THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS AGREEMENT WITH "[TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]."
AGREEMENT FOR
INFORMATION TECHNOLOGY SERVICES
THIS AGREEMENT FOR INFORMATION TECHNOLOGY SERVICES (this "AGREEMENT") is
entered into by and between TeleService Resources, Inc., a Delaware corporation,
with a principal business address of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ("CUSTOMER"), and The SABRE Group, Inc., a Delaware corporation, with a
principal business address of ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ ("TSG").
WHEREAS, TSG is engaged in the business of providing certain information
technology and related services to the worldwide travel-related industry; and
WHEREAS, TSG has the right to use the SPIRIT Multihost Reservations
System ("SPIRIT") on behalf of and to provide services to third parties in
accordance with the terms and conditions of the Information Technology
Outsourcing and Commercialization Agreement among Hyatt Corporation ("HYATT"),
CSC Outsourcing Inc. and Computer Sciences Corporation ("CSC"), with an
acknowledgment by The SABRE Group, Inc., dated June 30, 1996 (the "HYATT
AGREEMENT"), and the Information Technology Outsourcing and Commercialization
Subcontract Agreement, among CSC Outsourcing, Inc., Computer Sciences
Corporation and The SABRE Group, dated July 1, 1996; and
WHEREAS, Customer and TSG wish to enter into this Agreement, pursuant to
which TSG shall provide to Customer the information technology and related
services described in this Agreement, and will use SPIRIT on behalf of Customer,
all upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the above premises, the parties
hereby agree as follows:
ARTICLE 1
DEFINITIONS AND SCHEDULES
1.1 DEFINITIONS. Terms which are capitalized herein shall have the
meaning assigned to them in the body of this Agreement.
1.2 SCHEDULES. When this Agreement refers to an attached Schedule,
such Schedule is deemed incorporated herein by reference for all purposes.
ARTICLE 2
TERM
2.1 TERM OF AGREEMENT. Unless earlier terminated as provided herein,
the term of this Agreement (the "TERM") shall commence as of July 1, 1998 (the
"EFFECTIVE DATE") and shall end on June 30, 2005 (the "EXPIRATION DATE"), or
such anniversary
1
thereof to which the Term is extended pursuant to ARTICLE 2.2 hereof.
2.2 EXTENSIONS OF THE TERM. The Term of this Agreement may be
extended by mutual agreement for an additional three (3) years, by either party
providing the other with written notice at least six (6) months before the
Expiration Date. Upon the renewal, if any, of this Agreement, TSG has the right
to modify the pricing for the Base Services, as defined in ARTICLE 3.1. If the
parties fail to reach agreement on the pricing modifications prior to the
Expiration Date, then this Agreement shall expire effective as of such
Expiration Date.
ARTICLE 3
TSG SERVICES
3.1 BASE SERVICES. TSG began providing services to Customer pursuant
to a letter of intent between TSG and Customer dated July 14, 1997 (the "LETTER
OF INTENT"), and the Letter of Intent shall govern the relationship between TSG
and Customer until the Effective Date of this Agreement. This Agreement
supersedes the Letter of Intent and sets forth the definitive agreement between
the parties as to the provision of such services from and after the Effective
Date. In addition, ARTICLES 11, 12, 13 AND 14 of this Agreement retroactively
supersede and replace ARTICLES 2, 3 AND 4 of the Letter of Intent for the period
from July 14, 1997 until the Effective Date. During the Term of this Agreement,
TSG shall perform the Base Services described in SCHEDULE 3.1 for Customer (the
"BASE SERVICES"). TSG shall perform the Base Services in accordance with the
service levels for the performance of the Base Services (the "SERVICE LEVELS"),
as set forth in SCHEDULE 3.1.1. The Service Levels shall take effect as of the
date commencing forty-five (45) days after the implementation of the [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] hotel (the "MASL DATE").
3.2 NEW OR ADDITIONAL SERVICE. A "NEW OR ADDITIONAL SERVICE" shall
be defined as services that are not described as a Base Service in SCHEDULE 3.1.
The Base Services and the New or Additional Services shall be referred to
collectively as the "TSG SERVICES". Either party may, from time to time during
the Term, request the provision of a New or Additional Service. Customer and
TSG shall jointly decide whether such New or Additional Service shall be
provided. In such event, TSG will prepare a written proposal to Customer for
the cost of such New or Additional Service. Customer shall reject or accept
such proposal within forty-five (45) days after receipt.
3.3 TSG RIGHTS TO MANAGE TSG RESOURCES. Subject to the other
provisions of this Agreement, TSG shall have the right to manage all resources
used in providing the TSG Services as TSG deems appropriate. Nothing in this
Agreement shall prevent TSG from changing, consolidating, eliminating or adding,
after the Effective Date, locations at which it provides the TSG Services, which
cost shall be borne by TSG; provided, that such changes, consolidations,
eliminations or additions shall not change the Service Levels identified herein.
3.4 SERVICE LEVELS. The measured application service levels ("MASL")
for
2
the performance of the Base Services are set forth in SCHEDULE 3.1.1. During
the six (6) month period commencing upon the MASL Date, TSG's Client Service
Representative and Customer's Contract Manager (each as hereinafter defined)
shall confirm that such MASLs are reasonable and achievable for the
performance of the TSG Services. In the event of a failure by TSG to reach
the Service Levels during the Term of this Agreement, Customer's sole and
exclusive remedies for such failure (other than termination of this Agreement
for Material Default under ARTICLE 17.1) shall be those set forth on SCHEDULE
3.1.1 hereto.
3.5 REMOTE DATABASE ACCESS SERVICES. TSG shall contract for and
manage on behalf of Customer the Remote Database Access Services as defined in
ARTICLE 5.4, for the purpose of providing the TSG Services to Customer.
Customer shall be responsible for all charges relating to the Remote Database
Access Services and related to the performance of the TSG Services, except in
the case where Customer and TSG are sharing use of any lines, in which case the
charges shall be shared by both Customer and TSG as follows. During the first
year of the Term of the Agreement, TSG and Customer will each pay [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] percent ([TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED]%) of TSG's total ▇▇▇▇ amount from the
telecommunications network provider relating to the Remote Database Access
Services provided by TSG on behalf of Customer for the shared circuits set
forth on SCHEDULE 3.5, including any related installation charges.
Thereafter, upon each anniversary of the Effective Date of this Agreement,
the parties agree to jointly determine the percentage of use for such shared
circuits for the past twelve (12) months and will prorate and share the costs
accordingly for the following year. The parties may mutually agree to change
the circuits designated on SCHEDULE 3.5.
3.6 MARKETING. The parties agree to the marketing arrangement set
forth on SCHEDULE 3.6 hereto.
ARTICLE 4
EMPLOYEES AND IMPLEMENTATION
4.1 TRANSITIONED EMPLOYEES. As of the Effective Date of this
Agreement, TSG has made offers of employment to certain employees of Customer as
identified on SCHEDULE 4.1 (the "EMPLOYEES"). TSG will extend such offers to
the Employees in accordance with TSG's normal employment policies. The
Employees who accept employment with TSG within thirty (30) days after their
role in the Implementation is complete shall be transitioned to TSG
("TRANSITIONED EMPLOYEES"). The parties will provide each other with reasonable
cooperation in the timely transition of the Employees. TSG agrees to provide
positions which are comparable to the positions that the Transitioned Employees
held prior to the transition.
4.2 SALARY AND BENEFITS. TSG agrees to offer to each of the
Transitioned Employees, for a period of six (6) months, the same salary and
substantially similar benefits which were earned by the Transitioned Employees
as of the date upon which such Transitioned Employees commence employment with
TSG (the "TRANSITION DATE"); subject, however, to termination for cause by TSG.
Any pension, or other
3
benefits or rights to which the Transitioned Employees are entitled, as of
the Transition Date and by virtue of the termination of their employment with
Customer, shall be the responsibility of Customer.
4.3 IMPLEMENTATION OF SOFTWARE.
4.3.1 TSG hereby grants to Customer a limited, nonexclusive,
nontransferable and revocable (pursuant to the terms of ARTICLE 17 of this
Agreement) right to use and access the SPIRIT executable code, in connection
with Customer's voice reservation services or global distribution system
("GDS"), for the purpose of processing reservations and performing related
services for its hotel customers, strictly in accordance with the terms of this
Agreement, including, without limitation, the marketing terms set forth on
SCHEDULE 3.6. SPIRIT has been renamed by TSG under the new trade name of
RESERVE-TM-, but for purposes of this Agreement, it shall be referred to as
"SPIRIT". TSG shall provide Customer with the SPIRIT functionality set forth on
SCHEDULE 4.3 hereto (the "SPIRIT FUNCTIONALITY") and the SPIRIT enhancements set
forth on SCHEDULE 6.10.1. TSG shall [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] charge Customer [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
license fee for the provision of SPIRIT hereunder. Upon Customer's request,
TSG will provide SPIRIT to Customer in GUI format, once it is made available,
at no additional net reservation or license fee. Customer will use SPIRIT in
connection with Customer's internal operations, and on behalf of all of the
existing hotel customers of Customer which are listed on SCHEDULE 4.3.1 (the
"EXISTING HOTELS") and any other hotel which becomes a customer of Customer
after the Effective Date ("NEW HOTELS"), and for no other use.
The systems which are listed in SCHEDULE 4.3 as "NON-SPIRIT
APPLICATIONS" are Hyatt and TSG-owned systems which are not currently part of
the SPIRIT functionality. The "HYATT SOFTWARE" shall include the systems listed
on SCHEDULE 4.3. The "TSG SOFTWARE" shall include the systems listed on
SCHEDULE 4.3, which are owned by either TSG or a third party other than Hyatt,
and used in the performance of the TSG Services. In accordance with terms and
conditions, including pricing, to be mutually agreed to by the parties in
writing in advance, TSG may use either the Hyatt Software or the TSG Software
(other than the CRSVIEW and QIK-ACCESS systems described below) on behalf of
Customer.
4.3.2 TSG hereby grants Customer a limited, nonexclusive,
nontransferable right and license to the application development environment
("ADE") for sixty (60) users to use TSG's proprietary software systems known as
CRSVIEW (now known as RESERVE LINK-TM-) and QIK-ACCESS-TM-, including the
framework rate code developed for Hyatt, strictly in accordance with the license
terms set forth in ARTICLE 4.4 below, except that Customer shall have the right
to create databases or applications from the ADE at no additional cost. TSG
shall [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] charge Customer [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] license fee for the provision of
the CRSVIEW and QIK-ACCESS systems hereunder. The rights hereby granted are
limited strictly to Customer's use of CRSVIEW and QIK-ACCESS in connection
with Customer's internal operations and on behalf of the New
4
and Existing Hotels.
4.3.3 The Hyatt Software shall be and remain at all times the
exclusive property of Hyatt, and Hyatt, at its option, may license, transfer or
assign the Hyatt Software at any time to any third party including, without
limitation, any competitors of Customer, subject to Customer's right to continue
to use and operate the Hyatt Software under this Agreement. TSG shall continue
to be fully bound by the provisions of this Agreement and such license, transfer
or assignment shall in no way modify its obligations hereunder. TSG shall own
all right, title and interest in and to any SPIRIT Enhancements or New
Functionality (each as hereinafter defined) created under this Agreement, even
if created solely for Customer.
4.3.4 The TSG Software, including any documentation,
modifications or enhancements to, or works derivative of such TSG Software
developed by TSG pursuant to this Agreement shall be and remain TSG's property
(except to the extent owned by a third party licensor), and Customer shall have
no rights or interest in the TSG Software, except as provided in this Agreement.
TSG retains all right, title and interest in and to any and all of the TSG
Software and related documentation, software development tools, know-how,
methodologies, processes, technologies or algorithms used in providing the TSG
Services that are trade secrets or proprietary information of TSG or its
affiliates or otherwise owned or licensed by TSG or its affiliates.
4.3.5 TSG shall deliver the Hyatt Software and the CRSVIEW and
QIK-ACCESS systems to Customer either prior to or upon execution of this
Agreement. Acceptance of the Hyatt Software and the CRSVIEW and QIK-ACCESS
systems shall be deemed upon Customer's productive use of SPIRIT, which shall be
defined herein as the first sustained ability to make hotel reservations for a
period of longer than ten (10) days.
4.4 RESTRICTIONS ON SOFTWARE.
4.4.1 Customer may make copies of CRSVIEW and QIK-ACCESS for
its own internal use on no more than sixty (60) Customer workstations connected
to the main operating system, and for back-up data security purposes, but
Customer must inform TSG in writing of how many copies have been made. Customer
shall reproduce and include on each copy and on each partial copy of CRSVIEW and
QIK-ACCESS any copyright notice and proprietary rights legend contained on or in
such systems, as such notice and legend appear on or in the original.
4.4.2 Customer shall make no modifications, alterations,
developments or derivative works of CRSVIEW and QIK-ACCESS, SPIRIT or the Hyatt
Software, except for the CRSVIEW software, for which Customer may create
databases or applications from the ADE. Customer shall own any such databases
or applications which Customer creates. Customer shall receive system upgrades
and bug fixes for CRSVIEW and QIK-ACCESS at no additional cost, but shall pay
TSG for enhancements, modifications or other maintenance or custom development
services as
5
a New or Additional Service. Customer shall not reverse engineer,
disassemble, compile, reverse compile or decompile CRSVIEW and QIK-ACCESS or
SPIRIT. CRSVIEW and QIK-ACCESS and SPIRIT shall only be used for Customer's
internal operations or on behalf of the New or Existing Hotels, and shall not
be installed at any New or Existing Hotel sites.
4.4.3 Customer shall not make available, sell, transfer,
assign, sublease, convey, remarket or sublicense CRSVIEW, QIK-ACCESS, SPIRIT or
the Hyatt Software, or any component thereof, to any New or Existing Hotel, or
to any person or entity, whether by operation of law or otherwise, without the
prior written consent of TSG, which shall not be unreasonably withheld.
