SABRE SUBSCRIBER AGREEMENT - (UNITED STATES)
This Sabre* Subscriber Agreement (the "Agreement") is entered into by and
between Sabre Inc. ("Sabre") and the undersigned ("Customer"), as of the date
executed by Sabre below ("Effective Date") regarding the provision of products
and services set forth herein to Customer's locations within the United States
and its territories.
1. LEASE TERM
1.1 Lease. For the term specified in Article below, Sabre shall lease to
Customer the System, as defined herein.
1.2 Term. The lease term of the System identified on Schedule A shall commence
on the date of installation and shall continue for ____ months ("Initial Term").
Any additional System installed subsequent to the date of execution of this
Agreement by Sabre shall be subject to the same terms and conditions as this
Agreement and shall have a term of ____ months commencing on the date of
installation ("Additional Term").
2. DEFINITIONS.
The following terms shall have the following meanings in this Agreement:
2.1 Agreement means this Sabre Subscriber Agreement, and all Amendments,
Schedules and Supplements made a part hereof.
2.2 Charges has the meaning given in Article 3.2.
2.3 Communication Protocol means the rules or standards on how data transmission
takes place across computer networks.
2.4 Confidential Information means this Agreement, any and all applicable rights
to patents, copyrights, trademarks and trade secrets, proprietary and
confidential information of Sabre or Customer, their affiliates, subsidiaries,
successors or assigns concerning their past, present or future research,
development, business activities or affairs, finances, properties, methods of
operation, processes and systems, agreements (including without limitation
private fare or special discount agreements) related to the business of Sabre or
Customer.
2.5 Information Provider means any party, other than Customer, which provides
information for inclusion in the Sabre System, including, without limitation,
▇▇▇▇ Elsevier Inc., the publisher of the Official Airline Guide.
2.6 Instructions means any and all manuals, operating procedures, manufacturer's
recommendations, rules, and instructions delivered or made available to Customer
by Sabre either in hard-copy or via the Sabre System, and which must be complied
with by Customer. Such Instructions may be unilaterally revised or amended by
Sabre at any time.
2.7 Internet means the global computer network commonly referred to as the
"Internet".
2.8 Internet Connection means any connection between the Internet and the Sabre
System or System for the purpose of allowing clients of Customer to make direct
reservations for the products and services offered in the Sabre System.
2.9 ISP means any third party computer network which connects Customer or its
employees to the Sabre System or the System via the Internet. ISPs and ISP
supplied equipment such as datalines or browser software are not included in the
definitions of the Sabre System or the System.
2.10 Non-Sabre Traffic means data other than that passing to and from the Sabre
System which is transmitted and received by Customer using the System.
2.11 Non-Standard System means any hardware, software, communication access
devices or firmware not acquired from Sabre, including any such Non-Standard
System acquired from an ISP.
2.12 PNR means a passenger name record created in the Sabre System.
2.13 Participant means any air carrier (including scheduled, charter, domestic
and international airlines) car rental company, surface transportation carrier,
hotel or lodging provider, railroad, steamship company, cruise or tour operator
or other vendor of travel related products, information or services which has an
agreement with Sabre for the display of information regarding its products or
services in the Sabre System.
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* Sabre is a registered trademark of a subsidiary of Sabre Inc.
2.14 Prohibited Segment means a Travel Service Segment for which no
corresponding space has been reserved within the transporting carrier's internal
reservation system.
2.15 Sabre Booking means an airline, hotel, tour, rental car or cruise Segment
that obligates a Participant to pay a booking fee to Sabre and that is created
in or processed through the Sabre System by Customer during any one calendar
month or that is secured to Customer's location, less cancellations made prior
to the Segment Activity Date. Sabre Bookings are credited in the latter of (i)
the calendar month in which the Segment Activity Date occurs or (ii) the
calendar month in which the Segment is actually processed by the Sabre System
for billing to the Participant. Sabre Bookings may include additional product or
service Segments in the future at Sabre's sole discretion.
2.16 Sabre Component means all memory, disk storage space, ports and any other
element of the Standard Equipment.
2.17 Sabre Licensee means a person or entity licensed to market the Sabre System
in a designated area of the world.
2.18 Sabre Subscriber means a person or entity, other than an airline, which
utilizes the Sabre System to make reservations. The term "Sabre Subscriber"
shall include any person or entity making reservations through any version of
the Sabre System or through a Sabre Licensee.
2.19 Sabre System means Sabre's global distribution system (commonly referred to
as a computerized reservation system) which collects, stores, processes,
displays and distributes information through computer terminals concerning air
and ground transportation, lodging and other travel related products and
services offered by travel suppliers and which enables Sabre Subscribers to (i)
reserve or otherwise confirm the use of, or make inquiries or obtain information
in relation to, such products and services and/or (ii) issue tickets for the
acquisition or use of such products and services.
2.20 Schedule A means the document reflecting the Charges and any applicable
discounts for the System as amended by any additional documents.
2.21 Segment means (a) for airline bookings, each separate flight segment
reservation identified by a separate flight number in a PNR, multiplied by the
number of passengers booked in such PNR for such flight segment; (b) for hotel
bookings, each separate reservation that is processed through the Sabre System
with an action status code of HK, KK or KL regardless of the number of rooms,
suites or other accommodations or the number of persons or the duration of the
stay; (c) for car rental bookings, each separate reservation that is processed
through the Sabre System with an action status code of HK, KK or KL regardless
of the number of vehicles or persons or the duration of the rental; and (d) for
cruise and tour bookings, each separate reservation that is created in or
processed through the Sabre System and confirmed by the Participant, regardless
of the number of cabins or travelers or the duration of the cruise or tour. The
term Segment does not include Prohibited Segments.
2.22 Segment Activity Date means the first date listed in a PNR for the relevant
Segment.
2.23 Site means Customer's location at which the System is to be installed as
identified on Schedule A.
2.24 Standard Equipment means the items of hardware and communication access
devices, including, without limitation, communication data lines and networks,
leased to Customer by Sabre in accordance with this Agreement and identified on
Schedule A.
