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Exhibit 10.37
GALILEO INTERNATIONAL
DISTRIBUTOR SALES AND SERVICE AGREEMENT
between
Galileo International Partnership
and
_________, 1993
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DISTRIBUTOR SALES AND SERVICE AGREEMENT
Table of Contents
1. INTRODUCTION
2. DEFINITIONS
3. DISTRIBUTORSHIP
4. TERRITORIAL RIGHTS AND LIMITATIONS
5. THE GALILEO SYSTEM AND THE NATIONAL SYSTEM
6. DEVELOPMENT OF INTERNATIONAL PRODUCTS
7. DEVELOPMENT OF NATIONAL PRODUCTS
8. GALILEO MARKETING EFFORTS - VENDORS
9. DISTRIBUTOR MARKETING EFFORTS - VENDORS
10. VENDOR COORDINATION
11. MARKETING EFFORTS - NATIONAL SUBSCRIBERS
12. MULTINATIONAL SUBSCRIBERS
13. REGULATORY REQUIREMENTS
14. HARDWARE AND SOFTWARE PROVISION TO SUBSCRIBERS AND VENDORS
15. PROVISION OF SOFTWARE PRODUCTS TO DISTRIBUTORS
16. PROVISION OF DISTRIBUTION SERVICES
17. PROVISION OF SUPPORT SERVICES
18. TRAINING
19. PAYMENTS
20. REPORTING REQUIREMENTS
21. PERFORMANCE STANDARDS
22. TERM
23. ARBITRATION
24. CONFIDENTIALITY
25. INTELLECTUAL PROPERTY
26. FORCE MAJEURE AND LIABILITY
27. ASSIGNMENT
28. RELATIONSHIP OF THE PARTIES
29. GOVERNING LAW AND JURISDICTION
30. WAIVER AND AMENDMENT
31. ENTIRE AGREEMENT
32. NOTICES
Attachment A
Attachment B
Attachment C
Attachment D
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Attachment E
Attachment F
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DISTRIBUTOR SALES AND SERVICE AGREEMENT
AGREEMENT, effective September 16, 1993, by and between GALILEO
INTERNATIONAL PARTNERSHIP, a Delaware general partnership ("Galileo" or the
"Partnership") and _____________________________ ("Distributor").
33. Introduction: Galileo generates Distribution Services for use by
Subscribers and Vendors and has established a network of distributors that shall
be responsible for the marketing of its Distribution Services and for the
provision of ongoing maintenance and support services. This Agreement specifies
the terms and conditions under which Distributor will become a Galileo
distributor of Distribution Services and is not intended by the parties to
affect any other relationship between the parties or their Affiliates.
34. Definitions: As used herein, the following terms will have the
meanings set forth for each.
Booking Fee Revenue. "Booking Fee Revenue" means all revenue received
by Galileo from Vendors as a result of transactions in or through the Galileo
System or a National System, including reservation bookings, cancellations,
inquiries, or other Reservations Services.
Galileo Network. "Galileo Network" means the Network provided by
Galileo (up to and including the Gateway Router inside the Territory) for the
provision of Galileo Network Services.
Galileo Network Services. "Galileo Network Services" means those
services that Galileo is obligated to perform pursuant to section 5 hereof.
Galileo System. "Galileo System" means (i) the Galileo Computer System
and (ii) the network of computer hardware, including central processing hardware
and network hardware from the central site up to and including the Gateway
Router, or such other connecting point in the Territory as may be agreed between
Galileo and Distributor pursuant to Section 5 hereto.
Gateway Router. "Gateway Router" means the hardware and software used
to connect the Galileo Network to the National Network.
Intellectual Property. "Intellectual Property" means all patents,
trademarks, servicemarks, trade names, copyrights, know-how, processes, trade
secrets, computer software (including without limitation all applications,
operating systems and interface software, in object and source code form; all
tapes, disks and other electronic or print media embodying or containing any
software; all enhancements, improvements,
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modifications, and derivative versions of software; and all documentation
related to the software and any modifications thereof) and any other
intellectual property, and all licenses and rights with respect to the
foregoing.
International Product. "International Product" means a Reservations
Service that is available from Galileo and meets the approved specifications for
that product for the Territory as provided in section 6. Reservations Services
provided for Air Vendors or in which Air Vendors participate, including air
charter "seat only" flights, but excluding Limited Air Charters, will be
International Products.
Limited Air Charter. "Limited Air Charter" means an air charter service
Vendor (other than "seat only" air charters) that is receiving Distribution
Services through a National Product and for which Galileo does not offer a
comparable International Product as determined pursuant to Clause 7. Once
Galileo develops a Replacement Product to serve a particular air charter Vendor,
such Vendor will no longer be considered a Limited Air Charter for the purposes
of this Agreement.
Multinational Subscriber. "Multinational Subscriber" means a Subscriber
that operates locations both inside and outside the Territory.
National CRS Rules. "National CRS Rules" means all rules and
regulations, issued by any governmental authority having jurisdiction with
respect to such issuance, applicable to the Territory.
National Network. "National Network" means the Network owned or
licensed by Distributor for the provision of network services to (i) Neutral
Travel Providers located in the Territory, or (ii) any other Person contracting
with Distributor for the provision of such network services.
National Product. "National Product" means a Reservations Service,
Accounting Service, or Commercial Service (i) that is not otherwise available
from Galileo and (ii) that is developed or licensed at Distributor's cost.
National Products will include products not otherwise available from Galileo
that are developed by Galileo in accordance with section 7.B.
National Subscriber. "National Subscriber" means a Subscriber that is
located in the Territory, including any local branches, subsidiary, affiliate,
or franchisee of a Multinational Subscriber.
National System. "National System" means the network of computer
hardware located between a Subscriber location and up to but excluding the
Gateway Router or such other connecting point in each territory, as may be
agreed between Galileo and Distributor pursuant to Clause 5.D hereto, and also
excluding any data converter or protocol converter serving such Subscriber
location, together with all necessary connections, System Software, equipment,
and Application Software.
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National Territory. "National Territory" or "Territory" means the
territory in which Distributor is designated as a Distributor. Such Territory
shall be as described on Attachment A hereto.
NTP Revenue. "NTP Revenue" means all Vendor Revenue arising from
computer transactions in or through the Galileo System by Neutral Travel
Providers in the Territory.
Other Customer Revenue. "Other Customer Revenue" means all Vendor
Revenue arising from computer transactions in or through the Galileo System by
Other Customers in the Territory.
Override Agreement. "Override Agreement" means an agreement between
Galileo and the principal office of a Multinational Subscriber governing
Subscriber locations in more than one Territory.
Replacement Product. "Replacement Product" means any Galileo product
that is agreed by Distributor or otherwise approved by the NCC for deployment
and that replaces or supersedes a National Product in accordance with the
provisions of Paragraph 7.C.
Revenue Customer. "Revenue Customer" means Other Customers of Group
Members that generate Booking Fee Revenue.
Vendor Revenue. "Vendor Revenue" means all revenue received by Galileo
from Vendors, including without limitation all Booking Fee Revenue and other
service charges or fees paid by Vendors from services provided by or through the
Galileo System including Air and Non-Air (hotel, car, rail, ferry, cruise, tour,
charter, and leisure), Apollo Headlines (net of OAG or similar commissions),
multi-access fees, and including cancellations, inquiries, or other services but
excluding any revenue generated from Spectrum.
A. A reference to this Agreement is, unless the context otherwise
requires, a reference to the Agreement including the Attachments hereto.
B. All references to "Clauses" and "Attachments" are, unless otherwise
stated, references to clauses hereof and attachments hereto.
C. The Clause headings are for ease of reference only and shall not in
any way affect the interpretation hereof.
D. Unless the context otherwise requires, the singular includes the
plural and vice versa.
E. All capitalized terms used herein and not otherwise defined herein
or in Annex I hereto will have the meanings provided in the Partnership
Agreement or in the Computer Services Agreement attached thereto.
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35. Distributorship: Galileo hereby appoints Distributor to market the
Distribution Services of Galileo. Distributor will market and provide Galileo's
International Products to Distributor's National Subscribers. Distributor also
will provide Distribution Services using the Galileo System to Other Customers
of any Partner's Group Members which Other Customers are located in the
Territory upon request by such Group Member, and, where the Galileo System is
not used, may negotiate with such Group Members regarding support services
similar to those described in section 17 hereof. Distributor may also market and
provide National Products for Non-Air Vendors, or in which Non-Air Vendors
participate, and for Limited Air Charter Services, as provided below.
Distributor may also provide Cargo Services on behalf of itself or any Group
Member to any Person. Distributor will have the ability to control the sales
force of Distributor and will have the right to control decisions about National
Product functionalities and services, as provided below. Subject to section 6
hereof, the Distributor shall be required to deploy all International Products
in the Territory to all of its National Subscribers.
36. Territorial Rights and Limitations:
A. Distributor shall perform its responsibilities within the Territory
to the best of its ability. Distributor shall solicit Neutral Travel Providers
(i) only in the Territory (except with respect to the Non-Neutral Travel
Business of such Neutral Travel Providers) and (ii) with regard to International
Products, only on behalf of Galileo. Distributor may market Distribution
Services to Other Customers of Distributor or its Group Members world-wide. Upon
the request of another distributor or that distributor's Group Members,
Distributor will enter into a contract and provide Distribution Services using
the Galileo System to Other Customers of such distributor or its Group Members
within the Territory; provided, however, Group Members shall have the right (i)
to market DAP Diskettes in the Territory, (ii) to request Distributor to
distribute DAP Diskettes on behalf of such Group Member to its Other Customers
and (iii) to distribute DAP Diskettes directly to its Other Customers in the
Territory. Distributor may respond to approaches it receives from Subscribers
(or potential Subscribers) wherever such Subscribers (or potential Subscribers)
are located. Upon receipt of an inquiry from a Neutral Travel Provider (except
with respect to the Non-Neutral Travel Business of such Neutral Travel
Providers) with respect to providing Distribution Services outside the
Territory, the Distributor shall give notice to the local distributor for such
location(s) (the "Local Distributor") and to Galileo. If Distributor agrees to
enter into an agreement for the provision of Distribution Services at such
locations, the Local Distributor may elect to provide Distribution Services to
such Neutral Travel Providers (except with respect to the Non-Neutral Travel
Business of such Neutral Travel Providers) if the Local Distributor agrees to be
bound by all terms (price, service, functionality, etc.) of the agreement
between the Distributor and such Neutral Travel Providers (except with respect
to the Non-Neutral Travel Business of such Neutral Travel Providers).