4.5 IMPLEMENTATION OF SPIRIT. TSG and Customer shall jointly develop
a plan and shall convert the Existing Hotels from ACTION and HDS (the hotel
reservation system platforms currently used by Customer and hereinafter referred
to collectively as "ACTION") and convert the guest name records ("GNR"),
including the GNRs of past stays, and rate records for the Existing Hotels onto
SPIRIT ("IMPLEMENTATION"). TSG and Customer shall agree on the specific dates
for the Implementation of each Existing Hotel on an ongoing basis and agree to
an end date of March 31, 1999 for Implementation of all Existing Hotels;
subject, however, to development work to be performed by PMS interface vendors,
and subject also to cooperation by TSG with the PMS vendors, which shall not be
unreasonably withheld. Conversion of the GNR and the rate records from any
customer reservation system other than ACTION for Existing Hotels will require
additional development costs which will be billed to Customer by TSG as a New or
Additional Service.
4.5.1 The responsibilities of each party for the Implementation
of the Existing Hotels (the "IMPLEMENTATION RESPONSIBILITIES") are set forth on
SCHEDULE 4.5.1 (the "IMPLEMENTATION PLAN"). Each party agrees to pay its own
costs for the Implementation, in accordance with the performance of the
Implementation Responsibilities. The Implementation shall be deemed
successfully terminated upon the completion of the milestones set forth in the
Implementation Plan and the compliance of each party with the Implementation
Responsibilities.
4.5.2 After the Effective Date, TSG shall endeavor to implement
any New Hotel onto SPIRIT within ninety (90) days from the date that Customer
notifies TSG in writing, except where major system modifications or a
significant increase in capacity are either requested or required, in which case
TSG will provide a different Implementation Plan, which shall be mutually agreed
to by the parties in writing. TSG and Customer will also agree in writing to
the Implementation charges and the billing schedule for each New Hotel.
4.6 ONGOING RESPONSIBILITIES. After the Implementation, Customer and
TSG shall perform the ongoing responsibilities for the Implementation set forth
for each on SCHEDULE 4.6.
6
ARTICLE 5
CUSTOMER RESPONSIBILITIES AND DUTIES
5.1 CUSTOMER EMPLOYEES.
5.1.1 Customer will cooperate with TSG during the transition of
the Employees to TSG. Customer has not made and will not make any
representation or promise, whether written or oral, to the Employees regarding
employment with TSG, or the employment benefits, plans or practices of TSG,
without obtaining the prior written consent of TSG.
5.1.2 All pension and other obligations (including vacation
time) accrued as of the Transition Date, if any, with respect to the
Transitioned Employees shall remain the responsibility of Customer.
5.1.3 TSG shall have responsibility for giving the Transitioned
Employees credit for sick time accrued as of the Transition Date.
5.2 CUSTOMER FACILITIES AND RELATED SERVICES. During the
Implementation, Customer shall provide to TSG, at no cost to TSG, such access to
and use of adequate space and services (collectively, the "CUSTOMER FACILITIES
SPACE") to the extent that the Customer Facilities Space is reasonably required
by TSG to effectively perform the TSG Services. Customer shall also provide to
TSG, at any Customer location in which the TSG Services will be performed,
facilities which are free of health and safety hazards. At all times during the
Implementation when TSG uses space and related utilities and services in any
Customer Facilities Space, TSG shall comply with the customary and reasonable
policies governing access to and use of the facilities in effect from time to
time and which are communicated to TSG in writing.
5.3 MINIMUM TRANSACTION VOLUME. Customer shall process (or pay TSG
for) a minimum transaction volume of Net Reservations (as defined in ARTICLE
7.2) during the Term of the Agreement as set forth below:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Million Net
Reservations during the period from July 1, 1998 to June 30,
1999;
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Million Net
Reservations during the period from July 1, 1999 to June 30,
2000;
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Million Net
Reservations during the period from July 1, 2000 to June 30,
2001;
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Net
Reservations during the period from July 1, 2001 to June 30,
2002;
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Net
Reservations during the period from July 1, 2002 to June 30,
2003;
7
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Net
Reservations during the period from July 1, 2003 to June 30,
2004; and
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Net
Reservations during the period from July 1, 2004 to June 30,
2005.
TSG agrees to credit all Net Reservations made by Customer during the period
from August 1, 1997 to June 30, 1998, equaling [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] Net Reservations, to the amount of 1.6 Million Net
Reservations due in the first year of the Term. In the event that the
Existing Hotels discontinue their call center or GDS relationship with
Customer but continue to use SPIRIT, such Net Reservations will continue to
be counted toward the above minimums. In addition, TSG shall credit toward
such minimums any other Net Reservations made on SPIRIT by customers of
Customer other than the Existing Hotels.
5.4 REMOTE DATABASE ACCESS SERVICES. TSG will contract with a third
party telecommunications network provider for the provision and maintenance of a
data telecommunications network necessary to support the TSG Services under this
Agreement (the "REMOTE DATABASE ACCESS SERVICES"), at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, CentrePort IV, Fort Worth, Texas (the "TSG DATA CENTER"), and
Customer shall pay for the charges for such Remote Database Access Services,
including line communications, hardware and maintenance charges, and will be
responsible for assisting TSG in the administration of the contract for the
Remote Database Access Services for the benefit of the New or Existing Hotels.
Customer and TSG shall share the cost of any lines which are shared by both
Customer and TSG, as set forth in ARTICLE 3.5 of this Agreement.
5.5 CUSTOMER CONTRACT MANAGER. From time to time during the Term,
Customer will designate a contract manager (the "CUSTOMER CONTRACT MANAGER") who
will be authorized to act as the primary point of contact for Customer in
addressing issues concerning each party's obligations or requests for
modifications under this Agreement, and shall have authority to make decisions
regarding this Agreement on behalf of Customer (which must also be agreed to in
writing by TSG).
5.6 ASSISTANCE. Each party shall provide the other with all
necessary and reasonable resources, information and other assistance, as may be
agreed by the parties from time to time, in connection with the activities
contemplated by this Agreement and each party shall punctually perform its
obligations under this Agreement.
5.7 PRIORITIES. Customer will establish, in coordination and
cooperation with TSG, appropriate data processing priorities for Customer.
Customer will make available, as reasonably requested by TSG, such management
decisions, access to personnel, information, approvals and acceptances so that
TSG may timely perform the TSG Services.
5.8 USE OF TSG SERVICES. Customer may not (i) use the TSG Services
for
8
any purposes other than for its own internal operations and on behalf of the
Existing or New Hotels, or (ii) transfer any material or information related
to the TSG Services, in any form whatsoever, to any third party or allow any
third party to access or use any such material or information, except with
the prior consent of TSG, which shall not be unreasonably withheld. This
ARTICLE 5.8 shall be subject to the provisions set forth in ARTICLE 11.1
regarding Confidential Information and exceptions therefor.
5.9 TRAINING OF CUSTOMER PERSONNEL. Customer will train Customer's
personnel to properly prepare input for, and appropriately use output from, the
TSG Software.
5.10 PROVISION OF SOURCE DATA AND TRANSFER OF GNRS. Customer will
supply to TSG for processing all required source data and machine readable data
(i) in the form presently used in Customer's information technology operations,
or (ii) in such form and on such time schedule as set forth in the documentation
provided to TSG by Customer, and as may be reasonably requested by TSG with
respect to the performance of the TSG Services. Customer will be responsible
for the quality, accuracy and legibility of the data provided to TSG. TSG will
not be liable for any default in its performance of the TSG Services which is
due to any insufficiency of such data provided by Customer to TSG. Customer
shall also be responsible for the transfer to the TSG Data Center of any GNR and
rate records from any customer reservation system of a New Hotel.
5.11 INSPECTION. Customer will timely inspect and review all reports
and output provided by TSG. Customer will notify TSG of any incorrect (i) daily
or weekly reports within three (3) business days after receipt of such reports,
and (ii) monthly or other reports within five (5) business days after receipt of
such reports.
5.12 GOVERNMENTAL APPROVALS. Customer shall, at its expense,
cooperate and provide reasonable assistance to TSG in obtaining all required
governmental approvals which are a prerequisite to this Agreement becoming
effective or as may be necessary for TSG to perform the TSG Services.
5.13 SOFTWARE. Customer will be responsible for providing any
emulation software (other than for the host system) required for the operation
of SPIRIT, and will not use any emulation software (or any other third party
software) that adversely impacts the performance of SPIRIT.
ARTICLE 6
TSG RESPONSIBILITIES AND DUTIES
6.1 CHANGES TO SERVICE LEVELS. At any time after the Effective Date
hereof, in the event that the parties decide that such MASLs are not reasonable
or achievable during the Term of the Agreement, TSG's Client Service
Representative and Customer's Contract Manager may, upon the parties' mutual
written agreement, make
9
changes to the Service Levels. Any such change in a Service Level shall be
set forth in a written amendment or supplement to this Agreement.
6.2 YEAR 2000 WARRANTY. TSG warrants that, as of the Effective Date
of this Agreement, SPIRIT accepts hotel bookings for the year 2000 A.D. and
beyond. In addition, TSG warrants that, by December 31, 1998, SPIRIT will
correctly process date data for the year 2000 A.D. and beyond. This warranty
does not include a warranty of data or interoperability with other software or
hardware. The exclusive liability of TSG and the exclusive remedy of Customer
in the event of a breach of this warranty shall be repair under the maintenance
provisions set forth on SCHEDULE 6.9 herein.
6.3 TSG EQUIPMENT.
6.3.1 Commencing on the Effective Date, TSG will use (a) TSG's
equipment, either owned or leased, for purposes of performing the services and
functions to be performed by TSG pursuant to this Agreement and (b) any other
equipment that TSG may acquire from time to time for use in providing the TSG
Services (the "TSG EQUIPMENT"). The parties acknowledge and agree that the TSG
Equipment will remain the property of TSG and that TSG may from time to time
relocate the TSG Equipment to another TSG facility, at no additional cost to
Customer, for the sole purpose of performing the TSG Services and with no
adverse impact to the Service Levels.
6.3.2 During the Term, TSG will pay all on-going costs and
expenses relating to the TSG Equipment, including, without limitation, the
insurance, maintenance and taxes. TSG will be responsible for its agreements
with vendors or other third parties with respect to the operation or maintenance
of any TSG Equipment. Customer shall be responsible for all other equipment
used to support its own internal operations.
6.4 RETENTION AND SAFEGUARDING OF CUSTOMER DATA. TSG will store and
safeguard magnetic tapes and other magnetic or optical storage media containing
Customer Data in the possession or custody of TSG. "CUSTOMER DATA" shall be
defined as data, whether provided or produced before, on, or after the Effective
Date, which: (1) is provided by or on behalf of Customer to TSG in order for
TSG to provide the TSG Services, including keyed input and electronic capture of
information by the TSG Services; (2) is provided by or on behalf of TSG to
Customer by means of the TSG Services, including reports and all other output of
the TSG Software; or (3) is produced by means of TSG Services as an intermediate
step in using or producing any of the Customer Data, including databases and
files containing Customer Data. TSG will maintain the same safeguards it uses,
but not less than reasonable means, to protect similar clients against the
accidental or unauthorized deletion, destruction or alteration of Customer Data
in the possession or custody of TSG. If Customer reasonably requests additional
safeguards, TSG will provide such additional safeguards at no additional cost.
10
6.5 REMOTE DATABASE ACCESS SERVICES. During the Term, TSG will
assist Customer in the selection of the data communications lines for the Remote
Database Access Services, will provide capacity planning to notify Customer when
upgrades to such lines are required, and will provide coverage of the lines 7
days a week, 24 hours a day, to report any malfunctions of the lines to the
telecommunications network provider. TSG will also manage the Remote Database
Access Services provided by the telecommunications network provider, in
accordance with the terms and conditions of the contract between TSG and the
telecommunications network provider, and for the purpose of performing the TSG
Services. TSG will retain responsibility for any charges associated with its
own router and associated hardware costs.
6.6 TSG CLIENT SERVICE REPRESENTATIVE. TSG will provide a Client
Service Representative (the "TSG CLIENT SERVICE REPRESENTATIVE") to be the
primary contact for Customer during the Term, and who shall consult with
Customer and consider Customer's needs. The TSG Client Service Representative
will (a) have overall responsibility for managing and coordinating the delivery
of the TSG Services, (b) serve as the primary point of contact for Customer in
addressing issues concerning each party's obligations or requests for
modifications under this Agreement (which modifications must also be agreed to
in writing by both parties), (c) provide frequent status reports to Customer,
and (d) coordinate and consult with Customer management.
6.7 USERS GROUPS. TSG will allow Customer and the New and Existing
Hotels to participate in any SPIRIT user groups at no additional charge.
6.8 TRAINING. TSG will provide Customer the application and database
training described on SCHEDULE 6.8 at no additional charge. The training will
be provided by TSG employees with the appropriate skills and knowledge to
conduct such training.
6.9 MAINTENANCE AND OTHER SUPPORT. TSG will provide Customer the
maintenance support described on SCHEDULE 6.9 for the TSG Software. TSG will
also support transactional access to SPIRIT for all remote devices that are both
currently supported for ACTION and were planned to be supported for the HDS
application, on behalf of Customer and the Existing Hotels. Conversion of
records from any CRS other than ACTION and HDS for the Existing Hotels will be
billed as a New or Additional Service, as defined in ARTICLE 3.2.
6.10 SPIRIT FUNCTIONALITY AND ENHANCEMENTS.
6.10.1 TSG agrees to provide Customer with the SPIRIT
Functionality for SPIRIT. Customer may have any part of the SPIRIT
Functionality deactivated for New or Existing Hotels at no additional cost, upon
giving TSG fifteen (15) days prior written notice. TSG has customized and
developed the SPIRIT Functionality as of the Effective Date of this Agreement
with the enhancements set forth on SCHEDULE 6.10.1 (the "SPIRIT ENHANCEMENTS").
TSG shall provide the SPIRIT Enhancements as part
11
of the Implementation of the Existing Hotels.
6.10.2 Any enhancement requested by Customer after the Effective
Date of this Agreement other than the SPIRIT Enhancements will be provided by
TSG as a New or Additional Service, as defined in ARTICLE 3.4, unless otherwise
agreed. In addition, Customer may, at Customer's option, request and fund
enhancements, or receive enhancements which are funded by other SPIRIT multihost
customers including Hyatt or TSG, but in either case Customer must pay for any
cost that may be required for Customer implementation plus the cost of training
Customer's employees to use such enhancements ("NEW FUNCTIONALITY"), at the rate
set forth in ARTICLE 7.4 for New and Additional Services.
