Exhibit 10.13
Note: Portions of this exhibit indicated by "[*]" are subject to a
confidential treatment request, and have been omitted from this exhibit.
Complete, unredacted copies of this exhibit have been filed with the Securities
and Exchange Commission as part of the Company's confidential treatment request.
SABRE SUBSCRIBER AGREEMENT - (UNITED STATES)
This SABRE* Subscriber Agreement (the "Agreement") is entered into by and
between The SABRE Group, Inc. ("TSG") and the undersigned ("Customer"),
effective as of December 31, 1998 ("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 0 below, TSG 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 Effective Date and shall continue for 60 months ("Initial Term"). The
lease term of any additional System installed prior to the twenty-fourth (24th)
month after the Effective Date shall terminate at the end of the Initial Term.
Commencing on the twenty-fifth (25th) month, any additional System installed
shall have a term of sixty (60) months from the date of its installation
("Additional Term"). Any additional System installed after the Effective Date
shall be subject to the same terms and conditions as this Agreement.
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 0.
2.3 Communication Protocol means the rules or standards on how data
transmission takes place across computer networks.
2.4 Confidential Information means this Agreement, any and all applicable rights
to patents, copyrights, trademarks and trade secrets, proprietary and
confidential information of TSG or Customer, their affiliates, subsidiaries,
successors or assigns concerning their past, present or future research,
development, business activities or affairs, finances, properties, methods of
operation, processes and systems, agreements (including without limitation
private fare or special discount agreements) related to the business of TSG or
Customer.
2.5 Information Provider means any party, other than Customer, which provides
information for inclusion in the SABRE System, including, without limitation,
▇▇▇▇ Elsevier Inc., the publisher of the Official Airline Guide.
2.6 Instructions means any and all manuals, operating procedures,
manufacturer's recommendations, rules, and instructions delivered or made
available to Customer by TSG either in hard-copy or via the SABRE System, and
which must be complied with by Customer. Such Instructions may be unilaterally
revised or amended by TSG at any time.
2.7 Internet means the global computer network commonly referred to as the
"Internet".
2.8 Internet Connection means any connection between the Internet and the SABRE
System or System for the purpose of allowing clients of Customer to make direct
reservations for the products and services offered in the SABRE System.
2.9 ISP means any third party computer network which connects Customer or its
employees to the SABRE System or the System via the Internet. ISPs and ISP
supplied equipment such as datalines or browser software are not included in the
definitions of the SABRE System or the System.
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*SABRE is a registered trademark of a subsidiary of The SABRE Group, Inc.
2.10 Non-SABRE Traffic means data other than that passing to and from the SABRE
System which is transmitted and received by Customer using the System.
2.11 Non-Standard System means any hardware, software, communication access
devices or firmware not acquired from TSG, including any such Non-Standard
System acquired from an ISP.
2.12 PNR means a passenger name record created in the SABRE System.
2.13 Participant means any air carrier (including scheduled, charter, domestic
and international airlines), car rental company, surface transportation carrier,
hotel or lodging provider, railroad, steamship company, cruise or tour operator
or other vendor of travel related products, information or services which has an
agreement with TSG for the display of information regarding its products or
services in the SABRE System.
2.14 Prohibited Segment means a Travel Service Segment for which no
corresponding space has been reserved within the transporting carrier's internal
reservation system.
2.15 SABRE Booking means an airline, hotel, tour, rental car or cruise Segment
that obligates a Participant to pay a booking fee to TSG and that is created in
or processed through the SABRE System by Customer during any one calendar month
or that is secured to 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 TSG's sole discretion.
2.16 SABRE Component means all memory, disk storage space, ports and any other
element of the Standard Equipment.
2.17 SABRE Licensee means a person or entity licensed to market the SABRE System
in a designated area of the world.
2.18 SABRE Subscriber means a person or entity, other than an airline, which
utilizes the SABRE System to make reservations. The term "SABRE Subscriber"
shall include any person or entity making reservations through any version of
the SABRE System or through a SABRE Licensee.
2.19 SABRE System means TSG's global distribution system (commonly referred to
as a computerized reservation system) which collects, stores, processes,
displays and 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 that Participant, regardless
of the number of cabins or travelers or the duration of the cruise or tour. The
term Segment does not include Prohibited Segments.
2.22 Segment Activity Date means the first date listed in a PNR for the relevant
Segment.
2.23 Site means Customer's location at which the System is to be installed as
identified on Schedule A.
2.24 Standard Equipment means the items of hardware and communication access
devices, including, without limitation, communication data lines and networks,
leased to Customer by TSG in accordance with this Agreement and identified on
Schedule A.
2.25 Supplement means a document reflecting any changes to the System, and/or
Charges or discounts related thereto, all as agreed to by the parties. A
Supplement will be provided by TSG upon request of Customer.
2.26 System means the Standard Equipment, SABRE Component, System Software
and/or Internet Connection.
2.27 System Software means that software delivered by TSG to Customer.
2.28 Transaction means a grouping of characters transmitted to the SABRE System
whether such transmission is made in the SABRE System manually or automated,
including transmissions made through an Internet Connection. Each transmission
to the SABRE System from Customer constitutes one Transaction. No input message
may exceed three hundred (300) characters in length.
2.29 Transaction Limit has the meaning given in Article 0.
2.30 Transaction Ratio has the meaning given in Article 0.
2.31 Travel Service Segment means a SABRE Booking entered in the SABRE System
with an action status code of GK, GL, BK, BL, HN, YK, HK*, or HL*.
3. CHARGES AND PAYMENTS
3.1 Prepayment. Upon execution of this Agreement by Customer, Customer shall
pay to TSG the non-refundable prepayment as shown on Schedule A. If the System
is installed, the prepayment shall be credited against the Customer's first
Charges.
3.2 Charges. All amounts payable to TSG ("Charges") shall be due and payable
in United States dollars within fifteen (15) days of the date of TSG's invoice,
without setoff or counterclaim.
3.3 Additional Charges. Customer agrees to pay to TSG additional Charges at
TSG's then prevailing rate for services and materials including without
limitation the following: (a) the installation or removal of Standard
Equipment; (b) Standard Equipment relocation within the Site; (c) each Site
disconnect or relocation to different premises; (d) modifications, upgrades,
enhancements or additions of Standard Equipment and/or System Software; (e) any
applicable fees for non-compliance with any payment terms; (f) installation of
peripheral devices requested by Customer; (g) processing Transactions which
exceed the level of one hundred thirty (130) Transactions per SABRE Booking
("Transaction Ratio"); (h) materials for use with the Standard Equipment,
including, but not limited to, ticket stock for use with thermal ticket
printers; and (i) connecting the System to other TSG approved networks or
systems. The Transaction Ratio is subject to change by TSG upon thirty (30)
days advance notice to Customer.
