EXHIBIT 10.9
SCRIPT SERVICES AGREEMENT
THIS Script Services Agreement ("Agreement") is made this 21st day of
June, 1995, by and
between WORLDSPAN, L.P., a Delaware limited partnership ("WORLDSPAN"),
000 Xxxxxxxx
Xxxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000 and Corporate Travel Link, Incorporated
located at 00
Xxxxxxx Xxxxx Xx., Xxxxx Xxxxxx, XX 00000 ("Customer").
W I T N E S S E T H:
WHEREAS, WORLDSPAN is a computer reservation system ("CRS") vendor
providing
access to its WORLDSPAN System to travel agencies and others in the travel
industry;
WHEREAS, Customer has arranged with WORLDSPAN for the use of
WORLDSPAN's
CRS, equipment and products; and
WHEREAS, Customer desires to retain WORLDSPAN to write one or more
software
programs (hereinafter referred to as the "Scripts") that may be used with
WORLDSPAN's Scripting
product, used by Customer in conjunction with the WORLDSPAN CRS.
NOW, THEREFORE, it is agreed:
1. Scripts to be provided by WORLDSPAN.
WORLDSPAN shall prepare and provide to Customer the Scripts as outlined in
Exhibit A attached
hereto and incorporated herein. WORLDSPAN shall create and provide the
Scripts to Customer
pursuant to this Agreement. Preparation of the Scripts by WORLDSPAN may be
carried out at
WORLDSPAN's facilities or at Customer's offices, provided that the completed
Scripts shall be
provided to Customer at the address set forth above.
2. Access.
Customer agrees to make available to WORLDSPAN reasonable access to Customer's
equipment
and staff, and provide such other assistance as shall be reasonably necessary
to permit
WORLDSPAN to provide the Scripts according to this Agreement, including but
not limited to
access to a WORLDSPAN Scripting workstation and assistance from a Customer
designee familiar
with the design specifications and host functionality of the proposed Script
project.
3. Fees.
In consideration of the services provided by WORLDSPAN hereunder and the
license to the Scripts,
Customer shall pay WORLDSPAN a fee of three thousand dollars ($3,000.00).
Fees shall be paid
by Customer within thirty (30) days of the date of invoice. WORLDSPAN may
impose a late
payment fee at the rate of one percent (1%) per month for any amount that has
not been received
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within thirty (30) days after the date of such invoice. In addition to any
other charges set forth
herein, Customer shall pay to WORLDSPAN or reimburse WORLDSPAN, as appropriate,
for all
sales, use, excise, property, or other similar taxes now or hereafter imposed by
any federal, state or
local taxing authority on amounts paid to WORLDSPAN by Customer.
Notwithstanding the
foregoing, Customer shall not, in any event, be responsible for any taxes
payable on
WORLDSPAN's net income or taxes in lieu of net income taxes, or for charges
imposed on
WORLDSPAN for the privilege of doing business.
4. Termination of Agreement.
Either party may terminate this Agreement in its sole discretion by providing
the other party with
one day advance written notice. Should Customer terminate this Agreement,
Customer will be
obligated to pay WORLDSPAN the entire fee identified in Section 3 above.
Should WORLDSPAN
terminate this Agreement, Customer will not be obligated to pay WORLDSPAN
any of the fee
identified in Section 3 above.
5. Confidentiality.
Each of the parties shall ensure that any Confidential Information which it
may become aware of or
use during the performance of this Agreement is treated by it in strictest
confidence, and is not
disclosed to third parties or used except as expressly permitted by this
Agreement. "Confidential
Information" shall mean information that is proprietary and confidential to
the party disclosing such
information including, but not limited to, software, specifications, customer
information, scripting
code, business plans, financial information, and other information of a
sensitive or confidential
nature whether oral or written, except (a) information known to the receiving
party prior to
disclosure by the disclosing party; (b) information which is widely known to
the public in the
relevant industry or trade; or (c) information which is developed by the
receiving party independent
of any Confidential Information provided by the disclosing party. Each party
will treat the other
party's Confidential Information with at least the same concern and protective
measures accorded
any of its own trade secrets and confidential information.
6. License.
Title and full and complete ownership rights to all WORLDSPAN owned or
developed
software
including but not limited to the Scripts, shall remain with WORLDSPAN.
Customer understands
and agrees that WORLDSPAN's owned or developed software is WORLDSPAN's trade
secret,
proprietary information, and confidential information whether any portion
thereof is or may be
validly copyrighted or patented. Any software provided to Customer is provided
by license only and
such license is non-exclusive, non-transferable and limited to the right to use
such software. Under
no circumstances may a Script be copied for, duplicated for, provided to, or
sold to any third party
including but not limited to any member of an agency consortium. Customer's
license shall include
the right for Customer to modify the Scripts as needed.
7. Limited Warranty.
WORLDSPAN makes no representation or warranty with regard to the accuracy or
completeness
of the Scripts or that the Scripts shall be suitable for Customer for all
purposes. WORLDSPAN
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warrants that the Scripts shall operate substantially according to the
design specifications outlined
in Exhibit A for a period of thirty (30) days following delivery of the
Scripts to Customer. In the
event of any breach of the foregoing warranty, Customer's sole remedy, and
WORLDSPAN's sole
obligation, shall be for WORLDSPAN to correct any defective Script so that
it shall operate
substantially according to the design specifications outlined in Exhibit A.
