1
Exhibit 10.23
ADDENDUM
to the
Sterling Software License Agreement
for
Galileo International
This Addendum ("Addendum") supplements and amends that certain Software
License Agreement ("License Agreement") dated August 19, 1994 of which it is a
part, by and between Sterling Software (U.S. of America), Inc., a Delaware
corporation ("Sterling"), and Galileo International, a Delaware general
partnership ("Licensee"). Inconsistencies between the License Agreement and
this Addendum shall be resolved in favor of the latter. References are to
paragraphs in the License Agreement.
1. Galileo International is a Delaware general partnership, not a corporation.
2. In second "Whereas" clause on page 1, add the words "for use" after the
second "license".
3. Section 2 (Grant)
3.1 After the word "only" in the third line, add "except as provided in
Section 15 herein."
3.2 In the fifth line, add the words "except pursuant to Section 15
hereof" after "Licensee shall not".
3.3 In subsection (a), add the words "unless employed by Licensee as an
agent of Licensee and subject to Section 8 herein" after the word
"PRODUCT".
4. Section 4 (Scope of Use)
4.1 In the last line of subsection B.1., substitute the words "full
production use of the replacement computer system" for the words
"such transfer".
4.2 Change subsection B.2. to the following:
"B.2. Upgrade and Transfer Fees. Any Sterling-approved transfer of the
PRODUCT from the Computer System to a third-party's computer system
(e.g., pursuant to an outsourcing arrangement) or upgrade of the
Computer System will be subject to Sterling's prevailing terms and fees
for transfers, and if such transfer constitutes an upgrade based on
Sterling's definition of CPU group level, it shall be conditioned upon
the payment of Sterling's prevailing upgrade fees.
Current transfer fees to an approved third-party user are thirty percent
(30%) of published list price. Current upgrade fees are equal to the
published list price of the CPU group level to which the PRODUCT is
being transferred less the published list price of the CPU group level
from which the PRODUCT is being transferred. Fees are subject to change
with sixty (60) days written notice. There is no charge for Licensee's
internal transfer to a CPU in the same tier level or for Backup pursuant
to subsection C. below."
4.3 In subsection 4.C., change "backup Computer System" to "backup
computer system."
5. Section 5 (Payment)
5.1 Add the words "of receipt of invoice" at the end of the first
sentence.
5.2 Change "1-1/2 percent" to "1 percent".
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5.3. In the third sentence, add the following after "payment terms," and
before "the entire principal": "Sterling shall provide Licensee written
notice thereof, and".
5.4 Add at the end of the section: "...provided Licensee was provided a
reasonable period (e.g., 30 days) to cure. Licensee has the right to
withhold payments which are reasonably disputed by Licensee in good
faith, and no interest shall apply with respect to such amounts until
thirty (30) days following resolution of the dispute."
6. Section 6 (Taxes). Add at the end of the section:
"Licensee shall have the right to dispute and use all legal means to
dispute tax where Licensee sees an undue tax assessment. Upon Licensee's
reasonable request, Sterling shall provide available back-up evidencing
such tax assessment."
7. Section 7 (Title and Non-Assignability)
7.1. Delete the first 12 words of the second sentence, which shall now
read as follows: "Licensee shall not transfer, sublicense, assign, rent,
lease, or deliver the PRODUCT (or any copy of the PRODUCT) or such
license to any third person or other entity without the prior written
consent of Sterling, such consent not to be unreasonably withheld,
unless the third party is an employee or agent of Licensee or pursuant
to Section 15 hereof."
7.2. Delete the beginning of the fourth sentence from "Any assignment
consented" to "extent applicable, and". The last sentence shall become:
"The assignee shall agree in writing to be bound by all the provisions
of this License Agreement as a Licensee and shall provide an executed
copy of such agreement to Sterling in a form reasonably acceptable to
Sterling."
8. Section 8 (Non-Disclosure and Non-Reproduction of Product Information)
8.1. After the words "Section 4.C. above" insert the words "and the
right for Licensee's employees and agents to have access to the PRODUCT
and documentation and except pursuant to Section 15 hereof."
8.2. In the fourth sentence, delete the word "all", resulting in
"Licensee agrees to take reasonable steps to ...."
8.3. Delete the entire sentence that begins "If the STERLING INFORMATION
will be provided or made available to the U.S. Government ...."
8.4. In the third sentence from the end, replace the word "shall" with
"may" causing the phrase to become "Sterling may be entitled to
equitable relief ...."
8.5 In the second sentence from the end, replace "five (5) days" with
"fifteen (15) days."
8.6. In the last sentence add the words "at Sterling's written request"
after "termination or cancellation".
9. Section 9 (Indemnity). In the first sentence, add "and its general partners"
after the first "Licensee". Also, add "and shall pay all costs of defense
(including reasonable attorneys' fees and expense)" after the second
"Licensee". Also in the first sentence, add "that Licensee has reasonable
access to or knowledge of" after the word "information".
