EXHIBIT 10.22
PRE PAID CONTENT DISTRIBUTION AGREEMENT
This Agreement is made as of this 14th day of July 2004 ("Effective Date")
between Sabre EMEA Marketing Limited ("Sabre"), a company incorporated in
England having it's principal place of business at 00-00 Xxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxx, XX0 0XX and Onelink4travel Limited ("Onelink4travel"), a company
incorporated in England having it's principal place of business at 0000
Xxxxxxxx, Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxx XX0 0XX
INTRODUCTION
A. Sabre is a leading provider of information-technology solutions to the
travel industry.
B. Onelink4travel aims to distribute and provide a settlement service for
pre-paid travel content online to travel agents.
C. The parties desire to enter into an agreement to allow access and
reservation of pre-paid content held within the Sabre System from
Participants that have a contractual agreement with Onelink4travel which
allows Onelink4travel to distribute such content ("Permitted Content").
In consideration of the mutual covenants contained below, the parties agree as
follows:
1. DEFINITIONS
For the purposes of this Agreement, the following words have the meanings
contained below:
1.1 "Affiliates" shall mean, with respect to a Party, any entity at any time
Controlling, Controlled by or under common Control with such Party.
1.2 "Agreement" shall mean this Pre Paid Content Distribution Agreement.
1.3 "Control, Controlling or Controlled" shall mean possessing directly or
indirectly, the power to direct or cause the direction of the management
and policies of an entity, whether through ownership of voting securities,
by contract or otherwise.
1.4 "Distribution Phase" will mean the period commencing on the date of the
First Release.
1.5 "Distribution Tool" will mean the internet-based tool specifically
configured to allow Onelink4travel customers to book the Permitted Content.
1.6 "First Release" means the first live commercial transaction carried out
using the Distribution Tool
1.7 "GDS" will mean a global distribution system (commonly referred to as a
computerised reservation system). A GDS 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.
1.8 "Participant" means any vendor of travel related products, information or
services which has an agreement with Sabre or an affiliate of Sabre for the
display of information regarding its products or services in the Sabre
System.
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1.9 "Party" shall mean Sabre and Onelink4travel as detailed on the initial page
of this Agreement.
1.10 "Permitted Content" shall have that meaning set out in paragraph C of the
Introduction above. As at the date of this Agreement, the parties agree
that the Permitted Content shall be limited to car and hotel content. The
parties may extend Permitted Content by mutual written agreement.
1.11 "Sabre Booking" shall mean a travel Segment against which Sabre or an
affiliate of Sabre receives a booking fee from the Travel Service Provider
and that is created in or processed through the Sabre System via the
Distribution Tool.
1.12 "Sabre Exclusives" shall mean Sabre exclusive content contained in the
Sabre System. As at the date of this Agreement, Sabre Exclusives do not
form part of the Permitted Content. The parties may extend Permitted
Content to include Sabre Exclusives by mutual written agreement.
1.10 "Sabre Subscriber" shall mean a person or entity, other than a Travel
Service Provider using the Sabre System as its internal reservations
system, which utilises the Sabre System to make reservations.
1.11 "Sabre System" shall mean the Sabre GDS which has electronic facilities
able to provide, store, communicate, distribute, process and document such
information as is from time to time stored in the data base created and
maintained for the Sabre System.
1.12 "Segment" shall mean (1) 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; (2) 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;
1.13 "Transaction" shall mean a grouping of characters transmitted to the Sabre
System whether such transmission is made in the Sabre System manually or
automated. Each transmission to the Sabre System from Onelink4travel
constitutes one Transaction. Transactions will be priced differently
depending upon the resource impact to the Sabre System. Sabre may change,
delete or add to Transaction categories at any time with thirty (30) days
advance notice to Onelink4travel.
1.14 "Travel Service Provider" shall mean a provider of travel-related services,
including but not limited to, airlines, hotels and car-rental companies.
1.15 "Withholding Taxes" shall mean foreign, federal, and state and local taxes,
fees, or charges which are imposed on or by reference to gross or net
income or gross or net receipts and are required under applicable law to be
withheld by Sabre from payments made to Onelink4travel under this Agreement
(including any related penalties and interest thereon).
2. TERM
This Agreement shall commence on the Effective Date and shall continue for
a minimum period of 3 (three) years (the "Minimum Period") from either the
date of First Release of the Distribution Tool or the first anniversary of
the Effective Date, whichever is earlier. At the end of the Minimum Period,
and on each subsequent anniversary the Agreement shall continue for further
periods of 12 months unless either party gives 6 months notice in writing
to terminate the Agreement, such notice not to expire before the end of the
Minimum Period or each such extended period. ("Term").
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3. DISTRIBUTION TOOL
3.1 Onelink4travel shall develop the Distribution Tool and shall be responsible
for and bear all costs relating to the development of the same.
3.2 In order for the Distribution Tool to access the Permitted Content,
Onelink4travel and/or their technology partner shall maintain an internet
connection to the Sabre System at all times using a Cisco router. This
shall be achieved through use of Sabre's XML Power Tool Kit software,
licensed to Onelink4travel in accordance with clause 5. This connection
will be updated to a Web Services connection as part of Sabre's migration
to that technical standard.
