EXHIBIT 10.11
Galileo Contract No. 33565
GALILEOR INTERNATIONAL
ANCILLARY SERVICES AGREEMENT
This Ancillary Services Agreement
("Agreement") is made and entered into as of
this 28th day of August, 1995, between GALILEO
INTERNATIONAL PARTNERSHIP, a Delaware general
partnership whose principal place of business
is located at 0000 Xxxx Xxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000 X.X.X. ("Galileo")
and CORPORATE TRAVEL LINK, INC., a
______________________ corporation whose
mailing address is 00 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx 00000 ("Customer").
W I T N E S S E T H
WHEREAS, Galileo provides computerized reservations and ticketing
services and other services ("Galileo Services") and is willing to
allow Customer to have limited access to its Galileo Services; and
WHEREAS, Customer desires to have limited access to Galileo
Services for the purpose of performing certain travel-related
functions and services.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations hereinafter set forth, Galileo and Customer agree as
follows:
1. DEFINITIONS
For the purposes of this Agreement, the following words and
terms shall have the following meanings:
A. "Ancillary Equipment" means all equipment, including
communications equipment, provided by Galileo which is
used in conjunction with Ancillary Services, such as
personal computer workstations, CRT sets, and
printers.
For purposes of this Agreement, the term "Ancillary
Equipment" shall include all Software provided by Galileo
which is installed on the Ancillary Equipment.
B. "Ancillary Services" means limited access to Galileo
Services for the purpose of performing certain
travel- related functions and services, but specifically
excluding ticketing services.
C. "Charges" means all amounts payable by Customer to
Galileo under this Agreement.
D. "Confidential Information" means all trade secrets,
proprietary and confidential information of Galileo, its
affiliates, subsidiaries, successors or assigns
including, without limitation, the following: (i) any
and all hardware and software; (ii) any and all
algorithms, routines, subroutines, source code,
object code, software programs, computer processing systems
and techniques employed or used by Galileo, or its
affiliates, subsidiaries, successors or assigns, and
any related items such as specifications, layouts, flow
charts, manuals, instruction books, and other like
documentation together with all data and know how,
technical or otherwise included therein; (iii) all
documents, files, reports, drawings, plans, sketches,
equipment and the like related to the business of
Galileo, or its affiliates, subsidiaries, successors
or assigns; (iv) any and all upgrades, enhancements,
improvements or modifications to the Ancillary
Services or to the foregoing; (v) all customer pricing and
marketing information of Galileo, or its affiliates,
subsidiaries, successors or assigns; and (vi) this
Agreement.
E. "Galileo Services" or "Galileo" means Galileo's
computerized reservations and ticketing service and other
services. For purposes of this Agreement, Galileo
Services may include services of Galileo, ApolloR
and the Gemini Group Limited Partnership ("Gemini") and any
other computerized reservation system or authorized agent
thereof with whom Galileo has an agreement to
distribute such services or similar service ("Related
CRS"). Said parties shall not be considered third
parties
under this Agreement.
F. "Software" means all computer software licensed by
Galileo to Customer.
G. "Transaction" means a message accessing Galileo Services
that is transmitted by Customer. For purposes of this
Agreement, "Peak Period" means the hours from 7:00 a.m.
to 7:00 p.m., Mountain Time, Monday through Friday, and
"Off Peak Period" means the remaining hours.
Any term not defined herein shall have the meaning given such term
elsewhere in the Agreement.
R "Galileo" and "Apollo" are registered service marks of Galileo
International.
2. INSTALLATION
A. Galileo shall install or cause to be installed the
Ancillary Equipment, as applicable, at each location
set forth on an Attachment A to this Agreement ("Location")
and shall provide Customer connection to Ancillary
Services. Galileo shall use its best efforts to
install and connect the Ancillary Equipment at the locations
by the planned installation dates set forth on each
Attachment A.
B. Each location shall be reviewed by a Galileo
representative to determine what, if any, physical
modifications shall be required to support the
Ancillary Equipment at that location. After the site
review is completed, Galileo shall issue a
site survey for each location. The site survey shall
detail the layout of all terminals, cables, and backroom
support
Ancillary Equipment (e.g., transaction processing
units and modems). At its own cost and expense,
Customer shall implement, or cause to be
implemented, any physical modification required by
the site survey, including, without limitation, the
furnishing of electrical power, the installation of data
cables, access to telephone lines, and any inside
wiring that may be necessary for data line connectivity.
C. Customer shall not relocate any installed Ancillary
Equipment without first obtaining Galileo's written
consent. Any approved relocation must be
accomplished by Galileo or its designee at
Customer's sole cost and expense.
D. Customer represents and warrants that each location is
owned or controlled by Customer and that it has authority
to enter into this Agreement on behalf of each said
location.
3. TRAINING
A. Galileo shall provide Customer appropriate and sufficient
training in Customer's use of Ancillary Equipment and
Ancillary Services. Customer shall be responsible to
ensure that its employees complete all required training.
Galileo shall designate the time and location of and
shall bear the cost of providing a trainer and/or
materials used in such training program.
B. Only qualified personnel who have satisfactorily
completed Galileo's training program applicable to
Customer's use of Ancillary Equipment and Ancillary
Services (hereinafter "Designated Users"), and
Customer employees trained by Designated Users, shall be
permitted to use Ancillary Services and operate
Ancillary Equipment.