6.10.3 TSG shall provide written notification and documentation
of changes to the SPIRIT Functionality at least thirty (30) days prior to their
implementation. TSG will provide input on the required training and hardware
upgrades, if any, and will discuss with Customer the potential impact on talk
time and on New and Existing Hotels. Customer will have the ability to test and
approve all enhancements and associated training documentation in the SPIRIT
test environment prior to implementation. Customer will also have the ability
to review enhancements in the SPIRIT test environment that have not been already
requested by Customer.
6.10.4 Customer may have any part of the SPIRIT Enhancements
deactivated for New or Existing Hotels at no additional cost, upon giving TSG
fifteen (15) days prior written notice.
ARTICLE 7
FEES AND CHARGES
7.1 MONTHLY BASE CHARGE. In consideration for the performance of the
Base Services, Customer shall pay TSG a monthly base charge for each month
during the Term, which shall be equal to the total number of Net Reservations
(as defined in ARTICLE 7.2) for such month, multiplied by the Net Reservation
Fee (also defined in ARTICLE 7.2) (the "MONTHLY BASE CHARGE").
7.2 NET RESERVATION FEE. Customer shall pay TSG a fee of US$[TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] for each net reservation made
(the "NET RESERVATION FEE") by a New or Existing Hotel, subject to adjustment
as provided in ARTICLE 7.5. Regardless of the actual number of reservations
made, Customer shall pay TSG Net Reservation Fees for the minimum transaction
volumes set forth in ARTICLE 5.3. TSG guarantees that it will charge
Customer the most favored rate per Net Reservation (as hereinafter defined)
for any New or Existing Hotels for which TSG provides multihost services. A
"NET RESERVATION" is defined as the total number of reservation transactions
made minus the total number of cancellations of such Reservation Transactions
made (as hereinafter defined). "No shows" will not be deducted from the
calculation of Net Reservations. A "RESERVATION TRANSACTION" is a
reservation booking for a continuous stay for each room at a single property
(excluding "no shows"). In the case where a
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booking contains more than one (1) rate plan, such booking shall only be
considered as one (1) Reservation Transaction; provided, however, that
Customer shall be responsible for performing the itinerary function so as to
treat such multiple rate plans as one (1) reservation booking.
7.3 REMOTE DATABASE ACCESS SERVICES CHARGES. Customer will be
responsible for the costs associated with the procurement, installation,
operation and maintenance of the telecommunication equipment which will be used
to provide the Remote Database Access Services, and shall pay either TSG or the
telecommunications service provider directly for such Remote Database Access
Services. In addition, Customer shall pay TSG an administrative charge per
month of [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] percent ([TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED]%) of TSG's total ▇▇▇▇ amount from
the telecommunications network provider relating to the Remote Database
Access Services provided by TSG on behalf of Customer, to be invoiced monthly
by TSG in addition to the Monthly Base Charge.
7.4 NEW OR ADDITIONAL SERVICE CHARGES. Customer will pay TSG (a) the
amounts mutually agreed upon in writing by Customer and TSG for any New or
Additional Services and (b) any reasonable travel expenses of TSG incurred in
the performance of such New or Additional Services as provided in ARTICLE 7.6.
The parties hereby agree that any incremental labor for all New or Additional
Services will be charged to Customer at a rate of US$[TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] per hour, which will be adjusted by TSG
upon each anniversary of the Effective Date in accordance with an increase in
the CPI, as defined in ARTICLE 7.5 below.
7.5 ADJUSTMENTS TO CHARGES. Upon each anniversary of the Effective
Date during the Term, TSG and Customer may agree to make in writing an
adjustment to the Net Reservation Fee based on the increase in the percentage of
the current Consumer Price Index for All Urban Consumers, U.S. City Average, for
All Items (1982-84 = 100), as published in the Bureau of Labor Statistics of the
Department of Labor, as measured from the date of the last anniversary of the
Effective Date (the "CPI"). In addition, Customer will notify TSG at least
thirty (30) days in advance if it wishes to change the manner of calculating a
Reservation Transaction for New or Existing Hotels, and the parties agree to
mutually discuss such corresponding change in the pricing methodology. No such
changes pursuant to this ARTICLE 7.5 may be made without mutual written
agreement of the parties.
7.6 TRAVEL EXPENSES. For any TSG Services which are requested by
Customer to be provided at a site other than the Dallas/Ft. Worth AMR
headquarter offices or TSG's offices in Chicago, Illinois, Customer will pay TSG
all travel expenses actually incurred for such travel (including food, lodging,
local transportation and incidental expenses), and all such travel will be
reimbursable according to TSG's travel policy. Customer and TSG shall agree in
advance to the cost and provision of air transportation required for such
travel. TSG shall not ▇▇▇▇ Customer for the travel time of TSG's employees.
ARTICLE 8
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INVOICES AND PAYMENT
8.1 MONTHLY BASE CHARGE. Customer shall pay TSG the Monthly Base
Charge, each month during the Term of this Agreement, within thirty (30) days of
receipt of an invoice from TSG.
8.2 OTHER CHARGES. TSG shall invoice Customer for all other fees and
charges due under this Agreement on a monthly basis and in arrears. The Net
Reservations Fee shall be billed based on actual Net Reservations volume, and
shall be settled in the following monthly invoice, according to actual Net
Reservations made. Invoices shall be sent to Customer at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attn.: TSR Controller.
8.3 PAYMENT AND OUTSTANDING CHARGES. The Monthly Base Charge and any
other sums due TSG under this Agreement will be due and payable within thirty
(30) days after receipt by Customer of an invoice from TSG. The Monthly Base
Charge shall be prorated for any partial month. Customer shall also pay to TSG,
within thirty (30) days of receipt of an invoice from TSG, all outstanding
charges owed by Customer as of the Effective Date of this Agreement and invoiced
by TSG.
ARTICLE 9
TAXES
9.1 RESPONSIBILITY FOR CERTAIN TAXES. Customer shall be responsible
for (and shall indemnify TSG for) Taxes imposed on, based on, or measured by any
consideration for, any transfer of services or property by TSG to the Customer
pursuant to this Agreement; provided, however, that TSG shall be responsible for
(and shall indemnify Customer for) all Taxes that are imposed on, based on or
measured by TSG's acquisition, ownership or use of property or services, or the
provision of property or services to TSG.
9.2 PROPERTY TAXES. Subject to the terms of other leases or
agreements, each of TSG and Customer is responsible for the reporting and
payment of any ad valorem taxes due on property owned by it or leased by it
from a third party.
9.3 COOPERATION. Each party shall provide the other with such
cooperation as is reasonable, at the request of the other party, to minimize
Taxes incurred in connection with this Agreement; provided, however, that TSG
shall not be required to take any step that would be materially disadvantageous
to its business or operations or would require it to incur material additional
costs unless Customer agrees to reimburse it for that material disadvantage or
those material costs. In the case of either party, such cooperation shall
include maintaining records as reasonably necessary for tax purposes; making
such records available to the other party (or permitting the other party to copy
at its own expense, such records); and making information in its possession and
employees with technical expertise available as reasonably necessary
14
in connection with the preparation of any tax returns or any audit or tax
contest or refund claim.
9.4 DEFINITION OF TAXES. For purposes of this Agreement, "TAXES" means
taxes of any kind, levies or other like assessments, customs, duties, imposts,
charges or fees, (other than taxes based upon net income, capital, net worth, or
franchise or similar tax), imposed on or payable to any federal, state, county,
local or foreign government or subdivision or agency thereof, and in each
instance such term shall include any interest, penalties or additions to tax
attributable to any such Taxes or requirement to report information with respect
thereto and any damages, costs, expenses, fees or other liability arising from
such tax or reporting requirement.
ARTICLE 10
PROPRIETARY RIGHTS
10.1 TSG PROPRIETARY INFORMATION. TSG retains all right, title and
interest in and to any and all TSG Software (except for that software owned by a
third party licensor) and documentation, software development tools, know-how,
methodologies, processes, technologies or algorithms used in providing the TSG
Services that are trade secrets or proprietary information of TSG or its
affiliates or otherwise owned or licensed by TSG or its affiliates, and Customer
shall have no rights or interest in the TSG Software other than the rights
granted to Customer under this Agreement. TSG shall have and retain all right,
title and interest in and to any new software, modifications, enhancements or
derivative works created by TSG under this Agreement.
10.2 CUSTOMER DATA. The Customer Data is the exclusive property of
Customer. TSG is authorized to have legal and physical access to and make use
of Customer Data for the sole purpose of performing the TSG Services. TSG shall
retain Customer's reservation history online in the booking archives for a
period of twelve (12) months after checkout, after which time such records will
be available within five (5) business days of receipt of a request from
Customer. Upon expiration of this Agreement, termination for Material Default
of TSG, or termination for convenience by TSG, the Customer Data shall be either
erased from the data files maintained by TSG, with Customer's prior written
consent, or, at TSG's expense, returned to Customer in TSG's then existing
machine-readable format and media. Upon termination of this Agreement for
Material Default of Customer or termination for convenience by Customer, such
return of the data shall be at Customer's expense.
ARTICLE 11
CONFIDENTIAL INFORMATION
11.1 CONFIDENTIAL INFORMATION. As of the Effective Date of this
Agreement and during the Term of this Agreement and for a period of three (3)
years thereafter, except
15
as otherwise provided in this Agreement, TSG and Customer each agree that all
information communicated to it by the other, including, without limitation,
(i) any software delivered or developed hereunder, (ii) the terms of this
Agreement (except for disclosure of the terms of this Agreement to (a) Hyatt,
which TSG will ensure is maintained confidential by Hyatt, or (b) any
prospective purchaser of all or substantially all of the stock or assets of
Customer that has agreed in writing to maintain the confidentiality of such
terms), (iii) any information which is marked or identified as confidential,
and (iv) oral or visual information identified as confidential at the time of
disclosure, which is accurately summarized in writing and provided to the
other party in such written form promptly after such oral or visual
disclosure (collectively, the "CONFIDENTIAL INFORMATION"), will be received
in strict confidence, will be used only for purposes of this Agreement, and
will not be disclosed by the recipient party, its agents, subcontractors or
employees without the prior written consent of the other party. TSG and
Customer each agree to use the same means it uses to protect its own
confidential information, but in any event not less than reasonable means, to
prevent the disclosure of the Confidential Information to outside parties.
However, neither TSG nor Customer shall be prevented from disclosing
information which belongs to such party or is (a) already known by the
recipient party without an obligation of confidentiality; (b) publicly known
or becomes publicly known through no unauthorized act of the recipient party;
(c) rightfully received from a third party without an obligation of
confidentiality; (d) independently developed without use of the other party's
confidential information; (e) disclosed without similar restrictions to a
third party by the party owning the confidential information; (f) approved by
the other party for disclosure; or (g) required to be disclosed pursuant to a
requirement of a governmental agency or law, if the disclosing party provides
the other party with notice of this requirement prior to disclosure.
11.2 RESIDUAL KNOWLEDGE. TSG shall be free to use the ideas, concepts
or know-how developed by TSG during the performance of the TSG Services and
incorporated in the Hyatt Software that are in nontangible form and may be
retained by TSG's employees. TSG may acquire, license, market, distribute,
develop for itself or others, or have others develop for it, similar technology
performing the same or similar functions as the Hyatt Software, the TSG Software
or the TSG Services contemplated by this Agreement.
ARTICLE 12
REPRESENTATIONS AND WARRANTIES
12.1 MUTUAL WARRANTIES.
12.1.1 Each party represents and warrants to the other that:
(i) it is a corporation duly organized and validly existing and in good
standing under the laws of its jurisdiction of formation and/or place of
principal business; (ii) the performance of its obligations hereunder has
been duly authorized by all necessary corporate action; (iii) this Agreement
is a legal, valid and binding obligation enforceable against it in accordance
with its terms subject, as to enforcement, to bankruptcy, insolvency,
reorganization, liquidation
16
and other laws and equitable principles relating to or affecting the
enforcement of creditors' rights generally as they may be applied in the
event of the bankruptcy, insolvency, moratorium, reorganization or
liquidation of, or the appointment of a receiver with respect to the property
of, or a similar event applicable to, such party; (iv) neither the execution
and delivery of this Agreement nor the performance of any of its obligations
hereunder, nor the consummation of any of the transactions contemplated
hereby, will violate any agreement to which it is a party or any provision of
its Certificate of Incorporation, Articles of Incorporation, By-Laws or other
document of corporate governance, nor any applicable law, regulation, rule,
judgment, order or decree; and (v) it has duly obtained or made all consents,
approvals or authorizations of, or registrations, declarations or filings
with, any governmental authority which are required as a condition to the
valid execution, delivery and performance of this Agreement on its part.
12.1.2 TSG represents and warrants to Customer that TSG (i) owns
all right, title and interest in and to, or has the right to license, CRSVIEW
and QIK-ACCESS and accompanying documentation, software development tools,
know-how, methodologies, processes, technologies or algorithms used in providing
the TSG Services that are trade secrets or proprietary information of TSG, and
(ii) has the right to grant to Customer the license set forth in ARTICLE 4.3.2
of this Agreement. TSG also represents and warrants that it (i) has the right
to use SPIRIT on behalf of and to provide the TSG Services to Customer in
accordance with the terms and conditions of the Hyatt Agreement, and (ii) has
the right to grant to Customer the right to use and access SPIRIT as set forth
in ARTICLE 4.3.1 of this Agreement.
12.2 NO OTHER REPRESENTATIONS OR WARRANTIES. THE WARRANTIES SPECIFIED
IN THIS AGREEMENT ARE THE ONLY WARRANTIES MADE BY TSG WITH RESPECT TO THE TSG
SOFTWARE AND SERVICES. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, THE TSG
SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS." THERE ARE NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR INTENDED USE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. NO REPRESENTATION OR OTHER
AFFIRMATION OF FACT WHICH IS NOT CONTAINED IN THIS AGREEMENT, INCLUDING, WITHOUT
LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE
OF THE HARDWARE, TSG SOFTWARE OR DATA, OR TSG SERVICES, SHALL BE DEEMED TO BE A
WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF TSG.