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10. Section 10 (Liability). This section shall read as follows:
FOR PURPOSES OF THIS SECTION 10, "LICENSEE" SHALL REFER TO LICENSEE, ITS
AGENTS, OR OWNERS, AND "STERLING" SHALL REFER TO STERLING, ITS
EMPLOYEES, AND ANY THIRD PARTY FROM WHOM STERLING RECEIVED MARKETING AND
LICENSING RIGHTS. EXCEPT AS EXPRESSLY SPECIFIED IN THIS SECTION OR
ELSEWHERE IN THIS LICENSE AGREEMENT, NEITHER STERLING OR LICENSEE SHALL
BE LIABLE ONE TO THE OTHER FOR ANY LOSS OR DAMAGE THAT MAY ARISE IN
CONNECTION WITH THE FURNISHING OF, PERFORMANCE OF, OR USE BY LICENSEE OF
THE PRODUCT. IN NO EVENT SHALL STERLING OR LICENSEE BE LIABLE FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EXCEPT THAT THIS
SHALL NOT LIMIT EITHER PARTY FROM ITS OBLIGATIONS WITH RESPECT TO THE
OTHER'S INTELLECTUAL PROPERTY RIGHTS AS SET FORTH HEREIN. IN NO EVENT
SHALL LICENSEE OR STERLING BE ENTITLED TO ANY MONETARY DAMAGES AGAINST
THE OTHER IN EXCESS OF THE LICENSEE FEES PAID TO STERLING BY LICENSEE
HEREUNDER FOR THE PRODUCT TO WHICH LICENSEE'S CLAIM RELATES.
11. Section 11 (Warranty)
11.1 Delete the word "substantial" from the first sentence.
11.2 After the second sentence add the following: "If, during the
warranty period, Sterling does not use reasonable efforts to correct,
bypass, or replace, as soon as practicable, any defective item(s) in the
copy of the most current release of a PRODUCT distributed under this
License Agreement, and Licensee is in full compliance with its license
obligations, Licensee may at its option terminate the affected Schedule,
return all related STERLING INFORMATION to Sterling, and receive a full
refund of any fees and taxes paid to Sterling by Licensee with respect
to the affected PRODUCT. THE FOREGOING STATES LICENSEE'S SOLE REMEDY AND
THE ENTIRE LIABILITY OF STERLING WITH RESPECT TO WARRANTY DEFAULT."
12. Section 12 (Software Support)
12.1. Add at the end of the first paragraph: "If any change in the fee
is an increase to the fee, such increase shall not exceed ten percent
(10%) over the previous fee (net of any CPU upgrades)."
12.2. In subsection 12.A.(ii), add the following: "Current 'regular
working hours' for the purposes of Software Support are 24 hours per
day, 7 days per week. These hours are subject to change with thirty (30)
days notice, but in any event, shall not be reduced to less than 8 hours
per day (in customer's local time zone), Monday through Friday."
12.3. In subsection 12.A.(iii), delete the word "material" in the first
sentence. Change the last sentence to the following:
"Should Sterling find that a reported error is not in the PRODUCT or
that a reported error is the result of Licensee's negligence or
modification or improper use of the PRODUCT, it shall so inform Licensee
and may immediately cease any further problem resolution. If such a
determination is arrived at by Sterling only after it has expended
excessive time in the diagnostic period, Sterling reserves the right to
obtain its reasonable costs incurred at the charges specified on the
Sterling Fee Schedule in effect on the date Sterling incurs such
expense."
12.4. In subsection 12.B., add at the end of the paragraph: "Current
policy requires the payment of Software Support fees for the prior
twelve months plus the succeeding twelve months to reinstate
discontinued Software Support."
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12.5. In subsection 12.C., change the last sentence to the following:
"However, Sterling reserves the right to cancel Software Support for the
immediately preceding release of the PRODUCT upon providing the Licensee
with no less than sixty (60) days' written notice after at least one (1)
year from the date of the new release."
13. Section 14 (Audit). Change this Section to the following:
14. CERTIFICATION. Upon Sterling's written request and not more often
than twice per twelve (12) months (unless Sterling reasonably believes
that a copying or non-disclosure violation has occurred in which case
Sterling may make a written request without regard to calendar
frequency), Licensee shall execute a certificate in a form reasonably
satisfactory to Sterling to the effect that Licensee (i) is not using
more copies of the Product than licensed hereunder, and (ii) has not
provided copies of the Product to any third parties in violation of this
Agreement. Such certificate shall be signed both by Licensee's President
and its General Counsel (or their delegates, though in the case of
delegation, at least one signature must be either the President or the
General Counsel).
14. Section 15 (NCL and Samples). Insert the following after the first sentence:
"Notwithstanding anything to the contrary herein, Licensee shall own all
such code and applications and accordingly, may provide access to third
parties, in the normal course of Licensee's business, to such code and
applications even though such access may involve remote terminal access
to the PRODUCTS. Licensee's provision of such access shall not violate
Sections 2 or 8 of this Agreement."