C. Galileo may provide training to Customer's Designated
Users for use of any major enhancements or modifications
to Ancillary Services or Ancillary Equipment and may
provide additional training at Customer's request.
Any such training shall be a Customer's expense and at a time
and location designated by Galileo.
D. Galileo may, at its discretion, monitor or test the
proficiency level of Customer's employees in the use of
the Ancillary Equipment and Ancillary Services. If
Galileo determines that their proficiency levels are
insufficient for the proper use of the Ancillary
Equipment and Ancillary Services, then Customer
must arrange for its employees to undertake any
further training which Galileo determines necessary to bring
Customer's employees to the desired proficiency
level. Customer is responsible for all costs and expenses
associated with any such additional training.
E. If any training conducted pursuant to this Article 3 is
not performed on-site, Customer, not Galileo, shall bear
all living expenses of Customer's employees while
attending any of the above training programs.
4. SOFTWARE LICENSE - RESTRICTIONS
A. (i) Galileo hereby grants Customer a nonexclusive
license to use the software during the term of this
Agreement. The Software is the property of Galileo
and may not be used, in whole or in part, by
Customer on other than or with the Ancillary
Equipment set forth on the Attachment A(s) unless
otherwise agreed to by Galileo. This license
automatically terminates upon termination of this
Agreement.
(ii) Title and full ownership rights to the Software
remain with Galileo or such other party with whom
Galileo has a distributorship or licensing agreement
("Licensor"). The Software is the proprietary
information and trade secret of Galileo or its
licensor, whether or not any portion thereof is or
may be validly copyrighted or patented. Customer
shall maintain the confidential nature of the
Software and related materials which are provided
hereunder for its own internal use and protect them
as it does its own most valuable and strategic
assets and trade secrets.
B. (i) Except with prior written consent of Galileo, or as
set forth in Article 4.8(ii) hereof, Customer shall
not copy, reproduce, or duplicate the Software in
any way, nor shall it sell, lease, pledge, assign,
license, dispose of, or otherwise transfer or
encumber the Software.
(ii) Any Software provided by Galileo hereunder in
machine-readable form xxx be copied, in whole or in
part, in printed or machine-readable form solely for
Customer's internal use for backup and archival
purposes and may be used only in the event of
damage, destruction, or loss of the original
Software supplied. The original and all copies of
the Software, in whole or in part, remain the
property of Galileo or its licensor.
(iii) Except with the prior written consent of Galileo,
Customer shall not add to, modify, enhance, or alter
the Software. Customer shall not disassemble,
reverse assemble, reverse compile or otherwise
reverse engineer any portion of the Software.
(iv) Except with the prior written consent of Galileo,
Customer shall not provide or otherwise make
available the Software or any part thereof,
including, but not limited to, programs, diagrams,
flow charts, logic, and operating and training
manuals, to any person other than Customer's
employees, officers, or directors who require access
to the Software in the normal course of Customer's
business.
(v) Customer shall advise all persons who are permitted
to have access to the Software of the nondisclosure
provisions of this Article 4, and Customer shall
take all necessary precautions to ensure that these
persons comply with such provisions. Customer shall
be liable to Galileo for any violation by any such
person of said non-disclosure provisions.
C. Except with the prior written consent of Galileo,
Customer shall not use the Software for any
functions other than those set forth in the related
operations manuals. Galileo may revoke any such
consent by giving thirty (30) days prior written notice to
Customer.
D. Galileo provides portions of the Software pursuant to
license agreements with various third party software
providers. Certain of these providers may require
Galileo to obtain Customer's agreement to and
compliance with software sublicenses. Customer agrees to
abide by all such sublicenses and, if required, agrees to
execute any such sublicense. Customer's failure to agree to
execute or abide by a sublicense shall constitute a
breach of this Agreement and in such event Galileo
may refuse to install, or may deinstall, the Software and any
related Ancillary Equipment and seek any other remedies
provided in this Agreement.
5. THIRD PARTY-PROVIDED PRODUCTS
A. Customer shall provide Galileo sixty (60) days prior
written notice of its intent to utilize a non-
Galileo provided software application which sends
Transactions to or interfaces with Galileo Services except
where the application (i) is created using a product
provided by Galileo; or (ii) has been previously designated
by Galileo as not being incompatible with Galileo.
B. Galileo may require that customer provide Galileo
information regarding the applications, configuration,
and operation of any hardware or software that is not
provided by Galileo which interfaces either directly
or indirectly with Ancillary Services or in connected to
Ancillary Equipment ("Third Party Hardware" or
"Third Party Software"; collectively "Third Party
Products") and may require that the Third Party Product
be tested or certified by Galileo, at Customer's expense.
Furthermore, Galileo may determine that certain
terms and conditions pertaining to Customer's use of the
Third Party Products must be agreed to by Customer as
a condition of Customer's permissible use.
C. Customer shall bear sole responsibility to ensure that
all Third Party Products meet the requirements and
guidelines established by galileo and contained in
the product documentation as it may be changed from time to
time.