3.3 Onelink4travel's access to the Sabre System during development of the
Distribution Tool shall be governed by a Developer Access Agreement in the
form attached at Annex A, which Onelink4travel shall complete and return to
Sabre prior to development of the Distribution Tool. The terms of the
Developer Access Agreement shall further govern any access to the Sabre
System that Onelink4travel may maintain pursuant to Clause 3.2 above,
notwithstanding that the Developer Access Agreement may have expired
provided that during the Distribution Phase: (i) the provisions of Clauses
5.1b, 6.1, 9.1 and 9.2 of the Developer Access Agreement shall cease to
apply; (ii) Clause 2.2 of the Developer Access Agreement shall be amended
so that Sabre may revoke all access rights to the Sabre System only in the
event of misuse of the Sabre System or harm arising to the Sabre System as
a result of Onelink4travel's acts or omissions; (iii) Clause 2.4 of the
Developer Access Agreement shall be amended by the deletion of the last
sentence of the same; and (iv) the definition of `Sabre System' contained
in the Developer Access Agreement shall be replaced with the definition of
`Sabre System' as appears in Clause 1 of this Agreement.
3.4 Until such time as Sabre agrees otherwise in writing, Onelink4travel shall
not permit any travel agent based outside of Europe or in Cyprus to access
the Permitted Content through the Distribution Tool.
3.5 Prior to First Release, Onelink4travel shall arrange for a presentation of
and demonstration of the Distribution Tool to Sabre. The display of any
reference to Sabre or to any Sabre logo within the Distribution tool shall
be subject to Sabre's written approval.
3.6 Onelink4travel will not discriminate against content from Sabre within
their portal where content is sourced from multiple sources.
3.7 Onelink4travel shall be solely responsible for ensuring it has secured
consent from Participants whose Permitted Content it is accessing via the
Sabre System. Where requested, Onelink4travel shall provide prompt evidence
of the same to Sabre.
3.8 Onelink4travel shall be responsible for settlement of all payments due to a
Participant resulting from a Sabre Booking made through the Distribution
Tool or otherwise due to the Participant as a result of Onelink4travel's
use of or access to the Permitted Content. Sabre shall have no
responsibility or involvement in the same.
3.9 Onelink4travel access to the Sabre System shall be limited to the Permitted
Content. Onelink4travel agrees that it shall only access and make
available, via the Distribution Tool, the Permitted Content. Onelink4travel
shall promptly notify Sabre of and make no use of the same any access it
has to content within the Sabre System other than the Permitted Content.
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4. SABRE RIGHTS
In the event that Onelink4travel intends to sell all or any part of its
intellectual property rights relating to the distribution tool
Onelink4travel shall notify Sabre who shall be entitled to make an offer to
purchase such intellectual property rights.
5. XML POWER TOOLKIT
Subject to clause 6, Sabre shall license it's XML Power Toolkit software
("XML PTK") to Onelink4travel for the Term of this Agreement under those
terms attached at Annex B.
6. PAYMENTS AND SABRE HOTEL AND CAR CONTENT BOOKINGS
6.1 Onelink4travel agrees to provide Sabre with 2,500 Sabre Bookings or, if
available, 100 sales of Sabre Exclusives content via the Distribution Tool
during the first year as measured from the date of release of the
Distribution Tool ("First Year of Release"). In the event that these
targets or greater are achieved during the First Year of Release, Sabre
agrees to waive (i) the annual maintenance fee for it's XML PTK and
connection provided to Onelink4travel in accordance with Clause 5 and (ii)
any fee for migration of XML PTK to Sabre's Web Services product, which
Sabre is developing to replace XML PTK. For the avoidance of doubt the
initial installation charges and the user configuration charges have been
waived.
6.2 In the event that Onelink4travel does not provide 2,500 Sabre Bookings in
the First Year of Release but does provide Sabre with 1,500 or more Sabre
Bookings or, if available, 75 sales of Sabre Exclusives via the
Distribution Tool in the First Year of Release, Onelink4travel agrees to
pay Sabre EUR 4,800 (four thousand eight hundred Euros) for the annual
maintenance fee for it's XML PTK and connection provided to Onelink4travel
under Clause 5 and Sabre agrees to waive any fee for migration of XML PTK
to Sabre's Web Services product.
6.3 In the event that Onelink4travel does not provide 1,500 Sabre Bookings or,
if available, 75 sales of Sabre Exclusives in the First Year of Release,
Onelink4travel agrees to pay Sabre (i) EUR 4,800 (four thousand eight
hundred Euros) for the annual maintenance fee for Sabre's XML PTK and
connection provided to Onelink4travel under Clause 5 and (ii) any fee
payable for migration of XML PTK to Sabre's Web Services product.
6.4 Onelink4travel shall issue a report detailing all Sabre Bookings made via
the Distribution Tool to Sabre in each quarter during the Term. Unless
otherwise stated in the Agreement, Sabre shall invoice Onelink4travel
quarterly for all sums due to it from the preceding quarter. All payments
shall be made in Euros or Great British Pounds and shall be due within 30
days of the date of Sabre's invoice for the same. Where amounts payable are
quoted in USD (United States Dollars) the parties shall use the applicable
Euro or Great British Pound exchange rate of HSBC bank, London, on the date
of invoice to determine the Euro or Great British Pound amount payable. All
payments to Sabre are exclusive of VAT.
6.5 Sabre shall have the right upon reasonable written notice to audit those
parts of the Onelink4travel system and records that are relevant to
bookings via Sabre to determine the accuracy of the booking reports sent to
Sabre in accordance with Clause 6.4, including those of Onelink4travel
technology partners. Any information gained by Sabre during such an audit,
that does not relate to Sabre bookings, will be confidential.
