1
Exhibit 10.30
COMMUNICATIONS SERVICES AGREEMENT
This Agreement is made as of this 1 day of April, 1997 (the "Effective
Date"), by and between Galileo International, a Delaware general partnership
("GALILEO") with offices at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxx 00000, and AT&T Corp., a New York corporation with offices at 000
Xxxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000, on behalf of itself and its
affiliates, including, without limitation, AT&T Global Communications Services
Inc. ("AT&T").
WHEREAS, GALILEO has developed a computer system (the "System") with
electronic facilities to provide, store, communicate, distribute, process and
document such information as is from time to time stored in databases created
and maintained for the System;
WHEREAS, AT&T provides domestic and international communications services,
including the AT&T EasyLink Fax Services (as described in further detail in
Exhibit A attached hereto, the "Communications Services");
WHEREAS, GALILEO provides its subscribers with access to the System and
its functions as agreed upon between GALILEO and each of its Subscribers. A
"GALILEO Subscriber" shall be defined as a person or entity licensed or
otherwise authorized to use the System for reservations and information
services; and
WHEREAS, the parties desire to provide an interface between AT&T's
EasyLink Services messaging network and the System, to provide the ability for
GALILEO and GALILEO Subscribers to use the Communications Services;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
the parties hereto agree as follows:
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1. Interface Operation and Maintenance.
1.1 GALILEO and AT&T will establish an interface (the "Interface") between
AT&T's EasyLink Services messaging network and the System in accordance with the
terms of this Agreement, including, without limitation, Exhibit A hereto. The
Interface will include the physical leased-line connection(s) and the
inter-working message transmission procedures between AT&T's EasyLink Services
messaging network and the System. The Interface will be designed to provide
continuous transmission service 24 hour per day, 7 days per week. The Interface
shall provide diverse routing of the communication connections between AT&T
EasyLink Services messaging network and the System, with no
single-point-of-failure that could interrupt the Communications Services.
1.2 Neither party may modify the Interface if such modification is
reasonably likely to adversely impact operation of the System or AT&T EasyLink
Services messaging network or use of the System or the Communication Services by
GALILEO Subscribers. AT&T and GALILEO shall establish a procedure for
notification and review in order to support the timely exchange of planning
information of their respective systems.
1.3 The Interface demarcation point shall be the termination point of the
common-carrier line(s) that connects GALILEO's communication facility with the
AT&T EasyLink Services network. The Interface demarcation point shall be located
at the AT&T EasyLink Data Center in Bridgeton, Missouri, USA.
1.4 Each party will provide the facilities and connection from its
respective system to the Interface demarcation point; provided that GALILEO will
provide the DSUs at both the GALILEO and the AT&T side of the demarcation point.
1.5 Each party will be responsible for the operation and maintenance of
the facilities on its side of the demarcation point; provided that GALILEO will
provide the maintenance to the DSUs at both the GALILEO and the AT&T side of the
demarcation point. The parties will review jointly, at the other party's
reasonable request, the current and expected traffic volumes to assure that
ample transmission capacity is maintained for the Interface.
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1.6 GALILEO will provide AT&T with access to the System at no charge;
provided that the use and provision of such access and services shall be limited
to the implementation and support of this Agreement, and is subject to
revocation in the event of abuse; provided, further, that any information to
which AT&T has access as a result hereof will be deemed Confidential Information
and subject to the provisions of Section 7.1 hereof. AT&T will provide special
electronic mail addresses to which messages may be sent by GALILEO Help Desk
personnel at no charge to GALILEO; provided that use of such addresses shall be
limited to the implementation and support of this Agreement and free usage shall
in no event exceed $200 in any month (as calculated in accordance with AT&T's
standard prices for such electronic mail usage, a current copy of which are
attached as Exhibit C).
1.7 Each party will provide the other with all reasonable technical
information and support necessary to the effective implementation, operation,
and maintenance of the Interface.