D. Customer is strictly prohibited from disassembling
Ancillary Equipment for any reason, including, but
not limited to, the purpose of installing Third Party
Hardware within Ancillary Equipment.
E. Galileo shall have no liability for any costs associated
with Customer's procurement or use of Third Party
Products and shall have no responsibility for
installing Third Party Products. In addition Galileo
shall have no liability whatsoever for and Customer releases
Galileo from any responsibility for (i) testing, certifying,
or assisting with the functional suitability, operation, or
compatibility of Third Party Products (unless the parties
have executed Galileo's standard product testing
agreement under which Customer agrees to pay
Galileo's then-current fees for such testing); (ii)
enhancement or modifications of Galileo Services
rendering Third Party Products incompatible with Galileo
Services; (iii) any defects, malfunctions, failure to
perform, loss, interruption, and errors of any kind by
Third Party products; or (iv) provision of support or
maintenance services of any kind for Third Party
Products. In the event of system failure following the
installation or use of Third Party Products, at
Customer's expense, Galileo shall attempt to restore or
reinstall Galileo-provided Software so long as Customer has
attempted and has been unable to restore same. Galileo
shall have no obligation to restore or reinstall any of
Customer's data files or Third Party Products.
F. Customer shall (i) be liable to Galileo for any loss or
damage to Galileo Services, Ancillary Services or
Ancillary Equipment that is caused by the Third
Party Product's performance or failure to perform or by
Customer's installation, deinstallation or use of a
Third Party Product, including all costs incurred by
Galileo inn connection with the service and repair required
to restore Customer's connection to Galileo Services or
Ancillary Services; and (ii) indemnify and hold
harmless Galileo, its owners, officers, directors, agents,
and employees against and from any and all liabilities,
damages, losses, expenses, claims, demands, suits,
fines or judgments, including, but not limited to,
attorneys' fees, costs and expenses incident thereto,
which may be suffered by, accrue against, be charged to, or
be recovered from Galileo, its owners, officers,
directors, agents, or employees, by reason of any loss of,
damage to, or destruction of property, including loss of
the use thereof, or economic loss arising out of or in
connection with (a) any act, error or omission of
Customer, its officers, directors, agents, or employees in
the installation, deinstallation, or operation of a Third
Party Product; (b) any act, error, or omission of the
provider of a Third Party Product or any other third
party in the installation and operation of a Third
Party Product; and (c) any defect, malfunction, failure to
perform, and error of any kind caused or contributed
to by a Third Party Product.
G. In the event that Customer elects to utilize Third Party
Software which provides automatic transaction
capabilities, including, but not limited to, update,
query, retrieval, and download, Customer must
install a throttling mechanism to control the frequency
of Transactions transmitted through Galileo.
Customer's throttling mechanism must control such
frequency to no more than three (3) Transactions per
second per line interchange address (notwithstanding,
Galileo makes no Representation that Galileo accepts a
specified quantity of Transactions for a given time period).
Galileo may further require that Customer maintain, at
Customer's expense, a telecommunication line for such
application separate and distinct from any other
telecommunication line used in conjunction with services
provided by Galileo.
H. In the event that any Galileo-provided Software is
installed on Third Party Hardware, Customer shall
promptly remove all liens and pay all assessments,
license fees, or other charges when levied or
assessed on or against the Third Party Hardware or the
ownership or use thereof.
I. Notwithstanding anything to the contrary herein, in order
to protect or maximize the operability of Galileo
Services, Galileo may direct Customer to (i)
temporarily or permanently discontinue its use of a Third
Party Product or (ii) prohibit direct or indirect
access to Ancillary Services by such Third Party Product,
and Customer must comply with such direction.
6. OPERATION OF ANCILLARY EQUIPMENT
A. To maintain an effective connection between Ancillary
Services and Ancillary Equipment and to prevent misuse of
Ancillary Services and Ancillary Equipment, Customer
agrees that Ancillary Services and Ancillary
Equipment shall be used and operated in strict accordance
with operating instructions provided by Galileo.
Prohibited uses include, but are not limited to,
nonbusiness uses, personal messages, providing services
unauthorized by this Agreement to third parties,
training others in the use of Ancillary Services, or other
uses designated by Galileo in writing as prohibited.
B. Customer may provide the Ancillary Services display only
to Customer's employees and may not provide Ancillary
Services to any other person or entity without the
written consent of Galileo. Customer expressly
acknowledges and agrees that, notwithstanding
anything to the contrary herein, all PNR, passenger and
other data and information entered into Galileo Services
is owned by Galileo.
C. Customer shall take all precautions necessary to prevent
unauthorized operation or use of Ancillary Services and
the Ancillary Equipment. Customer is liable and
responsible for any Transactions by Customer and its
employees using Ancillary Services and must ensure
that each agrees to use Ancillary Services and Ancillary
Equipment in accordance with the provisions set forth
herein. Galileo reserves the right to deny access to
Ancillary Services at an y time to any individual that
fails to comply with the provisions of this Agreement.