6.6 Onelink4travel agrees to work with Sabre to reduce the number of
Transactions per Sabre Booking made. In any event, Onelink4travel agrees to
pay to Sabre an additional charge at Sabre's then prevailing rate for
processing Transactions that exceed the level of one hundred and five (105)
Transactions per Sabre Booking. Sabre's prevailing rates for Transactions
are available on request.
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7. TRAINING
Sabre shall provide, and Onelink4travel shall ensure suitable
Onelink4travel employees (or employees of Onelink4travel's technology
partner) attend, Sabre System and XML PTK training at times and locations
to be agreed.
8. MARKETING
Sabre will not actively market the Onelink4travel or the Distribution Tool
to either travel agencies or content suppliers.
9. TAXES
9.1 Any charges paid hereunder in exchange for products or services provided by
Onelink4travel are exclusive of any taxes, duties, fees or similar charges,
however designated, imposed upon or made payable and arising out of sales
under this Agreement. Sabre shall pay all such taxes now or hereafter due
and owing, including but not limited to sales, use, value added, or similar
taxes assessable against the provision of the products or services under
this Agreement. In the event any such taxes are imposed upon and paid by
Onelink4travel, Sabre shall promptly reimburse Onelink4travel upon receipt
of an invoice. However, Sabre shall not be liable for the payment or
reimbursement to Onelink4travel of 1) any franchise taxes or fees, or any
taxes measured by or against Onelink4travel's income or property, 2) any
taxes that arise as a result of Onelink4travel's non-compliance with local
law, or 3) any value added taxes imposed upon Onelink4travel unless
Onelink4travel delivers to Sabre an original customs document or value
added tax invoice showing value added taxes imposed upon Sabre or its
Affiliates. Upon Sabre's request, Onelink4travel shall invoice and accept
payment by Sabre or its Affiliates on a local country basis in local
currency outside of the United States. Onelink4travel shall honor any tax
exempt certificates provided by Sabre and shall work with Sabre to maximize
recovery of value added tax (VAT), goods and services tax (GST) and similar
value added taxes and otherwise reduce taxes under this Agreement.
9.2 If Sabre (i) receives notice or other instructions from a taxing authority
that Sabre is required to withhold Withholding Taxes or (ii) otherwise
reasonably believes that it is required under applicable law to withhold
Withholding Taxes from payments to Onelink4travel or any Affiliate of
Onelink4travel, Sabre (or such Sabre Affiliate) may withhold Withholding
Taxes from such payments, in which case it will timely remit such
Withholding Taxes to the appropriate taxing authority. Onelink4travel may
provide to Sabre an exemption certificate acceptable to Sabre and to the
relevant taxing authority, in which case Sabre will not withhold the
Withholding Taxes covered by such certificate. Onelink4travel acknowledges
that it will be responsible for all Withholding Taxes.
10. EXCLUSIVITY
10.1 Save as provided in Clause 10.2 below, this Agreement is non-exclusive and
both parties are free to contract with other parties for the services
detailed in this Agreement.
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10.2 Onelink4travel agrees that it shall not contract with any other provider of
a GDS that competes with Sabre or a Sabre affiliated company in the
provision of GDS services, to allow such Sabre competitor to access the
Permitted Content via the Distribution Tool.
11. RESERVATION SUPPORT
Onelink4travel shall provide all support to all Sabre Subscribers and
Participants in relation to the Distribution Tool. Sabre shall provide
reasonable support to Onelink4travel in relation to queries or problems
raised by Sabre Subscribers and Participants to Onelink4travel so far as
the same affect the Sabre System. For the avoidance of doubt Sabre will not
provide direct support to agencies or suppliers looking to use any part of
the Onelink4travel system.
12. TERMINATION
12.1 Either party may terminate this Agreement upon 6 months written notice to
the other (not to expire prior to the Minimum Period).
12.2 In addition, either party may terminate this Agreement with immediate
effect by written notice to the other in the event that:
12.2.1 the other commits a material breach of this Agreement and, if
capable of remedy, fails to remedy such breach within thirty (30)
days of receipt of such notice; or
12.2.2 the other 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 sells or executes an
agreement to sell all or substantially all of its assets without the
consent of Sabre or Onelink4travel as applicable.
13. INDEMNIFICATION
Each party will defend, indemnify, and hold the other party, its affiliated
companies and their respective officers, directors, employees and agents,
harmless from any and all liabilities, damages and claims (including
litigation costs, expenses, and attorney's fees) which may be suffered by,
accrued against, charged to, or recoverable from the other party, its
affiliated companies or their respective officers, directors, employees, or
agents, by reason of that party's performance, non-performance, or improper
performance of the provisions of this Agreement save to the extent any such
liability, damage and/or claims arise as a result of that party's own act
or omission, negligence or other default.
14. LIMITATION OF LIABILITY
14.1 Nothing in this Agreement shall exclude or limit either party's liability
for death or personal injury arising from negligence.
14.2 Neither Sabre or Onelink4travel shall be liable to the other for any lost
profits, revenue or savings, or any incidental or consequential damages,
under any circumstances including, but not limited to the loss of use of
any data even if either Sabre or Onelink4travel has been advised of or knew
or should have known of the possibility of such loss.
14.3 Notwithstanding the foregoing and subject to Clause 14.4, each party's
liability to the other party under this Agreement shall be limited to the
total amount paid to the other within the 6 month preceding the event
giving rise to the liability, pursuant to this Agreement.
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14.4 Each party's liability under Clauses 3.7, 3.8, 3.9, 6.2, 6.3, 9 and 11 as
well as under the Developer Access Agreement and XML PTK license terms
attached at Annex B shall not be limited by the provisions of Clause 14.3.