3.4 Variables. If Customer elects to use certain variables including, without
limitation, Ticketing and Invoice/Itinerary functions or Microfiche, Customer
shall pay all Charges for much variables based an TSG's then prevailing rate.
3.5 Increases. TSG shall have the right to increase, the Charges, other than
the Fixed Monthly Charges identified on Schedule A, for the remaining term of
this Agreement upon thirty (30) days advance written notice to Customer. If the
increase exceeds ten percent (10%) of the Charges in any consecutive twelve
month period, Customer may terminate this Agreement upon written notice to TSG
within fifteen days of receipt of TSG's notice of the increase. Notwithstanding
the foregoing, the Charges for data lines or other communication access devices,
shall be subject to increase, at any time and without limitation, to cover any
increase in the cost imposed upon TSG by the telecommunications vendor.
3.6 Modifications. TSG's completion of any modification to the System or
Customer's payment of any revised Charges related thereto, whichever occurs
first, constitutes acceptance and ratification of the modifications to the
System and the revised Charges and/or discounts related thereto.
3.7 Interest. Charges not paid when due shall accrue interest at the rate of
eighteen percent (18%) per annum or the highest rate permitted by the governing
law indicated in Article 0, 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 taxed
measured by the net income of TSG. Customer shall indemnify and hold harmless
TSG from all costs, fines and expenses (including reasonable legal costs)
incurred by TSG resulting from Customer's failure to pay taxes as provided in
this Article.
4. INSTALLATION AND DELIVERY
4.1 Delivery. TSG shall arrange for delivery of the System F.O.B. the Site, on
the estimated installation date, as identified on Schedule A.
4.2 Installation. Subject to Article 0, TSG shall install, or cause to be
installed, the System at the Site. Customer shall allow installation of the
System at the Site. Customer's failure to do so or to give adequate assurance
that it will do so on the estimated installation date will constitute an Event
of Default pursuant to Article 0.
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, TSG shall use reasonable efforts to install the System upon
Customer's compliance with this Article and upon payment of all reasonable
expenses incurred by TSG resulting from Customer's failure to prepare the Site.
4.4 Relocation and Possession. Customer shall at all times keep the System in
its sole possession and control at the Site. Customer shall not move any part
of the System from the Site without first obtaining the written consent of TSG.
Such consent will not be unreasonably withhold.
4.5 Communication Access. Except when Customer utilizes an ISP to access the
SABRE System, TSG or its designated third party shall install the necessary
communication access device to connect the System to the SABRE System and other
approved systems or networks. All such devices are either owned by TSG or such
third-party, are subject to this Agreement, and shall be returned to TSG or the
third-party as TSG directs upon termination of the Agreement.
4.6 Non-Standard System.
4.6.1 Subject to Customer's compliance with all other terms and conditions
of this Agreement, TSG agrees to allow Customer to connect or use Non-Standard
System with the System without TSG's prior written consent, except to the extent
that such Non-Standard System consists or communications data lines, emulator
boards, gateways, routers, ticket printers or other devices connecting directly
to the System or SABRE System ("Reserved Equipment"). TSG consent for Reserved
Equipment shall be conditioned upon TSG certification and approval prior to its
use with the System. Such consent may be withheld in order to preserve the
integrity of the SABRE System and the System.
4.6.2 Customer shall represent and warrant to TSG that the Non-Standard
System and its connection to the System conforms in all respects to TSG's Non-
Standard System standards and specifications, a copy of which Customer may
request from TSG, and will not be altered or modified without prior notice to
TSG.
4.6.3 Customer shall remove all Non-Standard System placed on or within
the Standard Equipment prior to TSG's removing such Standard Equipment from
Customer's Site. TSG disclaims, and Customer hereby waives and indemnifies, any
responsibility or liability on the part of TSG, under any theory whatsoever, for
any Non-Standard System that Customer has failed to remove from the Standard
Equipment prior to TSG's removing such Standard Equipment from 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 0.
4.6.5 Customer shall also ensure that TSG has access to Customer's Site on
request for conducting on-site inspections, testing or to oversee installation
of the Non-Standard System. Customer is responsible for ensuring that any
Standard Equipment at Customer's Site is connected to the System for the
purposes of performing testing and diagnostics on such Standard Equipment by
TSG's designated agent. If TSG reasonably determines that the Non-Standard
System is causing, or contributing to, a problem with the System, the SABRE
System or another SABRE Subscriber's access to or operation of the SABRE System,
then TSG has the right to immediately restrict access to the SABRE System upon
notice to Customer as provided for in this Agreement and TSG shall have no
liability to Customer for such restriction of access.
4.6.6 Customer agrees that its continued right to maintain the connection
between the Non-Standard System and the System and/or the SABRE System and to
use the Non-Standard System in connection with the Standard Equipment shall be
dependent upon Customer's full cooperation with requests by TSG to repair,
alter, modify, or where necessary, de-install the Non-Standard System if TSG
reasonably determines that the Non-Standard System, or a component thereof, is
impairing the System, the SABRE System or another SABRE Subscriber's access to
or operation of the SABRE System.
4.6.7 Customer shall pay TSG's then prevailing rate for all employee
resources expended by TSG for, but not limited to, TSG's monitoring of the
installation of the Non-Standard System and/or expended in connection with on-
site, inspection and/or testing of the Non-Standard System after installation,
service calls and any travel and incidental expenses incurred by TSG's personnel
or vendors for the conduct of such monitoring, inspecting, testing or service
calls; provided, however, that after the initial installation of the Non-
Standard System, TSG will make such on-site inspections or test only where it
reasonably believes that the Non-Standard System is impairing the System, the
SABRE System or another SABRE Subscriber's access to or operation of the SABRE
System.
4.6.8 Customer agrees that TSG has first and complete access to the SABRE
Component. If, as a result of Customer's use of Non-Standard System, an upgrade
of the SABRE Component is required, Customer shall comply with the applicable
provisions of this Agreement.
4.6.9 TSG reserves the right to modify the SABRE System or the System,
even if such modification requires changes in Customer's Non-Standard System.
TSG will make reasonable efforts to notify Customer in advance of such changes.
Any expenses incurred in modifying Customer's Non-Standard System to conform to
the SABRE System or System modifications shall be the sole responsibility of
Customer.
4.7 Acceptance of System. Upon installation of the System and establishment of
a successful connection with the SABRE System and any other TSG approved systems
or networks, Customer shall be deemed to have accepted the System. Any use of
the System, additional System and/or Non-Standard System further constitutes
acceptance of this Agreement by Customer.
