CONFIDENTIAL TREATMENT REQUESTED BY 800 TRAVEL SYSTEMS, INC. FOR PORTIONS OF
THIS AGREEMENT INDICATED BY [**..**] AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION.
This SABRE' Subscriber Agreement (the "Agreement") is entered into by and
between SABRE Travel Information Network, a division of The SABRE Group Inc.
("TSG") and the undersigned ("Customer'), as of the date executed by TSG below
("Effective Date") regarding the provision of products and services set forth
herein to Customer's locations within the United States and its territories.
1. LEASE TERM
1.1 LEASE. For the term specified in Article 1.2 below, TSG shall lease to
Customer the System, as defined herein.
1.2 TERM. This section is crossed out. See below for amendment.
2. DEFINITIONS.
The following terms shall have the following meanings in this Agreement:
2.1 AGREEMENT means this SABRE Subscriber Agreement, and all Amendments,
Schedules and Supplements made a part hereof.
2.2 CHARGES has the meaning given in Article 3.2.
2.3 COMMUNICATION PROTOCOL means the rules or standards on how data transmission
takes place across computer networks.
2.4 CONFIDENTIAL INFORMATION means this Agreement, any and all applicable rights
to patents, copyrights, trademarks and trade secrets, proprietary and
confidential information of TSG or Customer, their affiliates, subsidiaries,
successors or assigns concerning their past, present or future research,
development, business activities or affairs, finances, properties, methods of
operation, processes and systems, agreements (including without limitation
private fare or special discount agreements) related to the business of TSG or
Customer.
2.5 INFORMATION PROVIDER means any party other than Customer, which provides
information for inclusion in the SABRE System, including, without limitation,
▇▇▇▇ Elsevier Inc., the publisher of the Official Airline Guide.
2.6 INSTRUCTIONS means any and all manuals, operating procedures, manufacturer's
recommendations, rules, and instructions delivered or made available to Customer
by TSG either in hard-copy or via the SABRE System, and which must be complied
with by Customer. Such instructions may be unilaterally revised or amended by
TSG at any time.
2.7 INTERNET means the global computer network commonly referred to as the
"Internet".
2.8 INTERNET CONNECTION means any connection between the Internet and the SABRE
System or System for the purpose of allowing clients of Customer to make direct
reservations for the products and services offered in the SABRE System.
2.9 ISP means any third party computer network which connects Customer or its
employees to the SABRE System or the System via the Internet. ISPs and ISP
supplied equipment such as datalines or browser software are not included in the
definitions of the SABRE System or the System.
2.10 NON-SABRE TRAFFIC means data other than that passing to and from the SABRE
System which is transmitted and received by Customer using the System.
2.11 NON-STANDARD SYSTEM means any hardware, Software, communication access
devices or firmware not acquired from TSG, including any such Non-Standard
System acquired from an ISP.
2.12 PNR means a passenger name record created in the SABRE System.
2.13 PARTICIPANT means any air carrier (including scheduled, charter, domestic
and international airlines) car rental company, surface transportation carrier,
hotel or lodging provider, railroad, steamship company, cruise or tour operator
or other vendor of travel related products, information or services which has an
agreement with TSG for the display of information regarding its products or
services in the SABRE System.
2.14 PROHIBITED SEGMENT means a Travel Service Segment for which no
corresponding space has been reserved within the transporting carrier's internal
reservation system.
2.15 SABRE BOOKING means an airline, hotel, tour, rental car or cruise Segment
that obligates a Participant to pay a booking fee to TSG and that is created in
or processed through the SABRE System by Customer during any one calendar month
or that is secured to Customers location, less cancellations made prior to the
Segment Activity Date. SABRE Bookings are credited in the latter of (i) the
calendar month in which the Segment Activity Date occurs or (ii) the calendar
month in which the Segment is actually processed by the SABRE System for billing
to the Participant. SABRE Bookings may include additional product or service
Segments in the future at TSG's sole discretion.
2.16 SABRE COMPONENT means all memory, disk storage space, ports and any other
element of the Standard Equipment.
2.17 SABRE LICENSEE means a person or entity licensed to market the SABRE System
in a designated area of the world.
2.18 SABRE SUBSCRIBER means a person or entity, other than an airline, which
utilizes the SABRE System to make reservations. The term "SABRE Subscriber"
shall include any person or entity making reservations through any version of
the SABRE System or through a SABRE Licensee.
2.19 SABRE SYSTEM means TSG's global distribution system (commonly referred to
as a computerized reservation system) which collects, stores, processes,
displays and
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* SABRE is a registered trademark of a subsidiary of The SABRE Group, Inc.
The parties hereby agree that Article 1.2 of the Agreement shall be deleted in
its entirety and the following language shall be deemed included as Article 1.2
thereof
1.2 TERM. The lease term of the System identified on Schedule A shall commence
on the date of installation and shall continue for sixty (60) months ("Initial
Term"). Any additional System installed up to and including the [**..**] month
after the Effective Date shall terminate at the end of the Initial Term. The
term of any additional System installed subsequent to the [**..**] month of this
Agreement shall have a term of sixty (60) months commencing on the date of
installation ("Additional Term"). Any additional System installed after the
Effective Date shall be subject to the terms and conditions of this Agreement.
[**..**] Confidential Treatment Requested
distributes information through computer terminals concerning air and ground
transportation, lodging and other travel related products and services offered
by travel suppliers and which enables SABRE Subscribers to (i) reserve or
otherwise confirm the use at or make inquiries or obtain information in relation
to, such products and services and/or (ii) issue tickets for the acquisition or
use of such products and services.
2.20 SCHEDULE A means the document reflecting the Charges and any applicable
discounts for the System as amended by any additional documents.
2.21 SEGMENT means (a) for airline bookings, each separate flight segment
reservation identified by a separate flight number in a PNR, multiplied by the
number of passengers booked in such PNR for such flight segment; (b) for hotel
bookings, each separate reservation that is processed through the SABRE System
with an action status code of HK, KK or KL regardless of the number of rooms
suites or other accommodations or the number of persons or the duration of the
stay; (c) for car rental bookings, each separate reservation that is processed
through the SABRE System with an action status code at HK, KK or KL regardless
of the number of vehicles or persons or the duration of the rental; and (d) for
cruise and tour bookings, each separate reservation that is created in or
processed through the SABRE System and confirmed by the Participant regardless
of the number of cabins or travelers or the duration of the cruise or tour. The
term Segment does not include Prohibited Segments.
2.22 SEGMENT ACTIVITY DATE means the first date listed in a PNR for the relevant
Segment.
2.23 SITE means Customer's location at which the System is to be installed as
identified on Schedule A,
2.24 STANDARD EQUIPMENT means the items of hardware and communication access
devices, including, without limitation, communication data lines and networks,
leased to Customer by TSG in accordance with this Agreement and identified on
Schedule A..
2.25 SUPPLEMENT means a document reflecting any changes to the System, and/or
Charges or discounts related thereto, all as agreed to by the parties. A
Supplement will be provided by TSG upon request of Customer.
2.26 SYSTEM means the Standard Equipment SABRE Component, System Software and/or
Internet Connection.
2.27 SYSTEM SOFTWARE means that software delivered by TSG to Customer.
2.28 TRANSACTION means a grouping of characters transmitted to the SABRE System
whether such transmission is made in the SABRE System manually or automated,
including transmissions made through an Internet Connection. Each transmission
to the SABRE System from Customer constitutes one Transaction. No input message
may exceed three hundred (300) characters in length.