15. NOTICES
Notices given or required under this Agreement must be in writing and shall
be deemed delivered upon receipt through recorded delivery:
to Sabre at the following address:
Sabre EMEA Marketing Limited
00-00 Xxxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxx
XX0 0XX
(marked for the attention of: Vice President Marketing)
with a copy to:
Sabre Europe Management Services Limited
00-00 Xxxxxxx Xxxx
Xxxxxxxx
Xxxxxxxxx
XX0 0XX
(marked for the attention of: Vice President Legal Services)
to Onelink4travel at the following address:
1210 Parkview
Xxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxx
XX0 0XX
16. FORCE MAJEURE
Both parties shall be relieved of their obligations under this Agreement in
the event and to the extent that performance is delayed or prevented by any
cause reasonably beyond their control including, but not limited to,
natural disaster, public enemies, war, civil disorder, fire, flood,
explosion, labour disputes or strikes, or any acts or orders of any
governmental authority, inability to obtain supplies and materials or any
delay or deficiency caused by the electrical or telephone line suppliers or
other third parties.
17. NO PARTNERSHIP/AGENCY
Nothing in this Agreement is intended to or shall operate to create a
partnership or joint venture of any kind between Sabre and Onelink4travel,
or to authorise either Sabre or Onelink4travel to act as agent for the
other, and neither Sabre or Onelink4travel shall have authority to act in
the name or on behalf of or otherwise to bind the other in any way
(including, without limitation, the making of any representation or
warranty, the assumption of any obligation or liability and the exercise of
any right or power).
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18. ASSIGNMENT AND SUBCONTRACTING
Neither party will assign, transfer, license, franchise nor otherwise
convey this Agreement or any rights or services hereunder to any third
person without the prior written consent of the other party, which consent
will not be unreasonably conditioned, delayed or withheld, except that
Sabre may without consent of Onelink4travel, from time to time assign this
Agreement and/or delegate the performance of any of its responsibilities
under this Agreement to (i) any affiliated company of Sabre, and/or (ii)
any third person with which Sabre is amalgamated, merged or consolidated,
and/or (iii) to any third person that directly or indirectly acquires all
or substantially all of the business or assets of Sabre to which this
Agreement relates. Any third person must have the financial and technical
capacity to perform the obligations being assumed and Sabre will require
such assignee or successor to assume all terms and conditions of this
Agreement. In addition, Onelink4travel shall be entitled to subcontract
development of the Distribution Tool provided that any subcontractor is
made aware of Onelink4travels obligations hereunder. Onelink4travel shall
be responsible for all acts or omissions of its subcontractors.
19. HEADINGS
The headings appearing in this Agreement have been inserted as a matter of
convenience and in no way define, limit or enlarge the scope of this
Agreement or any of its provisions.
20. THIRD PARTY RIGHTS
Except insofar as this Agreement expressly provides that a third party may
in its own right enforce a term of this Agreement, a person who is not a
party to this Agreement has no rights under the Contracts (Rights of Third
Parties) Xxx 0000 to rely upon or enforce any term of this Agreement. This
does not affect any right or remedy of a third party which exists or is
available aside from that Act.
21. COUNTERPARTS
This Agreement may be executed by the parties to it in two separate
counterparts, both of which shall be an original, but all of which shall
constitute one and the same instrument. The Agreement is not effective
until each party has executed at least one counterpart.
22. ANNOUNCEMENTS
Neither party shall make any announcement relating to this Agreement or its
subject matter without the prior written approval of the other party except
as required by law or by any legal or regulatory authority.
23. ENTIRE AGREEMENT
This Agreement constitutes 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 authorised representatives of both parties.
24. CONFIDENTIALITY
The terms of this Agreement shall be held strictly confidential and neither
party will disclose the same unless compelled to do so by due process of
law. In such an event, each party agrees to notify the other as soon as
possible so as to provide the other party sufficient time to object to the
disclosure of information.
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25. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the England and the parties submit to the exclusive jurisdiction of
the Courts of England.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth above.
Sabre Onelink4travel
By: By:
(Signature) (Signature)
Name: Name:
(Print name) (Print name)
Title: Title:
Date: Date:
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ANNEX A
Developer Access Agreement
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DEVELOPER ACCESS AGREEMENT
THIS AGREEMENT IS MADE THE ___________ DAY OF ________ 200
BETWEEN:
Sabre Europe Management Services Ltd. of 00-00 Xxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxx, XX0 0XX, Xxxxxx Xxxxxxx ("Sabre"); and
Onelink4travel Limited 0000 Xxxxxxxx, Xxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxx XX0 0XX
("Developer")
Introduction
A) Developer is a software developer working independently of a subscriber to
the Sabre System and wishes to carry out the Work.
B) In order to carry out the Work the Developer requires access to all or a part
of the Sabre System, and Sabre has agreed to provide the Developer with such
access subject to the terms and conditions of this Agreement.