5. REPAIRS AND MAINTENANCE
5.1 Repairs and Maintenance. Upon prompt notification from Customer, TSG or
its designated agent shall promptly repair and maintain or replace the Standard
Equipment provided that the Standard Equipment has been subject to reasonable
operation. Customer shall not make any modifications nor attempt to perform
repairs or maintenance of any kind to the System.
5.2 Limitation. TSG is not responsible for repairs and maintenance of any Non-
Standard System or other hardware, software or communication access devices at
Customer's Site or at the locations of other TSG approved systems or networks
beyond the point at which they are connected to the System and/or the SABRE
System.
5.3 Notification. Customer shall promptly inform TSG of any breakdown of the
Standard Equipment by contacting SABRE Customer Services. Customer shall
maintain a record of all occasions upon which repair or maintenance service is
performed and make such records available to TSG upon request.
5.4 Charges. Repair or maintenance services on Standard Equipment during
normal business hours (9:00 a.m. to 6:00 p.m. local time, Monday through Friday,
excluding legal holidays) are included in the Charges, provided that the
Customer has not been negligent and the Standard Equipment has been subject to
reasonable operation; otherwise, Customer will be charged a service fee in
accordance with TSG's or its independent 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. TSG will accept calls to SABRE
Customer Services regarding a malfunction of the Non-Standard System if TSG
determines that the malfunction is not attributable to the Non-Standard System.
Customer shall pay TSG's then prevailing maintenance charges for any maintenance
calls for the SABRE System or the System if TSG reasonably determines that the
problems were caused by or attributable to the Non-Standard System.
6. TITLE AND OWNERSHIP OF SYSTEM
The System leased hereunder shall remain the property of TSG. Customer shall
not in any other manner dispose of the System or any part thereof or suffer any
lien or legal process to be incurred or levied on the System.
7. INSURANCE
7.1 General. Customer shall take all necessary precautions to protect the
System installed at Customer's Site.
7.2 At its own cost, Customer shall procure and maintain insurance, from an
insurer and on terms and conditions acceptable to TSG, insuring the System
against all risk of loss or damage, including, without limitation, the risk of
fire, theft and any other such risks as are customarily insured in a standard
all risk policy. Such insurance shall also provide the following:
7.2.1 Full replacement value coverage for the Standard Equipment, which
value is set forth on Schedule A;
7.2.2 An endorsement naming TSG as a co-insured and as a loss payee to the
extent of its interest in the Standard Equipment; and
7.2.3 An endorsement requiring the insurer to give TSG at least thirty
(30) days prior written notice of any intended cancellation, non-renewal,
material change in coverage or, within thirty (30) days of the event, written
notice of any default in the payment of a premium.
7.3 Risk of loss for and damage to the System shall pass to the Customer upon
delivery of the System to the Site.
7.4 TSG may request at any time proof of such insurance and/or other form of
surety from Customer. The failure of Customer to produce such proof or surety
within thirty (30) days of the request by TSG will be considered an Event of
Default as defined in Article 0 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 or 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 then 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 SARRE System. However, Customer may use specific Data for the
benefit of its customers in connection with any reservation or schedule
quotation production of a hard copy travel itinerary, invoice, statement or
ticket.
8.4 Nothing in this Agreement shall be interpreted to limit in any way TSG's
right to use, market, sell or publish any booking related data subject only to
any applicable laws or regulations.
9. SYSTEM SOFTWARE LICENSE
9.1 Ownership of System Software. Customer acknowledges that TSG or the
original manufacturer of the System Software, as applicable, owns or has
licensed from the owner, copyrights in the respective System Software and that
ownership and title are retained by the manufacturer or its licensor. All
applicable rights to patents, copyrights, trademarks, and trade secrets inherent
in the System Software and pertinent thereto are and shall remain TSG's or the
original manufacturer's sole and exclusive property. Any copy of such System
Software must incorporate any copyright, trade secret, or trademark notices or
legends appearing in the original version delivered to Customer.
9.2 Grant of License. Subject to the provisions of this Agreement and for the
term specified in Article 0, either TSG or the original manufacturer grants to
Customer a non-transferable, non-exclusive limited license to use the System
Software subject to the following restrictions: (a) Customer shall use the
System Software solely in connection with its use of the SABRE System, (b) the
System Software shall be used and installed solely at the Site and solely used
on the Standard Equipment or Non-Standard System authorized under Article 0, (c)
the System Software shall be used solely for internal purposes and only in the
ordinary course of business, (d) Customer shall not compile, reverse compile,
decompile, disassemble, reverse assemble or reverse engineer the System Software
or any portion thereof, (e) the System Software shall not be copied or reprinted
in whole or in part except (i) a reasonable number of copies of each program may
be made in machine readable form for reasonable archival or backup purposes or
(ii) when TSG has granted permission to do so, (f) Customer shall not lease,
sell, license, sublicense or otherwise transfer the System Software to any other
party, and (g) the terms of this Agreement shall govern the System Software
license unless modified by a license which may be associated with a particular
software product, wherein the license associated with that particular software
product shall govern.
9.3 Modification Rights. Customer shall not modify the System Software or
merge such software into other programs or create derivative works based on such
software. Additionally, Customer shall not delete or cause to be deleted the
System Software from the Standard Equipment. Notwithstanding anything to the
contrary contained herein, noncompliance with this provision shall constitute an
Event of Default under this Agreement and this Agreement shall immediately
terminate and Customer shall be obligated to pay TSG damages as specified in
Article 0 hereof.
9.4 Upgrades and Modifications. All tangible objects containing or relating to
the System Software are the sole and exclusive property of TSG or the
manufacturer. In the event TSG modifies the System Software, it may deliver
such modified System Software to Customer at its then current charge, if any,
and Customer shall promptly return to TSG any and all tangible objects relating
to all previous versions of the System Software as provided in Article 0.
Customer shall be solely responsible for protecting all software not obtained
from TSG hereunder and the data related thereto in the event of a software
upgrade. Customer, in order to receive an upgraded or updated program, shall
comply with any and all terms, conditions and Instructions requested by TSG.
9.5 Operating Program.
9.5.1 Customer acknowledges that the System Software may incorporate, in
part, copyrighted materials pertinent to the Operating Program as identified on
Schedule A ("Operating Program"). Customer agrees that such copyrighted
portions shall be subject to the Operating Program copyright and license.
9.5.2 If Customer requires additional Operating Programs, Customer shall
notify TSG and TSG will provide Customer with additional copies to support
additional video agent sets pursuant to this Agreement.
9.5.3 Customer will look only to TSG and not to the manufacturer for any
support, maintenance, assistance and upgrades and the like with respect to the
Operating Program and the manufacturer shall have no liability to Customer in
relation to the Operating Program.