2.29 TRANSACTION LIMIT has the meaning given in Article Transaction Ratio has
the meaning given in Article 10.3.
2.30 TRANSACTION RATIO has the meaning given in Article 3.3.
2.31 TRAVEL SERVICE SEGMENT means a SABRE Booking entered in the SABRE System
with an action status code of GK, GL, BK, BL, HN, YK, HK* or HL*.
3. CHARGES AND PAYMENTS
3.1 PREPAYMENT. Upon execution of this Agreement by Customer, Customer shall pay
to TSG the non-refundable prepayment as shown on Schedule A. If the System is
installed, the prepayment shall be credited against the Customer's first
Charges.
3.2 CHARGES. All amounts payable to TSG ("Charges") shall be due and payable in
United States dollars within fifteen (15) days of the date of TSG's invoice,
without setoff or counterclaim.
3.3 ADDITIONAL CHARGES. Customer agrees to pay to TSG additional Charges at
TSG's then prevailing rate for services and materials including without
limitation the following: (a) the installation or removal of Standard Equipment;
(b) Standard Equipment relocation within the Site; (c) each Site disconnect or
relocation to different premises; (d) modifications, upgrades, enhancements or
additions of Standard Equipment and/or System Software; (e) any applicable fees
for non-compliance with any payment terms; (f) installation of peripheral
devices requested by Customer, (g) processing Transactions which exceed the
level of one hundred thirty (130) Transactions per SABRE Booking ("Transaction
Ratio"), (h) materials for use with the Standard Equipment, including, but not
limited to ticket stock for use with thermal ticket printers and (i) connecting
the System to other TSG approved networks or systems. The Transaction Ratio is
subject to change by TSG upon thirty (30) days advance notice to Customer.
3.4 VARIABLES. If Customer elects to use certain variables including, without
limitation, Ticketing and Invoice/Itinerary functions or Microfiche, Customer
shall pay all Charges for such variables based on TSG's then prevailing rate.
3.5 INCREASES. TSG shall have the right to increase the Charges, other than the
Fixed Monthly Charges identified on Schedule A, for the remaining term of this
Agreement upon thirty (30) days advance written notice to Customer. If the
increase exceeds ten percent (10%) of the Charges in any consecutive twelve
month period, Customer may terminate this Agreement upon written notice to TSG
within fifteen days of receipt of TSG's notice of the increase. Notwithstanding
the foregoing, the Charges for data lines or other communication access devices
shall be subject to increase, at any time and without limitation, to cover any
increase in the cost imposed upon TSG by the telecommunications vendor.
3.6 MODIFICATIONS. TSG's completion of any modification to the System or
Customer's payment of any revised Charges related thereto, whichever occurs
first, constitutes acceptance and ratification of the modifications to the
System and the revised Charges and/or discounts related thereto.
3.7 INTEREST. Charges not paid when due shall accrue interest at the rate of
eighteen percent (18%) per annum or the highest rate permitted by the governing
law indicated in Article 15.1, whichever is less.
3.8 TAXES. Customer shall pay any taxes, or assessments including any interest
or penalty thereon levied as a result of this Agreement, excluding taxes
measured by the net income of TSG. Customer shall indemnify and hold harmless
TSG from all costs, fines and expenses (including reasonable legal costs)
incurred by TSG resulting from Customers failure to pay taxes as provided in
this Article.
4. INSTALLATION AND DELIVERY
4.1 DELIVERY. TSG shall arrange for delivery of the System F.O.B. the Site, on
the estimated installation date, as identified on Schedule A.
4.2 INSTALLATION. Subject to Article 4.3, TSG shall install, or cause to be
installed, the System at the Site. Customer shall allow installation of the
System at the Site. Customer's failure to do so or to give adequate assurance
that it will do so on the estimated installation date, will constitute an Event
of Default pursuant to Article 14.1.2.
4.3 CUSTOMERS OBLIGATIONS PRIOR TO INSTALLATION. Customer at its expense, shall
be responsible for preparing, on or before the estimated installation date, the
Site for the System in accordance with the instructions. If installation of the
System is prevented or delayed because of Customer's failure to prepare the
Site, TSG shall use reasonable efforts to install the System upon Customer's
compliance with this Article and upon payment of all reasonable expenses
incurred by TSG resulting from Customer's failure to prepare the Site.
4.4 RELOCATION AND POSSESSION. Customer shall at all times keep the System in
its sole possession and control at the Site. Customer shall not move any part of
the System from the Site without first obtaining the written consent of TSG.
Such consent will not be unreasonably withheld.
4.5 COMMUNICATION ACCESS. Except when Customer utilizes an ISP to access the
SABRE System, TSG or its designated third party shall install the necessary
communication access device to connect the System to the SABRE System and other
approved systems or networks. All such devices are either owned by TSG or such
third-party, are subject to this Agreement, and shall be returned to TSG or the
third-party as TSG directs upon termination of the Agreement.
4.6 NON-STANDARD SYSTEM.
4.6.1 Subject to Customers compliance with all other terms and conditions
of this Agreement, TSG agrees to allow Customer to connect or use
Non-Standard System with the System without TSG's prior written consent
except to the extent that such Non-Standard System consists of
communications data lines, emulator boards, gateways, routers, ticket
printers or other devices connecting directly to the System or SABRE System
("Reserved Equipment"). TSG consent for Reserved Equipment shall be
conditioned upon TSG certification and approval prior to its use with the
System. Such consent may be withheld in order to preserve the integrity of
the SABRE System and the System.
4.6.2 Customer shall represent and warrant to TSG that the Non-Standard
System and its connection to the System conforms in all respects to TSG's
Non-Standard System standards and specifications, a copy of which Customer
may request from TSG, and will not be altered or modified without prior
notice to TSG.
4.6.3 Customer shall remove all Non-Standard System placed on or within the
Standard Equipment prior to TSG's removing such Standard Equipment from
Customers Site. TSG disclaims, and Customer hereby waives and indemnities,
any responsibility or liability on the part of TSG, under any theory
whatsoever, for any Non-Standard System that Customer has failed to remove
from the Standard Equipment prior to TSG's removing such Standard Equipment
from Customers Site.
4.6.4 Customer shall not use Non-Standard System in conjunction with the
System for any function not specifically outlined in this Agreement and any
use or attempted use for any other function shall constitute an Event of
Default under Article 14.1.2.
4.6.5 Customer shall also ensure that TSG has access to Customer's Site on
request for conducting on-site inspections, testing or to oversee
installation of the Non-Standard System. Customer is responsible for
ensuring that any Standard Equipment at Customer's Site is connected to the
System for the purposes of performing testing and diagnostics on such
Standard Equipment by TSG's designated agent. If TSG reasonably determines
that the Non-Standard System is causing, or contributing to, a problem with
the System, the SABRE System or another SABRE Subscribers access to or
operation of the SABRE System, then TSG has the right to immediately
restrict access to the SABRE System upon notice to Customer as provided for
in this Agreement and TSG shall have no liability to Customer for such
restriction of access.