Now it is hereby agreed as follows:
1. Definitions
In this Agreement includes the Introduction and Schedules the following
expressions shall have the following meanings:
"Affiliate" means any legal entity that directly or indirectly through one
or more intermediaries controls, is controlled by, or is under common
control with another legal entity. For the purposes of this definition
"control" shall have the meaning ascribed to it in the Company's Xxx 0000;
"Business days" means Monday to Friday each week excluding Bank, Public and
Statutory holidays in the United Kingdom;
"Charges" means the charges or fees Developer shall pay Sabre for access to
the Sabre System as set out in clause 3 and Schedule C;
"Commencement Day" means [ ]or the date the Developer has paid the Charges
due annually in advance whichever is the later date;
"Confidential Information" means confidential or proprietary information of
Sabre and its Affiliates which is disclosed to or observed by Developer as
part of or in connection with the supply of information or services and
which pertains to the business of Sabre, or its Affiliates, its products
and services;
"Propriety Software" means the propriety software developed and legally
owned by Sabre or its Affiliates for use in the Sabre System;
"Sabre System" means the test Sabre computerised reservations system which
collects, stores, processes, displays and distributes information through
computer terminals concerning air, ground and sea transportation, lodging
and other form of travel related products and services offered by third
parties and which enables subscribers to obtain information about, reserve
book and ticket such products and services;
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"Software" means the Propriety Software and Third Party Software;
"Third Party Software" means those computer programs licensed to Sabre or
its Affiliates by third parties for use in the Sabre System;
"Transaction" means a grouping of characters transmitted to the Sabre
System whether such transmission is made in the Sabre System manually or
automated. Each transmission to the Sabre System from Developer or
Subscriber constitutes one Transaction; and
"Work" means the services to be performed by the Developer on behalf of the
Subscriber, brief details of which are set out in Schedule B.
2. Access
2.1 Subject to the Developer complying with the terms and conditions of this
Agreement, Sabre shall provide on the Commencement Date access to the Sabre
System in the manner and to the extent set out herein.
2.2 The Developer acknowledges that Sabre may in it sole discretion at any time
revoke all or any access rights of the Developer to the Sabre System
granted hereunder.
2.3 The Developer shall ensure that detailed records are kept of all or any
interaction with the Sabre System, and details of such records shall be
provided to Sabre upon demand.
2.4 The Developer acknowledges that it may not be practical or possible to
offer access to the Sabre System at all times, and times of access to the
Sabre System shall be at such times as Sabre may decide. Sabre shall
endeavour to advise the Developer of such times as the Sabre System would
not be available to the Developer. At the date of this Agreement the Sabre
System shall be available during Business Days.
2.5 The Developer's access to the Sabre System shall be limited to named
individuals who are employees or subcontractors or employees of a
subcontractor of the Developer. At the date of this Agreement the named
individuals are set out in schedule A. The Developer will ensure that the
named individuals are technically competent to carry out their tasks. Each
named individual will be issued with a personalised logon identifier that
will enable access to the Sabre System. The password associated with that
logon identifier must not be divulged to any other person. Further named
individuals may only be added with the prior written consent of Sabre.
Developer agrees take full responsibility for all its subcontractors and
for the purpose of all contractual relationships with Sabre, such
subcontractor and its employees shall be treated as employees of Developer.
And "employee" shall be construed accordingly in this agreement.
2.6 Developer shall advise Sabre as soon as it is aware any Developer employee
issued with a logon identifier intends to leave its employ or any Developer
employee is no longer involved in or requires access to the Sabre System to
carry out the Work such advise shall state the part (if part only) of the
Sabre System to which the individual had been granted access.
2.7 Help and advice for forgotten or lost logon identifiers, passwords etc. or
system problems must be made via the Sabre helpdesk on []. In contacting
the Sabre help desk the Developer employee must clearly identify himself as
a non-Sabre employee.
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2.8 The Developer must immediately advise Sabre on [ ] if any party other than
those expressly agreed inadvertently gain access to any Sabre data,
application, system or network. Developer should state clearly the system
to which access has been granted in addition to the inadvertent access.
2.9 Access to the Sabre System will be provided via the mechanism detailed in
Schedule C.
2.10 Where the access to the Sabre System is provided using security tokens, the
cost of the tokens will be borne by Sabre. However, at the close of the
contract, Sabre require that tokens be returned and if not returned
reserves the right to make a charge per token of US$300, or the actual
cost, whichever is the greater.
3. Costs
3.1 Developer shall be responsible for all costs required to connect to the
Sabre System including download, electricity and communications charges.
3.2 Where the access mechanism to the Sabre System entails the use of dial-back
communications Developer will be responsible for dial-back telephone
session charges as recorded and invoiced by Sabre.
3.3 Developer agrees to pay to Sabre the Charges due on an annual basis in
advance.
3.4 Developer shall pay all Charges within ten days of the date of an invoice
from Sabre.
3.5 All Charges are stated exclusive of any applicable VAT, sales or other
local taxes.
4. Software
4.1 The Developer shall have no right to access or use the source code of the
Software and the Developer agrees that it shall not attempt to reverse
compile, decompile, dissemble or reverse engineer the Software nor shall it
amalgamate, amend, incorporate, modify, reproduce, translate or otherwise
install the same into or with any other software or use the same in
conjunction with any other software.
4.2 The Developer shall not attempt to make any part of the Software or the
documentation thereof available or otherwise allow access to the same to
any third party, expect as required by law. The Developer shall not use the
Software or documentation for the benefit of any third party save to the
extent the Subscriber has such rights of use under its contract with Sabre
or its Affiliates.
4.3 The Proprietary Software and all intellectual property rights of what so
ever nature in such Proprietary Software and the documentation therefore
are and shall remain the property of Sabre and Sabre reserves the right to
grant licences to use such Proprietary Software to any other party or
parties.
4.4 The Developer hereby acknowledges that it is responsible at its own cost
for:
(a) ensuring that it is fully authorised to use the Third Party Software;
(b) observing the terms and conditions of all Third Party Software
contracts; and
(c) shall indemnify Sabre against any loss or damage it may suffer as a
result of the Developer's breach of any such terms and conditions.