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B. Subject to section 22 hereof, provided that notice of termination of
this Agreement has not been served in accordance with the provisions of this
Agreement, Galileo shall not permit any Person other than Distributor to solicit
Neutral Travel Providers (except with respect to the Non-Neutral Travel Business
of such Neutral Travel Providers) in the Territory for the purposes of the
provision of Galileo's Distribution Services in the Territory except as
expressly permitted by the Non-Competition Agreement described below and shall
not itself solicit Subscribers for such purposes except as expressly permitted
by this Agreement.
C. Distributor shall, prior to entering into this Agreement, deliver to
Galileo a Non-Competition Agreement in the form attached to the Combination
Agreement as Exhibit 1R duly executed by (i) Distributor, (ii) any owner of
Distributor that is a Partner of Galileo (if applicable), (iii) any of
Distributor's Affiliates that is an airline, (iv) the Distributor's Ultimate
Parent Entity and (v) any of Distributor's Affiliates that perform any of
Distributor's obligations hereunder pursuant to Clause 27.A. hereof. Distributor
shall deliver to Galileo as promptly as possible, but not later than 60 days
following the date on which the event giving rise to this obligation shall
occur, a Non-Competition Agreement in the form attached to the Combination
Agreement as Exhibit 1R duly executed by any Affiliate of such Distributor (if
applicable) that becomes an airline or its Ultimate Parent Entity after the date
hereof.
D. The provisions of this Clause are considered reasonable by Galileo
and Distributor but in the event that any such provision shall be found to be
void but would be valid if some part thereof were deleted or the period or area
of application reduced such provision shall apply with such modification as may
be necessary to make it valid and effective.
E. Each of the parties signatory hereto accept and agree to be bound by
Article VIII of the Partnership Agreement.
F. To the extent that any provision with respect to an International
Product contained herein conflicts with a provision with respect to a Direct
Access Product contract in Article VIII of the Partnership Agreement, such
provision contained in Article VIII of the Partnership Agreement shall prevail.
G. Distributor shall not offer Distribution Services in any territory
listed in Attachment F, all of which are covered by existing distribution
agreements between Galileo or one of its predecessors and a third party
distributor, unless the prior written consents have been obtained. In the event
of any conflict between this section and any other provision of this agreement,
this section shall prevail.
37. The Galileo System and the National System:
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A. Galileo System/Network: Galileo will have complete responsibility
for The Galileo System and the Galileo Network.
(i) Galileo will determine the technical direction and
specifications of the Galileo System. Galileo will be responsible for
the data center required to generate Galileo's Distribution Services
and will be responsible for the software design and development
activities for Distribution Services generated by the Galileo System.
(ii) Galileo will determine the technical direction and
specifications of the Galileo Network. Galileo will be responsible for
the Galileo Network and will establish the communications interface and
message format requirements of the Galileo Network.
B. National System/Network: Distributor will have complete
responsibility for the National System and the National Network. Distributor
will be responsible for the development and implementation of appropriate
network technologies in the National Network that are compatible, on a technical
basis, with the communications interface and message format requirements of the
Galileo Network insofar as such requirements relate to the provision of
Galileo's Distribution Services and International Products in the Territory.
Distributor's responsibilities include, without limitation, the management of
the National Network staff, the procurement of local telecommunications
services, and the operation and maintenance of the National Network.
C. Gateway Router: Galileo may place a single Gateway Router within the
Territory. Such Gateway Router will be part of the Galileo Network and Galileo
will bear all costs related to the provision and operation of the Gateway
Router. If Galileo decides not to place a Gateway Router in the Territory, then
Galileo and Distributor will work jointly to establish a single communications
interconnection between the Galileo Network and the National Network and Galileo
will pay the Cost associated with the provision and operation of such an
interconnection.
D. Distributed Processing: Galileo may, with Distributor's consent,
transfer software applications logic from the Galileo System to Subscriber
workstations or other computer equipment within the Territory for software
utilized to provide Distribution Services for International Products, provided
that such transfer reduces the costs or increases the effectiveness of Galileo,
or of Distributor, or of both, without increasing the other party's costs, and
provided, further, that Distributor's operations are not otherwise materially
infringed or disrupted.
38. Development of International Products: Galileo shall decide, in its
sole discretion, which International Products to develop and the order and
timing of deployment. Galileo will be responsible for the software design and
development required to support and enhance the functionality and operating
performance of Distribution Services related to
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International Products (including adaptation of the International Product to
satisfy requirements and standards of the Territory). The adaptation of an
International Product to meet the product specifications for the deployment of
such International Product in the Territory shall be developed and performed by
Galileo at its sole cost. Galileo will consult with the Distributor in preparing
the product specifications to take into account the needs of the Territory. If
the Distributor rejects the final proposed product specifications set by Galileo
and Galileo is unwilling to make the modifications requested by Distributor, the
Distributor may refer the issue to the National Distribution Coordinating
Committee (the "NCC"). The NCC shall determine by a majority vote of its
members, voting one vote per person and taking into account the extent to which
the product is intended by Galileo for use in other territories: (i) whether
deployment of the proposed International Product in the Territory would be
commercially reasonable without additional modifications, or (ii) whether
additional modifications to the final proposed specifications are necessary
before that product is deployed in the Territory. The decision by the NCC that
additional modifications are required prior to deployment will not obligate
Galileo to undertake such modifications but Distributor will not be required to
deploy that product until such modifications are made or the NCC subsequently
votes that the product be deployed.
39. Development of National Products:
A. Distributor will control decisions about functionality and services
(including Subscriber premises applications) in the Territory for Non-Air
Vendors, National Subscribers, and Other Customers in the Territory of
Distributor, where such functionality or service is a National Product and not
provided by Galileo. Distributor also will be allowed to provide National
Products in the Territory to Limited Air Charters. Distributor may undertake
development of National Products at its own cost and may license such
functionality to Galileo and other Galileo distributors on mutually agreeable
terms. Any National Product must meet Galileo's technical requirements and other
reasonable criteria specified by Galileo and must not conflict, on a technical
basis, with the Distribution Services or International Products of Galileo.
B. If the development, implementation, or use of such National Product
results in additional Cost to Galileo or another Galileo distributor,
Distributor will bear such additional Cost. In addition, Distributor may request
that Galileo undertake the development of a National Product, and Galileo, in
its sole discretion, may develop such National Product with the Cost thereof
paid by Distributor.
C. Galileo retains the right to develop or make available an
International Product for the Territory that replaces, supersedes, or performs
substantially in accordance with the specifications for any National Product, in
which case Distributor will cease providing such National Product in the
Territory. If Galileo and Distributor, after negotiation in good faith, cannot
agree whether a product from Galileo replaces, supersedes, or performs
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substantially in accordance with the specifications for any National Product,
then that question will be referred to the NCC. The NCC shall determine by a
majority vote of its members, voting one vote per person and taking into account
the extent to which the product is intended by Galileo for use in other
territories: (i) whether deployment of the Replacement Product in the Territory
would be commercially reasonable without additional modifications, or (ii)
whether additional modifications to the final proposed specifications are
necessary before the proposed Replacement Product is deployed in the Territory.
The decision by the NCC that additional modifications are required prior to
deployment will not obligate Galileo to undertake such modifications but
Distributor will not be required to deploy that product in place of the National
Product until such modifications are made or the NCC subsequently votes that the
product be deployed.
D. In the event that Galileo deploys a Replacement Product in the
Territory (other than those products and services of Galileo deployed as a
result of migration of Subscribers in the Territory to the Galileo System),
Galileo will pay to Distributor all booking fee revenue received by Galileo
therefrom up to the amount that Distributor otherwise would have received had
the product continued to be a National Product (but in no event shall such
payment exceed the booking fee revenue received by Galileo from such product)
for a period of three years following date of deployment of the Replacement
Product. Any excess booking fee revenue received by Galileo from such
Replacement Product will be retained by Galileo.
40 Galileo Marketing Efforts - Vendors:
A. Overall Strategy: Galileo is responsible for: (i) establishing a
global marketing strategy for International Products and for advertising and
promoting International Products to Vendors; and (ii) coordinating the sales
efforts of Galileo's distributors. Booking fee levels for International Products
will be set by Galileo.
B. International Products: Galileo will undertake all marketing efforts
regarding International Products and will negotiate, hold, and administer all
agreements with Vendors for International Products; except as described in this
Article, or unless otherwise agreed, Distributor shall not undertake such
efforts. Distributor shall inform Galileo promptly of any approaches it receives
from Vendors (or potential Vendors) interested in participating in International
Products.
(i) If a Non-Air Vendor notifies Galileo or Distributor that
such Non-Air Vendor desires to do business directly with Distributor
regarding an International Product, Galileo will cooperate with
Distributor to allow Distributor to respond to any such approach within
the guidelines prescribed by Galileo.
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(ii) If a Non-Air Vendor notifies Galileo or
Distributor that the Non-Air Vendor desires to do business directly
with Galileo regarding a National Product, Distributor will cooperate
with Galileo to allow Galileo to respond to any such approach within
the guidelines prescribed by Distributor.
41. Distributor Marketing Efforts - Vendors: Distributor may enter into
sales, marketing, or promotional arrangements in the Territory with any Non-Air
Vendors regarding National Products. Distributor shall set the terms and
conditions (including booking fee levels) on which National Products are to be
provided to Non-Air Vendors in the Territory and shall have the right to enter
into all contracts with Non-Air Vendors with respect to the provision of
National Products in the Territory, the terms and conditions of which shall be
consistent with the provisions of this Agreement. Distributor will collect and
retain all booking fees generated from the provision of National Products by
Distributor to Non-Air Vendors in the Territory.