WITH RESPECT TO THE HYATT SOFTWARE PROVIDED HEREUNDER, CUSTOMER
ACKNOWLEDGES AND AGREES THAT HYATT MAKES NO REPRESENTATIONS, WARRANTIES OR
GUARANTEES WHATSOEVER WITH RESPECT TO THE HYATT SOFTWARE, ITS FITNESS, CONDITION
OR THE RESULTS TO BE OBTAINED FROM ITS USE. HYATT SPECIFICALLY DISCLAIMS ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT OF THE HYATT SOFTWARE.
17
ARTICLE 13
LIMITATIONS OF LIABILITY
13.1 INTENDED ALLOCATION OF RISKS. The allocation of risks between
the parties, and the limitations on the parties' liabilities and remedies set
forth in this ARTICLE 13 and elsewhere in this Agreement, are specifically
intended by the parties as part of their bargain (i.e., part of the
consideration for their other respective benefits and obligations) in this
Agreement. The parties acknowledge that they have negotiated, with the advice
of legal counsel, such allocation and limitations.
13.2 GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. EXCEPT AS OTHERWISE
SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY LOSS, LIABILITY, DAMAGE OR EXPENSE ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR NONPERFORMANCE OF THE
TSG SOFTWARE OR SERVICES, OR THE PERFORMANCE OR NONPERFORMANCE OF EITHER
PARTY'S OBLIGATIONS UNDER THIS AGREEMENT, UNLESS SUCH LOSS, LIABILITY, DAMAGE
OR EXPENSE SHALL BE DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUCH
PARTY.
13.3 CONSEQUENTIAL DAMAGES. "CONSEQUENTIAL DAMAGES" shall be defined
as damages consisting of (i) lost profits or lost income or failure to realize
savings, (ii) loss of goodwill and loss of business, or (iii) consequential,
indirect, exemplary, special or incidental damages. IN NO EVENT WILL EITHER
PARTY BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES RESULTING FROM OR ARISING OUT OF
OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THE TSG SOFTWARE OR
SERVICES, OR THE PERFORMANCE OR NONPERFORMANCE OF EITHER PARTY'S OBLIGATIONS
UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
IN NO EVENT SHALL HYATT BE LIABLE FOR ANY DAMAGES OF ANY KIND UNDER
THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DIRECT, PUNITIVE OR
CONSEQUENTIAL DAMAGES THAT MAY ARISE AT ANY TIME WITH RESPECT TO THE HYATT
SOFTWARE, EVEN IF HYATT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CUSTOMER SPECIFICALLY AGREES THAT HYATT SHALL NOT BE LIABLE FOR LOST PROFITS,
LOST BUSINESS REVENUE, FAILURE TO REALIZE SAVINGS, LOST DATA OR OTHER
COMMERCIAL OR ECONOMIC LOSS OF ANY KIND.
13.4 LIMITATION ON DAMAGES. Neither Customer nor TSG shall have any
liability under or relating in any manner to this Agreement for any General
Damages or for Indemnifiable Losses (each as hereinafter defined) in excess of
(i) in the aggregate for any particular claim, the amount paid to TSG by
Customer for any fees or charges in the [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] ([TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]) months
immediately preceding the date the claim arose, and (ii) in the aggregate
during the Term, [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Dollars
(US$[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]).
18
13.4.1 "GENERAL DAMAGES" shall be defined as actual, out of
pocket damages, losses, claims, obligations, demands, assessments, fines and
penalties (whether civil or criminal), liabilities, expenses and costs
(including reasonable fees and disbursements of legal counsel and accountants),
and other direct damages of any kind or nature actually suffered or incurred by
a person, including bodily or personal injury or death or damage to real or
tangible personal property. For the avoidance of doubt, General Damages shall
exclude punitive damages and Consequential Damages.
13.4.2 "INDEMNIFIABLE LOSSES" shall be defined as General
Damages awarded under the provisions of ARTICLE 14. Indemnifiable Losses shall
exclude punitive damages and Consequential Damages awarded against either the
Customer Indemnitee or TSG Indemnitee (each as defined in ARTICLE 14.1, and
hereafter referred to generally as the "INDEMNITEE"), in favor of a third party
making a claim against a party to this Agreement (a "THIRD PARTY CLAIM").
13.4.3 TSG disclaims all liability resulting from or arising out
of any act or omission of the Remote Database Access Services network provider.
13.5 TIME FOR CLAIMS. A party may assert or make a claim against the
other party for any breach of this Agreement, or for that other party's
liability under this Agreement, only within two years after the breach or other
event constituting the basis for that claim occurred or was discovered.
Nevertheless, the two-year limit on the time for asserting or making any claim
shall not apply to a claim (including an indemnification claim under ARTICLE 14)
based on a Third Party Claim.
13.6 WARRANTIES. Each party's warranties in this Agreement are made
solely to and for the benefit of the other party. No person other than a party
may assert or make a claim based on the other party's warranties under this
Agreement.
13.7 EQUITABLE RELIEF. To the extent that any monetary or other
relief available under this Agreement through arbitration in accordance with the
dispute resolution procedures set forth in ARTICLE 16 is not an adequate remedy
for any breach of this Agreement, or upon any breach or impending breach of
ARTICLE 11.1, the non-breaching party shall be entitled to injunctive relief as
a remedy for that breach or impending breach by the other party in addition to
any other remedies granted to the non-breaching party in this Agreement or which
are available at law or in equity.
13.8 EXCLUSIVE REMEDIES. The remedies described in this Agreement are
the sole and exclusive rights and remedies of a party regarding any breach of
this Agreement or any matter that may be the subject of a claim for liability
under or relating to this Agreement.
13.9 NONCUMULATIVE REMEDIES. If more than one remedy for a breach or
event is specified in this Agreement, the party entitled to a remedy must elect
or choose between the available remedies, and may not cumulate or exercise
multiple remedies
19
upon such breach or event, excluding equitable relief which may be sought as
described in ARTICLE 13.7 above.
ARTICLE 14
INDEMNIFICATION
14.1 REPRESENTATIONS AND WARRANTIES.
14.1.1 Customer shall indemnify, defend and hold harmless TSG,
its directors, officers, employees, and agents and the heirs, executors,
successors, and permitted assigns of any of those persons (collectively, the
"TSG INDEMNITEES") from and against all General Damages actually suffered or
incurred by a TSG Indemnitee resulting from, arising out of, or relating to, any
breach of any representation or warranty of Customer set forth in this
Agreement.
14.1.2 TSG shall indemnify, defend and hold harmless Customer
and its directors, officers, employees, and agents and the heirs, executors,
successors, and permitted assigns of any of those persons (collectively, the
"CUSTOMER INDEMNITEES") from and against all General Damages actually suffered
or incurred by a Customer Indemnitee resulting from, arising out of, or relating
to, any breach of any representation or warranty of TSG set forth in this
Agreement.
14.2 EXISTING OR NEW HOTELS.
14.2.1 Customer shall indemnify, defend and hold harmless the
TSG Indemnitees from and against all General Damages actually suffered or
incurred by a person, and resulting from, arising out of, or relating to any
claim made by any New or Existing Hotel regarding Customer's performance or
nonperformance of its obligations under this Agreement or its obligations under
any agreement between Customer and the New or Existing Hotels.
Customer shall also indemnify, defend and hold harmless Hyatt,
its respective parent and affiliate corporations, and its respective directors,
officers employees, servants and agents from and against all General Damages
actually suffered or incurred by a person, and resulting from, arising out of,
or relating to any claim made by any New or Existing Hotel regarding any Hyatt
Software provided under this Agreement or the use of such Hyatt Software by TSG
on behalf of Customer.
14.2.2 TSG shall indemnify, defend and hold harmless the
Customer Indemnitees from and against all General Damages actually suffered or
incurred by a person, and resulting from, arising out of, or relating to any
claim made by any New or Existing Hotel regarding TSG's gross negligence or
willful misconduct in the performance or nonperformance of its obligations under
this Agreement.
14.3 EMPLOYMENT RELATED MATTERS.
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14.3.1 Customer will indemnify, defend and hold the TSG
Indemnitees harmless from and against any General Damages actually suffered or
incurred by a person, and resulting from, arising out of, or relating to any
hiring, termination, transition or other personnel action taken by Customer with
respect to any Employee or Transitioned Employee, whether such actions occurred
or claims arose prior to or after the Transition Date, and to the extent such
actions do not result from or relate to a default by TSG of the terms of this
Agreement.
14.3.2 TSG will indemnify, defend and hold harmless the Customer
Indemnitees from and against any General Damages actually suffered or incurred
by a person, and resulting from, arising out of, or relating to any hiring,
termination, transition or other personnel action taken by TSG with respect to
any Employee or Transitioned Employee, to the extent such actions occurred or
claims arose prior to or after the Transition Date and do not result from or
relate to a default by Customer of the terms of this Agreement.
14.4 INFRINGEMENT.
14.4.1 TSG shall indemnify, defend and hold harmless the
Customer Indemnitees from and against all General Damages actually suffered or
incurred by a Customer Indemnitee, to the extent that such action is based on a
claim that any element of the TSG Software or the TSG Services constitutes a
direct infringement of any duly issued United States patent or a direct
infringement of any copyright established in the United States ("INFRINGEMENT").
TSG shall pay all damages and costs finally awarded against a Customer
Indemnitee which are attributable to such Infringement, subject to Customer's
compliance with the procedures set forth in ARTICLE 14.6 below.
14.4.2 Should any element of the TSG Software or Services
become, or in TSG's opinion be likely to become the subject of a claim of
Infringement, then TSG will, at its option and expense, use all commercially
reasonable efforts to, in the following order: (i) procure for Customer the
right to use such infringing element of the TSG Software or Services free of any
liability for Infringement; or (ii) replace or modify the infringing element of
the TSG Software or Services with a non-infringing substitute otherwise
complying with all the functionality for the replaced services. TSG shall not
be obligated to defend, or be liable for costs and damages, if the Infringement
arises out of (x) Customer's equipment, facilities or services, (y) the Hyatt
Software or any third party services or software, or (z) a breach of this
Agreement by Customer.
14.4.3 The foregoing sets forth TSG's sole and exclusive
liability, and Customer's sole and exclusive remedies, with respect to any
claims for Infringement.
14.5 TELECOMMUNICATIONS NETWORK. Customer will indemnify, defend and
hold harmless the TSG Indemnitees from and against all General Damages actually
suffered or incurred by a person, and resulting from, arising out of, or
relating to any claim made regarding (a) any libel, slander, invasion of
privacy, infringement of
21
copyright, or invasion, theft, destruction or alteration of the
telecommunications network caused by Customer or New and Existing Hotels
during the provision of the TSG Services, or of records or data of Customer
or the New and Existing Hotels which reside on SPIRIT, (b) the use of the
telecommunications network by Customer or New and Existing Hotels during the
provision of the TSG Services, or (c) the abuse or fraudulent use of the
telecommunications network by Customer or the New and Existing Hotels during
the provision of the TSG Services.
14.6 INDEMNIFICATION PROCEDURES.
14.6.1 The indemnification obligations set forth in this Article
shall not apply unless the party claiming indemnification: (i) notifies the
other promptly of any matters in respect of which the indemnity may apply and of
which the notifying party has knowledge, in order to allow the indemnitor the
opportunity to investigate and defend the matter; provided, however, that the
failure to so notify shall only relieve the indemnitor of its obligations under
this ARTICLE 14 if and to the extent that the indemnitor is prejudiced thereby;
and (ii) gives the other party full opportunity to control the response thereto
and the defense thereof; provided further, however, that the Indemnitee will
have the right to participate in any legal proceeding and to be represented by
legal counsel of its choosing, all at such Indemnitee's cost and expense.
14.6.2 The indemnitor shall not be obligated for any settlement
or compromise made without its consent. The Indemnitee agrees to cooperate in
good faith with the indemnitor at the request and expense of the indemnitor.
ARTICLE 15
FORCE MAJEURE; DISASTER RECOVERY; SERVICE INTERRUPTION
15.1 FORCE MAJEURE. Except for the obligations to make payments
hereunder for amounts actually due and owing as of such date, each party shall
be relieved of the obligations hereunder to the extent that performance is
delayed or prevented by any cause beyond its reasonable control, including,
without limitation, acts of God, public enemies, war, civil disorder,
telecommunications failures, fire, flood, explosion, labor disputes or strikes
or any acts or orders of any governmental authority, failures or fluctuations in
electrical power, heat, light, air conditioning or telecommunications equipment.
15.2 DISASTER RECOVERY. TSG will develop an interim disaster recovery
plan ("DRP") for Customer for the Implementation. TSG will also provide, by
October 31, 1998, a comprehensive DRP which will consist of TSG's usual and
customary disaster recovery procedures implemented for similar customers. The
DRP shall be maintained for Customer and will be designed to minimize disruption
to Customer's data processing operations caused by natural or man-made
disasters. Customer will have the right to review the DRP and recommend changes
before it goes into effect. TSG will provide Customer 48 hours' written notice
of any tests of the DRP procedures it
22
plans to perform. For any disaster recovery services requested by Customer
which are in addition to the agreed upon DRP, Customer will pay TSG for such
additional services as a New or Additional Service.
15.3 SERVICE INTERRUPTION. Either party shall immediately notify the
other of any outage, interruption, failure, cable out, degradation or other loss
of any Remote Database Access Services ("SERVICE INTERRUPTION"). Either TSG or
Customer (depending on which is a party to the contract with the third party
vendor) will promptly notify the applicable third party vendor of such Service
Interruption. Resolution of the Service Interruption shall be handled in
accordance with the applicable tariff, regulation or third party vendor
agreement. Customer's exclusive remedies and TSG's exclusive liabilities for
any service problems relating to the Remote Database Access Services provided by
the telecommunications network provider will be the remedies set forth in the
applicable tariff, regulations or third party vendor agreement.