9.5.4 No action, regardless of form, arising out of the license of the
Operating Program may be brought more then 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 or
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
0.
10.1.2 Customer may use the System to transmit and receive Non-SABRE
Traffic only from those systems or networks approved in writing by TSG.
Customer acknowledges that in cases of communications capacity limits being
reached, data transmission through the System with the SABRE System will be
given priority over any Non-SABRE Traffic.
10.1.3 Customer shall access the SABRE System only through the System, an
ISP or another system or device authorized in writing by TSG.
10.1.4 Customer shall take all precautions necessary to prevent
unauthorized operation or misuse of the SABRE System or the System, including
without limitation, speculative booking, shell bookings, reservation of space in
anticipation of demand, or improper record or access. In the event of misuse of
the SABRE System or the System, TSG reserves the right, in addition to all
rights under the Agreement, to immediately terminate the Agreement.
10.1.5 Customer shall not enter any Prohibited Segments into the SABRE
System. Prohibited Segments so entered shall not be calculated in determining
productivity levels under the Agreement. All Travel Services 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 [illegible] 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 0(g), TSG
shall have the right, upon thirty (30) days notice to Customer to limit Customer
to generating no more then one hundred thirty (130) Transactions per SABRE
Booking ("Transaction Limit"). The Transaction Limit may be changed by TSG upon
thirty (30) days advance notice to Customer.
10.4 Training. TSG will make available introductory SABRE System training
during the installation process. For purposes of this Article, the installation
process is defined as anytime between contract signing by both Customer and TSG
through two months after installation is complete.
10.4.1 Upon written request from Customer, at such time that installation
is complete, additional training may be offered subject to availability and at
TSG's then prevailing rate per person, per class. The additional training
charge will be assessed on Customer's monthly invoice.
10.4.2 The training described in Article O shall be performed at a location
designated by TSG.
10.4.3 Except as otherwise provided herein, Customer is responsible for
all training of all its employes in the proper use of the SABRE System.
10.4.4 In addition to the training described in Article O, TSG may offer to
Customer supplemental training programs on a local level at TSG's then
prevailing rate and method of delivery. Such training may consist of, but
not be limited to, workshops, seminars, self-paced instruction and
individual consultations.
10.4.5 Customer and its trainees agree to comply with all training
procedures and rules established by TSG, and TSG reserves the right to
remove any Customer trainee from the training program if such trainee fails
to comply with such procedures and rules.
10.4.6 TSG may, at its discretion, monitor or test Customer's employee's
training levels. If TSG 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 TSG at TSG's then prevailing charges) as may be necessary to
bring Customer's employees to the level of training required by TSG.
11. WARRANTY, AND LIMITATION OF WARRANTY, LIABILITY AND REMEDY
11.1 SABRE Warranty. TSG agrees to use reasonable efforts to maintain the
availability of the SABRE System, but shall have no liability for interruptions
in the operation of the SABRE System except as specifically provided herein.
Subject to the terms hereof, in the event that the SABRE System is not operable
ninety-five percent (95%) of the total normal business hours each month,
excluding periods for maintenance of Standard Equipment or other scheduled down
time ("Normal Time"), TSG will reduce the monthly Charges (on a pro-rata basis
according to the percentage of Normal Time during which the SABRE System was not
operable at least ninety-five percent (95%) of the Normal Time. For purposes of
this article, normal business hours shall be 9:00 a.m. to 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 TSG and request an
adjustment in the monthly charges. Customer's written records must be submitted
in a timely manner and include, at a minimum, the date and time of the outage,
the time the outage was reported to SABRE Customer Service, the time the SABRE
System was restored (within normal business hours as defined above) and the type
of outage.
11.2 Limited Warranty of the System. In the event of a material malfunction or
defect in an unaltered component of the System that substantially affects
performance of the System that is reported by Customer to TSG and that can be
reproduced by TSG, TSG will use reasonable efforts to correct such malfunction
or defect without additional charge to Customer. THE FOREGOING SHALL BE
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY MALFUNCTION OR DEFECT IN THE
SYSTEM. IF SUCH MALFUNCTION OR DEFECT MATERIALLY IMPAIRS CUSTOMER'S USE OF THE
SYSTEM AND CANNOT BE CURED AS PROVIDED IN THIS SECTION, THEN CUSTOMER'S
ALTERNATE SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS AGREEMENT
WITHOUT FURTHER LIABILITY TO TSG FOR DAMAGES HEREUNDER.
11.3 Exclusion of Other Warranties. EXCEPT AS SPECIFICALLY PROVIDED IN THIS
ARTICLE, THE USE OF THE SABRE SYSTEM, THE DATA DERIVED FROM THE SABRE SYSTEM,
THE SYSTEM AND/OR ANY COMPONENTS THEREOF ARE PROVIDED TO CUSTOMER BY TSG, ANY
INFORMATION PROVIDER OR THE OWNER OF ANY ELEMENT OF THE SYSTEM (AS THE CASE MAY
BE) "AS IS AND WITH ALL FAULTS". ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY, COMPLETENESS AND
NON-INFRINGEMENT OF THE DATA DERIVED FROM THE SABRE SYSTEM, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY
IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OF TRADE.
11.4 Limitation of Liability.
11.4.1 NEITHER TSG NOR ANY INFORMATION PROVIDER NOR ANY OWNER 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 TSG OR ANY INFORMATION PROVIDER OR BY ANY OWNER OF ANY ELEMENT
OF THE SYSTEM OR BY EVENTS BEYOND THE CONTROL OF TSG OR OF ANY OF THOSE OTHER
PERSONS.
11.4.2 IF A PASSENGER USES A CONFIRMED TICKET FOR AIR TRANSPORTATION ISSUED
PURSUANT TO A RESERVATION MADE BY CUSTOMER BY MEANS OF THE SABRE SYSTEM AND IS
REFUSED CARRIAGE BECAUSE OF AN OVERSALE OF SEATS OR THE LACK OF RECORD OF SUCH
RESERVATION, THE SOLE REMEDY OF CUSTOMER SHALL BE AS SET FORTH IN THE TARIFF OF
THE REFUSING CARRIER OR APPLICABLE TERMS AND CONDITIONS OF THE CARRIER'S
CONTRACT OF CARRIAGE.