42. Vendor Coordination:
A. Galileo and Distributor shall consult with each other prior to
entering into arrangements with Vendors (or potential Vendors) who are, or may
wish to be, purchasers of Distribution Services for both International Products
and National Products, with the intention of ensuring that there is effective
coordination or relationships with such Vendors.
B. In the case of International Products in relation to which the
Product Database is maintained outside the Galileo System and the relevant
Vendor is an existing customer of Distributor, Galileo shall consider whether,
instead of being treated as an International Product in the normal manner, this
"Product" should instead be treated as provided below. In taking such decision,
Galileo shall act reasonably and shall take into account the extent to which the
Product is or shall be distributed through National Systems other than
Distributor's National System. Galileo may in its reasonable discretion
determine that such treatment should apply for a limited period of time.
C. The treatment referred to above is as follows:
43. The terms and conditions on which Distribution Services
are to be provided to the Vendor in respect of the Product shall be
set, at Galileo's discretion, by either Galileo or Distributor;
44. Galileo shall pay to Distributor a commission in respect
of bookings made by Distributor's Subscriber customers in respect of
the Product on a basis established by Galileo in accordance with the
following criteria:
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(a) Distributor shall first receive such
level of revenue as it would have received had the Product
been a National Product;
(b) Galileo shall thereafter be entitled to
receive whichever is the lesser of (i) a sum equal to the Cost
to Galileo of processing transactions in the Galileo System
arising out of the provision of Distribution Services in
respect of the Product and (ii) the amount of revenue
remaining after the application of Clause (a); and
(c) any surplus revenue shall be apportioned
between Galileo and Distributor on a basis that is reasonable
taking into account the costs borne by Galileo and Distributor
respectively.
45. Marketing Efforts - National Subscribers:
A. Except as provided in Section 12, below, Distributor shall
be responsible for undertaking all marketing efforts directed at National
Subscribers in the Territory. Distributor will negotiate, hold, and administer
all Subscriber Agreements in the Territory (other than as provided in section 12
below), will be responsible for any financial assistance, and will collect and
retain all Subscriber revenues, lease fees, and all other fees from National
Subscribers. For any given Subscriber Agreement, Galileo and Distributor may
agree to alternative arrangements regarding financial assistance. The terms and
conditions of the contracts that Distributor proposes to enter into with
Subscribers shall be consistent with the provisions of this Agreement. If
Galileo receives any approaches from any Subscribers in the Territory it shall
refer them promptly to Distributor.
B. Distributor shall use its best efforts to market Galileo's
Distribution Services to National Subscribers in the Territory. Such efforts
shall include, but not be limited to, the establishment of regular contact with
all National Subscribers in the Territory with substantial travel industry sales
and the placing, where appropriate, of personal and telephone sales calls, and
the undertaking of point of sale and media advertising, promotions and other
sales efforts. Distributor shall not undertake any marketing activities in
respect of Galileo's Distribution Services that Galileo determines in its
reasonable discretion to be contrary to its marketing policies and objectives
and notifies Distributor to that effect.
C. Distributor shall conduct the promotion and marketing of
Galileo's Distribution Services in the Territory with all due care and diligence
and shall use its best efforts to cultivate and maintain good relations with
customers and prospective customers in the Territory in accordance with sound
commercial principles.
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46. Multinational Subscribers:
A. Galileo will have overall responsibility for Multinational
Subscribers. For the purposes of this Agreement, Multinational Subscribers will
be, in respect of any territory taken as a whole, either "Existing Subscribers"
or "New Subscribers."
(i) Existing Subscribers. "Existing Subscribers" are
Neutral Travel Providers who are retail outlet, Affiliate, or
franchisee locations of a Multinational Subscriber which are located in
a territory in which, as of the date of commencement of negotiations
with the headquarters of such Multinational Subscriber ("Negotiation
Commencement Date"), multiple (if applicable) locations of such
Multinational Subscriber in such territory subscribe for Galileo
Distribution Services as a result of negotiations with the local
distributor.
(ii) New Subscribers. "New Subscribers" are Neutral
Travel Providers who are retail outlet, Affiliate, or franchisee
locations of a Multinational Subscriber that are located in a territory
in which multiple (if applicable) locations of such Multinational
Subscriber in such territory are not Galileo Subscribers as a result of
negotiations with the local distributor.
B. Galileo: Galileo will determine the global strategy for
dealing with Multinational Subscribers. Galileo's responsibilities include the
establishment of pricing guidelines and the coordination of services levels for
subscriber services provided to Multinational Subscribers by Galileo and
individual distributors. Galileo will hold and administer all Multinational
Subscriber Agreements and Override Agreements.
C. Distributor: Distributor will have primary account
responsibility for those Multinational Subscribers who have their headquarters
in the Territory. This responsibility will include the negotiation by
Distributor of all Override Agreements and of Subscriber Agreements covering all
locations of that Multinational Subscriber that are either (i) New Subscribers
who are located outside the Territory, or (ii) located in the Territory,
pursuant to the strategy determined by and within the pricing and financial
assistance guidelines established by Galileo and pursuant to the direction given
by Galileo. Distributor may at its option and with the agreement of another
distributor cooperate with such distributor with respect to Distribution
Services to Multinational Subscriber locations in that other distributor's
territory.
D. Services: Distributor will execute Subscriber Agreements
with and will provide services to Multinational Subscriber locations in the
Territory according to service level guidelines established by Galileo,
including customer premises equipment, premises equipment installation and
maintenance, and training and help desk assistance.
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(i) Local Existing Subscribers: Existing Subscribers
that are located in a Galileo territory other than the territory in
which the headquarters of such Existing Subscribers are located ("Local
Existing Subscribers") will receive Distribution Services pursuant to
agreements negotiated by the Galileo distributor for that territory
pursuant to Section 11, above.
(ii) New Subscribers: New Subscribers will receive
Distribution Services pursuant to an agreement negotiated with the
headquarters of such New Subscriber by the distributor in whose
territory such headquarters are located.
(iii) Coordination: Galileo will coordinate service
levels provided to Multinational Subscribers worldwide and will ensure
that service level commitments negotiated with a particular
Multinational Subscriber pursuant to guidelines provided by Galileo
will be met by all Galileo distributors (including if applicable
Galileo). Distributors having responsibility for the territories in
which the Multinational Subscriber has locations will provide to the
distributor, in whose territory the headquarters of the Multinational
Subscriber is located, term sheets regarding local pricing practices in
their respective territories and shall provide such further assistance
as may be reasonably requested.
(iv) Compliance; Cost: If such service levels under
an Override Agreement vary from those set forth in agreements between
Distributor and any Local Existing Subscriber, Distributor will provide
such alternative service levels, subject to the technical capabilities
of Distributor, with any additional cost being borne by Galileo as
provided below.
E. Costs: Galileo's actions regarding Multinational
Subscribers will not operate to raise Distributor's costs or to shift costs from
Galileo to Distributor. Galileo will reimburse Distributor for any one-time,
unusual, extraordinary, or specific on-going or recurring costs that result from
policies established by Galileo regarding Multinational Subscribers.
F. Financial: Galileo will determine strategies regarding
financial assistance guidelines for Multinational Subscribers. Galileo will be
responsible for financial assistance payments on Multinational Subscriber
agreements. Galileo will be required to provide direct financial assistance only
to the extent that the financial assistance provided to a particular
Multinational Subscriber exceeds the financial assistance that Distributor would
otherwise provide to a similar category subscriber (based on such factors as the
volume of transactions generated by similar subscribers in that Territory)
located in Distributor's Territory. For any given Subscriber Agreement, Galileo
and Distributor may agree alternative arrangements regarding financial
assistance.
G. The provisions of this Article 12 will be reviewed by
Galileo and the NCC on the third anniversary of the Effective Date and, upon
such review, may be modified by
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Galileo either to maintain the distinction between New Subscribers and Existing
Subscribers or to eliminate the distinction and treat all Multinational
Subscriber locations either as New Subscribers or as Existing Subscribers.
47. Regulatory Requirements: Each party hereto undertakes to
comply with all applicable legal requirements (whether existing or hereafter
imposed) relating to its activities pursuant to this Agreement.
14. Hardware and Software Provision
to Subscribers and Vendors
A. Subscriber/Vendor Hardware/Software: Distributor shall
supply (i) to its Subscriber and Vendor customers and (ii) to Revenue Customers
the computer hardware and software required by such Persons to enable them to
use Galileo's Distribution Services. Galileo may recommend specific hardware and
software to Distributor. Distributor may permit its Subscriber and Vendor
customers to obtain such hardware and software from other sources in addition to
Distributor. Distributor may obtain such hardware and software, or other
compatible hardware or software, from sources other than Galileo. Attached
hereto as Attachment B is a form of license by which Galileo will license
software to Distributor and consents to the sub-license of certain Subscriber
location software from Distributor to Subscribers and Vendors. Distributor may
connect Subscriber third-party equipment (i) at Subscriber's request, (ii) at
Distributor's discretion, or (iii) when required by CRS Rules.
B. Certification: Subject to section 14.A above, Distributor
shall ensure that all computer hardware and software used by it and its
Subscriber and Vendor customers to access the Galileo System have been certified
by Galileo prior to connection. In considering applications for certification,
Galileo shall, in general, accept and certify hardware and software that is
compatible with the existing Galileo Network and National Network. At all times,
Galileo shall act reasonably and shall take into account only such
considerations as are relevant to technical integrity, system performance
(including the performance of the hardware or software to which the application
relates).
C. Cost: All hardware Galileo offers to supply or arrange to
supply to Distributor shall be offered by Galileo on a pass-through basis (plus
out-of-pocket handling and delivery expenses) and shall be offered on terms
other than as to cost that are reasonable in relation to the terms available to
Galileo from hardware suppliers. Galileo shall inform Distributor regularly of
the hardware supply arrangements Galileo is able to make available to
Distributor.