15. Section 16 (General)
15.1. Delete subsection 16.B.
15.2. Delete the first sentence of subsection 16.C.
15.3. Change subsection 16.D. to the following:
"The covenants and agreements of the parties under Sections 5 (Payment),
6 (Taxes), 8 (Non-Disclosure and Non-Reproduction of Product
Information), 9 (Indemnity) (except that Sterling shall have no
obligation to make a PRODUCT non-infringing if Licensee no longer
possesses a valid license), 10 (Liability), 15 (NCL and Samples) and 16
(General) hereof shall continue in full force and effect irrespective of
the termination, cancellation or expiration of this License Agreement or
any Schedule."
15.4. Add the following sentence to subsection 16.K.: "Sterling shall
promptly inform Licensee of any such assignment in writing and the
validity of such assignment shall be subject to the assumption by
Sterling's successor-in-interest of all obligations under this License
Agreement."
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed by their duly authorized representatives.
STERLING SOFTWARE (U.S. OF AMERICA), INC. GALILEO INTERNATIONAL
By: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx Xxxxxxx
---------------------------- -----------------------------
Xxxxx Xxxxx Xxxx Xxxxxxx
Title: President Title:
------------------------- --------------------------
Date Signed: Date Signed: Aug 23 1994
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No._________
STERLING SOFTWARE (U.S. OF AMERICA), INC.
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT ("License Agreement"), entered into this 19th
day of August, 1994, (the "Effective Date"), by and between Galileo
International ("Licensee"), a Delaware general partnership conducting business
at 0000 Xxxxx Xxxxxxxx Xxx, Xxxxxxxxx, Xxxxxxxx 00000, and Sterling Software
(U.S. of America), Inc. ("Sterling"), with its principal place of business at
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000;
WITNESSETH:
WHEREAS, Sterling is the sole owner of all tangible and intangible rights and
title to, or has the rights to license, certain software products; and
WHEREAS, Licensee desires to obtain a license to use one or more computer
software products which Sterling has the rights to license (including programs,
available options and documentation);
NOW, THEREFORE, in consideration of the covenants and premises specified herein,
the parties hereto understand and agree as follows:
1. DEFINITIONS
A. The term "PRODUCT" shall mean and refer to any computer software
product or products of Sterling described on any Schedule and any attendant
documentation provided hereunder, and any new release or enhanced or modified
version of such PRODUCT(S) provided to Licensee by Sterling pursuant to Section
12 of this License Agreement.
B. The term "Product Schedule" shall mean and refer to the list of
licensed PRODUCTS and other related data attached hereto, executed by Sterling
and Licensee, and expressly made a part of this License Agreement.
C. The term "Computer System" shall mean and refer to a designated
Central Processing Unit (CPU) identified by its serial number, or as otherwise
designated, on the Product Schedule.
2. GRANT. Sterling hereby grants to Licensee a non-transferable and
non-exclusive license to use the PRODUCT for Licensee's internal business use
only, subject to the terms and conditions specified herein and the applicable
Product Schedule incorporated herein. Licensee shall not: (a) permit any third
party to use the PRODUCT, (b) use the PRODUCT in the operation of a service
bureau or (c) use the PRODUCT to process data for the benefit of any third
party. For purposes of this Section, "third party" shall include, without
limitation, subsidiaries and affiliates of Licensee. Conflicts in terms
between the Product Schedule and this License Agreement shall be resolved in
favor of the Product Schedule.
3. TERM. PRODUCT is licensed for the Term specified in the Product Schedule
subject to Licensee's payment of the fees set forth therein and Licensee's
strict compliance with the terms of this License Agreement.
4. SCOPE OF USE
A. Computer System. One copy of the PRODUCT must be licensed for each
Computer System upon which the PRODUCT is installed, regardless of the number
of Computer Systems installed at a physical location. Licensee shall be
responsible for installation of the PRODUCT on its Computer System(s).
B.1. Upgrades and Transfers. The PRODUCT shall be used only on the
Computer System designated on the Product Schedule. Licensee may change or
upgrade the Computer System on which the PRODUCT is installed by (i) providing
Sterling prior written notice specifying the model and serial number of the
Computer System on which the PRODUCT is installed and the model and serial
number of the intended replacement computer system or upgrade; (ii) obtaining
the prior written approval of Sterling regarding the requested transfer or
upgrade; and (iii) providing Sterling prior written confirmation that it will
remit the prevailing upgrade fees as set forth below in Section B.2, if
applicable. Upon the transfer of the PRODUCT to such replacement Computer
System, Licensee shall immediately cease use of the PRODUCT on the computer
system on which the PRODUCT was installed prior to such transfer.
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B.2. Upgrade and Transfer Fees. Any transfer of the PRODUCT from the
Computer System to another computer system or upgrade of the Computer System
will be subject to Sterling's prevailing terms and fees for transfers, and if
such transfer constitutes an upgrade based on Sterling's definition of CPU
group level, it shall be conditioned upon the payment of Sterling's prevailing
upgrade fees.