7. INDEMNIFICATION
A. Customer hereby agrees to indemnify and hold harmless
Galileo, its owners, officers, directors, agents, and
employees against and from any and all liabilities,
damages, losses, expenses, claims, demands, suits,
fines or judgments, including, but not limited to,
reasonable attorneys' fees, costs and expenses incident
thereto, which may be suffered by, accrue against, be
charged to, or be recovered from Galileo, its owners,
officers, directors, agents, or employees, by reason
of any injuries to or deaths of persons or the loss
or, damage to, or destruction of property, including loss
of the use thereof or any other loss or claim whatsoever,
whether in contract or tort, law or equity, arising out of
or in connection with any act, failure to act, error
or omission of Customer, its officers, directors,
agents, or employees in the performance or failure of
performance of Customer's obligations under this
Agreement.
B. To the extent of Galileo's representations and warranties
under Article 12.A, Galileo hereby agrees to indemnify
and hold harmless Customer, its officers, directors,
agents, and employees against and from any and all
liabilities, damages, losses, expenses, claims,
demands, suits, fines or judgments, including, but not
limited to, reasonable attorneys' fees, costs and expenses
incident thereto, which may be suffered by, accrue against,
be charged to, or be recovered from Customer, its officers,
directors, agents, or employees, by reason of any
injuries to or deaths of persons or the loss of,
damage, to, or destruction of property, including loss of
the use thereof, arising out of or in connection with any
act, error or omission of Galileo, its owners, officers,
directors, agents, or employees in the performance
or failure of performance of Galileo's obligations
under this Agreement.
8. INSURANCE AND SECURITY INTEREST
A. Customer shall take all necessary precautions to protect
the Ancillary Equipment owned by Galileo and installed on
Customer's premises.
B. Customer hereby grants to Galileo a purchase money
security interest in any purchased Ancillary
Equipment to secure payment of the purchase price therefor,
and agrees that a copy of this Agreement may be filed as
a financing statement to protect Galileo's security
interest in such Ancillary Equipment in all jurisdictions
where the Ancillary Equipment or Customer may be located.
Upon payment in full of the purchase price for such
purchased Ancillary Equipment, Galileo shall, upon
Customer's request, take all steps necessary to
terminate its security interest in such Ancillary
Equipment.
C. (i) At its own cost, Customer shall procure and maintain
insurance, from an insurer nationally recognized and
acceptable to Galileo and on terms and conditions
acceptable to Galileo, insuring the Ancillary
Equipment against all risk of loss or damage,
including, without limitation, the risks of fire,
theft and such other risks as are customarily
insured in a standard all-risk policy. Such
insurance shall also provide the following:
(a) Full replacement value coverage for the Ancillary
Equipment, which value is stipulated to be not less
than the Insurance Value as specified on the
relevant Attachment A;
(b) An endorsement naming Galileo as a coinsured and as
a loss payee to the extent of its interest in the
Ancillary Equipment; and
(c) An endorsement requiring the insurer to give Galileo
at least thirty (30) days prior written notice of
any intended cancellation, nonrenewal, or material
change of coverage or any default in the payment of
a premium.
(ii) Prior to the installation of the Ancillary
Equipment, Customer shall cause the insurer to
provide Galileo with certificates of insurance
evidencing the insurance and endorsements specified
in Article 8.C(i) hereof.
(iii)If Customer fails to maintain or pay the premium on
the insurance required in Article 8.C(i) hereof,
then Galileo may secure equivalent insurance
coverage or pay an delinquent premium. If
Galileo elects to do so, then Galileo may, at its
option, demand that Customer immediately reimburse
Galileo to the extent of Galileo's cost of such
equivalent insurance or delinquent premium payment
plus interest at the rate of eighteen percent 918%)
per annum or the maximum interest rate allowed by law,
whichever is less, from the date of Galileo's
expenditure until the date of reimbursement to
Galileo and Customer shall immediately pay all such
amounts to Galileo.
D. (i) Notwithstanding anything stated herein to the
contrary, Customer shall be liable to Galileo for
any loss or damage to the Ancillary Equipment,
regardless of the cause thereof, occurring while
leased to Customer or while in the possession,
custody, or control of Customer.
(ii) If any Ancillary Equipment is lost, totally
destroyed, damaged beyond repair, or so damaged to
constitute a constructive total loss, then, within
sixty (60) days after such loss or damage, Customer
shall pay to Galileo an amount equal to the
replacement value of such equipment on the date of
such loss or damage less any insurance proceeds paid
to Galileo in accordance with Article 8.C hereof.
9. ENTRY AND INSPECTION
Galileo or its designee shall have the right, upon reasonable
notice, to enter upon any location during Customer's business
hours for the purpose of monitoring Customer's operation of
the Ancillary Equipment or Ancillary Services, inspecting the
Ancillary Equipment, performing such repairs or maintenance of
support services as may be necessary, or removing the
Ancillary Equipment; provided, however, that Galileo shall not
during the course of such monitoring, inspection, repair, or
removal unreasonably interfere with Customer's business.
10. REPAIR AND MAINTENANCE
A. Xxxxxxx x xxxx provide or cause to be provided to
Customer support, repair and maintenance services
required for the Ancillary Equipment and Ancillary
Services. The support, repair and maintenance
services shall be provided during Galileo's normal business
hours and through a service organization designated by
Galileo.