ARTICLE 16
DISPUTE RESOLUTION
16.1 PERFORMANCE REVIEW. The TSG Client Service Representative and
the Customer Contract Manager will meet as often as shall reasonably be
requested by either party to review the performance of either party's
obligations under this Agreement. The TSG Client Service Representative and the
Customer Contract Manager shall each have appropriate authority to make
decisions on behalf of its entity, and to resolve any dispute, controversy or
claim. Such representatives will discuss the dispute, controversy or claim and
negotiate a resolution in good faith, without the necessity of any formal
proceeding relating thereto. Any changes made as a result of such resolutions
shall be placed in writing and signed by the appropriate management
representative of each party.
16.2 DISPUTE RESOLUTION. All disputes between the parties not
resolved by the means described above shall first be resolved by arbitration
pursuant to the terms below.
16.2.1 If no agreement has been reached after such good faith
discussions, then either party, upon thirty (30) days prior written notice to
the other party identifying with particularity those areas in dispute, may
submit such dispute to arbitration. Any such arbitration shall be held at
Dallas, Texas, under the Rules of Commercial Arbitration of the American
Arbitration Association, as amended or supplemented from time to time. The
arbitration panel shall consist of three arbitrators. The parties shall each
nominate an arbitrator within thirty (30) days of the written notice submitting
the dispute to arbitration and the nominated arbitrators shall agree on the
third arbitrator within thirty (30) days after the both of them have been
nominated.
16.2.2 The parties agree that the award of the arbitration shall
be the sole and exclusive remedy between the parties regarding any claims,
counterclaims, issues or accounting presented to the arbitrators; that the award
must be consistent with the
23
terms and conditions of this Agreement; that it shall be made and shall be
payable in accordance with the award in U.S. Dollars free of any tax,
deduction or offset; and that any costs, fees or taxes incident to enforcing
the award shall, to the maximum extent permitted by law, be charged against
the party resisting such enforcement.
16.3 CONTINUED PERFORMANCE. Unless (a) an action under this ARTICLE
16 involves a claim by TSG for nonpayment by Customer, or (b) this Agreement has
been terminated in accordance with other provisions of this Agreement, TSG shall
continue to perform its obligations under this Agreement during the arbitration
proceedings and Customer shall continue to make payments to TSG in accordance
with this Agreement.
ARTICLE 17
TERMINATION
17.1 TERMINATION FOR BREACH.
17.1.1 If either party materially defaults in the performance
of any of its obligations under this Agreement (excluding a default by Customer
in its obligation to pay TSG, which is explained in ARTICLE 17.1.2 below), which
default shall not be substantially cured within ninety (90) days after written
notice is given to the defaulting party specifying the default, or, with respect
to any default which cannot reasonably be cured within ninety (90) days, if the
defaulting party fails to proceed within thirty (30) days to commence curing
said default and thereafter to proceed with all due diligence to substantially
cure that default, then the party not in default, by giving written notice to
the defaulting party, may terminate this Agreement as of a date specified in the
notice of termination. In such event, Customer shall pay TSG all amounts due
under this Agreement for the TSG Services actually provided. The termination
shall be effective as of the first day following the end of the cure period or
extended cure period as the case may be. A "MATERIAL DEFAULT" in the case of
TSG shall be defined as a breach of this Agreement which constitutes a
continuous failure by TSG to perform one or more of the TSG Services, which
failure prevents Customer from providing the Customer products or services to
the New or Existing Hotels.
17.1.2 Upon Customer's breach of its obligation to pay TSG in
accordance with this Agreement, TSG may terminate this Agreement upon ninety
(90) days prior written notice to Customer of TSG's intent to terminate and
Customer's failure to cure its failure to pay within such ninety (90) days.
Customer shall still be responsible for paying TSG any outstanding
Implementation or startup costs which are not fully recognized by TSG as of such
date of termination (collectively, the "TERMINATION LIQUIDATED DAMAGES"). TSG
shall provide Customer with reasonably documented and detailed invoices
regarding such costs, including hours worked and services provided.
17.1.3 If either party (i) is adjudicated bankrupt or insolvent
by a court of competent jurisdiction, (ii) substantially ceases to do business
as currently conducted, (iii) fails to pay its debts generally as they become
due, or (iv) takes steps to declare
24
bankruptcy, wind up, dissolve or liquidate (in each case, other than for the
purposes of an amalgamation, restructuring, or reconstruction pursuant to
which the surviving entity becomes bound by or assumes the obligations under
this Agreement), or a receiver, trustee or similar officer is appointed over
(or a lien holder takes possession of) all or substantially all of such
party's property or assets, or anything similar to any of the foregoing
occurs in relation to such party under the laws of any jurisdiction, the
non-defaulting party may terminate this Agreement on notice to the defaulting
party. In the case of (ii) above, Customer shall pay TSG all amounts due
under this Agreement for the TSG Services actually provided and the
Termination Liquidated Damages.
17.2 TERMINATION FOR CONVENIENCE.
17.2.1 TERMINATION BY CUSTOMER. At any time upon or after
January 1, 2003, Customer may terminate this Agreement; provided, that
Customer has given TSG at least six (6) months written notice prior to the
proposed termination date. In the event of such termination, Customer shall
pay TSG all amounts due under this Agreement for the TSG Services actually
provided and the Termination Liquidated Damages. The parties agree that if
Customer exercises its right to terminate pursuant to this ARTICLE 17.2.1,
the losses, expenses and damages suffered by TSG would be uncertain and
difficult to calculate. Therefore, the parties agree that the Termination
Liquidated Damages are not a penalty, and are a reasonable estimate by both
parties of such losses, expenses and damages. Customer shall pay the
Termination Liquidated Damages within thirty (30) days of receipt of an
invoice from TSG. TSG shall provide Customer with reasonably documented and
detailed invoices regarding such Termination Liquidated Damages, including
hours worked and services provided.
17.2.2 TERMINATION BY TSG. At any time upon or after January 1,
2003, TSG may terminate this Agreement; provided, that TSG has given Customer at
least six (6) months written notice prior to the proposed termination date. In
the event of such termination, Customer shall pay TSG all amounts due for the
TSG Services actually provided under this Agreement up to the date of
termination.
17.3 EVENTS UPON TERMINATION.
17.3.1 If this Agreement is terminated by TSG for convenience or is
terminated by Customer for a Material Default by TSG, TSG will grant Customer,
for the remainder of the Term, effective as of such applicable termination date,
and at no additional cost, a nontransferable, nonexclusive right to use and
access the SPIRIT source code and the SPIRIT database, and to use the TSG
Software to process the Customer Data only, subject to Customer and TSG entering
into a license agreement, in form and substance mutually acceptable to TSG and
Customer, containing such terms and conditions as may be appropriate, including
terms and conditions protecting the confidentiality of the software. In the
event that Customer wishes to have a perpetual source code license to SPIRIT
beyond the Term, Customer shall pay TSG the sum of US$[TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] for such license upon expiration of the
Term, subject to Customer and TSG entering into a license agreement, in form
and substance mutually acceptable to TSG and Customer,
25
containing such terms and conditions as may be appropriate, including terms and
conditions protecting the confidentiality of the software. In the event of (i)
TSG's termination for convenience as provided in ARTICLE 17.2.2, (ii) Customer's
termination for a Material Default of TSG, or (iii) expiration or nonrenewal of
this Agreement, and if Customer either has assigned or will assign the Agreement
to an entity which, in TSG's reasonable opinion, is a competitor of TSG in the
hospitality, transportation and/or travel technology industries, TSG shall have
the discretion to decide whether or not to provide the source code to such
assignee or proposed assignee.
17.3.2 If this Agreement is terminated by Customer for
convenience, is terminated by TSG for a Material Default by Customer or breach
of payment obligations by Customer, or expires, Customer's right to use and
access SPIRIT and the SPIRIT database shall cease, effective as of such
applicable termination date or the Expiration Date.
ARTICLE 18
TERMINATION ASSISTANCE SERVICES; SURVIVAL
18.1 TERMINATION ASSISTANCE SERVICES. Upon expiration or termination
of this Agreement for any reason except termination for Material Default by
Customer or breach of payment obligations by Customer, TSG will provide to
Customer such termination assistance services, in addition to a winddown of the
TSG Services, as may be reasonably requested by Customer to enable Customer to
replace the TSG Services (collectively, the "TERMINATION ASSISTANCE SERVICES").
Except in the event of termination by TSG for convenience, the Termination
Assistance Services shall be provided by TSG at an additional charge, to be
agreed in advance by the parties and set forth in writing. Such Termination
Assistance Services may include, without limitation, the following:
18.1.1 Developing a plan for the orderly transition of Customer
data processing and Remote Database Access Services from TSG to Customer.
18.1.2 Except in the case of expiration of the Agreement,
providing reasonable training to Customer's personnel in the performance of the
TSG Services then being performed by TSG.
18.1.3 Even in the case of termination for Material Default by
Customer or breach by Customer of its payment obligations, furnishing Customer
with duplicates of magnetic tapes or print-outs of Customer's data base or
providing Customer with the Customer Data in a form deemed appropriate by TSG.
18.2 TERMINATION ASSISTANCE PERIOD. TSG shall not be required to
perform the Termination Assistance Services for a period in excess of ninety
(90) days from and after the termination date or the Expiration Date.
26
18.3 SURVIVAL. The terms set forth in ARTICLE 4 of this Agreement
regarding use of software shall survive any termination or expiration of this
Agreement and shall apply to any license granted to Customer hereunder as of
such date of termination.
ARTICLE 19
MISCELLANEOUS
19.1 COMPLIANCE WITH APPLICABLE LAW. Each party will comply with all
applicable laws, rules, regulations and ordinances governing its business,
facilities and assets. On the Effective Date, each party, at its own expense,
will have obtained all necessary approvals from governmental, regulatory or
other authorities with jurisdiction over its business, facilities and assets to
enter into and perform its obligations under this Agreement.
19.2 IMPORT, EXPORT, EXCHANGE CONTROLS.
19.2.1 Customer will be responsible for obtaining any necessary
government approvals, consents, licenses and/or permits to enable Customer to
(a) export any products or technical data required for TSG's performance under
this Agreement from the United States or any other country of origin, (b) import
such products and technical data into any other country, and (c) pay TSG all
amounts in U.S. Dollars as required by this Agreement. Upon request, TSG will
promptly provide Customer with any end-user certificates, affidavits regarding
re-export or other certificates and documents as are reasonably available to TSG
and required from TSG for Customer to obtain any such approvals, consents,
licenses and/or permits. TSG shall not be required to perform any portion of
the TSG Services which is in contravention of the U.S. export laws. Each party
shall bear all costs, fees and expenses associated with obtaining such
approvals, consents, certificates, affidavits and other items for which it is
responsible under this Agreement, and upon request will provide to the other
evidence that any such items have been obtained and all fees have been paid.
19.2.2 Notwithstanding anything in this Agreement to the
contrary, Customer shall not directly or indirectly export (or re-export) any
TSG Software, the TSG Services, and any other technical assistance provided by
TSG (collectively, the "TECHNICAL DATA"), or permit transshipment of same (a) to
any country or destination for which the United States government or a United
States government agency requires an export license or other approval for export
without first having obtained such license or other approval, or (b) if
otherwise contrary to United States law. This obligation shall survive the
expiration or termination of this Agreement.
19.3 BINDING NATURE AND ASSIGNMENT. This Agreement shall be binding
on Customer and TSG and their respective successors and assigns. This Agreement
may not be assigned by either party without the prior written consent of the
other party, which consent shall not be unreasonably withheld. Customer may not
merge with or into another entity, except for another affiliate of AMR
Corporation, without the prior
27
written consent of TSG, which consent shall not be unreasonably withheld.
TSG shall have the right to subcontract any of its obligations under this
Agreement to a third party without the consent of Customer; provided,
however, that if the data center operations are subcontracted by TSG to a
subcontractor other than CSC or TSG's SABRE Technology Solutions division,
TSG may do so, only with Customer's prior written consent, which consent
shall not be unreasonably withheld. TSG shall pay all costs incurred in any
such change in subcontractors.
19.4 NOTICES. Wherever under this Agreement one party is required or
permitted to give written notice to the other, such notice shall be deemed given
the third day after its mailing by one party, postage prepaid, to the other
party addressed as follows:
In the case of TSG:
President
The SABRE Group, Inc.
MD 4462
Box 619616
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
In case of Customer:
President
TeleService Resources, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice that shall be mailed pursuant to the foregoing shall also be
delivered by hand or transmitted by fax and shall be effective when first
received by the addressee. Either party may from time to time specify as its
address or fax number for purposes of this Agreement any other address or fax
number upon giving ten (10) days prior written notice thereof to the other
party.
19.5 COUNTERPARTS. This Agreement may be executed in several
counterparts, all of which taken together shall constitute one single agreement
between the parties.
19.6 HEADINGS. All article and schedule titles or captions in this
Agreement are for convenience only. They shall not be deemed part of this
Agreement and in no way define, limit, extend, or describe the scope or intent
of any of its provisions.
19.7 RELATIONSHIP OF PARTIES. TSG shall be and act as an independent
contractor hereunder and no employee of either party shall be deemed to be an
employee of the other for any purpose whatsoever. Each party shall comply, at
its own expense, with the provisions of all applicable state and municipal
requirements and with all state and federal laws applicable to it as an employer
and otherwise.
28
19.8 NO SOLICITATION. Except for the transition of employees as
described in ARTICLE 4.1 hereof, during the Term of this Agreement and for a
period of two (2) years thereafter, unless otherwise agreed by the parties,
neither party shall solicit for employment or otherwise retain the services of
any current or former employees of the other party, who either were involved in
providing or receiving the TSG Services, unless such former employees have not
provided or received services on behalf of such party for a period of one (1)
year.
19.9 SAVINGS CLAUSE. In the event any provision of this Agreement is
held to be invalid or unenforceable, such provision shall be deemed modified to
the extent necessary to become valid and enforceable.
19.10 APPROVALS. Where agreement, approval, acceptance, consent or
similar action by either party is required by any provision of this Agreement,
such action shall not be unreasonably delayed or withheld.