4.6.6 Customer agrees that its continued right to maintain the connection
between the Non-Standard System and the System and/or the SABRE System and
to use the Non-Standard System in connection with the Standard Equipment
shall be dependent upon Customer's full cooperation with requests by TSG to
repair, alter, modify, or where necessary, de-install the Non-Standard
System if TSG reasonably determines that the Non-Standard System, or a
component thereof, is impairing the System, the SABRE System or another
SABRE Subscriber's access to or operation of the SABRE System.
4.6.7 Customer shall pay TSG's then prevailing rate for all employee
resources expended by TSG for, but not limited to, TSG's monitoring of the
installation of the Non-Standard System and/or expended in connection with
on-site inspection and/or testing of the Non-Standard System after
installation, service calls and any travel and incidental expenses incurred
by TSG's personnel or vendors for the conduct of such monitoring,
inspecting, testing or service calls; provided, however, that after the
initial Installation of the Non-Standard System, TSG will make such on-site
inspections or test only where it reasonably believes that the Non-Standard
System is impairing the System, the SABRE System or another SABRE
Subscribers access to or operation of the SABRE System.
4.6.8 Customer agrees that TSG has first and complete access to the SABRE
Component. If as a result of Customer's use of Non-Standard System, an
upgrade of the SABRE Component is required, Customer shall comply with the
applicable provisions of this Agreement.
4.6.9 TSG reserves the right to modify the SABRE System or the System, even
if such modification requires changes in Customer's Non-Standard System.
TSG will make reasonable efforts to notify Customer in advance of such
changes. Any expenses incurred in modifying Customer's Non-Standard System
to conform to the SABRE System or System modifications shall be the sole
responsibility of Customer.
4.7 ACCEPTANCE OF SYSTEM. Upon installation of the System and establishment of a
successful connection with the SABRE System and any other TSG approved systems
or networks, Customer shall be deemed to have accepted the System. Any use of
the System, additional System and/or Non-Standard System further constitutes
acceptance of this Agreement by Customer.
5. REPAIRS AND MAINTENANCE
5.1 REPAIRS AND MAINTENANCE. Upon prompt notification from Customer, TSG or its
designated agent shall promptly repair and maintain or replace the Standard
Equipment provided that the Standard Equipment has been subject to reasonable
operation. Customer shall not make any modifications nor attempt to perform
repairs or maintenance of any kind to the System.
5.2 LIMITATION. TSG is not responsible for repairs and maintenance of any
Non-Standard System or other hardware, software or communication access devices
at Customer's Site or at the locations of other TSG approved systems or networks
beyond the point at which they are connected to the System and/or the SABRE
System.
5.3 NOTIFICATION. Customer shall promptly inform TSG of any breakdown of the
Standard Equipment by contacting SABRE Customer Services. Customer shall
maintain a record of all occasions upon which repair or maintenance service is
performed and make such records available to TSG upon request
5.4 CHARGES. Repair or maintenance services on Standard Equipment during normal
business hours (9:00 a.m. to 6:00 p.m. local time, Monday through Friday,
excluding legal holidays) are included in the Charges, provided that the
Customer has not been negligent and the Standard Equipment has been subject to
reasonable operation; otherwise, Customer will be charged a service fee in
accordance with TSG's or its independent contractors then prevailing rates.
5.5 NON-STANDARD SYSTEM. All maintenance of the Non-Standard System shall be the
sole responsibility of the Customer. TSG will accept calls to SABRE Customer
Services regarding a malfunction of the Non-Standard System if TSG determines
that the malfunction is not attributable to the Non-Standard System. Customer
shall pay TSG's then prevailing maintenance charges for any maintenance calls
for the SABRE System or the System if TSG reasonably determines that the
problems were caused by or attributable to the Non-Standard System.
6. TITLE AND OWNERSHIP OF SYSTEM.
The System leased hereunder shall remain the property of TSG. Customer shall not
in any other manner dispose of the System or any part thereof or suffer any lien
or legal process to be incurred or levied on the System.
7. INSURANCE
7.1 GENERAL. Customer shall take all necessary precautions to protect the System
Installed at Customer's Site.
7.2 At its own cost, Customer shall procure and maintain insurance, from an
insurer and on terms and conditions acceptable to TSG, insuring the System
against all risk of loss or damage, including, without limitation, the risk of
fire, theft and any other such risks as are customarily insured in a standard
all risk policy. Such insurance shall also provide the following:
7.2.1 Full replacement value coverage for the Standard Equipment, which
value is set forth on Schedule A.
7.2.2 An endorsement naming TSG as a co-insured and as a loss payee to the
extent of its interest in the Standard Equipment; and
7.2.3 An endorsement requiring the insurer to give TSG at least thirty (30)
days prior written notice of any intended cancellation, non-renewal,
material change in coverage or, within thirty (30) days of the event
written notice of any default in the payment of a premium.
7.3 Risk of loss for and damage to the System shall pass to the Customer upon
delivery of the System to the Site.
7.4 TSG may request at any time proof of such insurance and/or other form of
surety from Customer. The failure of Customer to produce such proof or surety
within thirty (30) days of the request by TSG will be considered an Event of
Default as defined in Article 14.1.2 herein.
8. TITLE AND OWNERSHIP OF CONFIDENTIAL IN FORMATION
8.1 Each party's Confidential Information shall remain that party's exclusive
property.
8.2 Each party shall maintain the confidentiality of the other party's
Confidential Information at all times during and after the term of this
Agreement. Neither party shall use, sell, sublicense, transfer, publish,
disclose, display, or otherwise make available to others, except as authorized
in this Agreement, the Confidential information of the other party or any other
material relating to the Confidential Information of the other party nor shall
either party permit its officers, employees, agents, contractors or
subcontractors to divulge the other party's Confidential Information without
that party's prior written consent.
8.3 Customer shall use the data, other than Non-SABRE Traffic, transmitted under
this Agreement ("Data") solely for the benefit of itself and its customers in
connection with rendering the following services: (i) air carrier, hotel, car
and rail reservations, including schedule quotations; (ii) customer accounting
and record keeping activities; or (iii) the sale of or reservations for other
miscellaneous products or services offered in the SABRE System. Customer shall
not publish, disclose or otherwise make available to any third party any
compilation of Data obtained from the SABRE System. However, Customer may use
specific Data for the benefit of its customers in connection with any
reservation or schedule quotation production of a hard copy travel itinerary,
invoice, statement or ticket.
8.4 Nothing in this Agreement shall be interpreted to limit in any way TSG's
right to use, market, sell or publish any booking related data subject only to
any applicable laws or regulations.
9. SYSTEM SOFTWARE LICENSE
9.1 OWNERSHIP OF SYSTEM SOFTWARE. Customer acknowledges that TSG or the original
manufacturer of the System Software, as applicable, owns or has licensed from
the owner; copyrights in the respective System Software and
that ownership and title are retained by the manufacturer or its licenser. All
applicable rights to patents, copyrights, trademarks, and trade secrets inherent
in the System Software and pertinent thereto are and shall remain TSG's or the
original manufacturer's sole and exclusive property. Any copy of such System
Software must incorporate any copyright, trade secret, or trademark notices or
legends appearing in the original version delivered to Customer.