B. To maintain an effective connection between the Ancillary
Equipment and Ancillary Services and to preserve the
functional integrity of the ancillary Equipment, neither
Customer nor any third party, other than a third party
designated by Galileo, shall perform or attempt to
perform maintenance, repair work, alterations,
modifications, support services or programming
of any nature whatsoever, to the Ancillary Equipment
or Ancillary Services. To obtain maintenance,
repair, or support services, Customer shall contact the
Help Desk/Galileo Technical Support Center.
Customer may, in the event of interruption in Ancillary
Services, call the Help Desk/Galileo Technical Support
Center.
C. Galileo or its designated agent shall perform
maintenance, repair, and support services for any
damage resulting from (i) accident, transportation,
neglect, or misuse; (ii) failure or variation of electrical
power; (iii) failure to properly maintain the installation
site, air conditioning, or humidity control; (iv) causes
other than ordinary use; or (v) maintenance, repair,
servicing, or modification of the Ancillary Equipment or
Ancillary Services performed or provided by anyone other
than Galileo or its designated agent. Unless the
aforesaid damages are a result of the fault or negligence
of Galileo or its designated agent, Customer shall be
responsible for all costs and expenses associated with
such maintenance, repair, and support services.
D. Notwithstanding the provisions of this Article 10,
Galileo shall have no responsibility for support,
repair, and maintenance services relating to Galileo-
provided Software functionality and use thereof not
directly related to performing travel-related functions.
E. Customer shall be responsible for the support, repair,
and maintenance of Third Party Products. if repair and
maintenance is requested by Customer for Ancillary
Services or Ancillary Equipment, and Galileo or its
designated agent deems the problem to be attributed
to a Third Party Product, Galileo shall have no
obligation to perform the necessary repair and, further,
Customer may incur a service call fee.
11. ENHANCEMENTS OR MODIFICATIONS
A. Galileo retains the right to enhance or modify Ancillary
Services or Ancillary Equipment at Galileo's discretion
at any time during the term of this Agreement. Any such
enhancement or modification may be provided at Galileo's
sole discretion, subject to Galileo's charges, terms and
conditions. If Customer commences use of any such
enhancement or modification, Customer's use shall
constitute an agreement by Customer (i) to pay Galileo
the prevailing charges, if any, for such enhancement or
modification, (ii) to follow the written procedures and
instructions provided by Galileo for such enhancement or
modification; and (iii) that upon Customer's use of such
enhancement or modification this Agreement shall be
deemed to be supplemented thereby and all the terms and
provisions of this Agreement shall apply to Customer's
use of such enhancement or modification.
B. Notwithstanding anything to the contrary set forth in
Article 11.A hereof, Galileo may, at its sole discretion,
determine that certain enhancements or modifications to
Ancillary Services or Ancillary Equipment must be
accepted by Customer as a condition of Customer's
continued use of same. There shall be no additional
charge to Customer for such required modification or
enhancement. If Customer fails to accept such
required enhancement or modification in accordance with
Galileo's terms and conditions, Galileo shall have the
option of deinstalling the Ancillary Equipment or
disconnecting the Ancillary Service requiring the
enhancement or modification at the applicable
locations and providing Customer with an alternative that
does not require such required enhancement or modification,
if one exists. If such alternative does not exist, Customer
must accept such required modification or enhancement
or shall be deemed in breach of this Agreement.
12. REPRESENTATIONS AND WARRANTY
A. GALILEO REPRESENTS AND WARRANTS THAT:
(i) IT IS THE OWNER OR LICENSEE OF THE SOFTWARE PROVIDED
UNDER THIS AGREEMENT;
(ii) IT HAS THE RIGHT TO PROVIDE ANCILLARY SERVICES SET
FORTH HEREIN TO THE CUSTOMER; AND
(iii)IT SHALL USE ITS BEST EFFORTS TO MAXIMIZE THE UPTIME
OF THE ANCILLARY EQUIPMENT.
B. CUSTOMER'S REMEDIES FOR BREACH OF THE WARRANTIES SET
FORTH IN ARTICLE 12.A HEREOF SHALL BE SOLELY LIMITED
TO REPAIR OR REPLACEMENT OF THE SOFTWARE, ANCILLARY
EQUIPMENT OR ANCILLARY SERVICES CAUSING THE BREACH
AND INDEMNIFICATION UNDER ARTICLE 7.5 HEREOF.
C. THE WARRANTIES AND REMEDIES SET FORTH IN ARTICLE 12.A AND
12.B HEREOF ARE EXCLUSIVE AND GALILEO MAKES NO OTHER
WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH
RESPECT TO THE SOFTWARE, ANCILLARY EQUIPMENT OR
ANCILLARY SERVICES.
D. EXCEPT FOR A BREACH OF THE EXCLUSIVE WARRANTIES SPECIFIED
IN ARTICLE 12.A HEREOF AND EXCEPT FOR THE RIGHT TO
RECEIVE THE EXCLUSIVE REMEDIES SPECIFIED IN ARTICLE
12.B HEREOF, CUSTOMER HEREBY WAIVES AND RELEASES GALILEO,
ITS OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM
ANY AND ALL OTHER OBLIGATIONS AND LIABILITIES AND ALL
RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST GALILEO,
ITS OWNERS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS,
EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, DUE TO
ANY DEFECTS OR INTERRUPTIONS OF SERVICE IN, OR ERRORS
(INCLUDING, WITHOUT LIMITATION, ANY ERRORS IN
RESERVATIONS AVAILABILITY RECORDS) OR MALFUNCTIONS BY
SOFTWARE, ANCILLARY EQUIPMENT, OR ANCILLARY SERVICES,
INCLUDING ALL LIABILITY, OBLIGATION, RIGHT, CLAIM, OR
REMEDY IN TORT, AND INCLUDING ALL LIABILITY, OBLIGATION,
RIGHT, CLAIM OR REMEDY FOR LOSS OF REVENUE OR PROFIT OR
ANY OTHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES.