2.25 Supplement means a document reflecting any changes to the System, and/or
Charges or discounts related thereto, all as agreed to by the parties. A
Supplement will be provided by Sabre upon request of Customer.
2.26 System means the Standard Equipment, Sabre Component, System Software
and/or Internet Connection.
2.27 System Software means that software delivered by Sabre to Customer.
2.28 Transaction means a grouping of characters transmitted to the Sabre System
whether such transmission is made in the Sabre System manually or automated,
including transmissions made through an Internet Connection. Each transmission
to the Sabre System from Customer constitutes one Transaction. No input message
may exceed three hundred (300) characters in length.
2.29 Transaction Limit has the meaning given in Article 10.3.
2.30 Transaction Ratio has the meaning given in Article 3.3.
2.31 Travel Service Segment means a Sabre Booking entered in the Sabre System
with an action status code of GK, GL, BK, BL, HN, YK, HK*, or HL*.
3. CHARGES AND PAYMENTS
3.1 Prepayment. Upon execution of this Agreement by Customer, Customer shall pay
to Sabre the non-refundable prepayment as shown on Schedule A. If the System is
installed, the prepayment shall be credited against the Customer's first
Charges.
3.2 Charges. All amounts payable to Sabre ("Charges") shall be due and payable
in United States dollars within fifteen (15) days of the date of Sabre's
invoice, without setoff or counterclaim.
3.3 Additional Charges. Customer agrees to pay to Sabre additional Charges at
Sabre's then prevailing rate for services and materials including without
limitation the following: (a) the installation or removal of Standard Equipment;
(b) Standard Equipment relocation within the Site; (c) each Site disconnect or
relocation to different premises; (d) modifications, upgrades, enhancements or
additions of Standard Equipment and/or System Software; (e) any applicable fees
for non-compliance with any payment terms; (f) installation of peripheral
devices requested by Customer, (g) processing Transactions which exceed the
level of one hundred thirty (130) Transactions per Sabre Booking ("Transaction
Ratio"), (h) materials for use with the Standard Equipment, including, but not
limited to, ticket stock for use with thermal ticket printers, and (i)
connecting the System to other Sabre approved networks or systems. The
Transaction Ratio is subject to change by Sabre upon thirty (30) days advance
notice to Customer.
3.4 Variables. If Customer elects to use certain variables including, without
limitation, Ticketing and Invoice/Itinerary functions or Microfiche, Customer
shall pay all Charges for such variables based on Sabre's then prevailing rate.
3.5 Increases. Sabre shall have the right to increase the Charges, other than
the Fixed Monthly Charges identified on Schedule A, for the remaining term of
this Agreement upon thirty (30) days advance written notice to Customer. If the
increase exceeds ten percent (10%) of the Charges in any consecutive twelve
month period, Customer may terminate this Agreement upon written notice to Sabre
within fifteen days of receipt of Sabre's notice of the increase.
Notwithstanding the foregoing, the Charges for data lines or other communication
access devices shall be subject to increase, at any time and without limitation,
to cover any increase in the cost imposed upon Sabre by the telecommunications
vendor.
3.6 Modifications. Sabre's completion of any modification to the System or
Customer's payment of any revised Charges related thereto, whichever occurs
first, constitutes acceptance and ratification of the modifications to the
System and the revised Charges and/or discounts related thereto.
3.7 Interest. Charges not paid when due shall accrue interest at the rate of
eighteen percent (18%) per annum or the highest rate permitted by the governing
law indicated in Article , whichever is less.
3.8 Taxes. Customer shall pay any taxes, or assessments including any interest
or penalty thereon levied as a result of this Agreement, excluding taxes
measured by the net income of Sabre. Customer shall indemnify and hold harmless
Sabre from all costs, fines and expenses (including reasonable legal costs)
incurred by Sabre resulting from Customer's failure to pay taxes as provided in
this Article.
4. INSTALLATION AND DELIVERY
4.1 Delivery. Sabre shall arrange for delivery of the System F.O.B. the Site, on
the estimated installation date, as identified on Schedule A.
4.2 Installation. Subject to Article , Sabre shall install, or cause to be
installed, the System at the Site. Customer shall allow installation of the
System at the Site. Customer's failure to do so or to give adequate assurance
that it will do so on the estimated installation date, will constitute an Event
of Default pursuant to Article 14.1.2.
4.3 Customer's Obligations Prior to Installation. Customer, at its expense,
shall be responsible for preparing, on or before the estimated installation
date, the Site for the System in accordance with the Instructions. If
installation of the System is prevented or delayed because of Customer's failure
to prepare the Site, Sabre shall use reasonable efforts to install the System
upon Customer's compliance with this Article and upon payment of all reasonable
expenses incurred by Sabre resulting from Customer's failure to prepare the
Site.
4.4 Relocation and Possession. Customer shall at all times keep the System in
its sole possession and control at the Site. Customer shall not move any part of
the System from the Site without first obtaining the written consent of Sabre.
Such consent will not be unreasonably withheld.
4.5 Communication Access. Except when Customer utilizes an ISP to access the
Sabre System, Sabre or its designated third party shall install the necessary
communication access device to connect the System to the Sabre System and other
approved systems or networks. All such devices are either owned by Sabre or such
third-party, are subject to this Agreement, and shall be returned to Sabre or
the third-party as Sabre directs upon termination of the Agreement.
4.6 Non-Standard System.
4.6.1 Subject to Customer's compliance with all other terms and conditions of
this Agreement, Sabre agrees to allow Customer to connect or use Non-Standard
System with the System without Sabre's prior written consent, except to the
extent that such Non-Standard System consists of communications data lines,
emulator boards, gateways, routers, ticket printers or other devices connecting
directly to the System or Sabre System ("Reserved Equipment"). Sabre consent for
Reserved Equipment shall be conditioned upon Sabre certification and approval
prior to its use with the System. Such consent may be withheld in order to
preserve the integrity of the Sabre System and the System.
