexico, United will provide [*] Active
Support Personnel comprised of [*] account executives
("AE") and [*] automation sales representatives ("ASR")
(totaling a minimum [*] PMEs on average per year, as measured
by OPS) who will be dedicated [*] of their time
to Sales Services; with respect to Mexico, United will provide
[*] PMEs who will be dedicated [*] of their time to Sales
Services; and
(iii) General Sales Personnel. United will provide [*] General
Sales Personnel (minimum [*] PMEs on average per year as
measured by OPS) who will spend a minimum of [*] of
their time on Sales Services on behalf of GI-Inc.
5. GI-Inc Support of Sales Services and Support Services.
(i) Form Agreements. GI-Inc shall prepare all form agreements and
terms including, as applicable and without limitation: the
duration of the form agreements; the quantity and quality of
computer and network equipment to be
(APPENDIX I-2)
30
provided, installed and maintained by GI-Inc; list prices such as
lease fees, license fees, penalties and other charges; productivity
credits and other discounts from list prices, related software
licenses or sublicenses, as the case may be; and other terms as may be
determined by GI-Inc from time to time (the "Form Agreements"). With
respect to CTMS Services, GI-Inc will provide the following Form
Agreements: (a) a form of product license as between GI-Inc and the
CTMS Customer, and (b) a form of product license as between GI-Inc and
a CTMS Agent pursuant to which the CTMS Agent is permitted to use CTMS
Services on the behalf of the CTMS Customer.
(ii) [*]
(iii) [*]
(APPENDIX I-3)
31
Appendix II
Budgets and Compensation
1. General Statement of Method.
With respect to those commitments of customers of GI-Inc to purchase
products and services from GI-Inc that, pursuant to this Agreement,
United is instrumental in securing there shall be, by mutual agreement
of United and GI-Inc, annual revenue plans and annual plans for
Financial Assistance spending. In the course of each year of this
Agreement, GI-Inc will measure and report to United, at least monthly,
actual Total Revenue and Financial Assistance spending. United shall
receive a minimum, guaranteed compensation. Additionally, United
shall receive incentive compensation that is based, for the year in
question, on Total Revenue versus the Revenue Plan and on Financial
Assistance spending versus the FA Budget. Notwithstanding the
generality of this Section 1, the procedure for determining United's
compensation under this Agreement is as described in this Appendix II.
2. Goals.
Subject to Section 4.6 of this Agreement and Section 3 below, in no
event later than February 28 of each year, United and GI-Inc will
complete negotiations with respect to the goal for Total Revenue for
that year and the budget for Financial Assistance for that year
(respectively, the "Revenue Goal" and the "FA Budget"). Modifications
to the Revenue Goal and the FA Budget are subject to the provisions of
this Agreement. For 1997, the Revenue Goal and the FA Budget are as
shown on Schedule 1 hereto.
3. Financial Assistance.
3.1 FA Budget.
FA Budgets will be determined concurrently with Revenue Goals
for each year during the term of this Agreement and in
accordance with the provisions of Section 2 above. The FA
Budget for each year will (i) include contractual commitments
for the payment of Financial Assistance for that year and for
which GI-Inc is obligated, (ii) include reasonable estimates
and projections as to additional Financial Assistance that may
be required to gain new business or retain existing customers,
and (iii) be commensurate with the Revenue Goal for that year.
Subject to Section 3.2 below, at no time will United be
required or requested to provide Financial Assistance to any
person either directly or through adjustments to, or
inclusions in, the FA Budget, the Revenue Goal, the Base
Compensation, the Guaranteed Compensation, the Performance
Compensation, or otherwise.
(APPENDIX II-1)
32
3.2 Adjustments With Respect to Financial Assistance.
United will not exceed the FA Budget during any year of this
Agreement; [*] percent of all Financial Assistance expenditures
by United in excess of the FA Budget will be deducted from
Total Revenue counted toward the Revenue Goal for that year.
If GI-Inc's Financial Assistance expenditures with respect to
the Total Revenue are under the FA Budget for that year then
the difference between such expenditures and the FA Budget will
be added to Total Revenue counted toward the Revenue Goal for
that year.