11.4.3 TO THE EXTENT THAT TSG HAS ANY LIABILITY UNDER THIS AGREEMENT OR
UNDER ANY THEORY OF LIABILITY, TSG'S CUMULATIVE LIABILITY FOR DAMAGES TO
CUSTOMER HEREUNDER SHALL BE LIMITED TO THE LESSER OF (1) CUSTOMER'S DIRECT
DAMAGES, (2) THE TOTAL AMOUNT OF CHARGES ACTUALLY PAID BY CUSTOMER TO TSG
PURSUANT TO THIS AGREEMENT OVER THE TERM OF THIS AGREEMENT, OR (3) ONE MILLION
DOLLARS ($1,000,000).
11.4.4 NEITHER TSG NOR ANY INFORMATION PROVIDER NOR ANY OWNER OF ANY
ELEMENT OF THE SYSTEM SHALL BE LIABLE TO CUSTOMER UNDER ANY THEORY OF LIABILITY
OR ANY FORM OF ACTION, INCLUDING NEGLIGENCE FOR ANY INCIDENTAL, SPECIAL,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING
BUT NOT LIMITED TO LOST PROFITS, REVENUE OR SAVINGS, OR THE LOSS OF USE OF ANY
DATA, EVEN IF THAT PERSON THAT WOULD HAVE BEEN LIABLE IN THE ABSENCE OF THIS
SECTION HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY
THEREOF.
11.5 NON-SABRE TRAFFIC. CUSTOMER ACKNOWLEDGES THAT IT IS SOLELY LIABLE FOR THE
CONTENT, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-
INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER THIRD PARTY RIGHTS, OF
THE NON-SABRE TRAFFIC. CUSTOMER WARRANTS THAT THE TRANSMISSION AND RECEIPT OF
NON-SABRE TRAFFIC BY CUSTOMER IS NOT IN CONTRAVENTION OF ANY LAWS, RULES OR
REGULATIONS. FURTHER, CUSTOMER HEREBY WARRANTS THAT IT HAS ENTERED INTO SUCH
SEPARATE AGREEMENTS AS IT DEEMS NECESSARY OR APPROPRIATE WITH THE SYSTEMS OR
NETWORK PROVIDERS FOR THE TRANSMISSION AND RECEIPT BY CUSTOMER OF THE NON-SABRE
TRAFFIC AND, IN PARTICULAR, CUSTOMER WARRANTS THAT IT SHALL BE SOLELY LIABLE TO
THESE PROVIDERS FOR ANY MALFUNCTION OR OTHER ADVERSE IMPACT EXPERIENCED BY SAID
PROVIDERS AS A RESULT OF THE TRANSMISSION AND RECEIPT BY CUSTOMER OF THE NON-
SABRE TRAFFIC.
12. INDEMNIFICATION
12.1 Customer and TSG ("Indemnitor") hereby agree to indemnity and hold each
other, their affiliates, subsidiaries, successors end assigns and their
officers, directors, agents and employees ("Indemnitees") harmless from and
against third-party liabilities, including, but not limited to, attorneys' fees,
and other expenses incident, thereto, ("Claims") which may be threatened
against, or recoverable from the Indemnitees by reason of any
injuries to or death of persons or loss of, damage to, or destruction of
property to the extent arising out of or in connection with any act, or omission
of the Indemnitor.
12.2 Customer will indemnify TSG for any Claims, including debt 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 TSG, which
consent shall not be unreasonably withheld. Any attempted assignment in
violation of this Article shall be void.
13.2 Assignment by TSG. TSG shall have the right to sell, transfer, assign or
delegate its, interests, rights and/or obligations, without the prior consent of
Customer, and, provided that such transferee or assignee assumes all of TSG's
obligations, TSG shall be released of all obligations after the effective date
of such sale, transfer, delegation or assignment.
14. TERMINATION AND DEFAULT
14.1 Default By Customer. The occurrence of any one or more of the following
events shall constitute a non-exclusive event of default (the "Event of
Default") pursuant to the terms of this Agreement:
14.1.1 Customer falls 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 0;
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 0, 0 and 0 shall not be cause for
termination if Customer cures such failure within fifteen (15) days after date
of written notice from TSG. If Customer cures its failure as provided in this
provision, said failure shall not be considered to be an Event of Default for
the purposes of Article 0.
14.2 TSG's Rights Upon Termination. Upon the occurrence of an Event of Default
and subject to Article 0, TSG shall have the right to any one or more of the
following remedies; (i) terminate this Agreement and Customer's access to the
SABRE System, the System and any other approved systems or networks; (ii) seek
all legal and equitable remedies to which it is entitled; and (iii) retake
immediate possession of the System. If Customer's Event of Default results in
termination, Customer agrees to pay to TSG damages suffered by TSG as a result
of such Event of Default.
14.3 Termination By Customer. In the event that TSG breaches any material term
of this Agreement, which breach continues for a period of fifteen (15) days
after TSG receives from Customer written notice which sets forth the specific
breach and Customer's intent to terminate the Agreement if such breach is not
cured, then Customer may immediately terminate the Agreement upon separate
written notice to TSG. Customer may not otherwise cancel, terminate, modify,
repudiate, excuse or substitute this Agreement without TSG's prior written
consent, which TSG may withhold in its absolute discretion.
15. MISCELLANEOUS
15.1 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF TEXAS AND THE UNITED STATES OF AMERICA. CUSTOMER HEREBY SUBMITS AND CONSENTS
TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS AND THE COURTS OF THE STATE OF TEXAS IN ANY DISPUTE
ARISING OUT OF THIS AGREEMENT AND AGREES THAT SERVICE OF PROCESS SHALL BE
SUFFICIENT IF MADE ON THE SECRETARY OF STATE OF THE STATE OF TEXAS WITH A COPY
TO BE SENT, REGISTERED MAIL TO THE CUSTOMER AT THE ADDRESS SET FORTH IN SCHEDULE
A OR SUCH OTHER ADDRESS AS CUSTOMER MAY LATER SPECIFY BY WRITTEN NOTICE TO TSG.
15.2 Binding Effect. Except as otherwise provided, this Agreement shall inure
to the benefit of and bind the successors and assigns of the parties hereto.
15.3 Deletion of Equipment. During the term of the Agreement, Customer may
delete up to [*] of the installed productive video agent sets, video agent set
terminal addresses and printers, contingent upon the following: (a) Customer
provides documentation of a substantial decrease in the number of SABRE
Bookings, which decrease is the result of the loss of its commercial accounts
and/or customer base; (b) Customer notifies TSG, in writing, of the description
and location of the equipment to be deleted (the "Deleted Equipment"); (c)
Customer pays to TSG the then current de-installation charges for the Deleted
Equipment plus any outstanding Charges for such Deleted Equipment up through the
Stop Billing Date which TSG will specify to Customer; and (d) Customer will
forfeit all right and equity, if any, in the Deleted Equipment removed from
Customer's location.