9.2 GRANT OF LICENSE. Subject to the provisions of this Agreement and for the
term specified in Article 1.2, either TSG or the original manufacturer grants to
Customer a non-transferable, non-exclusive limited license to use the System
Software subject to the following restrictions: (a) Customer shall use the
System Software solely in connection with its use of the SABRE System, (b) the
System Software shall be used and installed solely at the Site and solely used
on the Standard Equipment or Non-Standard System authorized under Article 4.6,
(c) the System Software shall be used solely for internal purposes and only in
the ordinary course of business, (d) Customer shall not compile, reverse compile
decompile, disassemble, reverse assemble or reverse engineer the System Software
or any portion thereof, (e) the System Software shall not be copied or reprinted
in whole or in part except (i) a reasonable number of copies of each program may
be made in machine readable form for reasonable archival or backup purposes or
(ii) when TSG has granted permission to do so, (f) Customer shall not lease,
sell, license, sublicense or otherwise transfer the System Software to any other
party, and (g) the terms of this Agreement shall govern the System Software
license unless modified by a license which may be associated with a particular
software product, wherein the license associated with that particular software
product shall govern.
9.3 MODIFICATION RIGHTS. Customer shall not modify the System Software or merge
such software into other programs or create derivative works based on such
software. Additionally, Customer shall not delete or cause to be deleted the
System Software from the Standard Equipment. Notwithstanding anything to the
contrary contained herein, noncompliance with this provision shall constitute an
Event of Default under this Agreement and this Agreement shall immediately
terminate and Customer shall be obligated to pay TSG damages as specified in
Article 14.2 hereof.
9.4 UPGRADES AND MODIFICATIONS. All tangible objects containing or relating to
the System Software are the sole and exclusive property of TSG or the
manufacturer. In the event TSG modifies the System Software, it may deliver such
modified System Software to Customer at its then current charge, if any, and
Customer shall promptly return to TSG any and all tangible objects relating to
all previous versions of the System Software as provided in Article 16.7.
Customer shall be solely responsible for protecting all software not obtained
from TSG hereunder and the data related thereto in the event of a software
upgrade. Customer, in order to receive an upgraded or updated program, shall
comply with any and all terms, conditions and Instructions requested by TSG.
9.5 OPERATING PROGRAM.
9.5.1 Customer acknowledges that the System Software may incorporate, in
part, copyrighted materials pertinent to the Operating Program as
identified on Schedule A ("Operating Program"). Customer agrees that such
copyrighted portions shall be subject to the Operating Program copyright
end license.
9.5.2 If Customer requires additional Operating Programs, Customer shall
notify TSG and TSG will provide Customer with additional copies to support
additional video agent sets pursuant to this Agreement.
9.5.3 Customer will look only to TSG and not to the manufacturer for any
support, maintenance, assistance and upgrades and the like with respect to
the Operating Program and the manufacturer shall have no liability to
Customer in relation to the Operating Program.
9.5.4 No action, regardless of form, arising out of the license of the
Operating Program may be brought more than two years after the cause of
action has arisen.
9.5.5 Customer shall physically retain a copy of the Conditions of Use for
SABRE Users (Attachment I) with each Applicable video agent set or
dedicated fileserver/processor eligible to use such Operating Program.
10. OPERATION OF THE SABRE SYSTEM AND THE SYSTEM
10.1 OPERATION OF SYSTEM.
10.1.1 The SABRE System and the System shall be operated by Customer solely
for the purposes and functions expressly permitted by this Agreement and in
strict accordance with the instructions. Customer shall not in any way
utilize the System for the direct or indirect purpose of bypassing or
circumventing the SABRE System in communicating in any way with
Participants. Any violation of this provision will be deemed an Event of
Default under Article 14.1.2.
10.1.2 Customer may use the System to transmit and receive Non-SABRE
Traffic only from those systems or networks approved in writing by TSG.
Customer acknowledges that in cases of communications capacity limits being
reached, data transmission through the System with the SABRE System will be
given priority over any Non-SABRE Traffic.
10.1.3 Customer shall access the SABRE System only through the System, an
ISP or another system or device authorized in writing by TSG.
10.1.4 Customer shall take all precautions necessary to prevent
unauthorized operation or misuse of the SABRE System or the System,
including without limitation, speculative booking, shell bookings,
reservation of space in anticipation or demand, or improper record or
access. In the event of misuse of the SABRE System or the System, TSG
reserves the right, in addition to all rights under the Agreement, to
immediately terminate the Agreement.
10.1.5 Customer shall not enter any Prohibited Segments into the SABRE
System. Prohibited Segments so entered shall not be calculated in
determining productivity levels under the Agreement. All Travel Service
Segments shall be removed from the SABRE System should corresponding space
be canceled direct via telephone with the transporting carrier.
10.2 NON-EXCLUSIVITY. This Agreement is not exclusive and nothing in the
Agreement is intended to preclude or prohibit Customer from using any other
computerized reservation system. The parties agree that Customer's
expected use of the System is the Fixed Monthly Discount Booking Level stated in
Schedule A.
10.3 TRANSACTION VOLUME. Notwithstanding the provisions of Article 3.3(g), TSG
shall have the right upon thirty (30) days notice to Customer to limit Customer
to generating no more than one hundred thirty (130) Transactions per SABRE
Booking ("Transaction Limit"). The Transaction Limit may be changed by TSG upon
thirty (30) days advance notice to Customer.
10.4 TRAINING. TSG will make available introductory SABRE System training during
the installation process. For purposes of this Article, the installation process
is defined as anytime between contract signing by both Customer and TSG through
two months after installation is complete.
10.4.1 Upon written request from Customer, at such time that installation
is complete, additional training may be offered subject to availability and
at TSG's then prevailing rate per person, per class. The additional
training charge will be assessed on Customer's monthly invoice.
10.4.2 The training described in Article 10.4 shall be performed at a
location designated by TSG.
10.4.3 Except as otherwise provided herein, Customer is responsible for all
training of all its employees in the proper use of the SABRE System.
10.4.4 In addition to the training described in Article 10.4, TSG may offer
to Customer supplemental training programs on a local level at TSG's then
prevailing rate and method of delivery. Such training may consist of, but
not be limited to, workshops, seminars, self-paced instruction and
individual consultations.
10.4.5 Customer and its trainees agree to comply with all training
procedures and rules established by TSG, and TSG reserves the right to
remove any Customer trainee from the training program if such trainee fails
to comply with such procedures and rules.
10.4.6 TSG may, at its discretion, monitor or test Customers employee's
training levels. If TSG determines the training level of any one or more of
Customers employees to be insufficient, then Customer will institute such
additional training at its own expense (including, if necessary, additional
training by TSG at TSG's then prevailing charges) as may be necessary to
bring Customer's employees to the level of training required by TSG.
11. WARRANTY, AND LIMITATION OF WARRANTY, LIABILITY AND REMEDY
11.1 SABRE WARRANTY. TSG agrees to use reasonable efforts to maintain the
availability of the SABRE System, but shall have no liability for interruptions
in the operation of the SABRE System except as specifically provided herein.
Subject to the terms hereof, in the event that the SABRE System is not operable
ninety-five percent (95%) of the total normal business hours each month,
excluding periods for maintenance of Standard Equipment or other scheduled down
time ("Normal Time"), TSG will reduce the monthly Charges (on a pro-rata basis
according to the percentage of Normal Time during which the SABRE System was not
operable at least ninety-five percent (95%) of the Normal Time. For purposes of
this article, normal business hours shall be 9:00 a.m. to 8:00 p.m., local time
Monday through Saturday. The SABRE System shall be deemed inoperable if Customer
is unable, after calling SABRE Customer Service to make any SABRE Bookings as a
result of a failure attributable to the SABRE System. To request a reduction
under this Article, Customer shall submit a written record to TSG and request an
adjustment in the monthly charges. Customer's written records must be submitted
in a timely manner and include, at a minimum, the date and time of the outage,
the time the outage was reported to SABRE Customer Service, the time the SABRE
System was restored (within normal business hours as defined above) and the type
of outage.