4 Failure to Agree.
4.1 Dispute Resolution Procedure.
Failing agreement on the Revenue Goal or the FA Budget, or
both, the negotiators will submit their positions to the
Dispute Resolution Procedure as described in Attachment B
hereto.
4.2 Carryover Plan.
Until such time as the Dispute Resolution Procedure is
completed the parties shall operate under this Agreement on
the basis of a "Carryover Plan" that shall include, with
respect to the calendar year in question:
(i) a "Carryover Revenue Goal" for that calendar year
that will function for the purposes of this Agreement
in lieu of the Revenue Goal for that year and that
equals the Revenue Goal for the immediately preceding
calendar year increased or decreased, as the case may
be, by the FAA Factor;
(ii) a "Carryover FA Budget" for that calendar year that
will function for the purposes of this Agreement in
lieu of the FA Budget for that year and that equals
the FA Budget for the immediately preceding calendar
year increased or decreased, as the case may be, by
the FAA Factor; and
(iii) a "Carryover Base Compensation" for that calendar
year that will function for the purposes of this
Agreement in lieu of the Base Compensation for that
year and that equals the Base Compensation for the
immediately preceding calendar year increased by
[*] percent ([*]%).
5. Material Changes.
If a change occurs in the structure of the air transportation industry
or of the CRS Industry, including without limitation changes in the
number or types of competitors,
(APPENDIX II-2)
33
customers, products, or services of either industry, which change is
likely to cause either or both of the following cases (i) a material
change to the flows of revenue through ARC or the BSP for Mexico, as
applicable, or (ii) a requirement that entails the provision of
substantial additional Sales Services in the APR (in either case a
"Material Change"), then, as the case may be, (a) either GI-Inc or
United may request that the parties renegotiate the Revenue Goal or
the FA Budget, or both, for that year, and (b) United will have the
right of first refusal, exercisable within ten business days of
written notice from GI-Inc, to elect to provide such additional Sales
Services in the APR. Failing agreement on adjustments to the Revenue
Goal or the FA Budget, or both, such adjustments to the Revenue Goal
or the FA Budget, or both, will be determined as provided in Section
4.1 above.
6. Base Compensation.
"Base Compensation" shall be the prior year's Base Compensation
increased by an amount equal to [*] of such prior year's Base
Compensation prorated, for increases [*], as the percentage of the
prior year's Revenue Goal attained by United increases from [*]. Base
Compensation for 1997 is as provided on Schedule 1.
7. Guaranteed Compensation.
United will be paid [*] of Base Compensation ("Guaranteed
Compensation") if United meets the staffing levels as provided in
Section 4.7 of this Agreement. United will be paid [*] percent of Base
Compensation in any event if United meets its Revenue Goal. [*] of Base
Compensation will be at risk based on the Revenue Goal performance (the
"Performance Compensation").
8. [*]
(APPENDIX II-3)
34
[*]
9. Advance Credit.
Notwithstanding anything to the contrary contained in this Appendix
II, in the event United attains [*] of the Revenue Goal for a
year then United may, at its option, be credited, for purposes of
determining its compensation under this Appendix II, with the amount
(the "Advance Credit") necessary to achieve [*] of its Revenue Goal
for such year. United shall exercise its option hereunder to take an
Advance Credit by written notice to GI-Inc received no later than the
fifth business day of the next succeeding year. The amount of the
Advance Credit shall be deducted from Total Revenue otherwise
attributable to United for any purpose under this Agreement during
January of such succeeding year. No such Advance Credit shall be
taken into account in setting the Revenue Goal. United may not
exercise the option under this Section 9 in two successive years.
(APPENDIX II-4)
35
10. Penalties: United.
If United meets the staffing minimums provided in Section 4.7 of this
Agreement, United will receive its Guaranteed Compensation as set
forth in this Appendix II. If United fails to meet such staffing
minimums and fails to meet its Revenue Goal, then
[*]
Notwithstanding the foregoing, so long as United meets its Revenue
Goal for the year, United will receive its Base Compensation for such
year regardless of staffing goals attained.