1.8 Except to the extent expressly provided for otherwise herein, each
party will be responsible for its own costs and expenses incurred in connection
with its performance of its obligations hereunder, including, without
limitation, any incurred in connection with the operation of the Interface and
any associated software that may be necessary or appropriate in its operation.
2. Service Promotion
2.1 Both parties will cooperate in the marketing, promotion and sale of
the Communications Services to GALILEO Subscribers.
2.2 Within 30 days after the Effective Date, GALILEO will provide to AT&T
a list, in a mutually agreed format, of all of the GALILEO Subscribers,
indicating the billing address, phone number and primary contact person for each
such Subscriber. Each month thereafter, GALILEO shall provide AT&T, in a
mutually agreed format, with any updates to such list and any information
regarding GALILEO Subscriber cancellations. Subject to the provisions of Section
2.3, AT&T may communicate at its own cost and expense with GALILEO Subscribers
in such manner as it deems appropriate to draw attention to the availability of
the Communication Services, to encourage GALILEO Subscribers to utilize the
Communication Services and generally to promote the Communication Services or
any other AT&T services.
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2.3 Each party must obtain the prior written approval of the other, in
respect of any promotional communication which use the other party's name or any
of the other party's registered service marks or trademarks. Such approval shall
not be unreasonably withheld by either party.
2.4 By mutual consent, AT&T and GALILEO may issue joint communications to
GALILEO Subscribers regarding the availability of the Communications Services.
Subject to Section 2.3, GALILEO may support and advertise the Communication
Services through its marketing materials and its other relevant publications for
GALILEO Subscribers at GALILEO's cost.
2.5 Exhibit B to this Agreement sets forth the terms and conditions (the
"Terms and Conditions") upon which AT&T shall provide Communications Services to
GALILEO and to GALILEO Subscribers who properly register with AT&T and agree to
be bound by the Terms and Conditions. GALILEO shall store the Terms and
Conditions on the GALILEO Briefing Profiles and shall notify each GALILEO
Subscriber prior to providing access to the Communications Services to such
Subscriber that use of the Communications Services is governed by the Terms and
Conditions and that using the Communications Services indicates acceptance the
Terms and Conditions. GALILEO shall indemnify, defend and hold harmless AT&T
from any loss, liability or expense (including, without limitation, any unpaid
fees for Communications Services provided to any GALILEO Subscriber) incurred or
suffered by AT&T as a result of GALILEO's failure to perform any of the
obligations set forth in this Section 2.5 or Section 2.7.
2.6 AT&T, at its sole and exclusive option, may require any or all GALILEO
Subscribers to submit valid VISA, MasteCard, American Express or Diners' Cards
as a precondition to using the Communications Services and to agree that all
Communications Services usage be directly billed to such credit card.
2.7 GALILEO and GALILEO Subscribers shall pay AT&T for the Communications
Services at the AT&T EasyLink Fax Itinerary rates. Any mailbox fees or monthly
minimum commitment shall be waived by AT&T. The AT&T EasyLink Fax Itinerary
rates (adjusted for the discounts specified in the preceding sent in effect as
of the Effective Date are specified in Schedule B to Exhibit B hereto. AT&T may
revise such rates at any time, and from time to time, upon thirty (30) days'
written notice to GALILEO, together with an
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electronic file setting forth the revised rates. GALILEO shall post such
increased rates on the Briefing Profiles within fifteen (15) business days of
receipt of such file from AT&T.
3. Rights and Responsibilities of GALILEO
3.1 GALILEO's responsibility for traffic which is (i) transmitted by
GALILEO Subscribers via the AT&T EasyLink Services network or (ii) addressed to
GALILEO Subscribers for delivery via the AT&T EasyLink Services network shall
end and begin, respectively, at GALILEO's side of the Interface demarcation
point.
3.2 GALILEO shall provide the necessary technical services and support to
allow GALILEO Subscribers to utilize the Communications Services through the
Interface, in the manner specified in Exhibit A.