11.2 LIMITED WARRANTY OF THE SYSTEM. In the event of a material malfunction or
defect in an unaltered component of the System that substantially affects
performance of the System that is reported by Customer to TSG and that can be
reproduced by TSG, TSG will use reasonable efforts to correct such malfunction
or defect without additional charge to Customer. THE FOREGOING SHALL BE
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY MALFUNCTION OR DEFECT IN THE
SYSTEM. IF SUCH MALFUNCTION OR DEFECT MATERIALLY IMPAIRS CUSTOMER'S USE OF THE
SYSTEM AND CANNOT BE CURED AS PROVIDED IN THIS SECTION, THEN CUSTOMER'S
ALTERNATE SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT WITHOUT
FURTHER LIABILITY TO TSG FOR DAMAGES HEREUNDER.
11.3 EXCLUSION OF OTHER WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
ARTICLE, THE USE OF THE SABRE SYSTEM, THE DATA DERIVED FROM THE SABRE SYSTEM,
THE SYSTEM AND/OR ANY COMPONENTS THEREOF ARE PROVIDED TO CUSTOMER BY TSG, ANY
INFORMATION PROVIDER OR THE OWNER OF ANY ELEMENT OF THE SYSTEM (AS THE CASE MAY
BE) "AS IS AND WITH ALL FAULTS". ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY, COMPLETENESS AND
NON-INFRINGEMENT OF THE DATA DERIVED FROM THE SABRE SYSTEM, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED
WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF
TRADE.
11.4 LIMITATION OF LIABILITY.
11.4.1 NEITHER TSG NOR ANY INFORMATION PROVIDER NOR ANY OWNER OP ANY
ELEMENT OF THE SYSTEM OR THE SABRE SYSTEM SHALL BE LIABLE TO CUSTOMER OR
ANY THIRD PARTY FOR ANY INJURY, LOSS, CLAIM OR DAMAGE CAUSED IN WHOLE OR IN
PART BY THE NEGLIGENCE OF TSG OR ANY INFORMATION PROVIDER OR BY ANY OWNER
OF ANY ELEMENT OF THE SYSTEM OR BY EVENTS BEYOND THE CONTROL OF TSG OR OF
ANY OF THOSE OTHER PERSONS.
11.4.2 IF A PASSENGER USES A CONFIRMED TICKET FOR AIR TRANSPORTATION ISSUED
PURSUANT TO A RESERVATION MADE BY CUSTOMER BY MEANS OF THE SABRE SYSTEM AND
IS REFUSED CARRIAGE BECAUSE OF AN OVERSALE OF SEATS OR THE LACK OF RECORD
OF SUCH RESERVATION, THE SOLE REMEDY OF CUSTOMER SHALL BE AS SET FORTH IN
THE TARIFF OF THE REFUSING CARRIER OR APPLICABLE TERMS AND CONDITIONS OF
THE CARRIERS CONTRACT OF CARRIAGE.
11.4.3 TO THE EXTENT THAT TSG HAS ANY LIABILITY UNDER THIS AGREEMENT OR
UNDER ANY THEORY OF LIABILITY, TSG'S CUMULATIVE LIABILITY FOR DAMAGES TO
CUSTOMER HEREUNDER SHALL BE LIMITED TO THE LESSER OF (1) CUSTOMER'S DIRECT
DAMAGES, (2) THE TOTAL AMOUNT OF CHARGES ACTUALLY PAID BY CUSTOMER TO TSG
PURSUANT TO THIS AGREEMENT OVER THE TERM OF THIS AGREEMENT, OR (3) ONE
MILLION DOLLARS ($1,000,000).
11.4.4 NEITHER TSG NOR ANY INFORMATION PROVIDER NOR ANY OWNER OF ANY
ELEMENT OF THE SYSTEM SHALL BE LIABLE TO CUSTOMER UNDER ANY THEORY OF
LIABILITY OR ANY FORM OF ACTION, INCLUDING NEGLIGENCE FOR ANY INCIDENTAL
SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES UNDER ANY
CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE OR
SAVINGS, OR THE LOSS OF USE OF ANY DATA, EVEN IF THAT PERSON THAT WOULD
HAVE BEEN LIABLE IN THE ABSENCE OF THIS SECTION HAD BEEN ADVISED OF, KNEW,
OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
11.5 NON-SABRE TRAFFIC. CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY LIABLE FOR THE
CONTENT, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER THIRD PARTY
RIGHTS, OF THE NON-SABRE TRAFFIC. CUSTOMER WARRANTS THAT THE TRANSMISSION AND
RECEIPT OF NON-SABRE TRAFFIC BY CUSTOMER IS NOT IN CONTRAVENTION OF ANY LAWS,
RULES OR REGULATIONS. FURTHER, CUSTOMER HEREBY WARRANTS THAT IT HAS ENTERED INTO
SUCH SEPARATE AGREEMENTS AS IT DEEMS NECESSARY OR APPROPRIATE WITH THE SYSTEMS
OR NETWORK PROVIDERS FOR THE TRANSMISSION AND RECEIPT BY CUSTOMER OF THE
NON-SABRE TRAFFIC AND, IN PARTICULAR, CUSTOMER WARRANTS THAT IT SHALL BE SOLELY
LIABLE TO THESE PROVIDERS FOR ANY MALFUNCTION OR OTHER ADVERSE IMPACT
EXPERIENCED BY SAID PROVIDERS AS A RESULT OF THE TRANSMISSION AND RECEIPT BY
CUSTOMER OF THE NON-SABRE TRAFFIC.
12. INDEMNIFICATION
12.1 Customer and TSG ("Indemnitor") hereby agree to indemnify and hold each
other, their affiliates, subsidiaries, successors and assigns and their
officers, directors, agents and employees ("Indemnitees") harmless from and
against third-party liabilities, including, but not limited to, attorneys' fees,
and other expenses incident thereto, ("Claims") which may be threatened against,
or recoverable from the Indemnitees by reason of any injuries to or death of
persons or loss of, damage to, or destruction of property to the extent arising
out of or in connection with any act, or omission of the Indemnitor.
12.2 Customer will indemnify TSG for any Claims, including debit memos issued by
Participants, arising from Customers misuse of the SABRE System including,
without limitation, making fraudulent bookings and/or failing to honor
Participant ticketing and fare rules.
13. ASSIGNMENT
13.1 ASSIGNMENT OR SUBLEASE BY CUSTOMER. Customer shall not sublease, transfer
or assign this Agreement or any portion thereof, or any right or obligation
hereunder, unless customer has obtained the prior written consent of TSG, which
consent shall not be unreasonably withheld. Any attempted assignment in
violation of this Article shall be void.
13.2 ASSIGNMENT BY TSG. TSG shall have the right to sell, transfer, assign or
delegate its interests, rights and/or obligations, without the prior consent of
Customer, and, provided that such transferee or assignee assumes all of TSG's
obligations, TSG shall be released of all obligations after the effective date
of such sale, transfer, delegation or assignment.