15. Provision of Software
Products to Distributors:
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A. Galileo shall from time to time grant to Distributor
royalty-free licenses of software products developed by Galileo (or that Galileo
has the right to transfer or sublicense) (with right to sub-license in the case
of Subscriber-based software) where such grant is necessary for the provision of
Galileo's Distribution Services in the Territory as contemplated by the terms of
this Agreement. Galileo shall provide at no cost to Distributor, all third-party
software and the rights to use such software as required for use on Subscriber
based hardware in conjunction with the provision of Distribution Services.
Galileo will license to Distributor (with right to sub-license) Subscriber-based
software products such as Corporate Apollo and Personal Apollo, which
Distributor will be authorized to market to Other Customers under Distributor's
name (e.g., "Personal Apollo by Distributor"). Unless otherwise agreed by
Galileo and Distributor, all licenses granted by Galileo to Distributor pursuant
to this Clause shall be in the form set out in Attachment B to this Agreement.
B. At the request of Distributor, Galileo shall use all
reasonable endeavors to extend to Distributor on reasonable terms the benefit of
licensing arrangements negotiated by Galileo in relation to third party software
products of the type referred to in Clause 15.A.
C. The consideration payable by Distributor for the grant of
licenses of software products pursuant to this section 15 (including software
for use by Vendors in respect of National Products) shall be set at a price
which takes into account only Galileo's cost of reproducing copies of the
licensed products onto diskette format and shipment to Distributor.
16. Provision of Distribution Services:
A. The overall objective of Galileo and Distributor in
relation to the supply of Distribution Services in the Territory shall be to
provide a level of service that is comparable to that provided by Galileo and
its distributors in other markets, taking into account local market conditions.
Without prejudice to this general objective, Galileo shall adopt the more
specific objectives set out in Attachment C to this Agreement. Attachment C also
sets out the objectives Galileo wishes its distributors to adopt. Distributor
will provide Distribution Services in the Territory to Other Customers of Group
Members, including system availability and performance, data
security/confidentiality, use of Galileo functionality and enhancements
(excluding functionality or enhancements that are proprietary to any Group
Member), availability of hardware, access to training, scheduling and delivery
of installation, maintenance and other support, in a manner equal to that
provided to Subscribers of Distributor. Galileo and Distributor shall consult in
good faith on the basis of such objectives to produce specific objectives for
Distributor that take into account technological constraints and local market
requirements. The objectives of Galileo and Distributor shall be reviewed by
both parties at intervals of no more than one year.
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B. Galileo shall maintain at Galileo's expense a telephone
assistance desk, for the use of Distributor, that will be staffed by
knowledgeable employees capable of providing technical assistance regarding the
Galileo System, the Galileo Network, Galileo's Distribution Services, and
International Products. Such telephone assistance will be available to
Distributor during normal business hours for Subscribers in the Territory.
C. At Distributor's request and at Galileo's expense, Galileo
will make the Galileo System available to Distributor for the purposes of (i)
storing and processing Distributor's data related to the marketing and support
services provided by Distributor in the Territory, and (ii) help desk or other
product assistance (including automated training and support and system testing)
to Subscribers and Vendors in the Territory.
17. Provision of Support Services:
A. Unless otherwise agreed, Distributor shall provide at its
cost installation, maintenance and support services reasonably required by
Subscribers and Vendors who are Distributor's customers and by Revenue Customers
of Group Members. Such services shall be provided in accordance with reasonable
support service procedures and requirements as may be agreed between Galileo and
its distributors from time to time which procedures for each distributor shall
be consistent across national territories, taking into account local market
conditions. Distributor and Galileo shall consult on a regular basis regarding
service requirements.
B. Cost of Services to Other Customers: Distributor will have
no obligation to provide financial assistance or rebates of booking fees to
Other Customers (including with respect to Direct Access Products and
Partner-Developed Products). Distributor's obligation to provide hardware and
support services and training to Revenue Customers of Group Members in the
Territory will be reasonably related to the volume of bookings from such
locations (as compared to the level of bookings by comparable Subscribers in the
Territory). If booking fee revenue generated from any Revenue Customer is not
sufficient to cover the cost of meeting the criteria set by the NCC annually for
such location, Distributor may terminate or reduce service to such Revenue
Customer unless the Group Member makes alternative arrangements reasonably
acceptable to Distributor. In the event that the Group Member and Distributor
fail to make such alternative arrangements, the Group Member will be free to
arrange separately for Distribution Services to such location.
C. English Language: Galileo shall provide to Distributor from
time to time in English and at no charge two copies of all product user guides
and updates produced by Galileo for use by Subscribers.
18. Training:
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A. Galileo and Distributor shall devise a training program for
Distributor's employees engaged in the provision of Galileo's Distribution
Services and Galileo and Distributor shall provide training in accordance with
such program. Where training is provided by Galileo, the costs of the training
shall be borne by Galileo except for any travel and subsistence costs incurred
by the employees being trained, which shall be borne by Distributor.
B. Distributor shall provide at its own cost all necessary
training for its Subscriber and Vendor customers and Revenue Customers of Group
Members in the use of Galileo's Distribution Services. Galileo shall provide
Distributor with two copies in Distributor's national language(s) of all
training materials produced by Galileo for use by Subscribers and Vendors.
Distributor shall use such training materials in providing Subscriber and Vendor
training and shall comply with such other reasonable recommendations as Galileo
may make with regard to training provision and content, so long as Distributor's
training costs are not increased thereby.
19. Payments:
A. In consideration of the services provided by Distributor
pursuant to this Agreement, Galileo will pay to Distributor each month an amount
equal to a portion of the fees that it receives from Vendors (immediately upon
Galileo's receipt thereof) in respect of bookings and other transactions made in
the Galileo System by Distributor's National Subscribers, such portion to be
determined in accordance with the provision of Attachment D to this Agreement.
B. Distributor will pay to Galileo a sum equal to the Cost to
Galileo of processing transactions in the Galileo System arising out of the
provision of Distribution Services on behalf of Non-Air Vendors (including
Limited Air Charters) to National Subscribers in respect of National Products in
the National System.
C. Article 19 shall not apply to International Products which
Galileo has decided should be dealt with in the manner set out in Article 10.
20. Reporting Requirements:
A. Distributor shall provide to Galileo, unless otherwise
agreed by Distributor, on a quarterly basis (hereafter "Reasonable Basis") such
information as Galileo shall reasonably require relating to Distributor's
activities pursuant to this Agreement in a format agreed by Galileo and
Distributor. The categories of information that may be required shall include,
without limitation:
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48. sales projections for the forth coming year;
49. Subscriber contracts entered into or renewed;
50. Subscriber contracts terminated or due to expire in the
forthcoming year;
51. staff training activities;
52. customer support activity;
53. competitor activity; and
54. achievement of system service objectives.
B. Galileo shall provide to Distributor on a Reasonable Basis
such information as Distributor shall reasonably require for the purposes of its
activities as a Galileo distributor. The categories of information which may be
required shall include without limitation:
1. all information needed by Distributor in relation to
Galileo's marketing policies and objectives;
2. vendor contract status report;
3. product delivery, development and specification status
report;
4. product prices;
5. levels of booking activity;
6. competitor activity;
7. system performance and achievement of system service
objectives;
8. hardware prices; and
9. status report listing all multinational Subscriber Override
Agreements.
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C. Without prejudice to the generality of Articles 20.A and
20.B, Galileo shall provide to Distributor on a Reasonable Basis such details
within its knowledge of sales activity in relation to Galileo's Distribution
Services by other Galileo distributors in the Territory and Distributor shall
provide to Galileo on a Reasonable Basis details of its sales activities in
relation to Galileo's Distribution Services outside the Territory.
D. Distributor may request an audit of the books and records
of Galileo applicable to Distributor and Galileo may request an audit of the
books and records of Distributor applicable to Galileo from time to time during
normal business hours upon reasonable notice. Each audit shall be conducted by
the Person requesting the audit or that Person's authorized representative at
that Person's sole expense, including reimbursement of direct out of pocket
costs incurred by the audited party as a direct result of the audit.
21. Performance Standards:
A. After consultation with Galileo, Distributor shall produce
on an annual basis a marketing plan covering its objectives for the forthcoming
year. The marketing plan shall contain such reasonable performance objectives as
shall be agreed upon by Galileo and Distributor by November 1st of each year.
B. Distributor shall use all reasonable endeavors to meet the
performance objectives set out in its marketing plan.
C. In the event that Distributor does not meet its performance
objectives and Galileo determines in its reasonable discretion that such failure
causes the overall performance of Distributor to suffer significantly,
Distributor shall use all reasonable endeavors to comply with such reasonable
recommendations as Galileo may make with a view to improving the performance of
Distributor in respect of Galileo's Distribution Services.
D. In assessing any failure by Distributor to meet its
performance objectives, Galileo shall take into account the extent (if any) to
which such failure was caused by failure by Galileo to meet its own system
performance or marketing objectives or decisions made by Galileo pursuant to
Article 16 that certain marketing activities proposed by Distributor should not
be undertaken.
22. Term:
A. This Agreement shall remain in full force and effect and
shall apply to Distributor for so long as an Affiliate of Distributor is a
partner in Galileo provided, that, for a period of two years (the "Withdrawal
Period") following the withdrawal of an Affiliate of Distributor from Galileo (a
"Withdrawing Affiliate"), Distributor (i) shall continue to perform its
obligations in the Territory pursuant to the terms of this
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Agreement and (ii) shall not perform Distributor Services or other services on
behalf of any other Computer Reservations Service Company in the Territory or
otherwise.
B. During the Withdrawal Period, Galileo may appoint another
distributor (the "New Distributor") for the Territory. During the Withdrawal
Period the Distributor shall: (i) not renew any existing Subscriber or National
Vendor agreements, (ii) give written notice to the New Distributor of any
Subscriber agreements or National Vendor agreements that expire during the
Withdrawal Period and (iii) transfer or assign to the New Distributor any of its
Subscriber agreements or Vendor agreements at the request of the New
Distributor.