13. FORCE MAJEURE
Except for any payment obligations, neither party shall be
deemed to be in default or liable for any delays in the
event and to the extent that performance thereof is delayed or
prevented by acts of God, public, enemy, war, civil
disorder, fire, flood, explosion, riot, labor disputes, work
stoppage or strike, unavailability of equipment, any act or
order of any governmental authority, or any other cause, whether
similar or dissimilar, beyond its control.
14. CHARGES
A. Customer shall pay to Galileo license, lease, purchase,
installation, and service fees; taxes; and other fees as
set forth in this Agreement, Attachment A, and all other
applicable attachments to this Agreement, without setoff
or counterclaim. Monthly fees commence upon the
Ancillary Services being operational.
B. For each location as of the effective date of the
Agreement and any location added thereafter in
accordance with the Agreement, Customer shall pay Galileo
the Charges as follows:
(i) Customer shall pay Galileo an Installation Charge as
set forth on Attachment A.
(ii) Customer shall pay to Galileo monthly, in advance,
a Monthly Fixed Charge for the Ancillary Equipment,
interconnection to Ancillary Services, and
associated maintenance, repair, and support
services, as set forth on Attachment A.
C. Customer acknowledges that a change in Customer's
hardware or software configuration may result in an
adjustment to the Charges. Except for such
increases as specified in Article 14.H hereof, such
adjustments shall be by written supplement hereto.
D. Customer shall be charged in accordance with each
Attachment A hereto for: (i) the installation or
deinstallation of hardware or software; (ii) relocation
of hardware or software within the location; (iii) each
location disconnect or relocation to different premises;
(iv) hardware or software modifications, upgrades, or
enhancements; (v) excess cable required for
installation; (vi) installation or peripheral devices
requested by Customer; and (vii) similar installation and
deinstallation related expenses.
E. When applicable, Customer shall pay all SITA (Societe
International Telecommunications Aeronautiques) charges
incurred in connection with Customer's use of Ancillary
Services under this Agreement.
F. Customer further agrees to pay an overtime premium for
maintenance or repair services provided outside of normal
business hours at Customer's request. Normal business
hours are 8:00 a.m. to 5:00 p.m., local time, Monday
through Friday, except holidays observed by Galileo.
G. Invoices shall be sent to each location address, as
specified on Attachment A, unless alternate written
instructions are provided by Customer to Galileo.
All amounts payable hereunder are due within ten 910) days
after the date of invoice and shall be paid in U.S.
dollars on a U.S. bank. Any past due amounts shall
accrue interest at a rate not to exceed one and one-
half percent (1-1.5%) per month compounded or the maximum
rate permitted by law, whichever is less. The accrual of
such interest shall not affect any of Galileo's rights or
remedies under this Agreement.
H. All Charges are subject to increase by Galileo upon
thirty (30) days prior written notice, except that
Galileo may not increase such Charges by more than
twelve (12) percent in any one calendar year.
Notwithstanding the foregoing, the communications cost
elements of any of the above Charges shall be subject to
increase, at any time and without limitation, to cover any
increase in the cost thereof incurred by Galileo.
15. TAXES AND FEES
Customer covenants and agrees to pay when due or reimburse and
indemnify and hold Galileo and its owners harmless from and
against all taxes, fees and other charges of every nature
whatsoever (together with any related interest or
penalties not arising from fault on the part of Galileo), now
or hereafter imposed or assessed against Galileo, its owners or
Customer by any Federal, state, county, or local governmental
authority, upon or with respect to this Agreement or upon or
with respect to the ordering, purchase, sale, ownership,
delivery, leasing, possession, use, operation, return or
other disposition of property and services thereof or upon the
rents, receipts or earnings arising therefrom (excepting
only Federal, state and local taxes based on or measured by
the net income of Galileo). Notwithstanding the foregoing,
unless otherwise specified, Galileo shall be responsible
for the filing of all personal property tax returns and
shall pay all taxes indicated thereon, Customer shall reimburse
Galileo for all such taxes, fees and charges within ten (10)
days of receipt of Galileo's invoice therefor.
16. TERM
A. The term of this Agreement shall commence on 9/15/95 and
shall continue until terminated by either party upon
thirty (30) days prior written notice.
B. Upon termination of this Agreement, for any reason
whatsoever, Customer shall allow Galileo onto its
premises to remove, at Customer's expense, all
leased or licensed Ancillary Equipment and Galileo
Software, and Customer shall return to Galileo all
Confidential Information, including, but not limited
to, all manuals, guides, and written materials provided to
Customer and all copies of such materials, whether in
written or computer readable form.