14. TERMINATION AND DEFAULT
14.1 DEFAULT BY CUSTOMER. The occurrence of any one or more of the following
events shall constitute a non-exclusive event of default (the "Event of
Default") pursuant to the terms of this Agreement.
14.1.1 Customer fails to pay any amount when due;
14.1.2 Any representation by Customer is discovered to be materially
misleading or inaccurate, or Customer fails to perform any material
covenant, agreement, obligation, term or condition contained herein;
14.1.3 Customer terminates or cancels this Agreement or any portion
thereof, except as expressly permitted in this Agreement;
14.1.4 Customer ceases to do business as a going concern, makes an
assignment for the benefit of creditors, admits in writing its inability to
pay debts as they become due, acquiesces in the appointment of a trustee,
receiver or liquidator for it or any substantial part of its assets or
properties, or executes an agreement to sell all or substantially all of
its assets without obtaining the consent for assignment of this Agreement
under Article 13.1.
14.1.5 Customer fails to secure and maintain Airlines Reporting Corporation
("ARC") accreditation for ticketing of reservations;
14.1.6 Events of Default described in 14.1.1, 14.1.2 and 14.1.4 shall not
be cause for termination if Customer cures such failure within fifteen (15)
days after date of written notice from TSG. If Customer cures its failure
as provided in this provision, said failure shall not be considered to be
an Event of Default for the purposes of Article 14.2.
14.2 TSG'S RIGHTS UPON TERMINATION. Upon the occurrence of an Event of Default
and subject to Article 14.1.6, TSG shall have the right to any one or more of
the following remedies; (i) terminate this Agreement and Customer's access to
the SABRE System, the System and any other approved systems or networks; (ii)
seek all legal and equitable remedies to which it is untitled, and (iii) retake
immediate possession of the System. If Customers Event of Default results in
termination, Customer agrees to pay to TSG damages suffered by TSG as a result
of such Event of Default.
14.3 TERMINATION BY CUSTOMER. In the event that TSG breaches any material term
of this Agreement, which breach continues for a period of fifteen (15) days
after TSG receives from Customer written notice which sets forth the specific
breach and Customer's intent to terminate the Agreement if such breach is not
cured, then Customer may immediately terminate the Agreement upon separate
written notice to TSG. Customer may not otherwise cancel, terminate, modify,
repudiate, excuse or substitute this Agreement without TSG's prior written
consent which TSG may withhold in its absolute discretion.
15. MISCELLANEOUS
15.1 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF TEXAS AND THE UNITED STATES OF AMERICA. CUSTOMER HEREBY SUBMITS AND CONSENTS
TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS AND THE COURTS OF THE STATE OF TEXAS IN ANY DISPUTE
ARISING OUT OF THIS AGREEMENT AND AGREES THAT SERVICE OF PROCESS SHALL BE
SUFFICIENT IF MADE ON THE SECRETARY OF STATE OF THE STATE OF TEXAS WITH A COPY
TO BE SENT, REGISTERED MAIL TO THE CUSTOMER AT THE ADDRESS SET FORTH IN SCHEDULE
A OR SUCH OTHER ADDRESS AS CUSTOMER MAY LATER SPECIFY BY WRITTEN NOTICE TO TSG.
15.2 Binding Effect Except as otherwise provided, this Agreement shall inure to
the benefIt of and bind the successors and assigns of the parties hereto.
15.3 DELETION OF EQUIPMENT. During the term of the Agreement Customer may delete
up to ten percent (10%) of the installed productive video agent sets, video
agent set terminal addresses and printers, contingent upon the following: (a)
Customer provides documentation of a substantial decrease in the number of SABRE
Bookings, which decrease is the result of the loss of its commercial accounts
and/or customer base; (b) Customer notifies TSG, in writing, of the description
and location of the equipment to be deleted (the "Deleted Equipment"); (c)
Customer pays to TSG the then current de-installation charges for the Deleted
Equipment plus any outstanding Charges for such Deleted Equipment up through the
Stop Billing Date which TSG will specify to Customer and (d) Customer will
forfeit all right and equity, if any, in the Deleted Equipment removed from
Customer's location.
15.3.1 If Customer complies with the requirements identified in 15.3 above,
TSG shall de-install the Deleted Equipment and disconnect it from the
System.
15.3.2 TSG shall defer all Charges related to the Deleted Equipment
("Deferred Charges") from the Stop Billing Date to the termination date of
this Agreement on the following conditions: (a) the Additional Term and all
other terms and conditions of this Agreement that would have applied to the
Deleted Equipment, shall apply to any Standard Equipment added to the
System after the Stop Billing Date, up to an amount equal in number and
type to the Deleted Equipment or such lesser amount agreed to by TSG
("Re-installed Equipment"); and (b) Customer shall pay TSG all applicable
Charges for the Re-installed Equipment, including installation, lease,
maintenance and use Charges, at TSG's then current rates.
15.3.3 The Deferred Charges shall be deemed waived by TSG at the end of the
Initial Term of the Agreement or any renewal thereof if Customer has not
breached this Agreement. Interest shall accrue on the Deferred Charges at
the maximum rate allowed by applicable law from the date of the deferral
until payment In addition to all other rights under Article 14.2, TSG shall
be entitled to immediate payment of the Deferred Charges plus interest upon
default by Customer.
15.4 ENTIRE AGREEMENT. This Agreement and the instructions constitute the entire
agreement of the parties as to the matters set forth herein and shall supersede
any previous understandings, agreements, representations, statements,
negotiations and undertakings, whether written or oral, between the parties
relating to the matters set forth herein. Any amendment to this Agreement must
be in writing and signed by the authorized representatives of both parties.
15.5 FORCE MAJEURE. TSG and Customer shall be relieved of their obligations
hereunder in the event and to the extent and only so long as that performance is
delayed or prevented by any cause reasonably beyond their control including, but
not limited to, acts of God, public enemies, war, civil disorder, fire, flood,
explosion, labor disputes or strikes, or any acts or orders of any governmental
authority, inability to obtain supplies and materials (including without
limitation computer hardware) or any delay or deficiency caused by the
electrical or telephone line suppliers or other third parties.
15.6 NOTICES. Unless otherwise stated, notices given or required under this
Agreement must be in writing and shall be deemed delivered upon deposit through
the United States Mail, to TSG at P. O. Box 619515, MD 3558, ▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ (to be sent to the attention of SABRE Travel Information
Network, Financial Services) or to the Customer at the address set forth in
Schedule A.
15.7 RETURN OF SYSTEM. Upon the termination of this Agreement for any reason,
Customer, at its sole cost and expense, shall return the System and all
Confidential Information as requested by TSG, in good repair, condition and
working order, less normal and ordinary wear and tear, by delivering it to a
common carrier selected and designated by TSG, F.O.B. the destination designated
by TSG in writing.
15.8 SABRE SYSTEM MODIFICATION. TSG retains the right to modify the SABRE
System, at its discretion at any time during the term of this Agreement.
However, such modifications will not materially impair Customers ability to
access and use the SABRE System in the manner expressly permitted in this
Agreement.
15.9 SEVERABILITY. Any provision of this Agreement which may be determined by a
court or other competent governmental authority to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability, without invalidating
the remaining provisions thereof, unless said prohibition or unenforceability
materially alters the rights or obligations of either party.