C. At any time after the three-month period following a
Withdrawing Affiliate's withdrawal from Galileo, Distributor shall not be
obligated to abide by the obligations imposed by this Section to the extent that
the Withdrawing Affiliate compensates Galileo pursuant to the following formula:
100% of the gross booking fees for the Territory for the
previous twelve month period divided by twelve (12) and multiplied by the number
of months remaining in the Withdrawal Period (the "Compensation Figure");
provided, that, in the case where the Distributor is owned by more than one
Affiliate, the Compensation Figure shall be multiplied by the Withdrawing
Affiliate's percentage interest in Distributor to determine the "Net
Compensation Figure," which figure shall be paid to Galileo.
D. Notwithstanding the foregoing, either party shall be
entitled forthwith to terminate this Agreement by giving written notice to the
other if:
(i) that other party commits any material breach of
the provisions of this Agreement (other than the breach of an
obligation for the payment of money the amount of which is in dispute)
and fails to remedy the same within thirty days after receipt of a
written notice giving full particulars of the breach and requiring it
to be remedied; provided, however, that (a) an alleged material breach
that is contested by the other party shall be submitted to arbitration
pursuant to Clause 23 hereof and will not be grounds for termination
unless the existence of the alleged material breach has been sustained
by the arbitrator, and (b) such thirty day period shall not include any
period during which the breaching party is proceeding diligently and by
appropriate means to remedy such breach; or
(ii) the other party shall consent to the appointment
of a receiver, trustee, or liquidator of itself or of a substantial
part of its property, or shall admit in writing its inability to pay
its debts generally as they come due, or shall make a general
assignment for the benefit of creditors; or
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(iii) the other party shall file a voluntary petition
in bankruptcy or a voluntary petition or an answer seeking
reorganization in a proceeding under any bankruptcy laws (as now or
hereafter in effect) or an answer admitting the material allegations of
a petition filed against such other party in any such proceeding, or
shall by voluntary petition, answer, or consent seek relief under the
provisions of any other now existing or future bankruptcy or other
similar law providing for the reorganization or winding up of
corporations, or providing for an agreement, extension, or adjustment
with its creditors; or
(iv) an order, judgment, or decree shall be entered
by any court of competent jurisdiction appointing, without the consent
of the other party, a receiver, trustee, or liquidator of the other
party or of any substantial part of its property, or sequestering any
substantial part of the property of the other party, and any such
order, judgment, or decree of appointment or sequestration shall remain
in force undismissed, unstayed, or unvacated for a period of 90 days
after the date of entry thereof; or
(v) a petition against the other party in a
proceeding under the Federal bankruptcy laws or other insolvency laws,
as now or hereafter in effect shall be filed and shall not be withdrawn
or dismissed within 90 days thereafter, or, under the provisions of any
law providing for reorganization or winding-up of corporations which
may apply to the other party, any court of competent jurisdiction shall
assume jurisdiction, custody, or control of the other party or of any
substantial part of its property and such jurisdiction, custody, or
control shall remain in force unrelinquished, unstayed, or unterminated
for a period of 90 days; or
(vi) that other party ceases, or threatens to cease,
to carry on business.
E. The rights to terminate this Agreement given by this Clause
shall be without prejudice to any other right or remedy of either party in
respect of the breach concerned (if any) or any other breach.
F. The provisions of Clauses 19, with respect to services
provided prior to termination, 24 and 25(g) and (h) shall continue to bind the
parties hereto notwithstanding the termination of this Agreement.
23. Arbitration:
A. Subject to the final sentence of this Clause, any dispute
arising between the parties to this Agreement involving the subject matters
covered by this Agreement shall be submitted to arbitration under this Clause.
Either party shall notify the other party of such alleged dispute (a "Dispute
Notice") and the parties shall attempt to resolve such dispute amicably and if
they shall fail to resolve it within thirty (30) days of the date of the
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Dispute Notice, either party may notify the other party that it wishes to
commence an arbitration proceeding under this Clause (an "Arbitration Request").
B. In any arbitration proceeding, the party commencing the
arbitration (the "Petitioner") shall include in the Arbitration Request (a) a
statement of the facts constituting the alleged breach or dispute, (b) a written
statement of position ("Statement") regarding the dispute and (c) the name of an
elector designated by it. The Statement shall state the facts and arguments in
support of the position taken by the party submitting such Statement and shall
detail that party's proposed solution and relief sought (if any). Copies of any
Arbitration Request shall be furnished at the same time to the other party.
C. The party with whom the Petitioner has its dispute (the
"Respondent") shall within five (5) Business Days after the date of the
Arbitration Request designate a second elector by notice to the Petitioner
(copies of which shall be furnished to the other Partners), but if the
Respondent shall fail to do so within such period the Petitioner may designate
an elector on Respondent's behalf. The electors chosen by the Petitioner and the
Respondent shall attempt to agree upon an arbitrator (the "Arbitrator"), but if
they are unable to do so within 20 Business Days after the designation of the
second elector, then either elector thereafter may apply to the American
Arbitration Association (the "Association") for the selection of the Arbitrator
in accordance with the Commercial Arbitration Rules of such Association. The
Arbitrator so selected shall have full power to decide any dispute referred to
in this Article 23.
D. The arbitration proceedings shall be conducted in the
English language and shall be held at such location (within or outside the
United States) as shall, in the judgment of the Arbitrator, be least costly,
most convenient to the parties and best suited to the resolution of the matter
in dispute. The United Nations Commission on International Trade Law
("UNCITRAL") rules of commercial arbitration shall apply to any arbitration
commenced pursuant to this Article 23, as modified by the following procedure:
(i) Within five (5) Business Days of the selection of
the Arbitrator (the "Commencement Date"), the Respondent shall deliver
its Statement regarding the dispute to the Arbitrator and to the
Petitioner.
(ii) Within 15 Business Days from the Commencement
Date, each of the Petitioner and Respondent shall deliver to the
Arbitrator and to the other party, a response ("Response") to the other
party's Statement setting forth opposing facts and arguments and
limited in length to ten (10) typed, single spaced pages.
(iii) Within 20 Business Days from the Commencement
Date each of the Petitioner and the Respondent may deliver to the
Arbitrator and to the other party, a reply to the Response limited to
setting forth facts and arguments in rebuttal to the Statement and
Response of the other party and limited in length to five (5) typed,
single spaced pages.
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(iv) Within 25 Business Days from the Commencement
Date each of the Petitioner and the Respondent shall present an oral
summation of its position to the Arbitrator in the presence of the
other party in accordance with such rules of procedure including,
without limitation, length of presentation and right of
cross-examination, as the Arbitrator shall determine in writing and
deliver to the parties not less than three (3) Business Days prior to
such hearing; provided,
however, that such hearing shall not exceed eight (8) hours in total
and may not be adjourned except for the extraordinary circumstances
beyond the control of the parties.
(v) The Arbitrator shall either issue his decision
and award ("Award") or request a further meeting of the parties within
15 days of the hearing.
(vi) Any such further meeting of the parties shall
take place within five (5) Business Days of the request therefor and
shall be conducted as determined by the Arbitrator. The Arbitrator
shall issue his Award no later than 15 days after any such further
meeting of the parties.
(vii) The Award shall be in writing and shall be
limited to a decision either completely in favor of Petitioner's
request for relief or completely in favor of Respondent's request for
relief. The Award shall be final and binding upon the parties and
judgment may be entered thereon in any court of competent jurisdiction
and the costs and expenses of such arbitration shall be borne by the
party losing such arbitration.
This Article 23 shall in no way affect the right of any party to seek
such interim relief, and only such relief, as may be required to maintain the
status quo in aid of the arbitration in any court of competent jurisdiction.
24. Confidentiality:
A. Except as provided below, each party shall at all times
during the continuance of this Agreement and after its termination (a) use all
reasonable endeavors to keep all Confidential Information confidential and
accordingly shall not disclose any Confidential Information to any other Person;
and (b) not use any Restricted Information for any purpose other than the
performance of the obligations under this Agreement.
B. Any Confidential Information may be used by either party
for any purpose, or disclosed by either party to any other Person, to the extent
only that (a) it is at the date hereof, or hereafter becomes, public knowledge
through no fault of that party (provided that in doing so that party shall not
disclose any Confidential Information which is not
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public knowledge); (b) it can be shown by that party to the reasonable
satisfaction of the other party, to have been known to it prior to its being
disclosed by the other party to the first named party; or (c) such disclosure is
required by law, any relevant stock exchange or other regulatory board or
authority or for the proper performance of any obligation under this Agreement,
provided that the party required to make such disclosure shall use all
reasonable endeavors to obtain any available exemption from such requirement.
25. Intellectual Property:
A. Galileo hereby authorizes Distributor to use Galileo's
trade marks in the Territory in relation to Galileo's Distribution Services only
for the purposes (i) of exercising the rights granted to Distributor or to an
Affiliate of Distributor by Galileo and (ii) of performing Distributor's
obligations under this Agreement. Distributor shall not use any of the trade
marks in any way that might prejudice the goodwill of Galileo therein and shall
comply with all reasonable requirements Galileo may from time to time specify in
relation to their use.
B. Distributor shall promptly and fully notify Galileo of any
actual, threatened or suspected infringement in the Territory of any
Intellectual Property of Galileo which comes to Distributor's notice, and of any
claim by any third party so coming to its notice that the provision of Galileo's
Distribution Services infringes the Intellectual Property or other rights of any
other Person, and Distributor shall at the request and expense of Galileo do all
such things as may be reasonably required to assist Galileo in taking or
resisting any proceedings in relation to any such infringement or claim.
C. Except for those rights described in paragraph A [and
pursuant to the Service ▇▇▇▇ License Agreement, dated as of the date hereof,
between Galileo and Distributor (the "License Agreement")][FN3] above, nothing
in this Agreement shall give Distributor any other rights in respect of any
trade names or trade marks of Galileo or of the goodwill associated therewith,
and Distributor hereby acknowledges that, except as expressly provided in
paragraph A [or in the License Agreement][FN4], it shall not acquire any rights
in respect thereof and that all such rights and goodwill are, and shall remain,
vested in Galileo.