C. Backup. If the Computer System(s) on which Customer has installed
PRODUCT(s) are temporarily inoperable, Licensee may transfer the use of the
PRODUCT to a backup computer system until operability is restored to the
licensed Computer System(s). Licensee may make a copy of the software portion
of the PRODUCT strictly for backup purposes.
5. PAYMENT. Licensee's payment for fees hereunder are due and payable Net
Thirty (30) Days. Until paid in full, all amounts which are more than thirty
(30) days past due shall bear an additional charge of 1-1/2 percent per month,
less the sum, if any, in excess of applicable state law. In the event Licensee
becomes more than sixty (60) days in arrears on any payment due under
installment payment terms, the entire principal balance plus interest owing
shall immediately be due and payable. Sterling reserves the right to cancel any
license for non-payment.
6. TAXES. Licensee shall pay, or upon receipt of an invoice from Sterling, shall
reimburse Sterling for all sales, use, property, customs, excise or other taxes
(however designated and whether foreign or domestic) imposed on Licensee, or
required to be collected by Sterling, or imposed on the PRODUCT or the use
thereof, irrespective of whether included in any invoice sent to Licensee at any
time by Sterling; provided, however, that Licensee shall not be responsible for
any corporate income taxes or franchise fees imposed on Sterling. If Licensee is
a tax exempt organization, Licensee shall provide proof of such status to
Sterling, in a form acceptable to Sterling.
7. TITLE AND NON-ASSIGNABILITY. Title to the PRODUCT, all proprietary rights
therein and all materials supplied to Licensee under this Licensee Agreement
shall remain the sole property of Sterling and/or the party which was granted
marketing and licensing rights to Sterling for such PRODUCT. The license to use
the PRODUCT hereunder is personal to Licensee and Licensee shall not transfer,
sublicense, assign, rent, lease, or deliver the PRODUCT (or any copy of the
PRODUCT) or such license to any third person or other entity without the prior
written consent of Sterling. For purposes of this Section, "third party" shall
include, without limitation, subsidiaries and affiliates of Licensee. Any
assignment consented to by Sterling shall not release Licensee from its
obligations hereunder (except the prohibition against assignment) and, as a
condition precedent to such assignment, Licensee shall comply with the
provisions of Section 4 above, to the extent applicable, and the assignee shall
agree in writing to be bound by all the provisions of this License Agreement as
a Licensee and shall provide an executed copy of such agreement to Sterling in
the form supplied by Sterling.
8. NON-DISCLOSURE AND NON-REPRODUCTION OF PRODUCT INFORMATION. Licensee
understands and agrees that Sterling considers the PRODUCT and related
documentation (collectively "STERLING INFORMATION") to be the proprietary and
confidential information of Sterling and/or a third party which has granted
marketing and licensing rights to Sterling. Licensee agrees to maintain the
STERLING INFORMATION in strict confidence and, except for the right of Licensee
to make one (1) copy of the PRODUCT for backup purposes pursuant to Section 4.C
above, Licensee agrees not to disclose, duplicate or otherwise reproduce,
directly or indirectly, the STERLING INFORMATION in whole or in part. Licensee
agrees not to disassemble, reverse engineer, or reverse compile the PRODUCT in
whole or in part. Licensee agrees to take all reasonable steps to ensure that no
unauthorized persons shall have access to the STERLING INFORMATION and that all
authorized persons having access to the STERLING INFORMATION shall refrain from
any such disclosure, duplication or reproduction. Licensee agrees not to remove
any copyright notice or other proprietary markings from the STERLING
INFORMATION, and any copy thereof made by Licensee for backup purposes shall
contain the same copyright notice and proprietary markings contained on the copy
of the PRODUCT furnished by Sterling to Licensee hereunder. If the STERLING
INFORMATION will be provided or made available to the U.S. Government, any use,
duplication, or disclosure by the U.S. Government of the STERLING INFORMATION
shall be subject to the restrictions applicable to proprietary commercial
computer software set forth in subparagraph (c)(1)(ii) of The Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013 or
subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted
Rights clause at 48 CFR 52.227-19, as applicable. Licensee acknowledges that the
STERLING INFORMATION is unique and that Licensee's failure to comply with the
provisions of this Section 8 shall result in irreparable harm to Sterling and/or
any third party from whom Sterling has received marketing and licensing rights,
and that in the event of the breach or threatened breach by Licensee of its
obligations under this Section 7, Sterling shall be entitled to equitable relief
in the form of specific performance and/or an injunction for any such actual or
threatened breach, in addition to the exercise of any other remedies at law and
in equity. In the event that Licensee shall breach the terms of this Section 7,
and any such breach shall remain uncured for a period of five (5) days after the
receipt by Licensee of written notice from Sterling of such breach, Sterling
may, at its option, terminate all licenses granted to Licensee hereunder, in
which event Licensee shall have no further right to use any copies of
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such PRODUCT. In the event of any such termination or cancellation, Licensee
shall, within ten (10) days after the effective date of any such termination or
cancellation, certify in writing to Sterling that such PRODUCT and all
materials relating thereto in the possession of Licensee have been destroyed.