3.3 GALILEO shall operate the System and provide GALILEO subscribers
access to Communications Services in all material respects in accordance with
all applicable foreign, U.S., state and local laws, statutes, rules and
regulations.
3.4 GALILEO will maintain full twenty-four (24) hours per day, seven (7)
days per week telephone support by trained GALILEO Support Personnel (as
subsequently defined) for GALILEO Subscribers. GALILEO shall instruct each
GALILEO Subscriber to call GALILEO directly, not AT&T, in the event such
Subscriber requires any support or has any problem with the System or the
Communication Services. In the event that the problem is AT&T's responsibility
under Section 4.1, GALILEO Support Personnel shall contact AT&T for additional
assistance in resolving the problem, if necessary, as provided for in Section
4.3.
4. Rights and Responsibilities of AT&T
4.1 AT&T's responsibility for traffic which is (i) transmitted by GALILEO
Subscribers via the System or (ii) addressed to GALILEO Subscribers for delivery
via the System shall begin and end, respectively, at AT&T's side of the
Interface demarcation point.
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4.2 In order to provide GALILEO Subscribers access to the Communications
Services, AT&T will develop and maintain coding and routing tables, perform such
functions as message format validation and error handling.
4.3 AT&T shall assist GALILEO Support Personnel with any problems or
questions with respect to a message after AT&T acknowledges its receipt by AT&T
over the Interface. AT&T, at its own expense, shall make available personnel in
its customer care unit to assist the GALILEO Help Desk twenty-four (24) hours
per day, seven (7) days per week.
4.4 AT&T shall xxxx GALILEO Subscribers directly for charges incurred by
GALILEO Subscribers associated with use of the Communications Services and
Galileo shall in no event be responsible for such charges except to the extent
that a failure to pay directly results from Galileo's breach of Section 2.5 or
2.7 hereof.
4.5 AT&T shall provide the Communications Services to GALILEO in all
material respects in accordance with all applicable foreign, U.S., state and
local laws, statutes, rules and regulations.
4.6 AT&T shall provide training to a reasonable number of GALILEO
personnel who will be providing training and customer support to GALILEO
Subscribers using the Communications Services ("GALILEO Support Personnel").
Such training by AT&T shall be provided without charge to GALILEO at one U.S.
location to be mutually agreed upon by the parties. AT&T shall be required to
provide no more than three training sessions in any year and no training session
shall exceed five (5) days. GALILEO agrees to cooperate with AT&T in
coordinating these sessions at mutually acceptable times throughout the term of
this Agreement and to arrange for a reasonable number of GALILEO Support
Personnel to attend all training sessions. Both parties shall use reasonable
commercial efforts to hold three (3) training sessions by the first anniversary
of the Effective Date.
4.7 AT&T shall pay GALILEO a commission equal to fifteen (15%) percent of
the GALILEO Subscriber Net Revenue (as defined below) for performing it
obligations hereunder, and referring GALILEO Subscribers to AT&T. Such
commissions shall be payable within 90 days after the end of each month. For
purposes of this Section 4.7, "GALILEO Subscriber Net Revenue" shall mean the
charges billed and paid by GALILEO Subscribers (excluding any charges billed to
GALILEO or its
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affiliates) to AT&T for usage of the communications Services net of any
discounts, taxes and credits. In the event that AT&T compensates GALILEO based
on uncollected charges and subsequently such charges are deemed uncollectible,
then AT&T may, in its sole discretion, deduct the amount of the commission paid
on such charges from future commissions payable to GALILEO. For the purpose of
this Section 4.7, any charge shall be deemed uncollectible in the event not paid
within 90 days after the date upon which it is due.
4.8 Not more frequently than once during each calendar year, upon at least
ninety (90) days' advance written notice and during normal business hours,
Galileo shall have the right to appoint, at its sole cost, an independent
certified public accountant reasonably acceptable to AT&T to inspect AT&T's
books and records, at the place where AT&T keeps such books and records, for the
sole purpose of verifying the accuracy of AT&T's calculation of the payments due
hereunder. Unless Galileo shows good cause why additional audits are necessary,
Galileo may make such an examination for a particular statement only once upon
reasonable advance written notice, and only within one (1) year after the date
that statement was rendered to Galileo. Galileo will not be entitled to examine
any records that do not relate specifically to the Galileo Subscriber Net
Revenue and in no event shall Galileo have the right to inspect statements or
information pertaining to users other than Galileo and Galileo Subscribers.