D. Distributor shall not use in the Territory in any other
trade or business other than Distribution Services any trade marks or trade
names so resembling Galileo's trade marks or trade names as to be likely to
cause confusion or deception.
E. Distributor shall at the expense of Galileo take all such
steps as Galileo may reasonably require to assist Galileo in maintaining the
validity and enforceability of the Intellectual Property of Galileo in the
Territory during the continuance of this Agreement.
F. Without prejudice to the right of Distributor or any third
party to challenge the validity of any Intellectual Property of Galileo,
Distributor shall not do or authorize any third party to do any act which would
or might invalidate or be inconsistent with the
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Intellectual Property of Galileo and shall not omit or authorize any third party
to omit to do any act which, by its omission would have that effect.
G. Distributor shall indemnify Galileo from and against any
loss or liability which may be incurred by Galileo by reason of any use by
Distributor of the Intellectual Property of Galileo otherwise than as provided
by this Agreement.
H. Galileo shall defend, indemnify, and hold harmless
Distributor from and against any loss or liability that may be incurred by
Distributor by reason of any claim or action that the Intellectual Property
infringes the patent, copyright, registered design or trade ▇▇▇▇ rights of any
third party provided that Distributor:
(i) gives notice to Galileo of any Intellectual
Property infringement forthwith upon becoming aware of the same;
(ii) gives Galileo the sole conduct of the defense
to any claim or action in respect of
an Intellectual Property Infringement and does not at any time admit
liability or otherwise attempt to settle or compromise the said claim
or action except upon the express instructions of Galileo; and
(iii) acts in accordance with the reasonable
instructions of Galileo and gives to Galileo such assistance as it
shall reasonably require in respect of the conduct of the said defense.
I. Galileo shall reimburse Distributor its reasonable costs in
complying with the provisions of this section.
26. Force Majeure and Liability:
A. No party hereto shall be liable for any failure to perform
its obligations under this Agreement if:
(i) the failure arises from one of the following
causes:
(a) acts of God, war or civil commotion;
(b) stikes or other labor disputes involving
complete or partial stoppage of work;
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(c) legislative or governmental
interference, direction or restriction; and
(ii) the party provides the other party hereto
forthwith with full details of the reason for its failure to perform
its obligations; and
(iii) the party uses its best endeavors to minimize
the duration and effect of such failure.
B. Without prejudice to the generality of paragraph A above,
neither party hereto shall be deemed to be in breach of this Agreement, or
otherwise liable to the other party for any delay in providing, or failure to
provide, Distribution Services if such delay or failure is caused by defects or
failure in communications or other facilities provided by third parties and
utilized by the first mentioned party in the provision of Distribution Services
provided that such party shall take all reasonable steps to ensure that such
delay or failure is remedied as soon as is reasonably practical.
C. Subject to Clause 25, in no event shall either party be
liable to the other for indirect, incidental or consequential loss or damage
arising out of or in connection with this Agreement or the use or performance of
Galileo's Distribution Services, whether in an action based on contract or tort
(including negligence).
D. In the event that any provision of this Agreement is found
to be void and unenforceable, the remaining provisions of this Agreement shall
remain in full force and effect and the parties shall negotiate in good faith to
replace the void and unenforceable provision with such provision as the parties
believe to be valid and enforceable and which reflects as closely as possible
the intention of the parties as stated in the provision which has proved to be
void and unenforceable.
27. Assignment:
A. Either party shall be entitled to carry out any of its
obligations under this Agreement through any Affiliate provided that any act or
omission of such Affiliate shall be deemed for the purposes of this Agreement to
be the act or omission of the party to this Agreement.
B. Except as set forth in paragraph A above, neither party may
assign, create any encumbrance over, or dispose of any of its rights hereunder,
or sub-contract or otherwise delegate any of its obligations hereunder, except
with the prior written consent of the other party, such consent not to be
unreasonably withheld.
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C. Notwithstanding paragraph B above, this Agreement may be
assigned by Galileo International Partnership to Galileo Company at any time
during the period prior to the date which is the first anniversary of the
Closing Date under the Combination Agreement. Upon cessation of the trade of
Galileo Company (for United Kingdom tax purposes) this Agreement will be
assigned back to Galileo International Partnership.
28. Relationship of the Parties: The relationship of the parties is
that of supplier and distributor of products and services. Nothing in this
Agreement creates or is intended to create any agency, partnership or joint
venture relationship between the parties. Neither party has any authority to
bind the other party, and neither party shall hold itself out as the agent of
the other party.
29. Governing Law and Jurisdiction:
A. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without regard to the
conflict of laws provisions thereof.
B. Subject to the provisions for compulsory arbitration of
disputes arising hereunder contained in Article 23 above, in relation to any
dispute arising out of or in connection with this Agreement, each party to this
Agreement hereby irrevocably and unconditionally submits to the non-exclusive
jurisdiction of the State and United States Federal Courts sitting in Chicago,
Illinois and New York, New York, and waives any objection to proceedings with
respect to this Agreement in such Court on the grounds of venue or inconvenient
forum.
C. Nothing in this Article shall affect a party's right to
serve process in any other manner permitted by law or limit the right of such
party to commence proceedings with respect to this Agreement against another
party against which it is entitled to commence such proceedings in any
jurisdiction nor shall the commencement of proceedings with respect to this
Agreement in any jurisdiction preclude a party from commencing proceedings with
respect to this Agreement in any other jurisdiction, whether concurrently or
not.
30 Waiver and Amendment:
A. The rights of each party hereto shall not be prejudiced or
restricted by any waiver or forbearance extended to the other party (except for
consents and approvals given
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pursuant to the terms of this Agreement) and no waiver by either party in
respect of any breach shall operate as a waiver in respect of any subsequent
breach.
B. This Agreement may only be amended if such amendment is in
writing and executed be duly authorized representatives of both parties hereto.
31. Entire Agreement: This Agreement sets out the entire agreement
between the parties hereto regarding the subject matter hereof and supersedes
all prior agreements and understandings, whether written or oral, relating
thereto. Each party acknowledges that, in entering into this Agreement, it does
not do so on the basis of, and does not rely on, any representation, warranty or
other provision except as expressly provided in this Agreement, and all
conditions, warranties or other terms implied by statute or common law are
excluded to the fullest extent permitted by law.
32. Notices: Every notice, request, demand or other communication under
this Agreement shall (i) be in writing delivered personally or sent by air mail,
telex or facsimile transmission; (ii) be deemed to have been received, subject
as otherwise provided in this Agreement, in the case of a letter personally
delivered, a telex, or a facsimile transmission at the time of delivery or
transmission (provided that if the time of delivery or transmission is not
within normal business hours in the country of the addressee it shall be deemed
to have been received at the opening of business on the next Business Day in
such country), and in the case of a letter sent by air mail three days after it
has been put into the post; and (iii) be sent to the addressee at the address
first provided below for each. Either party may change its address and related
information for notice by written notice given to the other party in accordance
with this Section.
For the Partnership:
Galileo International Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Telephone: 708/518-
Fax: 708/▇▇▇-▇▇▇▇
For the Distributor:
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31
Attn:
Telephone:
Fax:
33. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
shall be considered one and the same instrument.
THEREFORE, the parties by their authorized representatives
have executed this Agreement on the date first above written.
GALILEO INTERNATIONAL DISTRIBUTOR
PARTNERSHIP
_________________________ ________________________
By: By:
Title:___________________ Title:________________________
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32
Attachment A
Territories
31
33
Attachment B
Distributor Software Licensing Agreement
AGREEMENT, effective September 16, 1993, by and between GALILEO
INTERNATIONAL PARTNERSHIP, a Delaware general partnership ("Galileo") with
offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and ("Distributor")
with offices at ___________________.
WHEREAS, by an agreement dated ____, 199_, ("the Distribution
Agreement") Galileo has appointed Distributor to act as a Galileo Distributor;
and
WHEREAS, to enable Distributor to fulfill its obligations under the
Distribution Agreement it is necessary for Galileo to grant to Distributor a
license to use certain software products; and
WHEREAS, Galileo wishes to grant a license to Distributor a license to
use such software products on the terms and conditions set out in this
Agreement;
NOW THEREFORE, the parties hereby agree as follows:
1. DEFINITIONS: IN THIS AGREEMENT:
(i) unless the context otherwise requires, expressions defined
in the Distribution Agreement have the meaning given to them in the
Distribution Agreement;
(ii) The "Licensed Programs" means those programs listed in
Parts A and B of the schedule to this Agreement;
(iii) The "Class B Permitted Programs" means those Programs
listed in Part B of the schedule to this Agreement.
Note: The only programs licensed from Galileo Shareholders or
their Associated Person to be included in Part B shall be the
programs which are Class B Permitted Programs in the Covia
version of Attachment A to Schedule 5.
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2. GRANT OF LICENSE: IN CONSIDERATION OF THE PAYMENT BY DISTRIBUTOR TO
GALILEO OF THE SUM OF $1 GALILEO HEREBY GRANTS TO DISTRIBUTOR A NON-EXCLUSIVE
LICENSE TO USE THE LICENSED PROGRAMS UNDER THE TERMS OF THIS AGREEMENT FOR THE
SOLE PURPOSE OF THE PROVISION OF GALILEO'S DISTRIBUTION SERVICES IN ACCORDANCE
WITH THE TERMS OF THE DISTRIBUTION AGREEMENT.
3. CONSENT TO GRANT OF SUB-LICENSE:
A. GALILEO HEREBY CONSENTS TO THE GRANT BY DISTRIBUTOR OF
SUB-LICENSES:
(i) of all or any of the Class B Permitted Programs
to Subscribers only to the extent necessary for, and solely for the
purpose of, the use of Galileo's Distribution Services by those
Subscribers in the Territory;
(ii) of all or any of the Class B Permitted Programs
to Vendors who have entered into a participation agreement with Galileo
and Distributor only to the extent necessary for, and for the sole
purpose of, the use, on the minimum number of, intelligent workstations
reasonably necessary for such use, of Galileo's Distribution Services
pursuant to such participation agreement; and
(iii) of all or any of the Class B Permitted Programs
to Vendors only to the extent necessary for, and for the sole purpose
of, the access by such Vendors to Galileo's Database Services.