C. Those provisions of the Agreement which by their nature
and intent should survive expiration or termination of
the Agreement, including, but not limited to,
confidentiality and Software license restrictions,
shall so survive.
17. TERMINATION FOR CAUSE
A. If either party (the "Defaulting Party") becomes
insolvent; if the other party (the "Insecure Party") has
evidence that the Defaulting Party is not paying its
bills when due without just cause; if a receiver of
the Defaulting Party's assets is appointed; if the Defaulting
Party takes any step leading to its cessation as a going
concern; or if the Defaulting Party either ceases or
suspends operations for reasons other than a strike,
then the Insecure Party may immediately terminate this
Agreement on written notice to the Defaulting Party
unless the Defaulting Party immediately gives
adequate assurance of the future performance of this
Agreement by establishing an irrevocable letter of credit --
issued by a U.S. bank acceptable to the insecure Party,
on terms and conditions acceptable to the insecure Party, and
in 1an amount sufficient to cover all a mounts potentially
due from the Defaulting party under this Agreement --
amount sufficient to cover all amounts potentially
due from the Defaulting Party under this Agreement -- that
may be drawn upon by the Insecure Party if the Defaulting
Party does not fulfill its obligations under this
Agreement in a timely manner. If bankruptcy
proceedings are commenced with respect to the Defaulting
Party and if this Agreement has not otherwise terminated,
then the Insecure Party may suspend all further
performance of this Agreement until the Defaulting
Party assumes or rejects this Agreement pursuant to
Section 365 of the Bankruptcy Code or any similar or
successor provision. Any such suspension of further
performance by the Insecure Party pending the Defaulting
Party's assumption or rejection shall not be a breach of this
Agreement and shall not affect the Insecure Party's right to
pursue or enforce any of its rights under this Agreement
or otherwise.
B. If either party (the "Defaulting Party") refuses,
neglects, or fails to perform, observe or keep an of
the covenants, agreements, terms or conditions contained
herein on its part to be performed, observed and
kept, and such refusal, neglect or failure continues for
a period of thirty (30) days after written notice
(except in the case of any payments due where the period to
cure such nonpayment shall be five (5) days after notice)
to the Defaulting Party thereof, then without prejudice to
any other rights or remedies of the other party, this
Agreement shall, at the option of the non-defaulting
party, terminate as of the expiration of the notice
period. Notwithstanding anything to the contrary
herein, in the event Customer is the Defaulting Party, the
Galileo may, at its sole option and without
prejudice to any other of its rights or remedies, reduce or
restrict provision or services provided under the Agreement
without termination of the Agreement.
C. The right of either party to require strict performance
and observance of any obligations under this Agreement
shall not be affected in any way by any previous waiver,
forbearance or course of dealing. Exercise by either
party of its right to terminate under this Agreement
shall not affect or impair its right to bring suit
for any default or breach of this Agreement. All obligations
of each party that have accrued before termination or
that are of a continuing nature shall survive
termination.
D. If this Agreement includes more than one location and if
Customer's default or breach relates to fewer than all
locations, then Galileo may, at its sole option, exercise
its rights under this Article to terminate this entire
Agreement or only with respect to the location(s)
involved.
18. ASSIGNMENT, MERGER, AND SALE
A. Customer shall not assign, transfer, or sublease this
Agreement or any right or obligation hereunder unless the
assignee, transferee or sublessee expressly assumes all
of the liabilities and obligations of Customer hereunder
and Customer has obtained the prior written consent of
Galileo, which shall not be unreasonably withheld. Any
purported assignments,, transfers or subleases made
without such assumption and consent shall, at
Galileo's option, be null and void ab initio.
B. If Galileo consents to the assignment, transfer or
sublease, Customer may be required to pay Galileo a
one- time transfer fee and any sublicense distribution costs
that are incurred by Galileo in connection with the
assignment of Customer's use of Software.
Customer's failure to pay these fees shall result in
the assignment being rendered null and void ab initio.
C. In the event Customer acquires or gains control of
another entity or merges with or is acquired or
becomes controlled by any person or entity not presently
owning a controlling interest in Customer, then Galileo, at
its sole option, may immediately terminate this Agreement
without any obligation or liability to Customer,
other than past due amounts.
19. PUBLICITY, ADVERTISING AND PROMOTION
A. Except in any proceeding to enforce the provisions of
this Agreement or except as otherwise required by law,
neither party shall publicize or disclose to any third
party the provisions of this Agreement or any of the
Charges, terms, or conditions herein without the
prior written consent of the other party.
B. Neither party shall use the name or logo of the other in
publicity releases or advertising regarding or related to
this Agreement without securing the prior written
approval of the other party. Request for approval
shall be directed to the respective addresses set forth in
Article 22 hereof.
20. CONFIDENTIALITY
A. All Confidential Information, including all applicable
rights to patents, copyrights, trademarks, and trade
secrets inherent therein or related thereto, is and
shall remain the sole and exclusive property of Galileo or
its Licensor (as applicable).