8. Indemnification.
A. Each party shall indemnify, defend and hold harmless the
other party, its directors,
affiliates, partners, officers, employees and agents, from
and against all liabilities,
damages and expenses, and claims for damages, suits,
proceedings, recoveries,
judgments or executions (including but not limited to
litigation costs, expenses, and
reasonable attorneys' fees) arising out of or in conjunction
with any claim that the use
of the indemnifying party's system or data (including,
without
limitation, software)
by the other party infringes any third party patent,
copyright, trademark or other
property right.
B. Each party shall indemnify, defend and hold harmless the
other party, its directors,
affiliates, partners, officers, employees and agents from
and against all liabilities,
damages and expenses, and claims for damages, suits,
proceedings, recoveries,
judgments or executions (including but not limited to
litigation costs, expenses, and
reasonable attorneys' fees) which may be suffered by,
accrued against, charged to or
recoverable from the other party, its past and present
directors, affiliates, partners,
officers, employees or agents by reason of or in
connection with the party's
performance or failure to perform, or improper
performance of any of the party's
obligations under this Agreement.
9. Disclaimer.
OTHER THAN THE WARRANTIES AND REMEDIES SET FORTH IMMEDIATELY ABOVE,
WORLDSPAN DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL WARRANTIES,
EXPRESSED OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO,
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OR INTENDED USE, RELATING TO THE SCRIPTS OR SERVICES PROVIDED BY
WORLDSPAN HEREUNDER. WORLDSPAN SHALL NOT BE LIABLE TO CUSTOMER OR
TO ANYONE ELSE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
SPECIAL DAMAGES, REGARDLESS OF WHETHER CUSTOMER'S CLAIM IS BASED ON
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. WORLDSPAN'S TOTAL
LIABILITY TO CUSTOMER OR ANY THIRD PARTY SHALL NOT EXCEED THE AMOUNT
PAID BY CUSTOMER TO WORLDSPAN PURSUANT TO THIS AGREEMENT.
10. Notice.
All notices, requests, demands or other communications hereunder shall be in
writing, hand
delivered, sent by first class mail, overnight mail, facsimile or teletype and
shall be deemed to have
been given when received at the following addresses:
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If to WORLDSPAN:
WORLDSPAN, L.P.
000 Xxxxxxxx Xxxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
X.X.X.
Facsimile: (000) 000-0000
ATTN: Supervisor - Customer Service Programming
If to Customer:
Corporate Travel Link, Incorporated
X.X. Xxx 0000
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
ATTN: Xxxxxx Xxxxxxx
Any notice provided by facsimile or teletype which is received after 4:00 p.m.
local time shall be
deemed received the following business day. A party may change its addresses
for notice on not less
than ten (10) days' prior written notice to the other party.
11. General Provisions.
A. Nothing in this Agreement is intended or shall be construed to
create or establish an
agency, partnership, or joint venture relationship between the
parties.
B. The captions in this Agreement are for convenience only and
in no way define, limit,
or enlarge the scope of this Agreement or any of the
provisions therein. Capitalized
terms shall have the meanings assigned in this Agreement.
C. No waiver by either party of any provision or any breach of
this Agreement
constitutes a waiver of any other provision or breach of this
Agreement and no
waiver shall be effective unless made in writing. The right
of either party to require
strict performance and observance of any obligations hereunder
shall not be affected
in any way by any previous waiver, forbearance or course of
dealing.
D. Except for customer's obligation to make payments hereunder,
neither party will be
deemed in default of this Agreement as a result of a delay in
performance or failure
to perform its obligations caused by acts of God or
governmental authority, strikes
or labor disputes, fire, acts of war, failure of third
party suppliers, or for any other
cause beyond the control of that party.
E. Customer shall not sell, assign, license, sub-license,
franchise or otherwise convey
in whole or in part to any third party this Agreement or
the services provided
hereunder without the prior written consent of WORLDSPAN.
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F. This is a non-exclusive agreement. Similar agreements may be
entered into by either
party with any other person.
G. This Agreement shall be governed by, construed, interpreted
and enforced according
to the laws of the State of Georgia and of the United States
of America, without
regard to principles of conflict of laws and rules. Each
party hereby consents to the
non-exclusive jurisdiction of the courts of the State of
Georgia and United States
Federal Courts located in Georgia to resolve any dispute
arising out of this
Agreement, and waives any objection relating to improper
venue or forum
nonconveniens to the conduct of any proceeding in any such
court.
H. In the event that any material provision of this Agreement
is determined to be
invalid, unenforceable or illegal, then such provision shall
be deemed to be
superseded and the Agreement modified with a provision which
most nearly
corresponds to the intent of the parties and is valid,
enforceable and legal.
I. This Agreement constitutes the final and complete
understanding and agreement
between the parties concerning the subject matter hereof.
Any prior arrangements,
understanding negotiations or communications written or
otherwise concerning the
subject matter hereof are deemed superseded by this
Agreement.
this Agreement
may be modified only by a further written agreement executed
by an authorized
representative of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by
their undersigned duly authorized representatives as of the day and year first
written above.
CUSTOMER: WORLDSPAN, L.P.
Corporate Travel Link, Incorporated
(Customer Legal Name) By:
Xxxxx Xxxxxxxx
Corporate Travel Link, Incorporated Director - Training and Accounting
(Doing Business As) Products Support
By:
(Signature)
Xxxxxx Xxxxxxx
(Print Name)
Title: President
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