15.3.1 If Customer complies with the requirements identified in 0 above,
TSG shall de-install the Deleted Equipment and disconnect it from the System.
15.3.2 TSG shall defer all Charges related to the Deleted Equipment
("Deferred Charges") from the Stop Billing Date to the termination date of this
Agreement on the following conditions: (a) the Additional Term and all other
terms and conditions of this Agreement that would have applied to the Deleted
Equipment shall apply to any Standard Equipment added to the System after the
Stop Billing Date, up to an amount equal in number and type to the Deleted
Equipment or such lesser amount agreed to by TSG ("Re-installed Equipment"); and
(b) Customer shall pay TSG all applicable Charges for the Re-installed
Equipment, including installation, lease, maintenance and use Charges, at TSG's
then current rates.
15.3.3 The Deferred Charges shall be deemed waived by TSG at the end of
the Initial Term of the Agreement or any renewal thereof if Customer has not
breached this Agreement. Interest shall accrue on the Deferred Charges at the
maximum rate allowed by applicable law from the date of the deferral until
payment. In addition to all other rights under Article 0, TSG shall be entitled
to immediate payment of the Deferred Charges plus interest upon default by
Customer.
15.4 Entire Agreement. This Agreement and the Instructions constitute the
entire agreement of the parties as to the matter set forth herein and shall
supersede any previous understandings, agreements, representations, statements,
negotiations and undertakings, whether written or oral, between the parties
relating to the matters set forth herein. Any amendment to this Agreement must
be in writing and signed by the authorized representatives of both parties.
15.5 Force Majeure. TSG and Customer shall be relieved of their obligations
hereunder in the event and to the extent and only so long as that performance is
delayed or prevented by any cause reasonably beyond their control, including,
but not limited to, acts of God, public enemies, war, civil disorder, fire,
flood, explosion, labor disputes or strikes, or any acts or orders of any
governmental authority, inability to obtain supplies and materials (including
without limitation computer hardware) or any delay or deficiency caused by the
electrical or telephone line suppliers or other third parties.
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
15.6 Notices. Unless otherwise stated, notices given or required under this
Agreement must be in writing and shall be deemed delivered upon deposit through
the United States Mail, to TSG at P.O. Box 619815, MD 3558, ▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇ (to be sent to the attention of SABRE Travel Information
Network, Financial Services) or to the Customer at the address set forth in
Schedule A.
15.7 Return of System. Upon the termination of this Agreement for any reason,
Customer, at its sole cost and expense, shall return the System and all
Confidential information as requested by TSG, in good repair, condition and
working order, less normal and ordinary wear and tear, by delivering it to a
common carrier selected and designated by TSG, F.O.B. the destination designated
by TSG in writing.
15.8 SABRE System Modification. TSG retains the right to modify the SABRE
System, at its discretion at any time during the term of this Agreement.
However, such modifications will not materially impair 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 TSG, then the
parties hereto will commence consultation in order to determine what, if any,
changes to this Agreement are necessary or appropriate, including, but not
limited to, early termination of this Agreement. If the parties hereto are
unable to agree upon changes in the Agreement in response to such new statute,
rule, order or regulation within thirty (30) days after commencement of such
consultation, this Agreement may be canceled by TSG upon giving Customer ninety
(90) days prior written notice of such cancellation. If TSG elects to terminate
the Agreement pursuant to this Article, except for Customer's obligation to pay
any and all Charges incurred through the date of termination, each party shall
be relieved of any future obligations under this Agreement as of the effective
date of cancellation. each party shall bear its own costs and expenses incurred
as a result of said termination. Customer does not have the right to terminate
the Agreement under this provision.
15.11 Surviving Sections. If the term of the Agreement expires or is
terminated for any reason before Customer has paid to TSG all of the sums due,
the Agreement shall survive such expiration or termination to the extent
necessary to protect TSG's rights until all sums owed to TSG have been paid.
Notwithstanding anything to the contrary referenced herein, Articles 0, 0, 0 and
0 shall survive the termination of this Agreement.
15.12 Waiver. A failure or delay of either party to require strict performance
to enforce a provision of this Agreement or a previous waiver or forbearance by
either party shall in no way be construed as a waiver or continuing waiver of
any provision of this Agreement.
15.13 Acknowledgment. Customer hereby acknowledges that TSG has offered
Customer a SABRE Subscriber Agreement with three (3) year term with reasonable
terms and conditions.
16. INTERNET CONNECTIONS
16.1 Limited License. Customer may establish an Internet Connection using TSG's
products or a third party application. Customer is hereby given a limited
license to utilize data transmitted from the SABRE System for purposes of
developing, operating and maintaining a reservation booking site solely for the
use of its customers and according to the other limitations contained in the
Agreement, including, without limitation, Article 0. 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 0 may be terminated by
TSG for any reason upon
five (5) days written notice to Customer. Upon such termination Customer must
immediately remove the Internet Connection and cease utilizing data transmitted
under the Agreement for purposes of developing, operating or maintaining a
reservation booking site.
16.3 Branding. Customer agrees to adhere to the branding standards and
requirements as communicated by TSG which may be modified from time to time upon
thirty (30) days advance notice to Customer.
16.4 Charges. Customer will pay a Charge for each PNR created through an
Internet Connection at TSG's then current rate.
17. TSG RESERVES THE RIGHT TO CHANGE SABRE GUARANTEE PROGRAM RULES,
REGULATIONS, AND SPECIAL OFFERS WITHOUT NOTICE, AND TO END SABRE GUARANTEE
PROGRAMS WITHOUT NOTICE
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth below.
ALL SIGNATURES MUST BE IN BLACK INK
CUSTOMER
By:
---------------------------------------
(Signature)
Name:
------------------------------------
(Print Name)
Title:
-----------------------------------
Agency Name:
-----------------------------
Pseudo City Code:
------------------------
THE SABRE GROUP, INC.
By:
--------------------------------------
(Signature)
Name:
------------------------------------
(Print Name)
Title:
-----------------------------------
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.
2. COPYRIGHT AND OTHER RIGHTS.
The manufacturer's programs contain material in which the manufacturer and in
many cases the manufacturer's suppliers, retain proprietary rights. The
manufacturer wants these programs to be fully useable by you for the purpose for
which they are supplied, that is, in connection with a computer. No
infringement of the rights of the manufacturer or of the manufacturer's
suppliers will occur provided that the following conditions are observed with
respect to each program:
a. The program is used only on:
(i) a single machine; or
(ii) on any workstation connected to a single fileserver which is
primarily used in connection with the SABRE System.
b. The program is copied into machine-readable or printed form for backup
or modification purposes only in support of use on a single machine, or on
a workstation connected to the SABRE System;
c. However, certain diskettes marked "Copy Protected" may include
mechanisms to limit or inhibit copying of the program;
d. The program is modified or merged into another program only for use on
a single machine or on a workstation connected to the SABRE System. Any
portion so merged continues to be subject to these conditions;
e. The copyright notice is reproduced and included in any copy or
modifications made of the program and in any program merged into other
programs; and
f. If the program package is transferred to another party, all copies and
modifications made of the program must be transferred or destroyed. You do
not retain any right with respect to the transferred package. The other
party agrees to observes all of these Conditions of Use.