4.6.2 Customer shall represent and warrant to Sabre that the Non-Standard
System and its connection to the System conforms in all respects to Sabre's
Non-Standard System standards and specifications, a copy of which Customer
may request from Sabre, and will not be altered or modified without prior
notice to Sabre.
4.6.3 Customer shall remove all Non-Standard System placed on or within the
Standard Equipment prior to Sabre's removing such Standard Equipment from
Customer's Site. Sabre disclaims, and Customer hereby waives and
indemnifies, any responsibility or liability on the part of Sabre, under
any theory whatsoever, for any Non-Standard System that Customer has failed
to remove from the Standard Equipment prior to Sabre's removing such
Standard Equipment from Customer's Site.
4.6.4 Customer shall not use Non-Standard System in conjunction with the
System for any function not specifically outlined in this Agreement and any
use or attempted use for any other function shall constitute an Event of
Default under Article 14.1.2.
4.6.5 Customer shall also ensure that Sabre has access to Customer's Site
on request for conducting on-site inspections, testing or to oversee
installation of the Non-Standard System. Customer is responsible for
ensuring that any Standard Equipment at Customer's Site is connected to the
System for the purposes of performing testing and diagnostics on such
Standard Equipment by Sabre's designated agent. If Sabre reasonably
determines that the Non-Standard System is causing, or contributing to, a
problem with the System, the Sabre System or another Sabre Subscriber's
access to or operation of the Sabre System, then Sabre has the right to
immediately restrict access to the Sabre System upon notice to Customer as
provided for in this Agreement and Sabre shall have no liability to
Customer for such restriction of access.
4.6.6 Customer agrees that its continued right to maintain the connection
between the Non-Standard System and the System and/or the Sabre System and
to use the Non-Standard System in connection with the Standard Equipment
shall be dependent upon Customer's full cooperation with requests by Sabre
to repair, alter, modify, or where necessary, de-install the Non-Standard
System if Sabre reasonably determines that the Non-Standard System, or a
component thereof, is impairing the System, the Sabre System or another
Sabre Subscriber's access to or operation of the Sabre System.
4.6.7 Customer shall pay Sabre's then prevailing rate for all employee
resources expended by Sabre for, but not limited to, Sabre's monitoring of
the installation of the Non-Standard System and/or expended in connection
with on-site inspection and/or testing of the Non-Standard System after
installation, service calls and any travel and incidental expenses incurred
by Sabre's personnel or vendors for the conduct of such monitoring,
inspecting, testing or service calls; provided, however, that after the
initial installation of the Non-Standard System, Sabre will make such
on-site inspections or test only where it reasonably believes that the
Non-Standard System is impairing the System, the Sabre System or another
Sabre Subscriber's access to or operation of the Sabre System.
4.6.8 Customer agrees that Sabre has first and complete access to the Sabre
Component. If, as a result of Customer's use of Non-Standard System, an
upgrade of the Sabre Component is required, Customer shall comply with the
applicable provisions of this Agreement.
4.6.9 Sabre reserves the right to modify the Sabre System or the System,
even if such modification requires changes in Customer's Non-Standard
System. Sabre will make reasonable efforts to notify Customer in advance of
such changes. Any expenses incurred in modifying Customer's Non-Standard
System to conform to the Sabre System or System modifications shall be the
sole responsibility of Customer.
4.7 Acceptance of System. Upon installation of the System and establishment of a
successful connection with the Sabre System and any other Sabre approved systems
or networks, Customer shall be deemed to have accepted the System. Any use of
the System, additional System and/or Non-Standard System further constitutes
acceptance of this Agreement by Customer.
5. REPAIRS AND MAINTENANCE
5.1 Repairs and Maintenance. Upon prompt notification from Customer, Sabre or
its designated agent shall promptly repair and maintain or replace the Standard
Equipment provided that the Standard Equipment has been subject to reasonable
operation. Customer shall not make any modifications nor attempt to perform
repairs or maintenance of any kind to the System.
5.2 Limitation. Sabre is not responsible for repairs and maintenance of any
Non-Standard System or other hardware, software or communication access devices
at Customer's Site or at the locations of other Sabre approved systems or
networks beyond the point at which they are connected to the System and/or the
Sabre System.
5.3 Notification. Customer shall promptly inform Sabre of any breakdown of the
Standard Equipment by contacting Sabre Customer Services. Customer shall
maintain a record of all occasions upon which repair or maintenance service is
performed and make such records available to Sabre upon request.
5.4 Charges. Repair or maintenance services on Standard Equipment during normal
business hours (9:00 a.m. to 6:00 p.m. local time, Monday through Friday,
excluding legal holidays) are included in the Charges, provided that the
Customer has not been negligent and the Standard Equipment has been subject to
reasonable operation; otherwise, Customer will be charged a service fee in
accordance with Sabre's or its independent contractor's then prevailing rates.
5.5 Non-Standard System. All maintenance of the Non-Standard System shall be the
sole responsibility of the Customer. Sabre will accept calls to Sabre Customer
Services regarding a malfunction of the Non-Standard System if Sabre determines
that the malfunction is not attributable to the Non-Standard System. Customer
shall pay Sabre's then prevailing maintenance charges for any maintenance calls
for the Sabre System or the System if Sabre reasonably determines that the
problems were caused by or attributable to the Non-Standard System.
6. TITLE AND OWNERSHIP OF SYSTEM.
The System leased hereunder shall remain the property of Sabre. Customer shall
not in any other manner dispose of the System or any part thereof or suffer any
lien or legal process to be incurred or levied on the System.
7. INSURANCE
7.1 General. Customer shall take all necessary precautions to protect the System
installed at Customer's Site.
7.2 At its own cost, Customer shall procure and maintain insurance, from an
insurer and on terms and conditions acceptable to Sabre, insuring the System
against all risk of loss or damage, including, without limitation, the risk of
fire, theft and any other such risks as are customarily insured in a standard
all risk policy. Such insurance shall also provide the following:
7.2.1 Full replacement value coverage for the Standard Equipment, which
value is set forth on Schedule A.