(APPENDIX II-5)
36
Attachment A
Defined Terms
As used in this Agreement, including the Attachments, Exhibits and Schedules
hereto, the terms listed in this Attachment A have the meanings ascribed to
them. The use of a term in the singular that is defined herein in the plural
is understood in this Agreement to signify a single instance of such defined
matter.
"Accounting Services" means those travel agency accounting services that are
provided by GI-Inc to customers of GI-Inc.
"Active Support Personnel" means General Sales Personnel who will be dedicated
primarily (80 percent of work time) to providing Sales Services pursuant to
this Agreement.
"Administrative Support Personnel" means those General Sales Personnel who
perform primarily administrative or management functions in the provision of
Sales Services pursuant to this Agreement.
"Advance Credit" has the meaning ascribed to that term in Section 9 of Appendix
II.
"APR" means "Area of Primary Sales Responsibility" as defined herein.
"ARC" means Airlines Reporting Corporation.
"Area of Primary Sales Responsibility" means the exclusive geographic area of
primary sales responsibility assigned to United as described in Exhibit A
hereto and as such geographic area may be amended from time to time in
accordance with the provisions of this Agreement.
"Assigned Subscribers" means (i) all NTP Subscribers within the APR and (ii)
the Designated Subscribers, but excluding the Excluded Subscribers.
"Base Compensation" has the meaning ascribed to that term in Section 6 of
Appendix II and, in the event that there is a Carryover Base Compensation,
means such Carryover Base Compensation.
"BSP" means an entity, including, without limitation, IATA, that performs
accreditation, revenue reporting and clearing functions such as those performed
by ARC.
"Cancelled Deal" has the meaning ascribed to that term in Section 5.2 above.
"Carryover Base Compensation" has the meaning ascribed to that term in Section
4.2 of Appendix II.
(ATTACHMENT A-1)
37
"Carryover FA Budget" has the meaning ascribed to that term in Section 4.2 of
Appendix II.
"Carryover Plan" has the meaning ascribed to that term in Section 4.2 of
Appendix II.
"Carryover Revenue Goal" has the meaning ascribed to that term in Section 4.2
of Appendix II.
"Commitment Review Procedure" has the meaning ascribed to that term in Section
5.2 above.
"Corporate Direct System" means a computerized travel reservations system that
is integrated with desktop travel management software including, for example,
travel policy enforcement, expense management, and management reporting
functionality and is (i) selected by a CTMS Customer for use by its employees,
or (ii) selected for use by a CTMS Agent retained by a CTMS Customer to service
the travel planning and management requirements of such CTMS Customer.
"CRS Industry" means the group of business entities who provide products and
services alike to the products and services of GI-Inc.
"CTMS Agent" means a Travel Agent, NTP Subscriber, service bureau, or other
person with whom a CTMS Customer has an agreement pursuant to which the CTMS
Agent performs services related to the use of a CTMS and other aspects of that
CTMS Customer's travel planning and travel management requirements.
"CTMS Customer" means a corporation, partnership, or other person who is an
existing or a potential purchaser of CTMS Services from GI-Inc.
"CTMS Form Agreement" means a Form Agreement that relates to CTMS Services.
"CTMS Sales Services" has the meaning ascribed to that term in Section 4.3
above.
"CTMS Services" means any portion of a Corporate Direct System provided by
GI-Inc, whether itself, or through an arrangement or arrangements between
GI-Inc and a third party or third parties.
"CTMS" means a CTMS Service.
"Designated Subscribers" means those NTP Subscribers listed on Exhibit C hereto
and as amended pursuant to this Agreement.
"Dedicated Personnel" means General Sales Personnel of at least Account
Executive level who will be dedicated full-time (100 percent of work time) to
the provision of Sales Services pursuant to this Agreement.
(ATTACHMENT A-2)
38
"Discontinued Multinational Account" has the meaning ascribed to that term in
Section 2.1.3 above.