19.11 WAIVER. No delay or omission by either party hereto to exercise
any right or power hereunder shall impair such right or power or be construed to
be a waiver thereof. A waiver by either party of any of the covenants to be
performed by the other or any breach of a covenant shall not be construed to be
a waiver of any succeeding breach or of any other covenant contained in this
Agreement.
19.12 ATTORNEYS' FEES. If any legal action or other proceeding is
brought for the enforcement of an award under ARTICLE 16.2, the prevailing party
shall be entitled to recover reasonable attorneys' fees and expenses and other
costs incurred in that action or proceeding, in addition to any other relief to
which it may be entitled.
19.13 MEDIA RELEASES. All media releases, public announcements and
public disclosures by either party relating to this Agreement or its subject
matter, including, without limitation, promotional or marketing material (but
not including any announcement intended solely for internal distribution by the
disclosing party or any disclosure required by legal, accounting or regulatory
requirements beyond the reasonable control of the disclosing party) shall be
coordinated with and approved by the other party prior to the release thereof.
19.14 NO THIRD PARTY BENEFICIARY. Except as otherwise provided herein,
nothing in this Agreement may be relied upon or shall benefit any party other
than Customer or TSG. Without limiting the foregoing, nothing in this
Agreement, either expressed or implied, will confer upon any employee of
Customer or TSG any right or remedy, including, without limitation, any right to
employment or continued employment for any specified period of time.
19.15 ENTIRE AGREEMENT. This Agreement, including any Schedules
referred to herein and attached hereto, each of which is incorporated in this
Agreement for all purposes, constitutes the entire agreement between the parties
with respect to the subject matter of this Agreement and there are no
representations, understandings or
29
agreements relating to this Agreement that are not fully expressed herein.
No amendment, modification, waiver or discharge of this Agreement shall be
valid unless agreed in writing and signed by an authorized representative of
the party against which such amendment, modification, waiver or discharge is
sought to be enforced.
19.16 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas, regardless of conflict of
laws rules.
19.17 WAIVER OF CLAIMS. As of the date of complete execution of this
Agreement, TSG and Customer each, for itself and on behalf of its present and
former directors, officers, representatives, employees, attorneys, advisors,
agents, affiliates and associates, and their respective predecessors, heirs,
executors, administrators, successors and assigns, and all persons acting in
concert with any such person (the "REPRESENTED PARTIES"), hereby releases and
discharges the other party and each of the Represented Parties from any and all
liabilities, obligations, claims, demands, actions, causes of action, damages,
debts, costs and expenses of every kind and nature whatsoever (except for (i)
payment obligations due with respect to any of the TSG Services, Remote Database
Access Services, New or Additional Services or any other services provided under
this Agreement, or (ii) any Indemnifiable Losses provided in ARTICLES 14.1 (to
the extent of the express representations and warranties set forth in ARTICLE
12.1), 14.2, 14.3, 14.4 OR 14.5 of this Agreement, at law or in equity, known or
unknown, suspected or unsuspected, which either party now has, owns or holds,
ever had or may have owned or held, or hereafter could or shall have, own or
hold against the other party, by reason of any fact, matter, cause, omission or
thing relating to or arising from any dispute or claim occurring or existing at
any time whatsoever (the "CLAIMS") from the beginning of time up to the date of
complete execution of this Agreement. TSG and Customer each agrees that it and
its affiliates and associates will not institute, prosecute or pursue before any
federal, state or other governmental or regulatory authority, domestic or
foreign, any claim at law or in equity, which either has been asserted or could
have been asserted in connection with such Claims.
19.18 WAIVER OF CLAIMS IN EVENT OF ASSIGNMENT. If this Agreement is
assigned to a third party by either TSG or Customer, then, as of such date of
assignment, TSG and Customer each, for itself and on behalf of its Represented
Parties, hereby releases and discharges the other party and each of the
Represented Parties from any and all Claims (except for (i) payment obligations
due with respect to any of the TSG Services, Remote Database Access Services,
New or Additional Services or any other services provided under this Agreement,
or (ii) any Indemnifiable Losses provided in ARTICLES 14.1 (to the extent of the
express representations and warranties set forth in ARTICLE 12.1), 14.2, 14.3,
14.4 OR 14.5 of this Agreement, from the beginning of time up to the date of
assignment of this Agreement. TSG and Customer each agrees that it and its
affiliates and associates will not institute, prosecute or pursue before any
federal, state or other governmental or regulatory authority, domestic or
foreign, any claim at law or in equity, which either has been asserted or could
have been asserted in connection with such Claims. For purposes of this Article
30
19.18, an assignment will include any sale of stock or other transaction in
which Customer and TSG become disaffiliated.
IN WITNESS WHEREOF, TSG and Customer have each caused this Agreement to
be signed and delivered by its duly authorized officer, all as of the Effective
Date.
TELESERVICE RESOURCES, INC. THE SABRE GROUP, INC.
By: By:
--------------------------- ---------------------------------
Name: ▇. ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President, AMR Global Title: President, SABRE Technology
Services, Inc.
Solutions Division
Date: Date:
------------------------- -------------------------------
31
AGREEMENT FOR INFORMATION
TECHNOLOGY SERVICES
BETWEEN
TELESERVICE RESOURCES, INC.
AND
THE SABRE GROUP, INC.
DATED AS OF
JULY 1, 1998
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS AND SCHEDULES. . . . . . . . . . . . . . . . . . . 1
1.1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Schedules. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Term of Agreement. . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Extensions of the Term.. . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3. TSG SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Base Services. . . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 New or Additional Service. . . . . . . . . . . . . . . . . . . . 2
3.3 TSG Rights to Manage TSG Resources . . . . . . . . . . . . . . . 2
3.4 Service Levels.. . . . . . . . . . . . . . . . . . . . . . . . . 2
3.5 Remote Database Access Services. . . . . . . . . . . . . . . . . 3
3.6 Marketing. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 4. EMPLOYEES AND IMPLEMENTATION . . . . . . . . . . . . . . . . . 3
4.1 Transitioned Employees.. . . . . . . . . . . . . . . . . . . . . 3
4.2 Salary and Benefits. . . . . . . . . . . . . . . . . . . . . . . 3
4.3 Implementation of Software.. . . . . . . . . . . . . . . . . . . 4
4.4 Restrictions on Software.. . . . . . . . . . . . . . . . . . . . 5
4.5 Implementation of SPIRIT . . . . . . . . . . . . . . . . . . . . 6
4.6 Ongoing Responsibilities.. . . . . . . . . . . . . . . . . . . . 6
ARTICLE 5. CUSTOMER RESPONSIBILITIES AND DUTIES . . . . . . . . . . . . . 6
5.1 Customer Employees.. . . . . . . . . . . . . . . . . . . . . . . 6
5.2 Customer Facilities and Related Services.. . . . . . . . . . . . 7
5.3 Minimum Transaction Volume.. . . . . . . . . . . . . . . . . . . 7
5.4 Remote Database Access Services. . . . . . . . . . . . . . . . . 8
5.5 Customer Contract Manager. . . . . . . . . . . . . . . . . . . . 8
5.6 Assistance.. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.7 Priorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5.8 Use of TSG Services. . . . . . . . . . . . . . . . . . . . . . . 8
5.9 Training of Customer Personnel.. . . . . . . . . . . . . . . . . 8
5.10 Provision of Source Data and Transfer of GNRs. . . . . . . . . . 9
5.11 Inspection.. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.12 Governmental Approvals.. . . . . . . . . . . . . . . . . . . . . 9
5.13 Software.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
i
ARTICLE 6. TSG RESPONSIBILITIES AND DUTIES. . . . . . . . . . . . . . . . 9
6.1 Changes to Service Levels. . . . . . . . . . . . . . . . . . . . 9
6.2 Year 2000 Warranty.. . . . . . . . . . . . . . . . . . . . . . . 9
6.3 TSG Equipment. . . . . . . . . . . . . . . . . . . . . . . . . .10
6.4 Retention and Safeguarding of Customer Data. . . . . . . . . . .10
6.5 Remote Database Access Services. . . . . . . . . . . . . . . . .10
6.6 TSG Client Service Representative. . . . . . . . . . . . . . . .11
6.7 Users Groups.. . . . . . . . . . . . . . . . . . . . . . . . . .11
6.8 Training.. . . . . . . . . . . . . . . . . . . . . . . . . . . .11
6.9 Maintenance and Other Support. . . . . . . . . . . . . . . . . .11
6.10 SPIRIT Functionality and Enhancements. . . . . . . . . . . . . .11
ARTICLE 7. FEES AND CHARGES . . . . . . . . . . . . . . . . . . . . . . .12
7.1 Monthly Base Charge. . . . . . . . . . . . . . . . . . . . . . .12
7.2 Net Reservation Fee. . . . . . . . . . . . . . . . . . . . . . .12
7.3 Remote Database Access Services Charges. . . . . . . . . . . . .12
7.4 New or Additional Service Charges. . . . . . . . . . . . . . . .13
7.5 Adjustments to Charges.. . . . . . . . . . . . . . . . . . . . .13
7.6 Travel Expenses. . . . . . . . . . . . . . . . . . . . . . . . .13
ARTICLE 8. INVOICES AND PAYMENT . . . . . . . . . . . . . . . . . . . . .13
8.1 Monthly Base Charge. . . . . . . . . . . . . . . . . . . . . . .13
8.2 Other Charges. . . . . . . . . . . . . . . . . . . . . . . . . .13
8.3 Payment and Outstanding Charges. . . . . . . . . . . . . . . . .13
ARTICLE 9. TAXES. . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
9.1 Responsibility for Certain Taxes. . . . . . . . . . . . . . . . .14
9.2 Property Taxes. . . . . . . . . . . . . . . . . . . . . . . . . .14
9.3 Cooperation.. . . . . . . . . . . . . . . . . . . . . . . . . . .14
9.4 Definition of Taxes.. . . . . . . . . . . . . . . . . . . . . . .14
ARTICLE 10. PROPRIETARY RIGHTS . . . . . . . . . . . . . . . . . . . . . .15
10.1 TSG Proprietary Information. . . . . . . . . . . . . . . . . . .15
10.2 Customer Data. . . . . . . . . . . . . . . . . . . . . . . . . .15
ARTICLE 11. CONFIDENTIAL INFORMATION . . . . . . . . . . . . . . . . . . .15
11.1 Confidential Information.. . . . . . . . . . . . . . . . . . . .15
11.2 Residual Knowledge.. . . . . . . . . . . . . . . . . . . . . . .16
ARTICLE 12. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . .16
12.1 Mutual Warranties. . . . . . . . . . . . . . . . . . . . . . . .16
12.2 No Other Representations or Warranties.. . . . . . . . . . . . .17
ii
ARTICLE 13. LIMITATIONS OF LIABILITY . . . . . . . . . . . . . . . . . . .17
13.1 Intended Allocation of Risks.. . . . . . . . . . . . . . . . . .17
13.2 Gross Negligence or Willful Misconduct.. . . . . . . . . . . . .17
13.3 Consequential Damages. . . . . . . . . . . . . . . . . . . . . .18
13.4 Limitation on Damages .. . . . . . . . . . . . . . . . . . . . .18
13.5 Time for Claims. . . . . . . . . . . . . . . . . . . . . . . . .19
13.6 Warranties.. . . . . . . . . . . . . . . . . . . . . . . . . . .19
13.7 Equitable Relief.. . . . . . . . . . . . . . . . . . . . . . . .19
13.8 Exclusive Remedies.. . . . . . . . . . . . . . . . . . . . . . .19
13.9 Noncumulative Remedies.. . . . . . . . . . . . . . . . . . . . .19
ARTICLE 14. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . .19
14.1 Representations and Warranties . . . . . . . . . . . . . . . . .19
14.2 Existing or New Hotels.. . . . . . . . . . . . . . . . . . . . .20
14.3 Employment Related Matters.. . . . . . . . . . . . . . . . . . .20
14.4 Infringement.. . . . . . . . . . . . . . . . . . . . . . . . . .21
14.5 Telecommunications Network.. . . . . . . . . . . . . . . . . . .21
14.6 Indemnification Procedures.. . . . . . . . . . . . . . . . . . .21
ARTICLE 15. FORCE MAJEURE; DISASTER RECOVERY; SERVICE INTERRUPTION . . . .22
15.1 Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . .22
15.2 Disaster Recovery. . . . . . . . . . . . . . . . . . . . . . . .22
15.3 Service Interruption.. . . . . . . . . . . . . . . . . . . . . .22
ARTICLE 16. DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . .23
16.1 Performance Review.. . . . . . . . . . . . . . . . . . . . . . .23
16.2 Dispute Resolution.. . . . . . . . . . . . . . . . . . . . . . .23
16.3 Continued Performance. . . . . . . . . . . . . . . . . . . . . .23
ARTICLE 17. TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . .24
17.1 Termination for Breach.. . . . . . . . . . . . . . . . . . . . .24
17.2 Termination for Convenience. . . . . . . . . . . . . . . . . . .24
17.3 Events upon Termination. . . . . . . . . . . . . . . . . . . . .25
ARTICLE 18. TERMINATION ASSISTANCE SERVICES; SURVIVAL. . . . . . . . . . .26
18.1 Termination Assistance Services. . . . . . . . . . . . . . . . .26
18.2 Termination Assistance Period. . . . . . . . . . . . . . . . . .26
18.3 Survival.. . . . . . . . . . . . . . . . . . . . . . . . . . . .26
iii
ARTICLE 19. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . .26
19.1 Compliance with Applicable Law.. . . . . . . . . . . . . . . . .26
19.2 Import, Export, Exchange Controls. . . . . . . . . . . . . . . .27
19.3 Binding Nature and Assignment. . . . . . . . . . . . . . . . . .27
19.4 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
19.5 Counterparts.. . . . . . . . . . . . . . . . . . . . . . . . . .28
19.6 Headings.. . . . . . . . . . . . . . . . . . . . . . . . . . . .28
19.7 Relationship of Parties. . . . . . . . . . . . . . . . . . . . .28
19.8 No Solicitation. . . . . . . . . . . . . . . . . . . . . . . . .28
19.9 Savings Clause.. . . . . . . . . . . . . . . . . . . . . . . . .28
19.10 Approvals. . . . . . . . . . . . . . . . . . . . . . . . . . . .28
19.11 Waiver.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
19.12 Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . . . . .29
19.13 Media Releases.. . . . . . . . . . . . . . . . . . . . . . . . .29
19.14 No Third Party Beneficiary.. . . . . . . . . . . . . . . . . . .29
19.15 Entire Agreement.. . . . . . . . . . . . . . . . . . . . . . . .29
19.16 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . .29
19.17 Waiver of Claims.. . . . . . . . . . . . . . . . . . . . . . . .29
19.18 Waiver of Claims in Event of Assignment. . . . . . . . . . . . .30
iv
SCHEDULE 3.1
BASE SERVICES
1. - Conversion/Implementation of all the Existing Hotels commencing as
of the Effective Date of this Agreement
2. - "Train the trainers" level of application training
3. - Train the database administrators
4. - An additional 10 days of training each year for Customer employees.