7.2.2 An endorsement naming Sabre as a co-insured and as a loss payee to
the extent of its interest in the Standard Equipment; and
7.2.3 An endorsement requiring the insurer to give Sabre at least thirty
(30) days prior written notice of any intended cancellation, non-renewal,
material change in coverage or, within thirty (30) days of the event,
written notice of any default in the payment of a premium.
7.3 Risk of loss for and damage to the System shall pass to the Customer upon
delivery of the System to the Site.
7.4 Sabre may request at any time proof of such insurance and/or other form of
surety from Customer. The failure of Customer to produce such proof or surety
within thirty (30) days of the request by Sabre will be considered an Event of
Default as defined in Article herein.
8. TITLE AND OWNERSHIP OF CONFIDENTIAL INFORMATION
8.1 Each party's Confidential Information shall remain that party's exclusive
property.
8.2 Each party shall maintain the confidentiality of the other party's
Confidential Information at all times during and after the term of this
Agreement. Neither party shall use, sell, sublicense, transfer, publish,
disclose, display, or otherwise make available to others, except as authorized
in this Agreement, the Confidential Information of the other party or any other
material relating to the Confidential Information of the other party nor shall
either party permit its officers, employees, agents, contractors or
subcontractors to divulge the other party's Confidential Information without
that party's prior written consent.
8.3 Customer shall use the data, other than Non-Sabre Traffic, transmitted under
this Agreement ("Data") solely for the benefit of itself and its customers in
connection with rendering the following services: (i) air carrier, hotel, car
and rail reservations, including schedule quotations; (ii) customer accounting
and record keeping activities; or (iii) the sale of or reservations for other
miscellaneous products or services offered in the Sabre System. Customer shall
not publish, disclose or otherwise make available to any third party any
compilation of Data obtained from the Sabre System. However, Customer may use
specific Data for the benefit of its customers in connection with any
reservation or schedule quotation production of a hard copy travel itinerary,
invoice, statement or ticket.
8.4 Nothing in this Agreement shall be interpreted to limit in any way Sabre's
right to use, market, sell or publish any booking related data subject only to
any applicable laws or regulations.
9. SYSTEM SOFTWARE LICENSE
9.1 Ownership of System Software. Customer acknowledges that Sabre or the
original manufacturer of the System Software, as applicable, owns or has
licensed from the owner, copyrights in the respective System Software and that
ownership and title are retained by the manufacturer or its licensor. All
applicable rights to patents, copyrights, trademarks, and trade secrets inherent
in the System Software and pertinent thereto are and shall remain Sabre's or the
original manufacturer's sole and exclusive property. Any copy of such System
Software must incorporate any copyright, trade secret, or trademark notices or
legends appearing in the original version delivered to Customer.
9.2 Grant of License. Subject to the provisions of this Agreement and for the
term specified in Article , either Sabre or the original manufacturer grants to
Customer a non-transferable, non-exclusive limited license to use the System
Software subject to the following restrictions: (a) Customer shall use the
System Software solely in connection with its use of the Sabre System, (b) the
System Software shall be used and installed solely at the Site and solely used
on the Standard Equipment or NonStandard System authorized under Article , (c)
the System Software shall be used solely for internal purposes and only in the
ordinary course of business, (d) Customer shall not compile, reverse compile,
decompile, disassemble, reverse assemble or reverse engineer the System Software
or any portion thereof, (e) the System Software shall not be copied or reprinted
in whole or in part except (i) a reasonable number of copies of each program may
be made in machine readable form for reasonable archival or backup purposes or
(ii) when Sabre has granted permission to do so, (f) Customer shall not lease,
sell, license, sublicense or otherwise transfer the System Software to any other
party, and (g) the terms of this Agreement shall govern the System Software
license unless modified by a license which may be associated with a particular
software product, wherein the license associated with that particular software
product shall govern.
9.3 Modification Rights. Customer shall not modify the System Software or merge
such software into other programs or create derivative works based on such
software. Additionally, Customer shall not delete or cause to be deleted the
System Software from the Standard Equipment. Notwithstanding anything to the
contrary contained herein, noncompliance with this provision shall constitute an
Event of Default under this Agreement and this Agreement shall immediately
terminate and Customer shall be obligated to pay Sabre damages as specified in
Article hereof.
9.4 Upgrades and Modifications. All tangible objects containing or relating to
the System Software are the sole and exclusive property of Sabre or the
manufacturer. In the event Sabre modifies the System Software, it may deliver
such modified System Software to Customer at its then current charge, if any,
and Customer shall promptly return to Sabre any and all tangible objects
relating to all previous versions of the System Software as provided in Article
. Customer shall be solely responsible for protecting all software not obtained
from Sabre hereunder and the data related thereto in the event of a software
upgrade. Customer, in order to receive an upgraded or updated program, shall
comply with any and all terms, conditions and Instructions requested by Sabre.
9.5 Operating Program.
9.5.1 Customer acknowledges that the System Software may incorporate, in
part, copyrighted materials pertinent to the Operating Program as
identified on Schedule A ("Operating Program"). Customer agrees that such
copyrighted portions shall be subject to the Operating Program copyright
and license.
9.5.2 If Customer requires additional Operating Programs, Customer shall
notify Sabre and Sabre will provide Customer with additional copies to
support additional video agent sets pursuant to this Agreement.
9.5.3 Customer will look only to Sabre and not to the manufacturer for any
support, maintenance, assistance and upgrades and the like with respect to
the Operating Program and the manufacturer shall have no liability to
Customer in relation to the Operating Program.
9.5.4 No action, regardless of form, arising out of the license of the
Operating Program may be brought more than two years after the cause of
action has arisen.
9.5.5 Customer shall physically retain a copy of the Conditions of Use for
Sabre Users (Attachment I) with each applicable video agent set or
dedicated fileserver/processor eligible to use such Operating Program.
10. OPERATION OF THE SABRE SYSTEM AND THE SYSTEM
10.1 Operation of System.
10.1.1 The Sabre System and the System shall be operated by Customer solely
for the purposes and functions expressly permitted by this Agreement and in
strict accordance with the Instructions. Customer shall not in any way
utilize the System for the direct or indirect purpose of bypassing or
circumventing the Sabre System in communicating in any way with
Participants. Any violation of this provision will be deemed an Event of
Default under Article 14.1.2.