15.10 SUBSEQUENT ACTS OF GOVERNMENT. In the event that there is any change in
any statute, rule, regulation or order governing the operation of computerized
reservations systems, or air transportation generally or the SABRE System, which
in any way materially impairs the benefits of this Agreement to TSG, then the
parties hereto will commence consultation in order to determine what, if any,
changes to this
Agreement are necessary or appropriate including, but not limited to early
termination of this Agreement If the parties hereto are unable to agree upon
changes in the Agreement in response to such new statute, rule, order or
regulation within thirty (30) days after commencement of such consultation, this
Agreement may be canceled by TSG upon giving Customer ninety (90) days prior
written notice of such cancellation. If TSG elects to terminate the Agreement
pursuant to this Article, except for Customer's obligation to pay any and all
Charges incurred through the date of termination, each party shall be relieved
of any future obligations under this Agreement as of the effective date of
cancellation. Each party shall bear its own costs and expenses incurred as a
result of said termination, Customer does not have the right to terminate the
Agreement under this provision.
15.11 SURVIVING SECTIONS. If the term of the Agreement expires or is terminated
for any reason before Customer has paid to TSG all of the sums due, the
Agreement shall survive such expiration or termination to the extent necessary
to protect TSG's rights until all sums owed to TSG have been paid.
Notwithstanding anything to the contrary referenced herein, Articles 6, 8, 11
and 12 shall survive the termination of this Agreement.
15.12 WAIVER. A failure or delay of either party to require strict performance
to enforce a provision of this Agreement or a previous waiver or forbearance by
either party shall in no way be construed as a waiver or continuing waiver of
any provision of this Agreement.
15.13 ACKNOWLEDGMENT. Customer hereby acknowledges that TSG has offered Customer
a SABRE Subscriber Agreement with a three (3) year term with reasonable terms
and conditions.
16. INTERNET CONNECTIONS.
16.1 LIMITED LICENSE. Customer may establish an Internet Connection using TSG's
products or a third party application. Customer is hereby given a limited
license to utilize data transmitted from the SABRE System for purposes of
developing, operating and maintaining a reservation booking site solely for the
use of its customers and according to the other limitations contained in this
Agreement, including, without limitation, Article 8.3. All uses of the SABRE
System through an Internet Connection will be considered uses by Customer under
this Agreement. Customer may not utilize any data transmitted from the SABRE
System for purposes of developing, operating or maintaining a reservation
booking site or any other redisplay of SABRE System data for any third party
including any un-affiliated travel agencies.
16.2 TERMINATION. The limited license granted in Article 16.1 may be terminated
by TSG for any reason upon five (5) days written notice to Customer. Upon such
termination Customer must immediately remove the Internet Connection and cease
utilizing data transmitted under the Agreement for purposes of developing,
operating or maintaining a reservation booking site.
16.3 BRANDING. Customer agrees to adhere to the branding standards and
requirements as communicated by TSG which may be modified from time to time upon
thirty (30) days advance notice to Customer.
16.4 CHARGES. Customer will pay a Charge for each PNR created through an
Internet Connection at TSG's then current rate.
17. TSG RESERVES THE RIGHT TO CHANGE SABRE GUARANTEE PROGRAM RULES, REGULATIONS,
AND SPECIAL OFFERS WITHOUT NOTICE, AND TO END SABRE GUARANTEE PROGRAMS WITHOUT
NOTICE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth below.
ALL SIGNATURES MUST BE IN BLACK INK
CUSTOMER
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------
(Signature)
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------
(Print Name)
Title: CEO
-------------------
Date: 5-21-99
---------------------
Agency Name: 800 Travel Systems, Inc.
d.b.a., ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
d.b.a., 800 FLY 4 LESS
Pseudo City Code: B8T3, I944
THE SABRE GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
(Signature)
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------
(Print Name)
Title: Regional Manager
---------------------
Date: 6-3-99
----------------------
ATTACHMENT
Conditions of Use for SABRE Users
1. QUALIFYING USE. The manufacturer has made this package available to you
through The SABRE Group, whether directly or indirectly, on the understanding
that it is being supplied to you primarily for use with the SABRE System, and
not with a view to resale or other re-marketing.
2. COPYRIGHT AND OTHER RIGHTS
The manufacturer's programs contain material in which the manufacturer and in
many cases the manufacturer's suppliers, retain proprietary rights. The
manufacturer wants these programs to be fully usable by you for the purpose for
which they are supplied, that is, in connection with a computer. No infringement
of the rights of the manufacturer or of the manufacturer's suppliers will occur
provided that the following conditions are observed with respect to each
program:
a. The program is used only on:
(i) a single machine; or
(ii) on any workstation connected to a single fileserver which is
primarily used in connection with the SABRE System.
b. The program is copied into machine readable or printed form for backup
or modification purposes only in support of use on a single machine, or on
a workstation connected to the SABRE System;
c. However, certain diskettes marked "Copy Protected" may include
mechanisms to limit or inhibit copying of the program;
d. The program is modified or merged into another program only for use on a
single machine or on a workstation connected to the SABRE System. Any
portion so merged continues to be subject to these conditions:
e. The copyright notice is reproduced and included in any copy or
modifications made of the program and in any program merged into other
programs; and
f. If the program package is transferred to another party, all copies and
modifications made of the program must be transferred or destroyed. You do
not retain any right with respect to the transferred package. The other
party agrees to observe all of these Conditions of Use.
Any other act involving reproduction or use of or other dealing in the program
is prohibited.
You are reminded that it may be necessary to obtain local and United States
licenses to export or re-export this package.
No statements contained in this package shall affect the statutory rights of any
person.
AMENDMENT TO SABRE SUBSCRIBER AGREEMENT
This Amendment to that certain Sabre Subscriber Agreement is made and
entered into this 21st day of May, 1999, between Sabre, Inc. ("Sabre") and
800 Travel Systems, Inc. ("Customer").
RECITALS
WHEREAS, Sabre and Customer have entered into that certain Sabre Subscriber
Agreement, dated as of 5-21-99 (the "Agreement"); and
WHEREAS, it is in the best interest of the parties to modify certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
Sabre and Customer hereby agree as follows:
1. EFFECTIVE DATE. The effective date of this Amendment is May 1, 1999.
2. CASH ADVANCE. Sabre agrees to pay to Customer [**..**], as Sabre Promotional
Support, within 30 days after the Agreement and this Amendment have been signed
by both parties.
If an Event of Default as defined in Article 14.1 of the Agreement occurs,
Sabre's obligations under this Amendment are nullified and Customer will be
immediately obligated to repay to Sabre all monies paid by Sabre to Customer
pursuant to this paragraph.
3. YEARLY VOLUME THRESHOLD INCENTIVE. Each year during the Initial Term, Sabre
and Customer agree that Sabre shall pay to Customer [**..**]. This payment shall
be made to Customer within 30 days after the end of each year, even in the event
of a shortfall. Any unpaid portion of this volume threshold incentive shall
revert to Sabre and be unavailable for Customer's use upon an Event of Default
which occurs under the terms of the Agreement Measurement of Sabre Bookings
shall be performed by Sabre [**..**] and is based on all installed productive
video agent sets and video agent set terminal addresses.