5. Term and Termination.
5.1 This Agreement shall commence on the Effective Date, and shall
continue until terminated by either party in accordance with this Agreement.
This Agreement may be terminated by either party at any time, without cause,
upon thirty days' prior written notice to the other.
5.2 If either party shall (i) become insolvent or become unable to meet
its obligations as they become due or make a general assignment for the benefit
of creditors; (ii) petition, apply for, suffer, or permit with or without its
consent the appointment of a custodian, receiver, trustee in bankruptcy or
similar officer for all or any substantial part of its business or assets; or
(iii) become subject to any proceeding under the Federal Bankruptcy Code or any
similar state, federal or foreign statute relating to bankruptcy, insolvency,
reorganization, receivership, arrangement, adjustment of debts, dissolution or
liquidation and such
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proceedings are not vacated or set aside within sixty (60) days from the date of
commencement thereof, the other party may immediately terminate this Agreement.
5.3 If either party materially defaults in the observance or performance
of any term, covenant or agreement contained in this Agreement, then the other
party may terminate this Agreement upon thirty (30) days' written notice to the
defaulting party detailing the alleged material default, unless the defaulting
party cures such default and so notifies the other party within such thirty-day
period.
5.4 Any termination of this Agreement shall not serve to eliminate any
liability arising out of conduct prior to the actual date of termination, and
either party may, following such termination, pursue such remedies as may be
available with respect to such liabilities.
5.5 Notwithstanding anything to the contrary contained in this Agreement,
Sections 1.9, 7, 8, 9 and 14 of this Agreement shall in all cases survive any
expiration or termination of this Agreement
6. Independent Contractors
The relationship between GALILEO and AT&T shall be that of independent
contractors, and neither party nor any officer, agent or employee retained by
either party shall be held or construed to be employees or agents of the other.
Neither party shall have the right to bind the other party, whether directly or
indirectly, to any agreement with a third party or to incur any obligation or
liability on behalf of such other party, whether directly or indirectly.
7. Confidentiality
7.1 Each party hereto (the "Disclosing Party") may disclose to the other
party (the "Receiving Party") technical or business information that is
proprietary or confidential to the Disclosing Party, its affiliates or a third
party ("Information") to further the performance of this Agreement. In order to
be deemed Confidential Information hereunder and subject to the restrictions set
forth herein, the Disclosing Party must clearly xxxx the Information proprietary
or confidential, if provided in tangible form, and if provided orally, the
Disclosing Party must, at the time of disclosure, clearly identify it as
proprietary or confidential. The terms and conditions of this Agreement shall
also be deemed Confidential Information and subject to the restrictions
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set forth herein. All Confidential Information shall remain the sole property of
Disclosing Party and the Receiving Party shall have no rights to the
Confidential Information except pursuant to the terms of this Agreement. The
Receiving Party agrees that for the three-year period commencing on the date of
disclosure of any Confidential Information: (a) it shall protect such
Confidential Information by using the same degree of care (which shall be no
less than reasonable care) to prevent its unauthorized disclosure as the
Receiving Party uses to protect its own confidential information of a like
nature; (b) without the prior written consent of the other party, it shall not
make any disclosure of such Confidential Information (including methods or
concepts utilized in Confidential Information) to anyone other than employees,
consultants, and agents to whom disclosure is necessary to further the
performance of this Agreement and who agree (which agreement in the case of
consultants and agents shall be in writing) to be bound by the confidentiality
provisions set forth herein; and (c) it shall not use such Confidential
Information for any purpose other than to perform its obligations or exercise
its rights under this Agreement. Notwithstanding the restrictions contained in
this Section 7.1, the Receiving Party may disclose Confidential Information if
each of the following conditions are met: (i) such disclosure is required by
applicable law, regulation or other governmental requirement; (ii) the receiving
party gives the disclosing party prompt advance notice of such requirement, to
the extent permitted by law, in order to enable the disclosing party to object
to such disclosure; (iii) the receiving party discloses only that portion of
Confidential Information which it is advised in writing by counsel it is
required to disclose; and (iv) the receiving party uses reasonable efforts to
obtain safeguards to ensure that confidential treatment reasonably acceptable to
the disclosing party will be accorded to such Confidential Information.