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4.6 Sabre may treat the Developers breach of any Third Party Software contract
as a breach of this Agreement.
5. Developers Responsibility
5.1 The Developer shall:
(a) ensure that the Sabre System is only accessed by competent,
experienced and adequately trained employees;
(b) not make any live or real time booking, whether utilising access
rights provided to a Sabre subscriber or otherwise, without Sabre's
prior written consent and shall ensure that if consent is given in
addition to any other condition Sabre shall impose such booking is:
not of a type that cannot be cancelled or only cancelled with cost; is
not made for a time or on a service for which there is high or limited
demand; is not for a departure date less than 6 months from the date
of booking ; and, Developer shall ensure all such bookings are
cancelled within 24 hours of being made;
(c) co-operate fully with Sabre personnel in diagnosing any error or
defects in the Sabre System discovered by the Developer or arising as
a result or in connection with the Work;
(d) not link the Sabre System to any other network beyond that described
in the Work;
(e) take due care to control physical access to equipment that could be
used to gain access to the Sabre System network, systems, applications
and/or data;
(f) be responsible for the provision, installation and maintenance of all
software, hardware and other equipment which will match a
specification produced by Sabre for the purpose of ensuring
connectivity and interoperability with the Sabre System;
(g) ensure Developer employees do not disclose any Sabre information,
data, programs or procedures without the prior written consent of
Sabre. This shall include this Agreement itself;
(h) ensure that Developer employees do not use any information, data,
programs or procedures for Sabre systems for any purpose other than
the provision of the Works;
(i) take all reasonable steps to ensure the security of connections to
Sabre; and,
(j) ensure all software, and or computer media including but not limited
to floppy disks, tapes and compact disks used by Developer on the
Sabre System shall be checked by Developer prior to use and shown to
be free from computer viruses.
6. Security Policy and Data Protection
6.1 The Developer confirms that its sub contractor has a written information
security policy in place that is in line with British Standard BS7799 `A
Code Of Practice For Information Security Management'. The Developer
confirms that they are working towards compliance with BS7799.
6.2 Sabre and Developer will observe the requirements of the UK Data Protection
Act (1998) or any local national equivalent in respect of personal data,
the European Commission Computer Reservation System Code of Conduct and all
other applicable law or legislation in relation to the Work anticipated
under this Agreement.
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7. Confidentiality
7.1 Unless expressly authorised in writing by Sabre, Customer agrees to retain
the Confidential Information in confidence and shall not copy or disclose
the Confidential Information to or use the Confidential Information for the
benefit of any third party other than the Subscriber. Confidential
Information shall only be disclosed to Customer's employees and
Subscriber's employees and, even then, only to the extent that such
employees have a specific need to know of the Confidential Information.
Before receiving any part of the Confidential Information, Customer's and
Subscriber's employees shall be required to read this Agreement and, by
receiving such Confidential Information, such employees shall acknowledge
and agree to abide by Customer's obligations hereunder.
7.2 Notwithstanding any other provisions of the Agreement, each party
acknowledges that Confidential Information shall not include any
information which:
(a) is or becomes publicly known through no wrongful act of Developer; or
(b) is, at the time of disclosure under this Agreement, already known to
Developer without restriction on use or disclosure: or
(c) is, or subsequently becomes, rightfully and without breach of any
obligations or agreement, in Developers possession without any
obligation restricting use or disclosure; or
(d) is independently developed by Developer without breach of this
Agreement.
7.3 Developer will be relieved of its obligations to maintain confidentiality
hereunder if, and to the extent, that Confidential Information:
(a) is disclosed pursuant to the lawful requirement or request of a
governmental agency, or disclosure is required by operation of law,
provided that Developer has given notice to Sabre and had made a
reasonable attempt to obtain a protective order limiting disclosure
and use of the information so disclosed; or
(b) is explicitly approved for release by written authorisation of Sabre.
7.4 Upon the written request and instruction of Sabre delivered at any time,
Developer agrees to return to Sabre or destroy all copies of the
Confidential Information and all notes, memoranda or analyses relating
thereto in whatever form or medium such copies, notes, memoranda or
analyses may be held including, but not limited to, any such items held
electronically or in any information storage and retrieval system.
7.5 No licence, express or implied, in the Confidential Information is granted
to Developer other than to use the information in the manner and to the
extent authorised by this Agreement. Sabre and its affiliates shall retain
title and full ownership rights to the Confidential Information.
8. Monitoring
8.1 Sabre reserves the right to monitor the Developer's use of the Sabre
System.
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8.2 Sabre reserve the right to use electronic mechanisms to monitor Developer's
potential connections to the Sabre System relating to the connections
necessitated by this Agreement.
9. Term and Termination
9.1 Subject to the provision of clause 9.2 and 9.3 the term of this Agreement
shall be one year from the Commencement Date.
9.2 Either party may terminate this Agreement at any time upon immediate
written or verbal notice to the other party.
9.3 Sabre may terminate this Agreement at any time upon immediate written or
verbal notice to Developer in the event the Developer is in breach of this
Agreement.
9.4 In the event Sabre terminates this Agreement in accordance with the
provisions of clause 9.2 or the Developer terminates in accordance with the
provisions of clause 11.1 but not otherwise the Developer shall be entitled
to a pro-rata refund of any Charges paid in advance.