"Discontinued Service Notice" has the meaning ascribed to that term in Section
5.1 above.
"Dispute" means any dispute, disagreement, claim, or controversy arising in
connection with or relating to this Agreement, or the validity, interpretation,
performance, breach, or termination of this Agreement, including any claim of
breach of representation or warranty or of non-performance.
"Dispute Resolution Procedure" means the procedure described in Attachment B
hereto.
"Dispute Summary" means, with respect to a Dispute and with respect to the
party to the Dispute who shall prepare a Dispute Summary, a written declaration
presenting (i) a statement expressing the issue(s) in Dispute, (ii) facts
relevant to the understanding of the issue(s) in Dispute, and (iii) a statement
expressing the resolution of the Dispute that is sought by the party who
prepares the Dispute Summary.
"Excluded Subscribers" means those NTP Subscribers listed on Exhibit B pursuant
to this Agreement.
"FAA Factor" means, with respect to the Carryover Plan year in question, the
change, expressed as a percentage, in forecast domestic revenue passenger
enplanements for that Carryover Plan year versus the immediately preceding
year, where "forecast domestic revenue passenger enplanements" shall be as
provided in the then-current (as of the time the Carryover Plan is created)
"FAA Aviation Forecasts" issued by the U.S. Department of Transportation,
Federal Aviation Administration, Office of Aviation Policy and Plans.
"Financial Assistance" means the provision by GI-Inc, and at GI-Inc's expense,
to any one or more of (i) the Assigned Subscribers, (ii) CTMS Customers, and
(iii) CTMS Agents, of any one or more of: (a) cash payments; (b)
indemnification payments; (c) revenue sharing; (d) booking fee rebates; (e)
lease fee waivers; (f) license fee waivers; (g) productivity or efficiency fee
waivers; (h) airline tickets or other airline, car or hotel perquisites; (i)
computer or other hardware; and (j) other benefits.
"FA Budget" means the amount of Financial Assistance established in accordance
with the provisions of Section 3 of Appendix II and, in the event that there is
a Carryover FA Budget, means such Carryover FA Budget.
"Form Agreements" has the meaning ascribed to that term in Section 5.2 above.
"Galileo Board" means the Board of Directors of GI-Inc.
(ATTACHMENT A-3)
39
"Galileo Services" means, collectively, Reservations Services and Accounting
Services, as provided by GI-Inc in the APR, excluding CTMS Services.
"General Sales Personnel" means regular, full-time employees of United who
either are in training for or are actively engaged in the sale of air
transportation on United, or other persons as may be agreed by GI-Inc and
United, including Administrative Support Personnel as provided above, but
excluding employees of United engaged primarily in administrative or management
positions that supervise sale planning or implementation policies or processes
of United.
"GI-Inc Executive" has the meaning ascribed to that term in Section 3.1 above.
"GI-Inc Lead" has the meaning ascribed to that term in Section 4.2 above.
"GI-Inc Support" has the meaning ascribed to that term in Section 5.2 above.
"Guaranteed Compensation" has the meaning ascribed to that term in Section 7 of
Appendix II.
"Headquarters" means, with respect to the corporation or partnership in
question, the city or place in which that corporation or partnership maintains
its principal offices.
"HOL Flow" means, with respect to an individual NTP Subscriber, the annual
sales of air transportation revenue, as measured by ARC and BSPS, for all
locations of that NTP Subscriber.
"IATA" means the International Air Transport Association.
"Independent Directors" means the members of the Galileo Board who are neither
nominated by an airline owner of GI-Inc or are members of the executive
management of GI-Inc.
"Interest Rate" means the mathematical average of the prevailing
dollar-denominated 30 day and 90 day London Interbank Offered Rates (LIBOR), as
reported in the Wall Street Journal for a specified business day, plus 200
basis points.
"Level One Bonus" has the meaning ascribed to that term in Section 8 of
Appendix II.
"Level Two Bonus" has the meaning ascribed to that term in Section 8 of
Appendix II.
"Material Change" has the meaning ascribed to that term in Section 5 of
Appendix II.