7.2 Notwithstanding the other provisions of this Agreement, no information
shall be considered to be Confidential Information, if: (i) it is or becomes
available to the public without restriction other than by a breach of this
Agreement; (ii) it has been received by the Receiving Party from a third party
without breach of this Agreement, (iii) it was known to the Receiving Party
prior to its first receipt by the Receiving Party, as shown by files existing at
the time of initial disclosure; (iv) it was independently developed by the
Receiving Party without reference to any Confidential Information, as evidenced
by documentation maintained by the Receiving Party. In addition, Confidential
Information shall in no event be deemed to be disclosed by one party to the
other by the virtue of the fact that such information is transmitted using the
Communications
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Services or the System as the case may be, but must instead be directly
addressed to such party to be subject to Section 7.1.
8. Indemnification
8.1 Subject to the limitations on liability set forth in Section 9, AT&T
will at all times defend, indemnify and hold harmless GALILEO, its affiliates
and all officers, directors, shareholders, successors and assigns of each of the
foregoing (collectively, the "GALILEO Indemnified Parties") from and against,
and pay and reimburse them for, any and all liabilities, obligations, losses,
damages, costs or expense (including interest, penalties and reasonable
attorney's fees and expenses incurred in the investigation or defense of any of
the same or in asserting any of their respective rights hereunder) incurred in
connection with any third party claim arising out of any failure by AT&T to
perform its obligations or abide by the covenants set forth in this Agreement or
relating to matters for which AT&T is responsible under Section 4.1.
8.2 Subject to the limitations on liability set forth in Section 9,
GALILEO will, at all times defend, indemnify and hold harmless AT&T, its
subsidiaries and affiliates and all officers, directors, shareholders,
successors and assigns of each of the foregoing (collectively, the "AT&T
Indemnified Parties") from and against, and pay and reimburse the AT&T
Indemnified Parties for, any and all liabilities, obligations, losses, damages,
costs or expense including interest, penalties and reasonable attorney's fees
and expenses incurred in the investigation or defense of any of the same or in
asserting any of their respective rights hereunder) incurred in connection with
any third party claim arising out of any failure by GALILEO to perform its
obligations or abide by the covenants set forth in this Agreement or otherwise
relating to the System or any other matters for which GALILEO is responsible
under Section 3.1.
8.3 If a third party asserts any claim against any AT&T or GALILEO
indemnified party (each, an "Indemnified Party") for which the other party (the
"Indemnifying Party") is responsible under Section 8.1 or 8.2, as the case may
be, the Indemnified Party shall give the Indemnifying Party written notice
promptly after the Indemnified Party has actual knowledge of such claim and the
Indemnified Party shall permit the
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Indemnifying Party (at such party's expense) to assume the defense of any claim
or any litigation resulting therefrom; provided that (a) the failure by the
Indemnified Party to give such notice shall not relieve the Indemnifying Party
of its indemnification obligations under this Agreement except to the extent
that such failure results in a failure of actual notice to the Indemnifying
Party and, as a result, the Indemnifying is materially prejudiced; and (b) the
Indemnified Party may participate in such defense at the Indemnified Party's
sole expense. Without the Indemnified Party's express written consent, the
Indemnifying Party shall not, in the defense of any such claim or litigation,
consent to the entry of any judgment or enter into any settlement that provides
for injunctive or other nonmonetary relief affecting any related Indemnified
Party.