9. INDEMNITY. Sterling shall indemnify and hold Licensee harmless from any
award of costs and damages against Licensee in any suit based on any claim that
the use of the PRODUCT by Licensee infringes any U.S. trademark, patent right,
copyright or trade secret, provided Sterling is promptly notified in writing of
any such suit or claim against Licensee and is given complete authority to
defend, compromise or settle same, and Licensee gives Sterling all available
information, reasonable assistance and authority to enable Sterling to do so.
If, as the result of any such claim of infringement, Licensee is enjoined from
using the PRODUCT, or if Sterling reasonably believes that the PRODUCT is
likely to become the subject of a claim of infringement, Sterling, at its
option and expense, may procure the right for Licensee to continue to use the
PRODUCT, or replace or modify the PRODUCT so as to make it non-infringing. If
neither of these two options is deemed reasonably practicable by Sterling,
Sterling may discontinue the license granted herein for such PRODUCT upon
thirty (30) days' written notice and refund to Licensee the unamortized
portion of the Software Support fee paid by Licensee plus (i) in the case of a
term license, the unamortized portion of the annual license fee paid by
Licensee, or (ii) in the case of a perpetual license, the unamortized portion
of the license fee paid by Licensee as amortized on a straight-line basis for a
five-year period from the Installation of the affected PRODUCT. Sterling shall
have no liability for any claim of infringement based upon the use of the
PRODUCT supplied by Sterling when such claim is based upon use of the PRODUCT
in combination with other programs or data not supplied by Sterling.
THE FOREGOING STATES LICENSEE'S SOLE REMEDY AND THE ENTIRE LIABILITY OF
STERLING WITH RESPECT TO INFRINGEMENTS OF ANY TRADEMARKS, COPYRIGHTS, PATENTS
OR TRADE SECRETS BY THE PRODUCT OR ANY PART THEREOF.
10. LIABILITY. EXCEPT AS EXPRESSLY SPECIFIED IN THIS SECTION OR ELSEWHERE IN
THIS LICENSE AGREEMENT, NEITHER STERLING NOR ANY THIRD PARTY FROM WHOM STERLING
RECEIVED MARKETING AND LICENSING RIGHTS SHALL BE LIABLE FOR ANY LOSS OR DAMAGE
THAT MAY ARISE IN CONNECTION WITH THE FURNISHING OF, PERFORMANCE OF OR USE BY
LICENSEE OF THE PRODUCT. IN NO EVENT SHALL STERLING OR ANY THIRD PARTY FROM WHOM
STERLING RECEIVES MARKETING AND LICENSING RIGHTS BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL LICENSEE BE
ENTITLED TO ANY MONETARY DAMAGES AGAINST STERLING, OR ANY THIRD PARTY FROM WHOM
STERLING RECEIVED MARKETING AND LICENSING RIGHTS, IN EXCESS OF THE LICENSEE FEES
PAID TO STERLING BY LICENSEE HEREUNDER FOR THE PRODUCT TO WHICH LICENSEE'S CLAIM
RELATES.
11. WARRANTY. Sterling warrants that for a period of one (1) year following the
Effective Date, the PRODUCT shall function in substantial accordance with the
applicable technical manuals supplied to Licensee. Sterling's sole obligation
and liability under this warranty shall be to use reasonable efforts to correct,
bypass, or replace, as soon as practicable, any defective item(s) in the copy of
the most current release of the PRODUCT distributed under this License
Agreement, at Sterling's own cost and expense, provided written notice of such
defective item(s) is given to Sterling by Licensee during the warranty period.
This warranty shall not apply if: (a) the PRODUCT has not been used in
accordance with Sterling's instructions; (b) the PRODUCT has been altered,
modified or converted by Licensee without the prior written approval of
Sterling; (c) Licensee's operating system has been altered, modified or
converted without the prior written approval of Sterling; (d) any of Licensee's
equipment has malfunctioned; or (e) the PRODUCT, or a portion thereof, has
become inoperative due to any other causes within the control of Licensee.
THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
12. SOFTWARE SUPPORT. Provided Licensee has paid the license fees set forth in
the Product Schedule, Licensee shall receive Software Support for the PRODUCT
at no cost for a period of one (1) year following the Effective Date ("Initial
Support Period"). Unless Software Support is canceled pursuant to Section
12.B., Software Support shall automatically renew for successive annual terms
("Annual Support Period"). Sterling shall notify Licensee of any change in the
fee for the succeeding Annual Support Period at least sixty (60) days prior to
the expiration of the Initial Support Period or Annual Support Period, as
applicable.
A. Software Support for the PRODUCT shall include the following:
(i) PRODUCT updates which may result in new releases of the PRODUCT to
the extent any such releases are not priced separately by Sterling and
are generally included in the PRODUCT at the time of initial licensing.
Sterling
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shall provide to Licensee one (1) copy of such new release of the
PRODUCT for each one (1) copy of the PRODUCT licensed, including
documentation.