"Multinational Accounts" means (i) those Designated Subscribers listed under
"(A) Multinational Accounts" on Exhibit C hereto, and (ii) any other NTP
Subscriber who may become a "Multinational Account" as provided in Section
2.1.3 above.
(ATTACHMENT A-4)
40
"Multinational Procedure" has the meaning ascribed to that term in Section 4.2
above.
"Multinational Sales Services" has the meaning ascribed to that term in Section
4.2 above.
"National Accounts" means those Designated Subscribers listed under "(B)
National Accounts" on Exhibit C hereto.
"Negotiation Range" has the meaning ascribed to that term in Section 5.2 above.
"Neutral Travel Provider" means any Travel Agent that sells the products and
services of Vendors and holds itself out as a neutral source of information
regarding Vendors and their services or products.
"New Service" has the meaning ascribed to such term in Section 5.4 above.
"Non-Competition Agreement" means the Amended and Restated Non-Competition
Agreement, dated as of _____________ ___, 1997, among GI-Inc, United Air Lines,
Inc., UAL Corporation and Covia Corporation.
"Non-Vendor Revenue" means all revenue received by GI-Inc from NTP Subscribers,
CTMS Customers, CTMS Agents, and other persons and including, without
limitation, lease and license payments, install/deinstall charges, variable
charges (including but not limited to charges for tickets, itineraries and
invoice documents), and backroom lease and license fees, net of discounts, but
not including Vendor Revenue.
"NTP" means Neutral Travel Provider, as defined herein.
"NTP Form Agreement" means a Form Agreement that relates to Galileo Services,
but excluding CTMS Services.
"NTP Sales Services" has the meaning ascribed to that term in Section 4.1
above.
"NTP Subscriber" means a Neutral Travel Provider who is an existing or a
potential purchaser of Galileo Services from GI-Inc.
"OPS" means United's Organizational Pay Summary system or any replacement
system that United may use, in United's sole discretion, and which is a
proprietary system that tracks United PMEs.
"Other Agent" has the meaning ascribed to that term in Section 2.4 above.
"Performance Compensation" has the meaning ascribed to that term in Section 7
of Appendix II.
(ATTACHMENT A-5)
41
"PME" means Paid Manpower Equivalent, which is commonly used in United's
business practices as a measure of average employee headcount for the period
of time in question.
"Reporting Number" means an account number issued by the Airline Reporting
Corporation or by the International Air Transport Association, or both, to an
individual or entity for the purpose of authorizing such individual or entity
to operate as a travel agency.
"Reservations Services" means the computerized display, reservation, ticketing,
or sale of the services or products of Vendors including the availability and
price thereof, as generated by GI-Inc to any person other than Vendors.
"Revenue Goal" has the meaning ascribed to that term in Section 2 of Appendix
II.
"Sales Services" means, collectively, NTP Sales Services, Multinational Sales
Services, and CTMS Sales Services.
"Sales Force" means, collectively, the Active Support Personnel, Dedicated
Support Personnel and General Sales Personnel.
"Senior Review Committee" means a committee consisting of GI-Inc's President
and United's Senior Vice President - North America.
"Support Services" has the meaning ascribed to that term in Section 4.4 above.
"Tech Office" means a technical support center (at times referred to
colloquially as a "TN" office) operated and staffed by GI-Inc with personnel
proficient in all technical aspects of the use by end-users of GI-Inc products
and services.
"Territorial Reassignment" has the meaning ascribed to that term in Section 2.4
above.
"Territory" means, collectively, the United States of America together with its
territories and protectorates, and the Republic of Mexico.
"Total Revenue" means the sum of Non-Vendor Revenue and Vendor Revenue, with
respect to the APR plus such revenue generated from Designated Subscribers less
such revenue generated from Excluded Subscribers, provided that any such
revenue generated from the location of an Excluded Subscriber in the calendar
year in which such location commences purchasing Galileo Services shall be
included in the Total Revenue only for the sales representative who was
responsible for such sale of Galileo Services.
"Training Materials" has the meaning ascribed to that term in Section 4.7.3.3
above.