9. Limitation of Liability
9.1 FOR THE PURPOSES OF THIS SECTION 9, ANY REFERENCE TO "AT&T" OR
"GALILEO" SHALL INCLUDE EACH OF THEIR RESPECTIVE PARENTS, SUBSIDIARIES, AND
AFFILIATES, SUCCESSOR AND ASSIGNS AND THE DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, REPRESENTATIVES, SUBCONTRACTORS, INTERCONNECTION SERVICE PROVIDERS AND
SUPPLIERS OF ALL OF THEM; AND "DAMAGES" SHALL BE DEEMED TO REFER COLLECTIVELY TO
ALL INJURY, DAMAGE, LOSS OR EXPENSE INCURRED.
9.2 Neither party shall have any liability for damages caused by acts or
events beyond such party's control.
9.3 To the extent not excluded from liability pursuant to Section 9.2
above, AT&T's entire liability for any damage arising from AT&T's performance or
non-performance of the communications services or any of its obligations
hereunder, any software defect or otherwise arising under or related to this
Agreement; regardless of the form of action, whether in contract, tort including
negligence, strict liability or otherwise, shall be as follows:
1. For improper performance or non-performance of the Communications
Services, the remedy set forth in the Terms and Conditions.
2. For bodily injury or death to any person negligently caused by
AT&T, GALILEO's right to proven damages.
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3. For claims other than set forth above, AT&T's liability shall be
limited to direct damages which are proven in an amount not to exceed U.S.
$100,000 in the aggregate for all such claims.
9.4 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, INCOME OR
BUSINESS OPPORTUNITIES) WHETHER OR NOT IT HAD ANY KNOWLEDGE, ACTUAL OR
CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED.
9.5 NO THIRD PARTY WHICH INTERCONNECTS WITH AT&T TO SUPPLY THE
COMMUNICATIONS SERVICES SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, INCOME OR
BUSINESS OPPORTUNITIES) WHETHER OR NOT IT HAD ANY KNOWLEDGE, ACTUAL OR
CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED.
10. Severability
If any paragraph or clause contained in this Agreement shall be held to be
invalid or unenforceable in any competent jurisdiction in which these provisions
apply, then the meaning of such paragraph or clause shall be construed for such
jurisdiction so as to render it enforceable to the extent feasible; and if no
feasible interpretation would save such paragraph or clause, it shall be severed
from this Agreement and the remainder shall remain in full force and effect,
unless leaving the remainder in full force and effect would make this Agreement
unjust.
11. Assignment
Neither party shall transfer or assign this Agreement, or any right or
obligation hereunder, by operation of law or otherwise, without the prior
written consent of the other party; provided, however, that transfer or
assignment to a successor, affiliate, subsidiary or parent is permissible
without consent if written notification of such transfer or assignment is given
and the assignee gives written assurance of its intention to comply with the
obligations of this Agreement.
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12. Applicable Law
12.1 The construction, interpretation and performance of this Agreement
shall be governed by the laws of the State of Illinois, excluding its choice of
law provisions.
12.2 In the event of any dispute between the parties under this Agreement
including any dispute whether based on contract, tort, statute or other legal
theory (including, but not limited to, a claim of fraud or misrepresentation)
arising out of or related to this Agreement, or the breach, termination or
validity thereof, the parties shall first attempt to resolve the dispute through
discussions between an authorized representative of GALILEO and an authorized
representative of AT&T. The use of the foregoing procedure is a condition
precedent to the commencement of any mediation, arbitration or other legal
proceedings hereunder.
12.3 If any dispute is not resolved by use of the foregoing dispute
resolution within thirty days, the parties may agree to submit the dispute to a
sole mediator selected by the parties or, at any time at the option of a party,
to mediation by the American Arbitration Association ("AAA"). If not thus
resolved, it shall be referred to a sole arbitrator selected by the parties
within thirty (30) days of the mediation or, in the absence of such selection,
to AAA arbitration which shall be governed by the United States Arbitration Act.