10.1.2 Customer may use the System to transmit and receive Non-Sabre
Traffic only from those systems or networks approved in writing by Sabre.
Customer acknowledges that in cases of communications capacity limits being
reached, data transmission through the System with the Sabre System will be
given priority over any Non-Sabre Traffic.
10.1.3 Customer shall access the Sabre System only through the System, an
ISP or another system or device authorized in writing by Sabre.
10.1.4 Customer shall take all precautions necessary to prevent
unauthorized operation or misuse of the Sabre System or the System,
including without limitation, speculative booking, shell bookings,
reservation of space in anticipation of demand, or improper record or
access. In the event of misuse of the Sabre System or the System, Sabre
reserves the right, in addition to all rights under the Agreement, to
immediately terminate the Agreement.
10.1.5 Customer shall not enter any Prohibited Segments into the Sabre
System. Prohibited Segments so entered shall not be calculated in
determining productivity levels under the Agreement. All Travel Service
Segments shall be removed from the Sabre System should corresponding space
be canceled direct via telephone with the transporting carrier.
10.2 Non-Exclusivity. This Agreement is not exclusive and nothing in the
Agreement is intended to preclude or prohibit Customer from using any other
computerized reservation system. The parties agree that Customer's expected use
of the System is the Fixed Monthly Discount Booking Level stated in Schedule A.
10.3 Transaction Volume. Notwithstanding the provisions of Article (g), Sabre
shall have the right, upon thirty (30) days notice to Customer to limit Customer
to generating no more than one hundred thirty (130) Transactions per Sabre
Booking ("Transaction Limit"). The Transaction Limit may be changed by Sabre
upon thirty (30) days advance notice to Customer.
10.4 Training. Sabre will make available introductory Sabre System training
during the installation process. For purposes of this Article, the installation
process is defined as anytime between contract signing by both Customer and
Sabre through two months after installation is complete.
10.4.1 Upon written request from Customer, at such time that installation
is complete, additional training may be offered subject to availability and
at Sabre's then prevailing rate per person, per class. The additional
training charge will be assessed on Customer's monthly invoice.
10.4.2 The training described in Article shall be performed at a location
designated by Sabre.
10.4.3 Except as otherwise provided herein, Customer is responsible for all
training of all its employees in the proper use of the Sabre System.
10.4.4 In addition to the training described in Article , Sabre may offer
to Customer supplemental training programs on a local level at Sabre's then
prevailing rate and method of delivery. Such training may consist of, but
not be limited to, workshops, seminars, self-paced instruction and
individual consultations.
10.4.5 Customer and its trainees agree to comply with all training
procedures and rules established by Sabre, and Sabre reserves the right to
remove any Customer trainee from the training program if such trainee fails
to comply with such procedures and rules.
10.4.6 Sabre may, at its discretion, monitor or test Customer's employee's
training levels. If Sabre determines the training level of any one or more
of Customer's employees to be insufficient, then Customer will institute
such additional training at its own expense (including, if necessary,
additional training by Sabre at Sabre's then prevailing charges) as may be
necessary to bring Customer's employees to the level of training required
by Sabre.
11. WARRANTY, AND LIMITATION OF WARRANTY, LIABILITY AND REMEDY
11.1 Sabre Warranty. Sabre agrees to use reasonable efforts to maintain the
availability of the Sabre System, but shall have no liability for interruptions
in the operation of the Sabre System except as specifically provided herein.
Subject to the terms hereof, in the event that the Sabre System is not operable
ninety-five percent (95%) of the total normal business hours each month,
excluding periods for maintenance of Standard Equipment or other scheduled down
time ("Normal Time"), Sabre will reduce the monthly Charges (on a pro-rata basis
according to the percentage of Normal Time during which the Sabre System was not
operable at least ninety-five percent (95%) of the Normal Time. For purposes of
this article, normal business hours shall be 9:00 a.m. to 6:00 p.m., local time,
Monday through Saturday. The Sabre System shall be deemed inoperable if Customer
is unable, after calling Sabre Customer Service to make any Sabre Bookings as a
result of a failure attributable to the Sabre System. To request a reduction
under this Article, Customer shall submit a written record to Sabre and request
an adjustment in the monthly charges. Customer's written records must be
submitted in a timely manner and include, at a minimum, the date and time of the
outage, the time the outage was reported to Sabre Customer Service, the time the
Sabre System was restored (within normal business hours as defined above) and
the type of outage.
11.2 Limited Warranty of the System. In the event of a material malfunction or
defect in an unaltered component of the System that substantially affects
performance of the System that is reported by Customer to Sabre and that can be
reproduced by Sabre, Sabre will use reasonable efforts to correct such
malfunction or defect without additional charge to Customer. THE FOREGOING SHALL
BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY MALFUNCTION OR DEFECT IN THE
SYSTEM. IF SUCH MALFUNCTION OR DEFECT MATERIALLY IMPAIRS CUSTOMER'S USE OF THE
SYSTEM AND CANNOT BE CURED AS PROVIDED IN THIS SECTION, THEN CUSTOMER'S
ALTERNATE SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT WITHOUT
FURTHER LIABILITY TO SABRE FOR DAMAGES HEREUNDER.
11.3 Exclusion Of Other Warranties. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
ARTICLE, THE USE OF THE SABRE SYSTEM, THE DATA DERIVED FROM THE SABRE SYSTEM,
THE SYSTEM AND/OR ANY COMPONENTS THEREOF ARE PROVIDED TO CUSTOMER BY SABRE, ANY
INFORMATION PROVIDER OR THE OWNER OF ANY ELEMENT OF THE SYSTEM (AS THE CASE MAY
BE) "AS IS AND WITH ALL FAULTS". ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY, COMPLETENESS AND
NON-INFRINGEMENT OF THE DATA DERIVED FROM THE SABRE SYSTEM, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED
WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF
TRADE.