4. CURRENT AND EXPANSIONARY DEVICES. Upon the Effective Date of this Amendment
and provided Customer meets the terms and conditions as set forth below and in
the Agreement Sabre shall provide, each month during the term hereof, fixed
monthly discounts to offset the charges for the services and products listed
below that are either currently installed or installed subsequent to the
Effective Date of the Agreement:
(a) data lines, fileservers, gateways, Sabre video agent sets, Sabre
Printers, Satellite Ticket Printers (STP's) or any other equipment standard to
the Sabre System;
(b) Sabrescribe;
(c) [**..**] Turbo Sabre licenses;
(d) installation, de-installation, move and relocation charges (excluding
charges associated with moves or relocations outside the ordinary course of
business which shall be determined by Customer's past practices, which shall be
billed to Customer at Sabre's then prevailing rate);
(e) variable charges for ticketing, Invoice/Itinerary, Option 6 Interface,
Branch Access, Microfiche, WorldFare Premium Pricing Suite, and Credit Card
Address Verification; and
(f) [**..**] of the monthly lease and SMU Charges for Sabre hardware and
software, and Sabre TravelBase/ADS-X equipment, operating system licenses and
software license fee.
5. SITE AND RATIOS OF STANDARD EQUIPMENT. The expansionary Standard Equipment
and services identified above may be used at Customer's current and future
locations. In addition, unlimited productive video agent sets or video agent set
terminal addresses shall be added as long as Customer maintains a Booking level
of at least [**..**] SABRE Bookings per video agent set terminal address.
[**..**] Confidential Treatment Requested
800 TRAVEL SYSTEMS, Inc. Rvsd 4125/992
6. BOOKING THRESHOLD. Notwithstanding anything contained herein, Sabre shall
have no obligation to perform the undertakings set forth in this Amendment
unless: (a) the Standard Equipment is available for purchase by Sabre on
reasonable terms and conditions from the manufacturer: and (b) Customer
processes a minimum of [**..**] Sabre Bookings per year (the "[**..**] Volume
Threshold") during the Initial Term or complies with paragraph 7.
7. SABRE BOOKINGS BELOW [**..**] VOLUME THRESHOLD. For [**..**] of the
Agreement, if Customer fails to achieve [**..**] of the [**..**] Volume
Threshold as set forth in paragraph 6 during the [**..**] measurement period,
Customer shall pay to Sabre an amount equal to the prevailing average booking
fee that Sabre charges to airlines that participate in the Sabre System
multiplied by the difference between the [**..**] Volume Threshold and the
actual Sabre Bookings at all of Customer's locations. Measurement of the
[**..**] Volume Threshold shall be performed by Sabre on an [**..**] basis
commencing on the Effective Date of the Agreement. For purposes of calculating
the shortfall in each subsequent year of the Agreement, Customer must achieve
[**..**] of the previous year's actual SABRE Bookings (the "Reset [**..**]
Volume Threshold") or pay to Sabre an amount equal to the prevailing average
booking fee that Sabre charges to airlines that participate in the Sabre System
multiplied by the difference between the Reset [**..**] Volume Threshold and the
actual Sabre Bookings at all of Customer's locations.
9. [**..**] VOLUME THRESHOLD INCENTIVE. Sabre and customer agree that if
Customer processes Sabre Bookings above the Volume Threshold described in the
table below at the end of any [**..**] measurement period, Sabre shall pay to
Customer [**..**] per Sabre Booking in excess of the volume threshold as stated
in the table below. Any unpaid portion of this [**..**] volume threshold
incentive shall revert to Sabre and be unavailable for Customer's use if an
Event of Default occurs under the terms of the Agreement. Measurement of Sabre
Bookings shall be performed by Sabre [**..**] and is based on all installed
productive video agent sets and video agent set terminal addresses. Bookings
from the acquisition or merger of another SABRE agency shall not be counted
toward this [**..**] threshold incentive.
[**..**]
10. REPORTS. Reports showing the number of Sabre Bookings shall be provided by
Sabre on a monthly basis. Invoicing, if necessary, will be made at the end of
each month and Customer agrees to pay all amounts due to Sabre, including
applicable taxes, within thirty (30) days of the invoice date.
11. ACQUISITIONS. If at any time during the term of the Agreement. Customer
purchases or otherwise..acquires aJ I of the assets of any travel agency which
utilizes Sabre. then such travel agencies shall be bound by the terms and
conditions as set forth in the Agreement and this Amendment. Notwithstanding the
foregoing; all outstanding receivables at the time of acquisition by Customer
must be paid to Sabre prior to inclusion of the acquired locations and/or
equipment under the terms of the Agreement, unless otherwise agreed to by both
parties. Customer and travel agency acquired must both notify Sabre in writing
of the acquisition and mum, provide at a minimum (i) the pseudo city coda of
acquired location(s), (ii) total number of productive devices being acquired,
and (iii) the effective date of the acquisition.
12. BOOKING THRESHOLD REVIEWS. Commencing on the first anniversary of the
Effective Date but not more than once every contract year, the parties will
review the [**..**] Booking Threshold in order to adjust the [**..**] Booking
Threshold to reflect changes in the actual costs of providing products and
services hereunder. Upon conclusion of such review, Sabre and Customer agree to
reset [**..**] booking threshold goal to previous [**..**] month cycle actual
bookings. Notwithstanding the foregoing, Sabre shall have the right to increase
the [**..**] Booking Threshold to recover any actual increases in communication
costs during the upcoming year. Sabre shall provide to Customer satisfactory
evidence of such increased communication costs. Sabre shall decrease the
[**..**] Booking Threshold upon conclusion of an annual review, in the event and
to the extent that Sabre's cost of providing automation or communication
services hereunder decreases.
[**..**] Confidential Treatment Requested
800 TRAVEL SYSTEMS, Inc. Rvsd 4125/992
2
13. WHOLLY OWNED OFFICES/OUTLETS. The terms and conditions of the Agreement and
this Amendment are only applicable to wholly owned offices/outlets of Customer
and shall not apply to any franchise or associate operation.
14. CONFIDENTIALITY. It is expressly understood and agreed that this Amendment
and the Agreement, and each and every provision hereof; shall be held and
treated as confidential and shall not be disclosed by Customer to any other
person, firm, organization, association, or entity, of any and every kind,
whether public, private or governmental, for any reason, or at any time, without
the prior written consent of Sabre (except that Customer may disclose the
provisions of the Agreement and this Amendment to its attorneys, accountants
and/or consultants), unless such disclosure is required by law or legal process.
In the event of such disclosure, this Amendment and the Agreement may be
terminated immediately by Sabre, without notice to Customer, and shall have the
right to pursue any remedies available to it in law or in equity.
15. DEFINED TERMS. The defined terms used in this Amendment shall have the
meaning assigned to such terms in the Agreement.
16. AGREEMENT. Except as otherwise provided herein, all other terms of the
Agreement remain in full force and effect. In the event of any conflict between
the terms of the Agreement and this Amendment, the Amendment shall control.
17. TERMINATION OF PRIOR AGREEMENTS. All oral or written agreements entered into
by the parties prior to the effective date of the Agreement and this Amendment
which relate to the maintenance or use of the Sabre System or any portion
thereof shall be deemed terminated upon execution of the Agreement and this
Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year written below.
800 TRAVEL SYSTEMS, INC. SABRE, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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(Signature) (Signature)
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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(Print Name) (Print Name)
Title: CEO Title: Regional Manager
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Date: May 21, 1999 Date: 6-3-99
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PCC: B8T3, I944
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800 TRAVEL SYSTEMS, Inc. Rvsd 4125/992
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