The exclusive mediation/arbitration dispute resolution procedure provided above
shall not be applicable to requests for equitable relief.
12.4 Any award made hereunder shall be made within four (4) months of the
appointment of the arbitrator and may be entered in any court of competent
jurisdiction.
12.5 The requirement for mediation and arbitration shall not be deemed a
waiver of any right of termination under this Agreement and the arbitrator is
not empowered to act or make any award other than based solely on the rights and
obligations of the parties prior to any such termination.
12.6 The arbitrator shall determine issues of arbitrability but may not
limit, expand, or otherwise modify the terms of this agreement. Issues of
arbitrability shall be determined in accordance with the federal
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substantive and procedural laws relating to arbitration; all other aspects of
this Agreement shall be interpreted in accordance with, and the arbitrator shall
apply and be bound to follow the substantive laws of, the State of New York.
12.7 The place of mediation and arbitration shall be New York City, New
York if the request therefor is made by GALILEO, or Chicago, Illinois if the
request therefor is made by AT&T.
12.8 Each party shall bear its own attorneys' fees and other costs and
expenses but those related to the compensation and expenses of the mediator and
arbitrator shall be borne as provided by the AAA.
12.9 A request by a party to a court for interim measures or equitable
relief shall not be deemed a waiver of the obligation to mediate and arbitrate.
12.10 If court proceedings to stay litigation or compel arbitration are
necessary, the party who unsuccessfully opposes such proceedings shall pay all
associated costs, expenses and attorney's fees which are reasonably incurred by
the other party.
12.11 Notwithstanding anything to the contrary in this Section, in the
event of alleged violation of a party's intellectual property rights (including
but not limited to unauthorized disclosure of Confidential Information), that
party may seek temporary injunctive relief from any court of competent
jurisdiction pending appointment of an arbitrator. The party requesting such
relief shall simultaneously file a demand for arbitration of the dispute, and
shall request the AAA to proceed under its rules for expedited hearing. In no
event shall any such temporary injunctive relief continue for more than 30 days.
12.12 The arbitrator shall not have authority to award punitive or other
damages in excess of compensatory damages and each party irrevocably waives any
claim thereto.
12.13 The parties, their representatives, other participants and the
mediator and arbitrator shall hold the existence, content, and result of
mediation and arbitration in confidence.
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13. Notice
Notice given or required under the Agreement, unless otherwise specified,
shall be delivered by overnight courier or by first class mail, postage prepaid
to the respective address of GALILEO or AT&T as set forth at the beginning of
the Agreement or to such other person or address specified by each party in
writing pursuant to this Article. If to AT&T, such notice shall be to Vice
President, Sales, with a copy to General Attorney, AT&T EasyLink Services. If to
GALILEO, such notice shall be sent to:
Xxxx Xxxxx
Purchasing Department
Galileo International
0000 Xxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxx 00000
14. Waiver
A failure or delay of GALILEO or AT&T to require strict performance or to
enforce a provision of this Agreement or a previous waiver or forbearance by
GALILEO or AT&T shall in no way be construed as a waiver or continuing waiver of
any provision of this Agreement.
15. Headings
The headings or titles to the Articles are for convenience only and are
not binding on either party hereto.
16. Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which shall together constitute one
and the same instrument.
17. Entire Agreement
This Agreement, including Exhibits A and B hereto, sets forth the entire
agreement and understanding of the parties with respect to the subject matter
hereof, and supersedes all prior negotiations, oral and written
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agreements and understandings relating thereto. Each party acknowledges that it
is not entering into this Agreement on the basis of any representations not
expressly contained herein.
GALILEO and AT&T, by their respective duly authorized representatives, have
executed this Agreement as of the date written above.
AT&T CORP. GALILEO INTERNATIONAL
By By /s/ Xxxx X. Xxxxx
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Name Name XXXX X. XXXXX
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Title Title U.S. PURCHASING MANAGER
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Date Date 1 APRIL 1997
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