Any other act involving reproduction or use of, or other dealing in the program
is prohibited.
You are reminded that it may be necessary to obtain local and United States
licenses to export or re-export this package.
No statements contained in this package shall affect the statutory rights of any
person.
AMENDMENT NO. 1 TO SABRE SUBSCRIBER AGREEMENT
This Amendment to that certain SABRE Subscriber Agreement is made and
entered into this 31st day of December, 1998, between The SABRE Group, Inc.
("TSG") and Cheap Tickets, Inc. ("Customer").
RECITALS
WHEREAS, TSG and Customer have entered into that certain SABRE Subscriber
Agreement, dated as of 31 December 1998 (the "Agreement"); and
WHEREAS, it is in the best interest of the parties to modify certain
provisions of the Agreement.
NOW THEREFORE, in consideration of the mutual covenants contained herein,
TSG and Customer hereby agree as follows:
1. Effective Date. The effective date of this Amendment is 31 December
1998.
2. Cash Advance. TSG agrees to pay to Customer the following, as SABRE
Promotional Support, pursuant to the schedule set out below contingent upon the
Agreement and this Amendment have been signed by both Customer and TSG:
[*] within [*] after the Agreement and this Amendment have been signed
by both parties.
If an Event of Default as defined in Article 14.1 of the Agreement occurs, TSG's
obligations under this Amendment are nullified and Customer will be immediately
obligated to repay to TSG all monies paid by TSG to Customer pursuant to this
Amendment.
3. Line of Credit. TSG shall extend to Customer a line of credit in the
following amount, which amount will be applied automatically toward the payment
of SABRE/ADS/IBT Charges. Such line of credit shall be applied each month until
the total amount is exhausted. Any unused portion of this line of credit shall
revert to TSG and be unavailable for Customer's use upon the happening of either
of the following events: (i) the expiration of the Initial Term of the Agreement
or (ii) termination of the Agreement for any reason.
[*]
4. Current and Expansionary Devices. Upon the Effective Date of this
Amendment and provided Customer meets the terms and conditions as set forth
below and in the Agreement TSG shall provide, each month during the term hereof,
fixed monthly discounts to offset the charges for the services and products
listed below that are either currently installed or installed subsequent to the
Effective Date of the Agreement:
(a) data lines, fileservers, gateways, SABRE video agent sets, SABRE
Printers, Satellite Ticket Printers (STP's) or any other equipment standard to
the SABRE System, provided the following:
(i) TSG will not provide fileservers, gateways or SABRE video agent
sets at Customer call center locations;
(ii) TSG will provide currently installed equipment at Customer
locations other than at Customer call centers;
(iii) TSG will provide expansionary SABRE gateways and SABRE video
agent sets at Customer locations other than at Customer call centers, [*]
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
based on total Customer SABRE Bookings and Customer SABRE gateways and SABRE
video agent sets on the Effective Date of this Agreement at Customer locations
other than at Customer call centers;
(iv) TSG will provide expansionary SABRE Printers and Satellite Ticket
Printers (STP's) [*] based on total Customer SABRE Bookings and Customer SABRE
Printers and Satellite Ticket Printers (STP's) on the Effective Date of this
Agreement;
(v) TSG will provide expansionary SABRE data lines [*] based on total
Customer SABRE Bookings and Customer SABRE data lines on the Effective Date of
this Agreement. Equivalent Data Line is defined as [*];
(vi) TSG will not provide maintenance for equipment that is not owned by
TSG;
(b) SABREscribe;
(c) installation, de-installation, move and relocation charges (excluding
charges associated with moves or relocations outside the ordinary course of
business which shall be determined by Customer's past practices, which shall be
billed to Customer at TSG's then prevailing rate);
(d) variable charges for Branch Access, Bargain Finder Plus, FACTS Report,
Option 6 Interface, Invoice and Itinerary, Microfiche, Ticketing, ARC Report,
SABRE Report Managers, Classified Fares, STARS and SABRE Re-Check;
(e) [*] of the monthly lease and SMU Charges for SABRE TravelBase
equipment, operating system licenses and software license fee sufficient to
process [*] SABRE Bookings per year, [*]
(f) [*] SABRE TravelBase workstations in Year One of this Agreement,
increasing up to a total of not more than [*] SABRE TravelBase workstations by
Year Five of the Agreement, as TSG and Customer jointly determine that a need
for such SABRE TravelBase workstations exists; in addition, TSG will provide to
Customer sufficient software licenses for Customer-owned SABRE TravelBase
workstations.
5. Additional Standard Equipment. TSG agrees to allow Customer to add Standard
Equipment in excess of that provided for in paragraph 4, and Customer and TSG
agree that all Standard Equipment added under this paragraph 5 will be charged
on a monthly basis at TSG's then prevailing rate. Customer and TSG agree that
the rate charged is the rate that applies to the actual piece of Standard
Equipment most recently added by Customer. TSG agrees to allow Customer to
choose to pay for this additional Standard Equipment with either cash or funds
from Customer's Line of Credit.
6. Booking Threshold Adjustments. TSG agrees to offer Customer, as new products
are introduced, the option to pay for those products at standard
non-discriminatory rates as described in the product offering.
7. Booking Threshold. Notwithstanding anything contained herein, TSG shall have
no obligation to perform the undertakings set forth in paragraph 4 unless: (a)
the Standard Equipment is available for purchase by TSG on reasonable terms and
conditions from the manufacturer, and (b) Customer processes a minimum of the
following number of SABRE Bookings [*] (the "[*] Volume Threshold") during the
term of the Agreement:
[*]
Notwithstanding anything contained herein, TSG shall have no obligation to
perform the undertakings set forth in paragraph 9 unless Customer achieves the
Monthly Booking Threshold as described herein.
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
8. SABRE Bookings Below [*] Volume Threshold. In the event Customer fails to
achieve the [*] Volume Threshold in paragraph 7 for each [*] measurement period,
Customer shall pay to TSG an amount equal to the prevailing booking fee that TSG
charges to airlines that participate in the full availability features of the
SABRE System multiplied by the difference between the [*] Volume Threshold and
the actual SABRE Bookings at all the Customer's locations. Measurement of the
[*] Volume Threshold shall be performed by TSG on a [*] basis commencing on the
Effective Date of the Agreement.