"Travel Agent" means an individual or entity, that has been assigned a
Reporting Number.
(ATTACHMENT A-6)
42
"United Executive" has the meaning ascribed to that term in Section 3.2 above.
"United Group Products and Services" means with respect to United and any
carrier that uses United's airline designator code in the display of certain
designated flights (collectively, the "group carriers") the schedule, seat
availability, and price thereof of the group carriers, including, without
limitation, air and/or non-air travel packages that may include ancillary air
segments on non-group-carrier airlines.
"United Lead" has the meaning ascribed to that term in Section 4.2 above.
"US Deal" has the meaning ascribed to that term in Section 4.2 above.
"US Dollar" means the lawful currency of the United States of America.
"Vendor" means a vendor of travel-related services, such as an airline, hotel,
or rental car company, tour package, cruise operator, or travel insurance
company, that has purchased or subscribed for Reservations Services.
"Vendor Revenue" means all revenue received by GI-Inc from Vendors with respect
to booking fees and other service charges or fees as a result of bookings and
other transactions for which GI-Inc charges a fee to Vendors, which such
bookings and other transactions are generated by NTP Subscribers, CTMS
Customers, CTMS Agents, and other persons.
(ATTACHMENT A-7)
43
Attachment B
Dispute Resolution Procedure
1. General Procedure.
Except as otherwise stated in the Agreement, the parties hereto shall
resolve all Disputes in accordance with this procedure:
(a) Each party shall instruct its appropriate representative to promptly
negotiate in good faith with the other party's appropriate
representative to resolve the Dispute. The GI-Inc Executive shall be
the representative of GI-Inc. The United Executive shall be the
representative of United.
(b) If the representatives do not resolve the Dispute within ten business
days (or such longer period as the Representatives may agree) after
the date of referral of the Dispute to them, the representative of
each party will prepare a Dispute Summary with respect to that party's
position in the Dispute. The Dispute shall be referred (by either or
both of the representatives) to the Senior Review Committee for
resolution on the basis of the Dispute Summaries prepared by each
party.
(c) If the Senior Review Committee does not resolve the Dispute within ten
business days (or such longer period as that Committee may agree) from
the date of referral to it, either party may submit the Dispute to
binding arbitration in accordance with Section 2 of this Attachment.
2. Arbitration Procedure
The Arbitration Procedure shall be the "baseball" arbitration procedure
provided in Section 5.04 of the Amended and Restated Computer Services
Agreement between United and GI-Inc, modified as necessary with respect to
defined terms in this Agreement.
(ATTACHMENT B-1)
44
Exhibit A
Area of Primary Sales Responsibility
[*]
[ONE PAGE OMITTED.]
(EXHIBIT A-1)
45
Exhibit B
List of Excluded Subscribers
[*]
[ONE PAGE OMITTED]
(EXHIBIT B-1)
46
Exhibit C
Designated Subscribers
[*]
[ONE PAGE OMITTED]
(EXHIBIT C-1)
47
Exhibit D
Sales Representative Reports
1) Staffing Report. A quarterly written advice of staffing levels.
2) Account Activity Reports setting forth: Gains (signed
contracts/OA's); Losses, Renewals; Changes/Updates to target lists -
due on last day of each month.
3) Redistricting Reports and Administrative Files. On GI-Inc's request,
contains account alignments and assignments.
(EXHIBIT D-1)
48
Exhibit E
Certain Territories
[This Exhibit E is to contain a list of territories for which Galileo has
granted exclusive distribution rights for products to a third party and in
which United may not sell CTMS Services so long as the exclusivity provision(s)
of Galileo's agreement with that third party is in effect.]
(EXHIBIT E-1)
49
Schedule 1
Certain Information Relating to 0000
XXXXXX XXXXXX APR MEXICO APR
----------------- ----------
1997 REVENUE GOAL $ [*] $ [*]
1997 BASE COMPENSATION $ [*] $ [*]
1997 FA BUDGET $ [*] $ [*]
[*]
(Schedule 1-1)