(ii) Reasonable technical telephone consultation concerning the use of
the PRODUCT provided by Sterling during its regular working hours.
(iii) Sterling's reasonable efforts to correct or bypass any material
error reported by the Licensee for which Licensee provides an adequate
written description and documentation and which is determined by
Sterling to be in a portion of the PRODUCT unmodified by Licensee.
Should Sterling find that a reported error is not in the PRODUCT or that
a reported error is the result of Licensee's negligence or modification
or improper use of the PRODUCT, Licensee shall pay to Sterling
reasonable costs incurred by Sterling at the charges specified on the
Sterling Fee Schedule in effect on the date Sterling incurs such
expense.
B. Software Support may be canceled effective upon the expiration of
the Initial Support Period or Annual Support Period, as applicable, by
providing written notice to cancel Software Support no later than thirty (30)
days prior to such date. If Licensee cancels Software Support for the PRODUCT,
it may at a later time renew its subscription and receive the benefits of
Software Support if then currently and generally being made available by
Sterling for such PRODUCT, subject to the prevailing policies and reinstatement
fees of Sterling.
C. Software Support is available for the then-current release and the
immediately preceding release of the PRODUCT. However, Sterling reserves the
right to cancel Software Support for the immediately preceding release of the
PRODUCT upon providing the Licensee with no less than sixty (60) days' written
notice.
13. IMPLEMENTATION ASSISTANCE. Sterling may make available to Licensee
reasonable implementation assistance services for the PRODUCT. Implementation
assistance services by Sterling employees, consultants or agents shall be at
the charges specified on the Sterling Fee Schedule in effect on the date
Licensee orders implementation assistance.
14. AUDIT. Upon reasonable notice, Sterling shall have the right to enter
Licensee's facilities for the sole purpose of confirming the number of copies
of the PRODUCT installed and the computer system group size upon which the
PRODUCT is installed.
15. NCL AND SAMPLES. If the PRODUCT license hereunder contains access to
Network Control Language ("NCL"), Licensee shall be permitted, for its internal
purposes only, to the NCL to develop code and further applications in
accordance with the technical manuals supplied to Licensee with the PRODUCT.
However, any applications or code developed by Licensee using NCL shall not
have the benefit of any Sterling warranty, maintenance, support or indemnity
provisions contained herein, and any other terms, conditions, warranties or
indemnities that might otherwise be implied in relation to them are excluded.
Sterling shall have no liability or responsibility arising out of or related to
NCL code written by Licensee or NCL applications developed by Licensee. PRODUCT
tapes may also include examples of ways Licensee may use NCL ("Sample").
Licensee may use such Samples in accordance with this License Agreement;
however, Samples shall not be subject to any Sterling warranty, maintenance,
support or indemnity provisions, expressed or implied, and Sterling shall have
no liability with respect to Licensee's use of such Samples. Licensee
understands that it is receiving Samples "AS IS", and any use of Samples is at
Licensee's own risk. Except as provided in this Section, NCL and Samples shall
be part of the PRODUCT for purposes of this License Agreement.
16. GENERAL
A. This License Agreement and the Schedule(s) referred to herein
contain the entire understandings and agreements of Sterling and Licensee and
supersede all prior agreements or understandings, oral or written, relating to
the subject matter hereof. The terms of this License Agreement may not be
altered by any course of dealings between the parties. This License Agreement
may be amended only by a written instrument executed by Sterling and Licensee.
B. This License Agreement shall be construed and enforced in accordance
with the laws of the Commonwealth of Virginia, without giving effect to its
provisions governing conflicts of law.
X. Xxxxxxxx shall be entitled to recover its costs and reasonable
attorney fees in the event any proceeding or lawsuit is brought by Sterling
against Licensee to collect amounts due under this Agreement. In the event a
dispute arising under this Agreement results in litigation, the non-prevailing
party shall pay the court costs and reasonable attorneys' fees of the
prevailing party.
D. The covenants and agreements of Licensee under Sections 5
(PAYMENT), 6 (TAXES), 8 (NON-DISCLOSURE AND NON-REPRODUCTION OF PRODUCT
INFORMATION), 9 (INDEMNITY), 10 (LIABILITY), 15 (NCL AND SAMPLES) and
16 (GENERAL) hereof shall continue in full force and effect irrespective of the
expiration of the warranty period specified herein or any termination,
cancellation or expiration of this License Agreement or any Schedule.
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E. The remedies of Sterling set forth herein shall be in addition to,
and not in limitation of, any other rights or remedies to which Sterling is or
may be entitled at law or in equity.
F. All notices, requests and other communications hereunder shall be in
writing and shall be deemed to have been duly given if transmitted by facsimile
or mailed with postage thereon prepaid, addressed to the party for whom it is
intended at its respective address set forth in the first paragraph of this
Agreement. Such address may be changed by written notice to the other party.
G. This License Agreement shall not be deemed accepted by or binding
upon Sterling until executed by an authorized representative of Sterling.
H. The determination that any provision of this License Agreement is
invalid shall cause it to be deemed severed from the remainder of this License
Agreement and shall not cause the remainder of this License Agreement to be
invalid or unenforceable.