11.4 Limitation of Liability.
11.4.1 NEITHER SABRE NOR ANY INFORMATION PROVIDER NOR ANY OWNER OF ANY
ELEMENT OF THE SYSTEM OR THE SABRE SYSTEM SHALL BE LIABLE TO CUSTOMER OR
ANY THIRD PARTY FOR ANY INJURY, LOSS, CLAIM OR DAMAGE CAUSED IN WHOLE OR IN
PART BY THE NEGLIGENCE OF SABRE OR ANY INFORMATION PROVIDER OR BY ANY OWNER
OF ANY ELEMENT OF THE SYSTEM OR BY EVENTS BEYOND THE CONTROL OF SABRE OR OF
ANY OF THOSE OTHER PERSONS.
11.4.2 IF A PASSENGER USES A CONFIRMED TICKET FOR AIR TRANSPORTATION ISSUED
PURSUANT TO A RESERVATION MADE BY CUSTOMER BY MEANS OF THE SABRE SYSTEM AND
IS REFUSED CARRIAGE BECAUSE OF AN OVERSALE OF SEATS OR THE LACK OF RECORD
OF SUCH RESERVATION, THE SOLE REMEDY OF CUSTOMER SHALL BE AS SET FORTH IN
THE TARIFF OF THE REFUSING CARRIER OR APPLICABLE TERMS AND CONDITIONS OF
THE CARRIER'S CONTRACT OF CARRIAGE.
11.4.3 TO THE EXTENT THAT SABRE HAS ANY LIABILITY UNDER THIS AGREEMENT OR
UNDER ANY THEORY OF LIABILITY, SABRE'S CUMULATIVE LIABILITY FOR DAMAGES TO
CUSTOMER HEREUNDER SHALL BE LIMITED TO THE LESSER OF (1) CUSTOMER'S DIRECT
DAMAGES, (2) THE TOTAL AMOUNT OF CHARGES ACTUALLY PAID BY CUSTOMER TO SABRE
PURSUANT TO THIS AGREEMENT OVER THE TERM OF THIS AGREEMENT, OR (3) ONE
MILLION DOLLARS ($1,000,000).
11.4.4 NEITHER SABRE NOR ANY INFORMATION PROVIDER NOR ANY OWNER OF ANY
ELEMENT OF THE SYSTEM SHALL BE LIABLE TO CUSTOMER UNDER ANY THEORY OF
LIABILITY OR ANY FORM OF ACTION, INCLUDING NEGLIGENCE FOR ANY INCIDENTAL,
SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES UNDER ANY
CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE OR
SAVINGS, OR THE LOSS OF USE OF ANY DATA, EVEN IF THAT PERSON THAT WOULD
HAVE BEEN LIABLE IN THE ABSENCE OF THIS SECTION HAD BEEN ADVISED OF, KNEW,
OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF.
11.5 NON-SABRE TRAFFIC. CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY LIABLE FOR THE
CONTENT, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER THIRD PARTY
RIGHTS, OF THE NON-SABRE TRAFFIC. CUSTOMER WARRANTS THAT THE TRANSMISSION AND
RECEIPT OF NON-SABRE TRAFFIC BY CUSTOMER IS NOT IN CONTRAVENTION OF ANY LAWS,
RULES OR REGULATIONS. FURTHER, CUSTOMER HEREBY WARRANTS THAT IT HAS ENTERED INTO
SUCH SEPARATE AGREEMENTS AS IT DEEMS NECESSARY OR APPROPRIATE WITH THE SYSTEMS
OR NETWORK PROVIDERS FOR THE TRANSMISSION AND RECEIPT BY CUSTOMER OF THE
NON-SABRE TRAFFIC AND, IN PARTICULAR, CUSTOMER WARRANTS THAT IT SHALL BE SOLELY
LIABLE TO THESE PROVIDERS FOR ANY MALFUNCTION OR OTHER ADVERSE IMPACT
EXPERIENCED BY SAID PROVIDERS AS A RESULT OF THE TRANSMISSION AND RECEIPT BY
CUSTOMER OF THE NON-SABRE TRAFFIC.
12. INDEMNIFICATION
12.1 Customer and Sabre ("Indemnitor") hereby agree to indemnify and hold each
other, their affiliates, subsidiaries, successors and assigns and their
officers, directors, agents and employees ("Indemnitees") harmless from and
against third-party liabilities, including, but not limited to, attorneys' fees,
and other expenses incident thereto, ("Claims") which may be threatened against,
or recoverable from the Indemnitees by reason of any injuries to or death of
persons or loss of, damage to, or destruction of property to the extent arising
out of or in connection with any act, or omission of the Indemnitor.
12.2 Customer will indemnify Sabre for any Claims, including debit memos issued
by Participants, arising from Customer's misuse of the Sabre System including,
without limitation, making fraudulent bookings and/or failing to honor
Participant ticketing and fare rules.
13. ASSIGNMENT
13.1 Assignment Or Sublease By Customer. Customer shall not sublease, transfer
or assign this Agreement or any portion thereof, or any right or obligation
hereunder, unless customer has obtained the prior written consent of Sabre,
which consent shall not be unreasonably withheld. Any attempted assignment in
violation of this Article shall be void.
13.2 Assignment by Sabre. Sabre shall have the right to sell, transfer, assign
or delegate its interests, rights and/or obligations, without the prior consent
of Customer, and, provided that such transferee or assignee assumes all of
Sabre's obligations, Sabre shall be released of all obligations after the
effective date of such sale, transfer, delegation or assignment.
14. TERMINATION AND DEFAULT
14.1 Default By Customer. The occurrence of any one or more of the following
events shall constitute a non-exclusive event of default (the "Event of
Default") pursuant to the terms of this Agreement.
14.1.1 Customer fails to pay any amount when due;
14.1.2 Any representation by Customer is discovered to be materially
misleading or inaccurate, or Customer fails to perform any material
covenant, agreement, obligation, term or condition contained herein;
14.1.3 Customer terminates or cancels this Agreement or any portion
thereof, except as expressly permitted in this Agreement;
14.1.4 Customer ceases to do business as a going concern, makes an
assignment for the benefit of creditors, admits in writing its inability to
pay debts as they become due, acquiesces in the appointment of a trustee,
receiver or liquidator for it or any substantial part of its assets or
properties, or executes an agreement to sell all or substantially all of
its assets without obtaining the consent for assignment of this Agreement
under Article .