B. ALL SUB-LICENSES OF THE CLASS B PERMITTED PROGRAMS GRANTED
BY DISTRIBUTOR SHALL BE ON TERMS WHICH ARE CONSISTENT WITH THE TERMS OF THIS
AGREEMENT AND THE TERMS OF THE DISTRIBUTION AGREEMENT, SHALL ENTITLE THE
SUB-LICENSEE TO OBTAIN THE PROGRAMS LICENSED SOLELY IN EXECUTE ONLY FORM AND NOT
IN SOURCE CODE AND SHALL CONTAIN PROVISIONS:
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(i) requiring the programs licensed to be used only
for the purposes specified in Clause 3.A and, subject to Clause 13.C of
the Distribution Agreement, only in conjunction with designated
equipment certified by Galileo;
(ii) prohibiting the sub-licensee from modifying,
enhancing, copying or reverse compiling the programs licensed; and
(iii) prohibiting the sub-licensee from granting any
sub-licenses.
C. DISTRIBUTOR SHALL USE ITS BEST ENDEAVORS TO ENSURE THAT ALL
PERSONS TO WHOM IT GRANTS SUB-LICENSES OF ANY OF THE CLASS B PERMITTED PROGRAMS
PURSUANT TO CLAUSE 3.A COMPLY WITH THE OBLIGATIONS WHICH DISTRIBUTOR PLACES ON
THEM PURSUANT TO CLAUSES 3.B AND 6.F.
4. TITLE AND REPRESENTATION:
A. EXCEPT FOR THOSE RIGHTS OF USE EXPRESSLY GRANTED BY GALILEO
TO DISTRIBUTOR BY THIS AGREEMENT, AS BETWEEN GALILEO AND DISTRIBUTOR GALILEO
RETAINS ALL PROPRIETARY RIGHTS OF OWNERSHIP IN THE LICENSED PROGRAMS, INCLUDING
ALL APPLICABLE COPYRIGHTS, PATENTS, TRADE MARKS, TRADE SECRETS AND ALL OTHER
INTELLECTUAL PROPERTY RIGHTS.
B. GALILEO REPRESENTS AND WARRANTS TO DISTRIBUTOR THAT IT HAS
FULL RIGHT AND POWER TO GRANT A LICENSE TO DISTRIBUTOR TO USE THE LICENSED
PROGRAMS ON THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT.
5. DELIVERY, INSTALLATION, AND DOCUMENTATION:
A. GALILEO SHALL DELIVER AT ITS OWN EXPENSE ONE COPY OF EACH
OF THE LICENSED PROGRAMS TO DISTRIBUTOR AT DISTRIBUTOR'S PRINCIPAL PLACE OF
BUSINESS IN THE TERRITORY AS SOON AS IS REASONABLY PRACTICABLE AFTER THE DATE OF
THIS AGREEMENT.
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B. DISTRIBUTOR SHALL BE RESPONSIBLE FOR THE INSTALLATION AND
TESTING OF THE LICENSED PROGRAMS FOLLOWING DELIVERY. GALILEO SHALL PROVIDE TO
DISTRIBUTOR, AT DISTRIBUTOR'S COST, ALL SUCH ASSISTANCE AS DISTRIBUTOR MAY
REASONABLY REQUIRE IN CONNECTION WITH SUCH INSTALLATION AND TESTING.
C. GALILEO SHALL PROVIDE TO DISTRIBUTOR FREE OF CHARGE IN HARD
COPY OR IN COMPUTER TAPE FORMAT ONE COPY OF ANY DOCUMENTATION IN GALILEO'S
POSSESSION THAT IS NECESSARY FOR DISTRIBUTOR TO USE THE LICENSED PROGRAMS AS
CONTEMPLATED BY THIS AGREEMENT.
6. NON-DISCLOSURE: DISTRIBUTOR SHALL:
A. LIMIT ACCESS TO THE LICENSED PROGRAMS TO (I) ITS EMPLOYEES,
AGENTS AND SUB-CONTRACTORS WHO REQUIRE ACCESS IN CONJUNCTION WITH THE USE OF THE
LICENSED PROGRAMS BY DISTRIBUTOR AS CONTEMPLATED BY THIS AGREEMENT; AND (II)
SUB-LICENSEES TO WHOM DISTRIBUTOR IS PERMITTED TO GRANT SUB-LICENSES PURSUANT TO
CLAUSE 3.A;
B. NOT MAKE AVAILABLE OR DISCLOSE ANY LICENSED PROGRAM OR
OTHER PROPRIETARY INFORMATION OF GALILEO OTHER THAN IN ACCORDANCE WITH CLAUSE
6.A;
C. REPRODUCE ON ANY COPY OF THE LICENSED PROGRAMS GALILEO'S
COPYRIGHT AND TRADE ▇▇▇▇ NOTICES;
D. MAINTAIN AN UP-TO-DATE WRITTEN RECORD OF THE NUMBER OF
COPIES IT HAS MADE OF THE LICENSED PROGRAMS AND THEIR LOCATION AND UPON REQUEST
FORTHWITH PRODUCE SUCH RECORD TO GALILEO;
E. INFORM ALL EMPLOYEES, AGENTS AND SUB-CONTRACTORS HAVING
ACCESS TO THE LICENSED PROGRAMS THAT THE LICENSED PROGRAMS CONTAIN PROPRIETARY
INFORMATION OF GALILEO AND THAT ALL INTELLECTUAL PROPERTY RIGHTS IN THE LICENSED
PROGRAMS ARE THE PROPERTY OF GALILEO; AND
F. ENSURE THAT ALL ITS SUB-LICENSEES ENTER INTO NON-DISCLOSURE
AGREEMENTS PROVIDING SUBSTANTIALLY THE SAME PROTECTION AS THE NON-DISCLOSURE
PROVISION OF THIS AGREEMENT.
7. COPYING AND MODIFICATION:
A. DISTRIBUTOR MAY MAKE SUCH NUMBER OF COPIES OF THE LICENSED
PROGRAMS AS IS NECESSARY TO ENABLE OR FACILITATE THE PROPER USE AND PROVISION
OF GALILEO'S DISTRIBUTION SERVICES AS CONTEMPLATED BY THIS AGREEMENT AND THE
DISTRIBUTION AGREEMENT.
B. IF DISTRIBUTOR WISHES TO MAKE ANY MODIFICATIONS TO THE
LICENSED PROGRAMS IT SHALL REQUEST CONSENT FROM GALILEO, WHICH SHALL NOT BE
UNREASONABLY WITHHELD. IF GALILEO UNREASONABLY
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DELAYS CONSENT, DISTRIBUTOR MAY, HAVING GIVEN REASONABLE NOTICE TO GALILEO,
CARRY OUT THE MODIFICATIONS FOR WHICH IT HAS REQUESTED CONSENT PROVIDED THAT
DISTRIBUTOR SHALL INDEMNIFY GALILEO AGAINST ALL ACTIONS, CLAIMS, COSTS, DAMAGES
AND LOSSES (INCLUDING LOSS OF PROFIT) SUFFERED OR INCURRED BY GALILEO ARISING AS
A RESULT OF THE USE OF SUCH MODIFICATIONS EXCEPT ANY LOSS OF PROFIT ARISING
FROM BOOKINGS LOST IN RESPECT OF THE TERMINALS IN CONJUNCTION WITH WHICH THE
MODIFICATIONS ARE BEING USED.
8. INTELLECTUAL PROPERTY RIGHTS INDEMNITY:
A. GALILEO SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS
DISTRIBUTOR FROM AND AGAINST ANY ANY ALL LIABILITY, CLAIMS, COSTS, LOSSES, OR
DAMAGES ARISING FROM ANY CLAIM OR ACTION THAT THE NORMAL OPERATION, POSSESSION
OR USE OF THE LICENSED PROGRAMS BY DISTRIBUTOR INFRINGES THE PATENT, COPYRIGHT,
REGISTERED DESIGN OR TRADE ▇▇▇▇ RIGHTS OF ANY THIRD PARTY PROVIDED THAT
DISTRIBUTOR: (I) GIVES NOTICE TO GALILEO OF ANY INTELLECTUAL PROPERTY
INFRINGEMENT FORTHWITH UPON BECOMING AWARE OF THE SAME; (II) OFFERS TO GALILEO
THE SOLE CONDUCT OF THE DEFENSE TO ANY CLAIM OR ACTION IN RESPECT OF AN
INTELLECTUAL PROPERTY INFRINGEMENT AND DOES NOT AT ANY TIME ADMIT LIABILITY OR
OTHERWISE ATTEMPT TO SETTLE OR COMPROMISE THE SAID CLAIM OR ACTION EXCEPT UPON
THE EXPRESS INSTRUCTIONS OF GALILEO; AND (III) ACTS IN ACCORDANCE WITH THE
REASONABLE INSTRUCTIONS OF GALILEO AND GIVES TO GALILEO SUCH ASSISTANCE AS IT
SHALL REASONABLY REQUIRE IN RESPECT OF THE CONDUCT OF THE SAID DEFENSE.
B. GALILEO SHALL REIMBURSE DISTRIBUTOR ITS REASONABLE COSTS IN
COMPLYING WITH THE PROVISIONS OF CLAUSE 8.A.
C. GALILEO SHALL HAVE NO LIABILITY TO DISTRIBUTOR IN RESPECT
OF AN INTELLECTUAL PROPERTY INFRINGEMENT IF THE SAME RESULTS FROM ANY BREACH OF
DISTRIBUTOR'S OBLIGATIONS UNDER THIS AGREEMENT.