9. [*]
10. [*]
11. SABREscan. TSG and Customer agree to a contractual SABREscan rate of [*]
Transactions per SABRE Booking. Transactions and SABRE Bookings include, but are
not limited to, those generated by Customer retail, call-center and on-line
("Internet") locations. Customer agrees to pay TSG on a semi-annual basis an
additional charge at the rate of [*] per Host Transaction for Host Transactions
which exceed the level of [*] Host Transactions per SABRE Booking.
12. Fares Filing. TSG and Customer agree to retain in force the provisions of
the agreement termed "SABRE Agreement for Negotiated Fares Maintenance" dated
15 July 1994, throughout the term of the Agreement. Customer agrees to pay TSG
the monthly charge of [*] for these services. Should TSG's costs to provide
Customer's fares
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
filing decline substantially below [*] per month, TSG agrees to reduce
Customer's charges associated with this fares filing.
13. SABRE Terminal Addresses (TAs). Customer agrees to pay TSG the sum of [*]
for every Terminal Address exceeding the [*] total number allowed by TSG
below.
Year Total Number of TAs Allowed
---- ---------------------------
Year 1 [*]
Year 2 [*]
Year 3 [*]
Year 4 [*]
Year 5 [*]
14. Internet On-line Bookings. Customer agrees to pay TSG the sum of [*] for
every Passenger Name Record ("PNR") created which utilizes Customer's Internet
website for all or part of the booking process.
15. Credit Card Address Verification ("AVS"). Customer agrees to pay TSG the sum
of [*] for every automated credit card address verification ("AVS") query
Customer processes through SABRE. [*].
16. Turbo SABRE License Fees. Customer agrees to pay TSG the sum of [*] for each
additional Turbo SABRE license utilized by Customer during the term of this
Agreement. [*].
17. TSG Technical Support. Customer agrees to pay TSG the sum of [*] per hour
for any TSG in-house technical support provided to Customer by TSG during the
term of this Agreement. Customer agrees that TSG is under no obligation to
provide technical support to Customer, and agrees to pay TSG for the services of
any outside parties (including but not limited to consultants and
subcontractors), which may be passed through to Customer at rates which may
exceed [*] per hour. Customer also agrees to pay TSG's reasonable administrative
costs and travel and incidentals expenses associated with any Customer technical
support provided by or on behalf of TSG.
18. Reports. Reports showing the number of SABRE Bookings shall be provided by
TSG on a monthly basis. Invoicing, if necessary, will be made at the end of each
month and Customer agrees to pay all amounts due to TSG, including applicable
taxes, within thirty (30) days of the invoice date.
19. Monthly Reconciliation. The reports will be reconciled by TSG and Customer
each month. The semi-annual measurement will be calculated using the reconciled
information.
20. Yearly Reconciliation. Upon each anniversary of the Effective Date, there
shall be a reconciliation of payments/credits made throughout the year. Such
reconciliation shall consist of the following: the total SABRE Bookings over the
year shall be compared to the Booking Threshold as defined in paragraph 7 and
the differentiation shall be applied to the formula herein regarding SABRE
Bookings above or below the Booking Threshold as applicable ("The Reconciled
Amount"). The Reconciled Amount, and all [*] Volume Threshold incentives under
paragraph 10, shall be compared to the actual amount of payments/credits
provided during the same year and TSG shall invoice or credit customer for the
difference between The Reconciled Amount and the actual amount paid/credited
during the year.
21. Acquisitions. If at any time during the term of the Agreement, Customer
purchases or otherwise acquires all of the assets of any travel agency which
utilizes SABRE, then such travel agencies shall be bound by the terms and
conditions as set forth in the Agreement and this Amendment. Notwithstanding the
foregoing, all outstanding receivables at the time of acquisition by Customer
must be paid to TSG prior to inclusion of the acquired locations and/or
equipment under the terms of the Agreement, unless otherwise agreed to by both
parties. Customer and travel agency acquired must both notify TSG in
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.
writing of the acquisition and must provide at a minimum (i) the pseudo city
code of acquired location(s), (ii) total number of productive devices being
acquired, and (iii) the effective date of the acquisition.
22. Agreement Reviews. Commencing on the first anniversary of the Effective Date
but not more than once every contract year, the parties will review this
Agreement in order to adjust the [*] Volume Threshold Incentives in paragraphs 9
and 10 to reflect changes in the actual costs of providing products and services
hereunder. Upon conclusion of such review, TSG shall have the right to decrease
the [*] Volume Threshold Incentives by no more than [*] per year to
compensate for automation cost increase. Notwithstanding the foregoing, TSG
shall have the right to decrease the [*] Volume Threshold Incentives to recover
any actual increases in communication costs during the upcoming year. TSG shall
provide to Customer satisfactory evidence of such increased communication costs.
23. Wholly Owned Offices/Outlets. The terms and conditions of the Agreement and
this Amendment are only applicable to wholly owned offices/outlets of Customer
and shall not apply to any franchise or associate operation.
24. Confidentiality. It is expressly understood and agreed that this Amendment
and the Agreement, and each and every provision hereof, shall be held and
treated as confidential and shall not be disclosed by Customer to any other
person, firm, organization, association, or entity, of any and every kind,
whether public, private or governmental, for any reason, or at any time, without
the prior written consent of TSG (except that Customer may disclose the
provisions of the Agreement and this Amendment to its attorney and/or
accountant), unless such disclosure is required by law or legal process. In the
event of such disclosure, this Amendment and the Agreement may be terminated
immediately by TSG, without notice to Customer, and TSG shall have the right to
pursue any remedies available to it in law or in equity.
25. Defined Terms. The defined terms used in this Amendment shall have the
meaning assigned to such terms in the Agreement.
26. Agreement. Except as otherwise provide herein, all other terms of the
Agreement remain in full force and effect. In the event of any conflict between
the terms of the Agreement and this Amendment, the Amendment shall control.
27. Termination of Prior Agreements. All oral or written agreements entered into
by the parties prior to the effective date of the Agreement and this Amendment
which relate to the maintenance or use of the SABRE System or any portion
thereof shall be deemed terminated upon execution of the Agreement and this
Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the day
and year written below.
CUSTOMER THE SABRE GROUP, INC.
By: ______________________________ By: ______________________________
(Signature) (Signature)
Name: ______________________________ Name: ______________________________
(Print Name) (Print Name)
Title: ______________________________ Title: ______________________________
Date: ______________________________ Date: ______________________________
PCC: ______________________________
[*] The redacted portion, indicated by this symbol, is the subject of a
confidential treatment request.