14.1.5 Customer fails to secure and maintain Airlines Reporting Corporation
("ARC") accreditation for ticketing of reservations;
14.1.6 Events of Default described in , and shall not be cause for
termination if Customer cures such failure within fifteen (15) days after
date of written notice from Sabre. If Customer cures its failure as
provided in this provision, said failure shall not be considered to be an
Event of Default for the purposes of Article .
14.2 Sabre's Rights Upon Termination. Upon the occurrence of an Event of Default
and subject to Article , Sabre shall have the right to any one or more of the
following remedies; (i) terminate this Agreement and Customer's access to the
Sabre System, the System and any other approved systems or networks; (ii) seek
all legal and equitable remedies to which it is entitled, and (iii) retake
immediate possession of the System. If Customer's Event of Default results in
termination, Customer agrees to pay to Sabre damages suffered by Sabre as a
result of such Event of Default.
14.3 Termination By Customer. In the event that Sabre breaches any material term
of this Agreement, which breach continues for a period of fifteen (15) days
after Sabre receives from Customer written notice which sets forth the specific
breach and Customer's intent to terminate the Agreement if such breach is not
cured, then Customer may immediately terminate the Agreement upon separate
written notice to Sabre. Customer may not otherwise cancel, terminate, modify,
repudiate, excuse or substitute this Agreement without Sabre's prior written
consent, which Sabre may withhold in its absolute discretion.
15. MISCELLANEOUS
15.1 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF TEXAS AND THE UNITED STATES OF AMERICA. CUSTOMER HEREBY SUBMITS AND CONSENTS
TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS AND THE COURTS OF THE STATE OF TEXAS IN ANY DISPUTE
ARISING OUT OF THIS AGREEMENT AND AGREES THAT SERVICE OF PROCESS SHALL BE
SUFFICIENT IF MADE ON THE SECRETARY OF STATE OF THE STATE OF TEXAS WITH A COPY
TO BE SENT, REGISTERED MAIL TO THE CUSTOMER AT THE ADDRESS SET FORTH IN SCHEDULE
A OR SUCH OTHER ADDRESS AS CUSTOMER MAY LATER SPECIFY BY WRITTEN NOTICE TO
SABRE.
15.2 Binding Effect. Except as otherwise provided, this Agreement shall inure to
the benefit of and bind the successors and assigns of the parties hereto.
15.3 Deletion of Equipment. During the term of the Agreement, Customer may
delete up to ten percent (10%) of the installed productive video agent sets,
video agent set terminal addresses and printers, contingent upon the following:
(a) Customer provides documentation of a substantial decrease in the number of
Sabre Bookings, which decrease is the result of the loss of its commercial
accounts and/or customer base; (b) Customer notifies Sabre, in writing, of the
description and location of the equipment to be deleted (the "Deleted
Equipment"); (c) Customer pays to Sabre the then current de-installation charges
for the Deleted Equipment plus any outstanding Charges for such Deleted
Equipment up through the Stop Billing Date which Sabre will specify to Customer;
and (d) Customer will forfeit all right and equity, if any, in the Deleted
Equipment removed from Customer's location.
15.3.1 If Customer complies with the requirements identified in above,
Sabre shall de-install the Deleted Equipment and disconnect it from the
System.
15.3.2 Sabre shall defer all Charges related to the Deleted Equipment
("Deferred Charges") from the Stop Billing Date to the termination date of
this Agreement on the following conditions: (a) the Additional Term and all
other terms and conditions of this Agreement that would have applied to the
Deleted Equipment, shall apply to any Standard Equipment added to the
System after the Stop Billing Date, up to an amount equal in number and
type to the Deleted Equipment or such lesser amount agreed to by Sabre
("Re-installed Equipment"); and (b) Customer shall pay Sabre all applicable
Charges for the Re-installed Equipment, including installation, lease,
maintenance and use Charges, at Sabre's then current rates.
15.3.3 The Deferred Charges shall be deemed waived by Sabre at the end of
the Initial Term of the Agreement or any renewal thereof if Customer has
not breached this Agreement. Interest shall accrue on the Deferred Charges
at the maximum rate allowed by applicable law from the date of the deferral
until payment. In addition to all other rights under Article , Sabre shall
be entitled to immediate payment of the Deferred Charges plus interest upon
default by Customer.
15.4 Entire Agreement. This Agreement and the Instructions constitute the entire
agreement of the parties as to the matters set forth herein and shall supersede
any previous understandings, agreements, representations, statements,
negotiations and undertakings, whether written or oral, between the parties
relating to the matters set forth herein. Any amendment to this Agreement must
be in writing and signed by the authorized representatives of both parties.
15.5 Force Majeure. Sabre and Customer shall be relieved of their obligations
hereunder in the event and to the extent and only so long as that performance is
delayed or prevented by any cause reasonably beyond their control, including,
but not limited to, acts of God, public enemies, war, civil disorder, fire,
flood, explosion, labor disputes or strikes, or any acts or orders of any
governmental authority, inability to obtain supplies and materials (including
without limitation computer hardware) or any delay or deficiency caused by the
electrical or telephone line suppliers or other third parties.
15.6 Notices. Unless otherwise stated, notices given or required under this
Agreement must be in writing and shall be deemed delivered upon deposit through
the United States Mail, to Sabre at P. O. Box 619615, MD 3558, ▇▇▇▇▇▇/▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ (to be sent to the attention of Sabre, Financial
Services) or to the Customer at the address set forth in Schedule A.
15.7 Return of System. Upon the termination of this Agreement for any reason,
Customer, at its sole cost and expense, shall return the System and all
Confidential Information as requested by Sabre, in good repair, condition and
working order, less normal and ordinary wear and tear, by delivering it to a
common carrier selected and designated by Sabre, F.O.B. the destination
designated by Sabre in writing.