B. Customer shall maintain the confidentiality of the
Confidential Information using the highest degree of
care. Customer shall not use, sell, transfer,
publish, disclose, display, or otherwise make available to
others, except as authorized in this Agreement, the
Confidential Information or any other material relating to
the Confidential Information at any time before or after
the termination of this Agreement nor shall Customer permit
its officers, directors, employees, agents, or
contractors to divulge the Confidential Information
or use the Confidential Information other than as authorized
in this Agreement without the prior written consent of
Galileo.
C. Customer shall ensure that each of its employees,
officers, directors, agents or contractors who has
access to the Confidential Information provided under this
Agreement is aware of this confidentiality
requirement and agrees to be bound by it. Customer shall
be liable to Galileo for any violation by any such person
of any of the provisions of this Article 20.
21. ANCILLARY EQUIPMENT
A. It is understood that: (i) all Ancillary Equipment shall
remain the sole property of Galileo; (ii) Customer shall
not remove any identifying marks from any such Ancillary
Equipment; (iii) Customer shall not subject the Ancillary
Equipment to any lien or encumbrance; and (iv) Galileo
may enter Customer's premises to remove the Ancillary
Equipment immediately upon termination of this
Agreement.
B. Customer agrees to make, execute, acknowledge and
deliver, any time or from time to time, all
documents, instruments, and assurances, including, without
limitation, financing statements under the
Uniform Commercial Code, as may be requested by Galileo
to preserve Galileo's ownership rights and title in and to
the Ancillary Equipment, and hereby authorizes Galileo,
where permitted b law, to file financing statements and
amendments thereto relating tot he Ancillary Equipment
without Customer's signature where desirable in Galileo's
judgment to preserve Galileo's ownership rights and title
in and to the Ancillary Equipment. Upon deinstallation
of the Ancillary Equipment, Galileo shall, upon
Customer's request, take all steps necessary to
terminate any Uniform Commercial Code filing made with
respect thereto.
22. NOTICES
Notices given or required hereunder shall be deemed sufficient
if sent by first class mail, postage prepaid, or any more
expedient written means to the address of Customer as
specified in the preamble of this Agreement; notices
to Galileo should be sent to:
GALILEO INTERNATIONAL
0000 XXXX XXXXXXX XXXX
XXXXXXXX, XX 00000
ATTN: COVZL - CONTRACT NOTICES
Notices sent via electronic means (e.g., telex, facsimile)
shall be effective immediately if received on a business
day prior to 5:00 p.m. local time of the recipient. All other
notices shall be effective the first business day after
receipt.
23. GOVERNING LAW
This Agreement and any dispute arising under or in connection
with this Agreement, including any action in tort, shall be
governed by the internal laws of the State of Illinois,
without regard to its conflict of laws principles. All
actions brought to enforce or arising out of this
Agreement shall be brought in federal or state courts located
within the County of Xxxx, State of Illinois, the parties
hereby consenting to personal jurisdiction and venue
therein.
24. SEVERABILITY
If any provision of this Agreement is held invalid or
otherwise unenforceable, the unenforceability of the
remaining provisions shall not be impaired thereby.
25. CAPTIONS
The captions appearing in this Agreement have been inserted as
a matter of convenience and in no wa define, limit or enlarge
the scope of this Agreement or any of the provisions of this
Agreement.
26. INDEPENDENT CONTRACTORS
This Agreement is not intended to and shall not be construed
to create or establish an agency, partnership, or joint
venture relationship between the parties hereto.
27. ADDITIONAL COVENANTS
The individual signing this Agreement or any amendments to
this Agreement, on behalf of the Customer, or if more
than one, each of them, represents and warrants that:
(i) he or she is duly authorized to execute this Agreement on
behalf of Customer; (ii) he or she has full power and
authority to bind Customer to t he terms and conditions hereof;
(iii) no representations or warranties of Customer or the
undersigned, nor any statements written or oral, made or
furnished to Galileo either herein or with respect tot he
organization or business of Customer, contains any untrue
statement of a material fact or omits a material fact
necessary to make the representation, warranty, or statement not
misleading; and (iv) this Agreement constitutes a legal,
valid, and binding agreement of Customer, enforceable in
accordance with its terms. Customer shall be liable for
and agrees to reimburse Galileo for all attorneys' fees and court
costs incurred by Galileo to enforce this Agreement or to seek
remedies for breach of this Agreement by Customer.
28. ENTIRE AGREEMENT
A. The following Attachments are part of this Agreement: A.
This Agreement constitutes the entire agreement and
understanding of the parties on the subject matter
hereof and, as of the effective date, supersedes all prior
agreement, whether written or oral, between the parties
hereto concerning the subject matter hereof, excluding
amounts due Galileo which may have accrued under a prior
agreement between the parties. Any such prior amounts
due shall be deemed an obligation of this Agreement for
which all provisions herein shall apply.
B. This Agreement may be modified only by further written
amendment or supplement signed by all parties to this
Agreement.
C. If any non-English interpretive version of the Agreement
is created, then, in the event of a conflict between the
English version and any non-English version, the English
version shall control.
IN WITNESS WHEREOF, Customer and Galileo have executed this
Agreement as of the day and year first above written.
CUSTOMER GALILEO INTERNATIONAL PARTNERSHIP
By By
Name XXXXXX XXXXXXX Name Xxxxxxx X. Foliot
Title President Title Sr. Vice President
Date August 4, 1995 Date August 28, 1995