I. The waiver of any right or election of any remedy in one instance
shall not affect any rights or remedies in any other instance. A waiver shall
be effective only if stated in writing and signed by an authorized
representative of the waiving party.
J. Except for Licensee's payment obligations as set forth in this
License Agreement, neither party shall be liable for delays in any of its
performance hereunder due to causes beyond its reasonable control, including,
but not limited to, acts of God, strikes, or inability to timely obtain labor
or materials.
X. Xxxxxxxx may assign this License Agreement or assign or subcontract
any of its rights and responsibilities under this License Agreement.
L. The parties hereto do not intend the term "license" to convey any
ownership, title or other similar rights to Licensee. In the event that any
court of law or government law or regulation interprets the term "license" with
regard to software use as conveying to Licensee any ownership, title or right
to the PRODUCTS, other than the right to use in accordance with this License
Agreement, then the term license, as used herein, shall be defined as rental
for a fixed period of time.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by duly authorized parties as of the date first above written:
STERLING SOFTWARE GALILEO INTERNATIONAL
(U.S. OF AMERICA), INC. "Licensee"
By /s/ Xxxxx Xxxxx By /s/ Xxxxxxx Xxxxxxx
-------------------------------- --------------------------------
(Authorized Signature) (Authorized Signature)
Xxxxx Xxxxx Xxxx Xxxxxxx
----------------------------------- -----------------------------------
Name (print or type) Name (print or type)
Title President Title Purchasing
------------------------------ ------------------------------
Date Signed Date Signed Aug. 23, 1994
------------------------ ------------------------
10
PREFERRED CUSTOMER PROGRAM (PCP) ADDENDUM
TO THE
STERLING SOFTWARE LICENSE AGREEMENT
FOR
GALILEO INTERNATIONAL PARTNERSHIP
This Preferred Customer Program Addendum ("PCP Addendum") by and
between Sterling Software (U.S. of America), Inc., a Delaware corporation
("Sterling"), and Galileo International of Englewood, Colorado, a Delaware
partnership (hereinafter "Licensee"), supplements and amends the Software
License Agreement dated August 19, 1994 ("License Agreement"), of which it is
made a part. Inconsistencies between the License Agreement and this PCP
Addendum shall be resolved in favor of the latter.
1. Effective Date. The Effective Date of this PCP Addendum is
September 30, 1995.
2. Term. The Term of this PCP Addendum is three (3) years commencing upon the
Effective Date.
3. Fee. Licensee shall pay a total License Fee of $ __________ in accordance
with the terms of payment set forth below in Section 7.
4. Scope. Licensee had previously licensed a number of software products from
Sterling and/or its corporate predecessors, as set forth in Exhibit A
(hereinafter referred to as "Existing Products"). It is the intent of the
parties that the License Agreement, this PCP Addendum, and referenced
attachments shall constitute a license contract that supplements and amends the
license(s) for the Existing Products. Payment of the License Fee in accordance
with the terms set forth below in Section 7, shall cover during the Term:
i. Software Support (maintenance) during the Term for the Existing
Products, and for any SOLVE product licenses acquired by Licensee during
the Term ("Additional Products") (cumulatively, the "Licensed
Products"); thereafter, the cost of Software Support (which is subject
to Section 12, Addendum to the Software License Agreement) shall
initially be determined by multiplying the then-prevailing license fee
times fifteen percent (15%), which represents a 25% discount off
Sterling's prevailing Software Support fee. Provided that Licensee
maintains an uninterrupted subscription to Software Support, beginning
with the fifth year following the Effective Date (i.e., the fourth
anniversary), the price of Software Support shall not increase at an
annual rate more than ten percent.
ii. Use of the Licensed Products in a processing environment at the
Installation Site of up to 1,000 MIPS; additional MIPS may be purchased
during the Term in accordance with the Variable Fee Schedule set forth
in Exhibit A, and thereafter at Sterling's then-current MIPS Pricing
Schedule.
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iii. Additional Sterling products to compliment Licensee's existing
Netmaster suite are as follows:
SOLVE:Monitor
SOLVE:Operations for MVS
SOLVE:Attach for NetView
For the purposes of this PCP Addendum, these Sterling products shall be
deemed to be Existing Products.
iv. Upgrade fees for Licensee's transfer of the Licensed Products
from Licensee's current CPU to any higher level CPU at the Installation
Site (so long as the 1,000 MIPS cap referenced in (ii) above is
observed). Licensee shall continue to notify Sterling when an
upgrade is to be implemented, and provide Sterling with the requisite
installation information (computer system manufacturer, model and
serial numbers) when the upgrade is accomplished; and
v. 25% discount off prevailing List Price for the purchase of
Additional Products.
5. Use. Use of the Licensed Products shall be governed by the License
Agreement, the Product Schedule and this PCP Addendum. Licensee is responsible
for so informing all of its users, making such documents available to such
users, and ensuring their compliance with all the provisions thereof. Licensee
is responsible for the breach of the License Agreement and attachments by any
of its users.