15.8 Sabre System Modification. Sabre retains the right to modify the Sabre
System, at its discretion at any time during the term of this Agreement.
However, such modifications will not materially impair Customer's ability to
access and use the Sabre System in the manner expressly permitted in this
Agreement.
15.9 Severability. Any provision of this Agreement which may be determined by a
court or other competent governmental authority to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability, without invalidating
the remaining provisions thereof, unless said prohibition or unenforceability
materially alters the rights or obligations of either party.
15.10 Subsequent Acts of Government. In the event that there is any change in
any statute, rule, regulation or order governing the operation of computerized
reservations systems, or air transportation generally or the Sabre System, which
in any way materially impairs the benefits of this Agreement to Sabre, then the
parties hereto will commence consultation in order to determine what, if any,
changes to this Agreement are necessary or appropriate, including, but not
limited to, early termination of this Agreement. If the parties hereto are
unable to agree upon changes in the Agreement in response to such new statute,
rule, order or regulation within thirty (30) days after commencement of such
consultation, this Agreement may be canceled by Sabre upon giving Customer
ninety (90) days prior written notice of such cancellation. If Sabre elects to
terminate the Agreement pursuant to this Article, except for Customer's
obligation to pay any and all Charges incurred through the date of termination,
each party shall be relieved of any future obligations under this Agreement as
of the effective date of cancellation. Each party shall bear its own costs and
expenses incurred as a result of said termination. Customer does not have the
right to terminate the Agreement under this provision.
15.11 Surviving Sections. If the term of the Agreement expires or is terminated
for any reason before Customer has paid to Sabre all of the sums due, the
Agreement shall survive such expiration or termination to the extent necessary
to protect Sabre's rights until all sums owed to Sabre have been paid.
Notwithstanding anything to the contrary referenced herein, Articles , , and
shall survive the termination of this Agreement.
15.12 Waiver. A failure or delay of either party to require strict performance
to enforce a provision of this Agreement or a previous waiver or forbearance by
either party shall in no way be construed as a waiver or continuing waiver of
any provision of this Agreement.
15.13 Acknowledgment. Customer hereby acknowledges that Sabre has offered
Customer a Sabre Subscriber Agreement with a three (3) year term with reasonable
terms and conditions.
16. INTERNET CONNECTIONS
16.1 Limited License. Customer may establish an Internet Connection using
Sabre's products or a third party application. Customer is hereby given a
limited license to utilize data transmitted from the Sabre System for purposes
of developing, operating and maintaining a reservation booking site solely for
the use of its customers and according to the other limitations contained in
this Agreement, including, without limitation, Article . All uses of the Sabre
System through an Internet Connection will be considered uses by Customer under
this Agreement. Customer may not utilize any data transmitted from the Sabre
System for purposes of developing, operating or maintaining a reservation
booking site or any other redisplay of Sabre System data for any third party
including any un-affiliated travel agencies.
16.2 Termination. The limited license granted in Article may be terminated by
Sabre for any reason upon five (5) days written notice to Customer. Upon such
termination Customer must immediately remove the Internet Connection and cease
utilizing data transmitted under the Agreement for purposes of developing,
operating or maintaining a reservation booking site.
16.3 Branding. Customer agrees to adhere to the branding standards and
requirements as communicated by Sabre which may be modified from time to time
upon thirty (30) days advance notice to Customer.
16.4 Charges. Customer will pay a Charge for each PNR created through an
Internet Connection at Sabre's then current rate.
17. SABRE RESERVES THE RIGHT TO CHANGE SABRE GUARANTEE PROGRAM RULES,
REGULATIONS, AND SPECIAL OFFERS WITHOUT NOTICE, AND TO END SABRE GUARANTEE
PROGRAMS WITHOUT NOTICE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth below.
ALL SIGNATURES MUST BE IN BLACK INK
CUSTOMER
By:
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(Signature)
Name: ▇▇▇▇ ▇▇▇▇▇▇
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(Print Name)
Title:
---------------------------------------
Date:
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Agency Name: ---------------------------------------
Pseudo City Code: ---------------------------------------
SABRE INC.
By:
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(Signature)
Name: ▇▇▇ ▇▇▇▇▇▇
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(Print Name)
Title:
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Date:
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ATTACHMENT I
Conditions of Use for Sabre Users
1. QUALIFYING USE. The manufacturer has made this package available to you
through The Sabre Group, whether directly or indirectly, on the
understanding that it is being supplied to you primarily for use with the
Sabre System, and not with a view to resale or other re-marketing.
1. COPYRIGHT AND OTHER RIGHTS
The manufacturer's programs contain material in which the manufacturer and in
many cases the manufacturer's suppliers, retain proprietary rights. The
manufacturer wants these programs to be fully usable by you for the purpose for
which they are supplied, that is, in connection with a computer. No infringement
of the rights of the manufacturer or of the manufacturer's suppliers will occur
provided that the following conditions are observed with respect to each
program:
a. The program is used only on:
(i) a single machine; or
(i) on any workstation connected to a single fileserver which is primarily
used in connection with the Sabre System.
a. The program is copied into machine-readable or printed form for backup or
modification purposes only in support of use on a single machine, or on a
workstation connected to the Sabre System;
a. However, certain diskettes marked "Copy Protected" may include mechanisms
to limit or inhibit copying of the program;
a. The program is modified or merged into another program only for use on a
single machine or on a workstation connected to the Sabre System. Any
portion so merged continues to be subject to these conditions;
a. The copyright notice is reproduced and included in any copy or
modifications made of the program and in any program merged into other
programs; and
a. If the program package is transferred to another party, all copies and
modifications made of the program must be transferred or destroyed. You do
not retain any right with respect to the transferred package. The other
party agrees to observe all of these Conditions of Use.
Any other act involving reproduction or use of, or other dealing in the program
is prohibited.
You are reminded that it may be necessary to obtain local and United States
licenses to export or re-export this package.
No statements contained in this package shall affect the statutory rights of any
person.