9.5 Upon termination of this Agreement for whatever reason all rights of access
granted hereunder shall cease and the clauses of this Agreement which are
not fully performed or are capable of having effect thereafter shall
survive and remain in full force and effect beyond the termination or
expiration of this Agreement.
9.6 Sabre and Developer are free to pursue any one or all of the remedies
available to it for breach of this Agreement including injunctive relief,
and the fact that it may delay or forego certain remedies at any time shall
not constitute a waiver of such remedy or an election of remedies.
10 Liability and indemnity
10.1 In the event of a material malfunction or defect in an unaltered component
of the Sabre System that can be reproduced by Sabre, Sabre will provide
reasonable services to correct such malfunction or defect. Developer will
supply Sabre with such input files and other materials as may be necessary
to enable Sabre to diagnose and correct the malfunction or defect. The
foregoing shall be Developer's sole and exclusive remedy for any
malfunction or defect in the Sabre System. If such malfunction or defect
materially impairs Developer's use of the Sabre System and cannot be cured
as provided in this Section 11.1, then Developer's alternate sole and
exclusive remedy shall be to terminate this Agreement.
10.2 Sabre shall not be liable to Developer for any incidental, 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 Sabre
has been advised of, knew or should have known of the possibility thereof.
Notwithstanding the foregoing, Sabre's liability to Developer hereunder
shall be limited to the total amount of Charges paid by Developer to Sabre
pursuant to this Agreement.
10.3 Notwithstanding any other provision of this Agreement, Sabre does not
limit, exclude, or restrict its liability for death or personal injury
arising from negligence.
10.4 The Contractor shall indemnify and hold harmless and keep indemnified and
harmless Sabre against all loss, damage, claims, demands, actions, cost
charges, expenses and liabilities of what so ever nature arising out of or
in connection with any breach of the terms of this Agreement.
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11 General provisions
11.1 Developer shall not transfer or assign this Agreement, or any right or
obligation under it, by operation of law or otherwise, and any attempt to
transfer or assign will render this Agreement null and void.
11.2 Written notices given or required under this Agreement shall be deemed
delivered if sent by mail, courier, or postage prepaid, in English to the
addresses set forth above for Developer and Sabre.
11.3 A failure of either party to require strict performances 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.
11.4 The validity, construction and performance of this Agreement shall be
governed by English law and the parties accept the exclusive jurisdiction
of the English Courts in respect thereof.
IN WITNESS WHEREOF the parties have executed this Agreement as of the day and
year written above.
Signed for and on behalf of Signed for and on behalf of
Developer: Sabre:
Signed by Signed by
--------------------------- -------------------------
Title Title
--------------------------- -------------------------
Witnessed by Witnessed by
-------------------- -------------------
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SCHEDULE A
List of Developers employees to have access to Sabre System.
To be notified by Developer to Sabre from time to time.
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SCHEDULE B
Description of Works
To develop an XML messaging interface between the Onelink4travel portal and
settlement system and the Sabre System that will enable users of the
Onelink4travel service to access inventory availability, inventory data,
inventory pre-paid rates and to make bookings on third party reservation systems
that are
(a) Hosted on the Sabre System
(b) Support a pre-paid rate offered to users of the Onelink4travel service
provided that the Service Provider has a contract with such third
parties that permit it to offer the third party's pre-paid products
through the Onelink4travel service.
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SCHEDULE C
Charges
Year One - No Charges
Subsequent years - as per Clauses 6.1, 6.2 and 6.3 of the Content Distribution
agreement
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Annex B
XML PTK License Terms
1. License
(a) Authorized Use. Sabre grants you a non-exclusive license to use the
Software on a single computer (i.e., a single CPU) at a single location. If
the single computer on which the Software is used is a multi-user system,
this license covers all users on that single system. You may physically
transfer the Software from one computer to another provided that the
Software is used on only one computer at a time. You may not electronically
transfer the Software from one computer to another over a network. "Use"
means storing, loading, installing, executing or displaying the Software.
You may make one copy of the Software for back-up purposes only. Sabre
reserves all rights not expressly granted to you.
(b) Restrictions. You acknowledge that the Software and its structure,
organization, and source code constitute valuable trade secrets of Sabre.
Accordingly, you agree not to (i) modify, adapt, alter, translate, or
create derivative works from the Software; (ii) distribute, sublicense,
lease, rent, or loan the Software to any third party; (iii) reverse
engineer, decompile, disassemble, or otherwise attempt to derive the source
code for the Software; (iv) otherwise use or copy the Software except as
expressly allowed herein; or (v) export or re-export the Software without
all required government licenses. Notwithstanding the above, decompiling
the Software is permitted to the extent the laws of your jurisdiction give
you the right to do so to obtain information necessary to render the
Software interoperable with other software; provided, however, that you
must first request such information from Sabre and Sabre may, in its
discretion, either provide such information to you or impose reasonable
restrictions, including a reasonable fee, on such use of the Software to
ensure that Sabre's and its suppliers' proprietary rights in the Software
are protected.
(c) Transfer. You may not transfer the Software without Sabre's prior written
consent. Prior to any such transfer, the recipient must agree to accept the
terms and conditions of this Agreement. If you transfer the Software, you
must transfer all computer programs and documentation and erase any copies
residing on your computer equipment.
(d) Use of Compiled Programs. Notwithstanding the above, you may use compiled
programs created through use of the Software only on your computers for
which you have obtained a valid license from Sabre for use of the XML Power
Tool Kit software. Use of such compiled programs will be governed by the
terms of the XML Power Tool Kit software license. You may create code that
will be combined with such compiled programs.