6. Service Bureau. This PCP Addendum is not intended to and shall not
constitute a grant to use the Licensed Product(s) in a service bureau. However,
Licensee shall be permitted to provide data services, at no additional charge,
to Apollo Travel Services, an affiliated partnership of Licensee, using
Licensee's licensed Sterling (Operations Management Division) products. The
Provision of such services shall not cause the Licensed Products to be
transferred from Licensee's site.
7. Payment Terms. The License fee shall be paid in three installments of
each. The first installment is due and payable on the Effective Date, and the
second and third installments shall be due and payable on the first and second
anniversaries thereof, respectively.
8. Options Upon Expiration. Within one hundred twenty (120) days, but in any
event no less than thirty (30) days prior to the end of the Term, Licensee
shall notify Sterling of its decision regarding the following options.
A. Renew PCP for an additional three-year Term; or
B. Retain original license(s) for the Existing Product(s), except
that Existing Products described in Section 4(iii) above may be
licensed on a perpetual basis at a cost equal to
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fifty percent (50%) of the then-prevailing license fee. Upgrades to
higher MIPS levels (or elevations in CPU from the tier upon which the
Licensed Products were installed on the Effective Date) shall be
permitted in accordance with the terms and conditions of the License
Agreement subject to payment of the applicable upgrade fees. Software
Support shall be provided at Licensee's request and its payment in
accordance with the Software Support Price Schedule set forth in Exhibit
A, subject in later years to the limitation on fee increase set forth in
Section 4.(i) above; or
C. Immediately terminate Licensee's license hereunder, in which case all
Licensed Products (and any copies thereof) shall be removed by Licensee
from the Licensee's site and either promptly returned to Sterling or
destroyed.
All other terms and conditions of the License Agreement not consistent
with or modified by this PCP Addendum shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this PCP Addendum to be
executed by duly authorized parties as of the Effective Date written above:
Sterling Software Galileo International Partnership
(U.S. of America), Inc. "Licensee"
By: /s/ Xxx X. Xxxx By: /s/ Xxxx X. Xxxxx
-------------------- ----------------------------
Name: Xxx X. Xxxx Name: Xxxx X. Xxxxx
------------------ --------------------------
Title: VP - Finance Title: U.S. Purchasing Manager
----------------- -------------------------
Date Signed: 9/29/95 Date Signed: 9/29/95
----------- -------------------
13
AMENDMENT NO. 01
TO
AGREEMENT NO. G19400203-1
PURCHASE ORDER #US963048-EH
THIS AMENDMENT, made and entered into this 11th day of November, 1996, by and
between and GALILEO INTERNATIONAL PARTNERSHIP (Galileo), a Delaware general
partnership with offices at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000
and Sterling Software, (U.S. of America), Inc., a Delaware partnership with its
principal place of business at 0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxxxxxx
00000.
1. Add the following Year 2000 compliance verbiage to the Software License
Schedule:
YEAR 2000 COMPLIANCE: The Seller warrants that, where applicable, the
Goods and/or Services supplied pursuant to this agreement will be year 2000
compliant.
"Year 2000 compliant" means that any software supplied hereunder or any
software utilized in connection with the provision of services supplied
hereunder will have the following capabilities:
1. Will manage and manipulate data involving dates, including single
century formulas and multi-century formulas, and will not cause an abnormally
ending scenario within the application or result in incorrect values generated
involving such dates; and
2. Will provide that all date related user interface functionalities
and all date related data interface functionalities will be clearly defined to
include the definition of century, i.e. where 2 digit year is provided clear
definition of the assumptions used for century shall be provided. For example,
years 60 through 99 assume century to be 19, while years 00 through 59 assume
century to be 20.
The Seller warrants that any software supplied hereunder and used by
the Buyer prior to, during or after the calendar year 2000 includes or shall
include, at no cost to Buyer, design and performance so Buyer shall not
experience software abending and/or invalid and/or incorrect results from
software in the operation of the business of the Buyer. The software design to
ensure Year 2000 compatibility shall include, but not be limited to, date data
century recognition, calculations which accommodate same century and
multi-century formulas and date values, and date data interface values that
reflect the century.
END OF MODIFICATIONS
THE PARTIES SIGNING BELOW AGREE TO AND CONCUR WITH THE MODIFICATIONS MADE IN
THIS AMENDMENT NO. 01 TO AGREEMENT NO. US963048-EH. EXCEPT AS AMENDED HEREIN,
ALL OF THE TERMS AND CONDITIONS OF THE ORIGINAL AGREEMENT REMAIN IN FULL FORCE
AND EFFECT.
Sterling Software GALILEO INTERNATIONAL
/s/ Xxxxxx X. Xxxx
------------------------------- -------------------------------
Signature Signature
Xxxxxx X. Xxxx
------------------------------- -------------------------------
Name Name
Procurement Analyst
------------------------------- -------------------------------
Title Title
November 11, 1996
------------------------------- -------------------------------
Date Date