Customer will specify the target group to be trained together with
a class syllabus at least one month prior to commencement of the
training. Customer will bear the cost of the TSG instructor's T&I.
5. - GNR Conversion/Cutover Support
6. - Operation of the SPIRIT system within agreed service levels. TSG
shall only be responsible for maintaining the agreed upon service
levels in the operation of SPIRIT between the TSG Data Center and
either the Customer router or the router of any location of any New
or Existing Hotel which has a direct connection to the TSG Data
Center; provided, that such connection shall contain TSG's network
engineering and technology is already available to such location.
7. - Maintenance of the SPIRIT application, pursuant to SCHEDULE 6.9
herein
8. - Account management and third level application problem resolution
9. - Implementation of CRSVIEW and QIK-ACCESS, pursuant to the terms
contained in this Agreement
10. - Technical support help desk maintained twenty-four hours per day,
seven days per week, including call logging and reporting
11. - Programmatic conversion of the Existing Hotels customer's GNRs and
rates database where practical. It may be more appropriate to
manually build rate tables in SPIRIT as part of customer training,
supported by TSG, dependent upon the specific Existing Hotel and
the structure of the rates in ACTION. This will be subject to
Customer and the client's approval of an acceptable solution on a
case by case basis.
12. - With the exception of [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED], each of the Existing Hotels will be provided with GDS
connectivity via WIZCOM, in SPIRIT, equal to the level
available in ACTION when the client is cutover. The availability
at cutover will require support from WIZCOM and the GDSs, and will
be subject to the availability of their support.
13. - The list of PMS interfaces listed below will be available at
cutover, subject to PMS vendor cooperation and support.
PMS INTERFACES
PMS VENDOR PRODUCT TYPE CLIENT
Hotel Data Systems Xenon 2 Way [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
2 Way [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED](2)
Hotel Information CRO 400 1 Way [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
▇▇▇▇▇▇▇▇ Information Hornet 1 Way [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
M Corp ImagInn 1 Way [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
[TEXT OMITTED -
CONFIDENTIAL
TREATMENT REQUESTED] Proprietary 1 Way [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
MAI/CLS C-Res 1 Way [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
------------------------------
(1) Note: Feed inventory and availability only
(2) Note: Not yet implemented
ii.
SCHEDULE 3.1.1
SERVICE LEVELS AND SYSTEM PERFORMANCE
- Central site hardware and software shall be maintained by TSG, twenty-four
hours per day, seven days per week, subject to SPIRIT downtime referred to
as "SCHEDULED DOWNTIME" and "ADDITIONAL SCHEDULED DOWNTIME", each as
defined below.
- TSG may from time to time schedule the Scheduled Downtime for system
maintenance and software modifications, between the hours of 000 and 0500
CT on Sundays. TSG shall give Customer not less than forty-eight hours
notification of the Scheduled Downtime and expected duration. In addition,
TSG may schedule additional Scheduled Downtime for operational necessity
("ADDITIONAL SCHEDULED DOWNTIME"). Such Additional Scheduled Downtime may
be scheduled by TSG for up to two (2) hours per month during the Term, on
any day of the week, between 0000 and 0200 CT. TSG shall give Customer not
less than forty-eight hours notification of the Additional Scheduled
Downtime and expected duration. Such Additional Scheduled Downtime taken
each month shall be deducted from the Scheduled Downtime allowed on the
following Sunday.
- The MASL for SPIRIT application availability, not including any Scheduled
Downtime or Additional Scheduled Downtime, shall be a monthly average of
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]%. The measurement of
this MASL shall begin on the MASL Date.
- If, within five (5) working days from the end of any calendar month in
which TSG is unable to meet the MASL of [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]%, TSG is not able to restore the MASL of [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED]% during any twenty-four (24)
hour period between 0001 CT of one day and 2400 CT of the same day,
Customer may set off [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
percent ([TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]%) of the
Monthly Base Charge invoiced by TSG for such month, as well as
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] percent ([TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED]%) of Customer's share of recurring
circuit charges for such month.
- In no event shall the aggregate monthly amount set-off by Customer for any
one month exceed [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] percent
([TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]%) of the total monthly
fees billed by TSG for such month.
The average application performance response time MASLs from SPIRIT to
either the Customer router or the router of any location of any New or
Existing Hotel which has a direct connection to the TSG Data Center
(provided that such connection shall contain TSG's network engineering and
technology is already available to such location) shall be as follows:
General Information System (GIS) Display: Less than [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
Second Night Availability Display: Less than [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
Single Property Weekly Availability Display: Less than [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
iii.
- TSG will provide the TSG Data Center with disaster avoidance features,
including, but not limited to:
- Perimeter Security
- Computer Room Security
- Off-site File Storage
- UPS w/ Two Power Grids
The MASL for reservation delivery, not including any Scheduled Downtime,
shall be the following monthly averages:
- [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] percent ([TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED]%) of all reservations
made for all New and Existing Hotels to be sent within [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] ([TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED]) minutes, for reservations made
for check-in for the current day or the next day
- [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] percent ([TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED]%) of all reservations
made shall be sent no later than [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] ([TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]) hours of being made, regardless of the date of
check-in, unless predetermined delivery times have been stated
by Customer
iv.
SCHEDULE 3.5
SHARED CIRCUITS
One (1) T1 Frame Relay Circuit connecting the SPIRIT router at CentrePort IV to
SITA's frame relay node (COSMACC ID # 2391291)
One (1) 56Kbps SITA Fax Circuit connecting the SPIRIT router to SITA's X25
network (COSMACC ID# 2448375). Note: this circuit will no longer be in use
after the host/fax application replaces the SITA Fax Circuit in its entirety.
Two (2) 56Kbps Inbound Circuits connecting from SITA's X25 network to the SPIRIT
router, allowing NUI dialup capability from hotel customers (COSMACC ID#
2484458).
Two (2) T1 Circuits connecting the host/fax servers to two equivalent servers at
MCI (COSMACC ID#s 2511577 and 251577). Note: one of the two circuits will no
longer be in use shortly after the Effective Date of this Agreement.
v.
SCHEDULE 3.6
MARKETING
1. The parties agree to jointly market the SPIRIT multihost hotel
reservation system and the SPIRIT Functionality together with Customer's call
center operations ("VOICE RESERVATION SERVICES") and/or GDS services ("GDS
SERVICES"), which shall be known collectively as the Private Label Services (the
"PRIVATE LABEL SERVICES"), as set forth below in this Schedule, and agree to
jointly market the SPIRIT Multihost Services. The "SPIRIT MULTIHOST SERVICES"
shall be defined as Customer providing access to SPIRIT to any Existing Hotel or
Potential Client (as hereinafter defined) for the processing of reservations in
such hotel's own internal operations.
2. Either TSG or Customer may contract with a potential customer
("POTENTIAL CLIENT") for the Private Label Services, subject to the terms set
forth below. In such case, the party that contracts with the Potential Customer
shall be the prime contractor for such services and the other party shall be the
subcontractor unless otherwise agreed. In the case where either party is the
prime contractor, such party shall determine the cost of its own services within
its discretion. Customer shall give TSG cost data for the GDS Services/Voice
Reservation Services to include in TSG's proposal to any Potential Client where
TSG is the prime contractor.
3. TSG and Customer may agree to the following joint marketing scenarios,
as described in this ARTICLE 3.
(a) EXISTING HOTELS: If Customer presently offers Voice Reservation
Services or GDS Services to an Existing Hotel, Customer may provide the Private
Label Services as well as the SPIRIT Multihost Services, and Customer shall pay
TSG the charges set forth in ARTICLE 7 of this Agreement.
(b) POTENTIAL CLIENTS:
(i) If Customer contracts with a Potential Client for both Voice
Reservation Services and GDS Services, Customer may provide the Private
Label Services as well as the SPIRIT Multihost Services. In such event,
Customer shall pay TSG the charges set forth in ARTICLE 7 of this
Agreement.
(ii) If Customer contracts with a Potential Client for EITHER Voice
Reservation Services OR GDS Services, Customer may provide the Private
Label Services. In such event, Customer shall pay TSG the charges set
forth in ARTICLE 7 of this Agreement. Customer may provide the SPIRIT
Multihost Services, at a price per Net Reservation to be determined by
TSG.
(iii) If Customer contracts with a Potential Client for ONLY the SPIRIT
Multihost Services, Customer may provide such SPIRIT Multihost Services.
In such event, the price per Net Reservation shall be determined by TSG.
Customer shall also
vi.
pay the Remote Database Access Services Charges as specified in
ARTICLE 7.3 of this Agreement.
(iv) The following table outlines the charge per Net Reservation that
will be charged to Customer for a Potential Client, subject to the terms
and conditions of this Agreement:
--------------------------------------------------------------------------------------------------------------
SERVICE PRICE FOR TSR
--------------------------------------------------------------------------------------------------
PRIVATE LABEL
----------------- PRIVATE LABEL SPIRIT MULTIHOST
SCENARIO VOICE GDS MULTIHOST SERVICES SERVICES
--------------------------------------------------------------------------------------------------------------
A No No No N/A N/A
B YES No No $[TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] N/A
C YES YES No $[TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] N/A
D YES YES YES $[TEXT OMITTED - $[TEXT OMITTED - CONFIDENTIAL
CONFIDENTIAL TREATMENT REQUESTED] TREATMENT REQUESTED]
E No YES No $[TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] N/A
F No YES YES $[TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] $TBD by TSG
G No No YES N/A $TBD by TSG
H YES No YES $[TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] $TBD by TSG
--------------------------------------------------------------------------------------------------------------
4. TSG agrees to hire a full time salesperson for multihost hotel
reservation system marketing to Potential Clients. Customer, in its marketing
efforts, may demonstrate SPIRIT, but may not give access to, disclose, or allow
Potential Clients to evaluate SPIRIT, unless a nondisclosure agreement that is
acceptable to TSG is executed between Customer and the Potential Client.
5. In the event that Customer provides the SPIRIT Multihost Services to
Potential Clients under ARTICLE 3, Customer shall do so under the terms of this
Agreement, unless otherwise agreed to by TSG, which agreement will not be
unreasonably withheld. Such SPIRIT Multihost Services shall be subject to
Potential Client's internal use only and subject to the restrictions contained
in this Agreement regarding Customer's use of SPIRIT.
vii.
6. The terms and conditions for the provision by Customer of the SPIRIT
Multihost Services to any Potential Client shall be agreed to in writing between
TSG and Customer as a work order to this Agreement, prior to communicating in
writing to the Potential Client.
7. TSG will give Customer product pricing by January 31st of each year for
products that can be multihosted other than SPIRIT (such as the Hyatt Software
or the TSG hospitality-based software). The current price for Potential Clients
is US$[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] per Net Reservation
for SPIRIT Multihost Services, unless otherwise agreed to by TSG.
Implementation and development services would be performed by TSG at an
additional charge on a time and materials basis, unless otherwise agreed in
writing.
8. Each party will provide the other with quarterly marketing reviews and
joint targeting plans for marketing of the Private Label Services during the
upcoming quarter.
9. No royalties shall be given to either party for the marketing by the
other of the Private Label Services. Customer may charge, in its discretion,
any amount for the GDS Services and/or the Voice Reservation Services which are
provided in conjunction with the SPIRIT Multihost Services as described above.
viii.
SCHEDULE 4.1
EMPLOYEES
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
ix
SCHEDULE 4.3
SPIRIT FUNCTIONALITY
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
x.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
xi.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
NON-SPIRIT APPLICATIONS
HYATT SOFTWARE
RMS/DFI REVENUE MANAGEMENT FUNCTIONALITY: Revenue management application
developed for Hyatt by DFI. TSG does not have any rights to market the
application.
ENVISION GROUP SALES (NOW REFERRED TO AS RESERVE ENVISION-TM-): Group sales
application for hotel chains and marketing organizations that have a central or
regional sales force.
FUNCTION BOOK EVENT PLANNING: Application to manage meeting room inventory,
plan and track catering events and generate forecasts at a property level.
Fully integrated with the ENVISION application.
ENCORE PROPERTY MANAGEMENT SYSTEM: Hyatt PMS that is not marketed by TSG.
xii.
TSG SOFTWARE
HIRO REVENUE MANAGEMENT: UNIX based revenue management application developed by
TSG for Holiday Inn. Installed/operated at a central location for hotel
companies.
HARPS/HARPS PLUS REVENUE MANAGEMENT (NOW REFERRED TO AS RESERVE MAX-TM-):
PC-based revenue management application developed by TSG. Designed as a
stand-alone, property-based application for forecasting and automating inventory
controls.
REWARD FREQUENT GUEST (NOW REFERRED TO AS RESERVE REWARD-TM-): PC-based
frequent guest application used to create and maintain customer loyalty by
offering recognition awards and incentives. Tracks frequent guest accounts,
manages bonuses and promotions, and performs marketing analysis on guest
preferences.
CRSVIEW (NOW REFERRED TO AS RESERVE LINK-TM-): A distribution analysis system
that distributes and monitors hotel information and helps to improve the data's
presentation and accuracy.
QIK-ACCESS-TM-: A product line of PC-based software products that transform
complicated transaction-based host environments into versatile, user-friendly
systems by providing easily configurable user interfaces. The software helps
deliver fast and efficient host entries, reduces costs, improves customer
service, and customizes online information prompts.
xiii.