D. IN THE EVENT OF AN INTELLECTUAL PROPERTY INFRINGEMENT
GALILEO SHALL AT ITS OWN EXPENSE AND OPTION TO THE EXTENT POSSIBLE EITHER: (I)
PROCURE THE RIGHT FOR LICENSEE TO CONTINUE TO USE THE LICENSED PROGRAMS; (II)
MAKE SUCH ALTERATIONS, MODIFICATIONS OR ADJUSTMENTS TO THE LICENSED PROGRAMS
THAT THEY BECOME NON-INFRINGING WITHOUT INCURRING A MATERIAL DIMINUTION IN
PERFORMANCE OR FUNCTION; OR (III) REPLACE THE LICENSED PROGRAMS WITH
NON-INFRINGING SUBSTITUTES PROVIDED THAT SUCH SUBSTITUTES DO NOT ENTAIL A
MATERIAL DIMINUTION IN PERFORMANCE OR FUNCTION.
9. WARRANTIES:
A. GALILEO WARRANTS AND REPRESENTS THAT THE COPIES OF THE
LICENSED PROGRAMS PROVIDED TO DISTRIBUTOR UNDER THIS AGREEMENT SHALL BE SIMILAR
IN ALL MATERIAL RESPECTS TO THE VERSIONS OF THE LICENSED PROGRAMS THAT GALILEO
IS USING AT THE DATE OF DELIVERY.
B. EXCEPT AS PROVIDED IN CLAUSE 9.A, GALILEO GIVES NO
WARRANTIES AND MAKES NO REPRESENTATIONS REGARDING THE LICENSED PROGRAMS AND ALL
SUCH WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARE HEREBY EXCLUDED.
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10. FORCE MAJEURE AND LIABILITY:
A. No party hereto shall be liable for any failure to perform
its obligations under this Agreement
(i) if the failure arises from one of the following
causes:
(a) acts of God, war or civil commotion;
(b) strikes or other labor disputes
involving complete or partial stoppage of work;
(c) legislative or governmental
interference, direction or restriction; and
(ii) the party provides the other party hereto
forthwith with full details of the reason for its failure to perform
its obligations; and
(iii) the party uses its best endeavors to minimize
the duration and effect of such failure.
11. TERMINATION:
A. GALILEO MAY TERMINATE THIS AGREEMENT IMMEDIATELY UPON
WRITTEN NOTICE TO DISTRIBUTOR IN THE EVENT THAT EITHER: (I) DISTRIBUTOR COMMITS
A MATERIAL BREACH OF THE TERMS OF THIS AGREEMENT; OR (II) DISTRIBUTOR PURPORTS
TO GRANT SUB-LICENSES OF ANY LICENSED PROGRAM OTHER THAN IN ACCORDANCE WITH THE
PROVISIONS OF THIS AGREEMENT.
B. THIS AGREEMENT SHALL IN ANY EVENT TERMINATE UPON
TERMINATION OF THE DISTRIBUTION AGREEMENT.
12. ENTIRE AGREEMENT: THIS AGREEMENT SETS OUT THE ENTIRE AGREEMENT
BETWEEN THE PARTIES HERETO REGARDING THE SUBJECT MATTER HEREOF AND SUPERSEDES
ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING
THERETO. EACH PARTY ACKNOWLEDGES THAT, IN ENTERING INTO THIS AGREEMENT, IT DOES
NOT DO SO ON THE BASIS OF, AND DOES NOT RELY ON, ANY REPRESENTATION, WARRANTY OR
OTHER PROVISION EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, AND ALL
CONDITIONS, WARRANTIES OR OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW ARE
EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
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13. NOTICES: EVERY NOTICE, REQUEST, DEMAND OR OTHER COMMUNICATION UNDER
THIS AGREEMENT SHALL (I) BE IN WRITING DELIVERED PERSONALLY OR SENT BY AIR MAIL,
TELEX OR FACSIMILE TRANSMISSION; (II) BE DEEMED TO HAVE BEEN RECEIVED, SUBJECT
AS OTHERWISE PROVIDED IN THIS AGREEMENT, IN THE CASE OF A LETTER PERSONALLY
DELIVERED, A TELEX, OR A FACSIMILE TRANSMISSION AT THE TIME OF DELIVERY OR
TRANSMISSION (PROVIDED THAT IF THE TIME OF DELIVERY OR TRANSMISSION IS NOT
WITHIN NORMAL BUSINESS HOURS IN THE COUNTRY OF THE ADDRESSEE IT SHALL BE DEEMED
TO HAVE BEEN RECEIVED AT THE OPENING OF BUSINESS ON THE NEXT BUSINESS DAY IN
SUCH COUNTRY), AND IN THE CASE OF A LETTER SENT BY AIR MAIL THREE DAYS AFTER IT
HAS BEEN PUT INTO THE POST; AND (III) BE SENT TO THE ADDRESSEES AT THE ADDRESSES
FIRST PROVIDED BELOW FOR EACH. ANY PARTY MAY CHANGE ITS ADDRESS AND RELATED
INFORMATION FOR NOTICE BY WRITTEN NOTICE GIVEN TO THE OTHER PARTY IN ACCORDANCE
WITH THIS SECTION.
For the Partnership:
Galileo International
Partnership
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: President
Telephone: 708/518-
Fax: 708/▇▇▇-▇▇▇▇
For the Distributor:
Attn:
Telephone:
Fax:
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DISTRIBUTOR SALES AND SERVICE AGREEMENT
THEREFORE, the parties by their authorized representatives
have executed this Agreement on the date first above written.
GALILEO INTERNATIONAL DISTRIBUTOR
PARTNERSHIP
By:________________________ By:__________________________
Title:_____________________Title:___________________________
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Attachment C
Service Level Objectives
[To be conformed to Integration Plan]
8
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Attachment D
Revenue Split Arrangements
[ATS Version]
1. DEFINITIONS: IN THIS ATTACHMENT THE FOLLOWING EXPRESSIONS
SHALL HAVE THE MEANINGS PROVIDED FOR EACH:
Booking Fee Revenue. "Booking Fee Revenue" means all revenue
received by Galileo from Vendors as a result of transactions
in or through the Galileo System or a National System,
including reservation bookings, cancellations, inquiries, or
other Reservations Services.
NTP Revenue. "NTP Revenue" means all Vendor Revenue arising
from computer transactions in or through the Galileo System by
Neutral Travel Providers in the Territory.
Other Customer Revenue. "Other Customer Revenue" means all
Vendor Revenue arising from computer transactions in or
through the Galileo System by Other Customers in the
Territory.
Vendor Revenue. "Vendor Revenue" means all revenue received by
Galileo from Vendors, including without limitation all Booking
Fee Revenue and other service charges or fees paid by Vendors
from services provided by or through the Galileo System
including Air and Non-Air (hotel, car, rail, ferry, cruise,
tour, charter, and leisure), Apollo Headlines (net of OAG or
similar commissions), multi-access fees, and including
cancellations, inquiries, or other services but excluding any
revenue generated from Spectrum.
2. SPLIT OF NTP REVENUE. NTP REVENUE, WHERE ANY COPY OF THE
PASSENGER NAME RECORD ("PNR") OR THE EQUIVALENT ASSOCIATED WITH SUCH TRANSACTION
RESIDES IN THE GALILEO SYSTEM, WILL BE SPLIT AS FOLLOWS. (REFERENCES TO "YEAR"
ARE TO A TWELVE MONTH PERIOD FOLLOWING THE CLOSING DATE OR ITS ANNIVERSARY.)
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Year Galileo Distributor
Year 1 48% 52%
Year 2 48% 52%
Year 3 49% 51%
Year 4
and beyond 50% 50%
55. SPLIT OF OTHER CUSTOMER REVENUE. OTHER CUSTOMER REVENUE
WILL BE SPLIT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 7.11 AND 8.8 OF THE
PARTNERSHIP AGREEMENT.
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Attachment E
Gateway Router Services
1. IN RELATION TO THE GATEWAY ROUTER DISTRIBUTOR SHALL EITHER
ITSELF OR THROUGH AN AFFILIATE:
(i) make available the necessary space and utilities
at such location as may be agreed between Galileo and Distributor;
(ii) provide such equipment and services as may be
necessary to enable the provision of Galileo's Distribution Services in
the Territory in conjunction with the Gateway Router;
(iii) operate the Gateway Router to enable the
provision of Galileo's Distribution Services in the Territory;
(iv) provide such suitably qualified staff as may be
necessary to operate the Gateway Router; and
(v) procure the provision of all necessary
maintenance and support services in relation to the operation of the
Gateway Router.
2. GALILEO SHALL PAY DISTRIBUTOR'S OR, IF APPLICABLE, ITS
AFFILIATE'S COST IN RESPECT OF THE PROVISION OF THE SERVICES SET OUT IN CLAUSE L
OF THIS ATTACHMENT.
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ATTACHMENT F
ASSOCIATE DISTRIBUTOR TERRITORIES
A. ARABI
ALGERIA
Bahrain
Djibouti
Egypt
Jordan
Kuwait
Lebanon
Lybia
Mauritania
Morocco
Oman
Qatar
Saudi Arabia
Somalia
Sudan
Syria
Tunisia
United Arab Emirates
Yemen
B OPTIONAL TERRITORIES (UNTIL 20 OCTOBER 1993)
Angola
Bangladesh
Burundi
Cameroon
Chad
Equatorial Guinea
Gabon
Ghana
India
Iran
Kenya
Madagascar
Malawi
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Mali
Mauritius
Mozambique
Nigeria
Pakistan
Rwanda
Sri Lanka
Tanzania
Uganda
Zaire
Zimbabwe
Zambia
2. SOUTHERN CROSS
Australia
New Zealand
Papua New Guinea
Islands in the South Pacific Ocean (other than
dependencies of the USA)
3. GALILEO DANMARK
Denmark
Finland
Iceland
Norway
Sweden
4. ▇▇▇▇▇
▇▇▇▇▇▇▇
▇. SAA
South Africa
Independent Homelands
Namibia
6
▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
6. AVENSA
Venezuela
3