2. Support
(a) Scope of Support Services. Sabre shall provide unlimited monthly software
support via telephone for technical configuration ("Support Services").
(b) Error Reporting. You agree to:
(1) During normal business hours provide on-site, a technical
coordinator trained in software/database administration,
operations and preventative maintenance procedures (the
"Technical Coordinator").
(2) Log each incident, completely describing the specific event
and documenting all aspects of the incident (users involved,
data inputs, completed description of the incident, etc).
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(3) The Technical Coordinator will coordinate with the software
user, hardware/operating system vendors, and the qualified
LAN administrator to confirm problems originate in the
Software.
(4) Promptly communicate to Sabre in writing any Software Errors
("Problem Report") by communicating the incident to the
Sabre Help Desk.
(5) Notify Sabre in writing of any modifications made by you to
the hardware or operating software configuration.
(6) Promptly install solutions sent by Sabre to remedy
malfunctions.
(7) Promptly install, or assist in installing, all Revised
Releases that Sabre may release during the term of this
Agreement, as directed by Sabre.
(8) Provide a telephone near the equipment to be used by you
while a joint effort is being made to diagnose and remedy
Errors via telephone communication.
(9) Allow Sabre full and free access to your information
Software site for on-site maintenance and repairs of the
Software.
(10) Advise Sabre of any change of location of the Software.
(11) Be responsible for maintaining a procedure for
reconstruction of lost or altered files, data, or programs,
and for actually reconstructing any lost or altered files,
data or programs.
(12) Provide Sabre with sufficient support and test time on your
computer Software to duplicate the Error, certify that the
Error is with the Software, and certify that the Error has
been corrected.
(13) Install and maintain for the term of this Agreement, a modem
and associated high-speed dial-up telephone line for access
by Sabre to your computer environment. You will be
responsible for the installation, maintenance and use of
such equipment and associated telephone line use charges.
(14) Comply with any other reasonable request of Sabre in
connection with the performance of services hereunder.
(c) Sabre Modifications. Sabre may, at its discretion, upon notice to you and
with no additional charge, make modifications to the Software. Such
modifications will not jeopardize the functionality of the Software or
coverage of the Software under this Section.
(d) Error Correction. You recognize that Sabre, after using all reasonable
efforts, may not be able to resolve an Error identified hereunder and that
such inability shall not be considered a breach or event of default under
this Agreement, nor be the cause of any liability of Sabre to you. In the
event that Sabre notifies you that it will be unable to correct an Error in
the Software, you may at your option, and as your sole and exclusive
remedy, terminate this Agreement. Upon such termination, neither party
shall have any obligation or liability to the other in connection with this
Agreement except that Sabre will reimburse to you the pro rata share
(prorated on a straight-line basis) of the applicable Maintenance Fee paid
for the annual period in which the Maintenance Services were terminated.
(e) No Obligation Regarding Old Versions. Sabre shall have no obligation to fix
Errors in any version of the Software other than the most current version
of the Software and the immediately preceding version of the Software.
3. Ownership
The Software is owned and copyrighted by Sabre or its third party suppliers.
Your license confers no title or ownership in the Software and is not a sale of
any rights in the Software. Sabre's third party suppliers may protect their
rights in the event of any violation of these provisions.
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4. Termination
This license is effective until terminated. This license will terminate
automatically without notice from Sabre if you fail to comply with any provision
of this license. Upon termination, you shall destroy the written materials and
all copies of the Software, including modified copies, if any.
5. Limited Warranty
For ninety (90) days from your receipt of the Software, Sabre warrants that the
media (for example, the diskette) on which the Software is contained will be
free from defects in materials and workmanship. This warranty does not cover
damage caused by improper use or neglect. To obtain warranty service during the
90-day warranty period, you may return the Software (postage paid) with a
description of the problem to Sabre. Sabre's entire liability and your exclusive
remedy as to the disk(s) shall be, at Sabre's option, either (a) return of the
purchase price for the Software, or (b) replacement of the defective media. Any
replacement media will be warranted for the remainder of the original warranty
period or 30 days, whichever is longer. Nothing in this license shall act to
restriction or exclude Sabre's liability for death or personal injury caused by
negligence, which shall be unlimited.
6. Disclaimer of Warranty and Limitation of Remedies
Except for the express warranties provided herein, the Software and any compiled
programs created using the Software are furnished "AS IS" WITHOUT WARRANTY OF
ANY KIND, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR
WRITTEN INFORMATION OR ADVICE GIVEN BY SABRE, ITS AGENTS OR EMPLOYEES SHALL
CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY, AND YOU MAY
NOT RELY ON ANY SUCH INFORMATION OR ADVICE. SABRE DOES NOT WARRANT, GUARANTEE,
OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE
SOFTWARE, COMPILED PROGRAMS CREATED USING THE SOFTWARE, OR WRITTEN MATERIALS IN
TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. THE
ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE AND ANY COMPILED
APPLICATIONS CREATED USING THE SOFTWARE IS ASSUMED BY YOU. NEITHER SABRE NOR
ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE
SOFTWARE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL
DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION,
LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR
INABILITY TO USE SUCH PRODUCT EVEN IT SABRE HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. NOTWITHSTANDING THE ABOVE, NOTHING IN THIS AGREEMENT SHALL ACT
TO LIMIT LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, LIABILITY
FOR WHICH SHALL BE UNLIMITED.
7. Governing Law
This license shall be governed by the laws of England, without regard to its
conflict of laws principles.
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