SCHEDULE 4.3.1
EXISTING HOTELS
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
xiv.
SCHEDULE 4.5.1
IMPLEMENTATION ROLES AND RESPONSIBILITIES
---------------------------------------------------------------------------------------------------------
TSG CUSTOMER
---------------------------------------------------------------------------------------------------------
INITIAL ROLES & RESPONSIBILITIES INITIAL ROLES & RESPONSIBILITIES
(IMPLEMENTATION) (IMPLEMENTATION)
---------------------------------------------------------------------------------------------------------
PROJECT MANAGEMENT: PROJECT MANAGEMENT:
---------------------------------------------------------------------------------------------------------
Identify Scope of Project Maintain Internal Customer Project Plan
---------------------------------------------------------------------------------------------------------
Create & Maintain Project Plan Coordinate Implementation Activities between
Customer and Existing Hotels
---------------------------------------------------------------------------------------------------------
Coordinate Implementation Conduct Regular Status Meetings with the various
Activities between Customer and TSG Customer Groups involved in the Implementation
---------------------------------------------------------------------------------------------------------
Conduct Weekly Internal Status Conduct Regular Status Meetings with the Existing
Meetings with the various Groups identify/resolve any outstanding issues
---------------------------------------------------------------------------------------------------------
Conduct Weekly Status Meetings
with Customer to identify/resolve any
outstanding issues
---------------------------------------------------------------------------------------------------------
COMMUNICATIONS: COMMUNICATIONS:
---------------------------------------------------------------------------------------------------------
Network: Network:
---------------------------------------------------------------------------------------------------------
Order, Install & Test Circuits
between Customer's Reservations Office
and TSG Data Center as required
---------------------------------------------------------------------------------------------------------
Configure Network to receive
Customer Res traffic
---------------------------------------------------------------------------------------------------------
Verify Customer Network between
Reservation Center and Properties are
configured prior to cutover
---------------------------------------------------------------------------------------------------------
Verify Network Connectivity
between Existing Hotels & Customer
---------------------------------------------------------------------------------------------------------
Verify Network Connectivity
between Existing Hotels & TSG
---------------------------------------------------------------------------------------------------------
Hardware: Hardware:
---------------------------------------------------------------------------------------------------------
Verify Customer Hardware Load SPIRIT software on workstations
Compatibility with SPIRIT and make
hardware recommendations
---------------------------------------------------------------------------------------------------------
Verify Customer Hardware is
compatible with SPIRIT
---------------------------------------------------------------------------------------------------------
Coordinate Ordering, Shipment and
Installation of Hardware, are required
---------------------------------------------------------------------------------------------------------
Existing Hotel Connectivity:
Obtain Sita IDs for Existing
Hotels accessing
---------------------------------------------------------------------------------------------------------
SPIRIT via Dial up
---------------------------------------------------------------------------------------------------------
Create Dial up Diskettes for
Existing Hotels accessing
---------------------------------------------------------------------------------------------------------
SPIRIT via modem
---------------------------------------------------------------------------------------------------------
Create Fax File for Existing
Hotels receiving bookings via
---------------------------------------------------------------------------------------------------------
fax machine
---------------------------------------------------------------------------------------------------------
DATABASE CREATION: DATABASE CREATION:
---------------------------------------------------------------------------------------------------------
Create Database for Existing Compile Data to Populate Databases for
Hotels all Existing Hotels
---------------------------------------------------------------------------------------------------------
Test Databases for all Existing Hotels Populate Databases for Existing Hotels
---------------------------------------------------------------------------------------------------------
Activate Databases & turn over to General Maintenance Section
Customer for population
---------------------------------------------------------------------------------------------------------
Existing Hotel Maintenance Section
---------------------------------------------------------------------------------------------------------
xv.
APPLICATION TRAINING: APPLICATION TRAINING:
---------------------------------------------------------------------------------------------------------
Customize Training Material Conduct Internal Training for Reservations Agents
---------------------------------------------------------------------------------------------------------
Provide Training Material to Conduct Training for Existing Customer Hotels
---------------------------------------------------------------------------------------------------------
Conduct Database Training
---------------------------------------------------------------------------------------------------------
Conduct Train the Trainer
Reservations Training
---------------------------------------------------------------------------------------------------------
Assist with Client (Property)
Training for [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED].
---------------------------------------------------------------------------------------------------------
Train first and second level support Train third level support
---------------------------------------------------------------------------------------------------------
GNR CONVERSION/CUTOVER: GNR CONVERSION/CUTOVER:
---------------------------------------------------------------------------------------------------------
Develop Automated GNR Conversion Provide GNR tapes/data files to TSG for
Program from Action conversion testing
---------------------------------------------------------------------------------------------------------
Test GNR Conversion Program Determine Cutover Support to deploy at Customer &
Existing Hotel site
---------------------------------------------------------------------------------------------------------
Determine GNR exception processing Provide Support at Customer & Existing Hotel sites
---------------------------------------------------------------------------------------------------------
Upload Customer GNRs (tape or data file) Complete Database Requirements for Seamless
Connectivity and verify data is correct
---------------------------------------------------------------------------------------------------------
Convert Customer GNRs
---------------------------------------------------------------------------------------------------------
Process Exceptions to GNR conversion
---------------------------------------------------------------------------------------------------------
Test GDS Connectivity (Type A & Type B traffic)
---------------------------------------------------------------------------------------------------------
Coordinate Seamless Interface Connectivity
---------------------------------------------------------------------------------------------------------
Test Seamless Interface (as available)
---------------------------------------------------------------------------------------------------------
Determine Cutover Support (heads & locations)
---------------------------------------------------------------------------------------------------------
Deploy Cutover support at TSG and Customer
---------------------------------------------------------------------------------------------------------
SCHEDULE 4.6
ONGOING RESPONSIBILITIES
---------------------------------------------------------------------------------------------------------
TSG CUSTOMER
ONGOING ROLES & RESPONSIBILITIES ONGOING ROLES & RESPONSIBILITIES
---------------------------------------------------------------------------------------------------------
PROJECT MANAGEMENT: PROJECT MANAGEMENT:
Provide Project Management for New Hotels Coordinate Implementation Plan for New Hotel
Implementations
---------------------------------------------------------------------------------------------------------
DATABASE CREATION: DATABASE CREATION:
---------------------------------------------------------------------------------------------------------
Create, Test & Activate Databases Compile Database Information for
for New Hotels each New Hotel
---------------------------------------------------------------------------------------------------------
Populate Database for each New Hotel
---------------------------------------------------------------------------------------------------------
COMMUNICATIONS:
---------------------------------------------------------------------------------------------------------
Hotel Connectivity:
---------------------------------------------------------------------------------------------------------
Obtain Sita IDs for New Hotels accessing
SPIRIT via Dial up
---------------------------------------------------------------------------------------------------------
Create Dial up Diskettes for
New Hotels accessing SPIRIT via modem
---------------------------------------------------------------------------------------------------------
Create Fax File for New Hotels
receiving bookings via fax machine
---------------------------------------------------------------------------------------------------------
TRAINING: TRAINING:
Maintenance and updating of Update/Customize Training Materials, as needed
standard SPIRIT Training Materials
---------------------------------------------------------------------------------------------------------
Train Customer Database Maintenance for each New Hotel
---------------------------------------------------------------------------------------------------------
Train Customer & Hotel Reservation Agents
---------------------------------------------------------------------------------------------------------
Setup Property Communication for Dial up hotels
---------------------------------------------------------------------------------------------------------
GNR CONVERSION/CUTOVER: GNR CONVERSION/CUTOVER:
---------------------------------------------------------------------------------------------------------
Modify & Test GNR Conversion Program* Provide Cutover Support at New Hotel Locations
---------------------------------------------------------------------------------------------------------
Third Level Support First and Second Level Support
---------------------------------------------------------------------------------------------------------
Upload & Convert GNRs Provide GDS tape/data file to TSG for conversion
testing
---------------------------------------------------------------------------------------------------------
Process Exception GNRs from GNR Conversion
---------------------------------------------------------------------------------------------------------
Test GDS Connectivity (Type A and B Traffic)
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Coordinate and Test Seamless Image Interface
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Provide Cutover Support at TSG HDQ/TSG Data
Center
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ACCOUNT MANAGEMENT: ACCOUNT MANAGEMENT:
Identify & resolve any issues that may Identify & resolve any issues that may arise with
arise with Customer New Hotels
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* Conversion of records from any CRS other than ACTION and HDS will be billed
as a New or Additional Service as defined in ARTICLE 7.4.
xvii.
SCHEDULE 6.8
TRAINING
TRAINING MATERIALS: Training for the central reservation agents, administrative
personnel and the properties is of critical importance. TSG will provide all of
the training materials it uses to introduce employees to the SPIRIT system, and
which are system-related, including keystroke procedures and function
explanations. Materials for modifications made to the SPIRIT system will be
provided by TSG as they are released. Training materials, including COMWARE for
the following areas will be provided:
- Help Desk Reports
- Data Application
- Subject Matter Experts
- Reservation Application
- Database Administrators
- Agents
INITIAL SYSTEM FAMILIARIZATION: In order to become productive in terms of
determining how best to implement and utilize SPIRIT, key users, administrators,
trainers, and technical personnel need the benefit of in depth training. This
process will also give Customer personnel the necessary skills to begin
identifying areas where the application may need to be changed. TSG suggests
that initial familiarization for this core group be divided into two sessions
with a follow-on session devoted to train the trainer course development. (It
is suggested that those responsible for user training go through all three
training classes).
DATABASE MAINTENANCE: This course is designed to provide the participants with
a background on how to take advantage of the flexibility of the SPIRIT database.
Those attending the class will develop a complete understanding of how the
system manages data and the various ways hotels may be represented. A complete
overview of all the database maintenance, inventory, and rates functions are
included as part of this class. These skills and information will be critical
as Customer decides how SPIRIT will be implemented in its environment.
Initially, TSG will train up to eight (8) participants who will attend ten days
of classes.
xviii.
TRAINING DEVELOPMENT/TRAIN THE TRAINER: Working with an experienced SPIRIT
trainer, participants will develop a comprehensive training program to
familiarize the users with SPIRIT. These participants will become the trainers
for Customer and be responsible for conducting all user training.
GENERAL APPLICATION TRAINING: With SPIRIT database skills as the foundation,
general application training is more meaningful and much easier. Through the
use of exercises, the participants will acquire the necessary skills to use the
system for reservation processing and will then be able to identify necessary
changes.
Initially, TSG will train up to eight participants who will attend five (5) days
of classes. TSG will also provide one (1) week of training support for each
Existing Hotel.
xix.
SCHEDULE 6.9
MAINTENANCE
CHANGES IN TECHNICAL ENVIRONMENT
TSG shall make any and all changes to SPIRIT which may be required from time to
time by changes or upgrades to the operating system, network infrastructure,
hardware, or database, all as set forth below.
TECHNICAL SUPPORT
TSG shall make available its maintenance and development personnel as required
to assist Customer in resolving problems and answering end user questions, and
providing other technical support and assistance, all as set forth below.
SPRS, PSRS AND SRS
- TSG will record and track all System Problem Reports ("SPRS"), Preliminary
Service Requests ("PSRS") and Service Requests ("SRS"), and will report on
the status monthly.
- TSG and Customer will agree on formal notification and escalation
procedures.
SPRS
- LEVEL 1 ERRORS - System is either inaccessible, incapable of being put into
productive use, or operates but has severely impaired functionality and/or
performance. These problems have the highest priority for correction and
are immediately assigned to the appropriate resource(s) for correction.
TSG will contact Customer upon correction of the problem. This type of
critical application problem will be classified as Level 1. TSG will
commence work on a correction immediately and will propose its resolution
for fixing such Level 1 errors within two (2) hours of receipt of notice
from Customer of the nature of such ▇▇▇▇▇ ▇ ▇▇▇▇▇.
- ▇▇▇▇▇ ▇ ERRORS - If a problem does not prevent the productive use of
SPIRIT, but impacts business functions which are not related to revenue or
immediate customer service (i.e. inability to access the reports database,
brochure delivery down, reports/archive not being updated or queues purged,
issues within database maintenance), the problem will be classified as a
▇▇▇▇▇ ▇ ▇▇▇▇▇. ▇▇▇ will respond to the report of a Level 2 Error no later
than the next business day.
- LEVEL 3 ERRORS - If the reported problem does not indicate that the SPIRIT
xx.
application has failed to operate according to specifications, it will be
classified as a Level 3 Error. These problems will be forwarded to the
Product Manager who will determine if it is a system problem or is
functioning as designed. If it is a system problem, the correction will be
prioritized and the fix will be performed through either a generic
enhancement release or as an interim correction. Level 3 Errors include
but are not limited to system bugs which do not impact system usability and
can be worked around. These problems would be resolved with either the
next release or earlier (as determined by TSG development).
- BASIC LEVEL SUPPORT - will be provided by TSG 24 hours a day, 7 days a week
(including holidays). All calls will be logged by TSG's Customer Service
department. All other problems identified as not impacting normal system
operations will be forwarded to a business manager who will determine if it
is a system problem or is functioning as designed. If it is a system
problem, the correction will be prioritized and the fix will be performed
through either a generic enhancement release or as an interim correction.
SRS AND PSRS
- When requests for programming services are made, TSG will respond within
ten (10) business days with a Preliminary Service Request, containing a
project scope categorization according to the following three categories:
- Small: Less than 300 hours
- Medium: Between 300 and 1,000 hours
- Large: More than 1,000 hours
Project scopes will include an estimate of the number of hours which may be
required to develop a Service Request. When Customer approves project
scope, TSG will proceed with a detailed project plan for the SR, to be
performed on a time and materials basis. TSG will start project work
within thirty (30) days of Customer's approval of the project scope, and
will be based upon the prioritization of the work and the development
already in progress and/or scheduled.
- TSG and Customer will develop an escalation table that clearly outlines the
responsible party for specific problems, including telephone and fax
numbers and a priority scale.
xxi.
SCHEDULE 6.10.1
SPIRIT ENHANCEMENTS
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
xxii.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
xxii.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
xxiv.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
xxv.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
xxvi.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
xxvii.