CONFIDENTIAL
THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS AGREEMENT WITH
"[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]."
INFORMATION TECHNOLOGY SERVICES AGREEMENT
BETWEEN
SABRE INC.
AND
XXXXXXXXXXX.XXX LP
MARCH 7, 2000
CONFIDENTIAL
THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED
PORTIONS ARE INDICATED IN THIS AGREEMENT WITH "[TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]."
INFORMATION TECHNOLOGY SERVICES AGREEMENT
THIS INFORMATION TECHNOLOGY SERVICES AGREEMENT (this "Agreement"),
dated as of March 7, 2000 (the "Effective Date"), is between XXXXXXXXXXX.XXX
LP, a Delaware limited partnership ("Customer"), and SABRE INC., a Delaware
corporation ("Sabre").
BACKGROUND
Whereas, in order to support Customer's ongoing business operations,
Customer has requested that Sabre provide certain information technology
services to Customer; and
Whereas, on the terms and subject to the conditions described in this
Agreement, Sabre is willing to provide such services to Customer.
ARTICLE I. RELATIONSHIP MANAGEMENT
1.1 SABRE ACCOUNT MANAGER. Sabre will appoint a Sabre Account Manager who
will be (a) primarily dedicated to Customer's account and serve as
Customer's primary contact, (b) responsible for managing and coordinating
delivery of Services, and (c) authorized to act for Sabre in the ordinary
course of administering this Agreement (subject to the limits of authority
in the Contract Administration Process).
1.2 CUSTOMER ACCOUNT MANAGER. Customer will appoint a Customer Account
Manager who will (a) serve as Sabre's primary contact, (b) have overall
responsibility for managing and coordinating the performance of Customer's
obligations, and (c) be authorized to act for Customer in the ordinary
course of administering this Agreement (subject to the limits of authority
in the Contract Administration Process).
1.3 RELIANCE ON INSTRUCTIONS. In performing this Agreement, a Party may rely
on written instructions, authorizations and other information provided (a)
by the other Party's Account Manager within his limits of authority and
(b) as to areas of competency, within limits of authority and as specified
in writing by the other Party's Account Manager, by other specified
personnel of the other Party. A Party will incur no liability or
responsibility in relying on or complying with such written instructions,
authorizations or other information.
1.4 MEETINGS. The Account Managers will meet at least monthly (and more
frequently as mutually agreed) to discuss the Parties' performance of this
Agreement and any relevant operational issues. The Account Managers,
along with other designated executives of the Parties, will meet at least
annually to discuss their strategic objectives for the Base Services and
any Variable Services, as well as long-range planning.
ARTICLE II. SERVICES
2.1 BASE SERVICES. During the term of this Agreement as set forth in SECTION
11.1, Sabre will be the sole provider to Customer of, and Customer will
obtain from Sabre all of its requirements for, the Base Services. The
Base Services include only those services specifically described in
SCHEDULES 2.1, 2.2, 2.3 and 2.4.
2.2 VARIABLE SERVICES.
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(a) EXCLUSIVE VARIABLE SERVICES. Sabre will be the sole provider to
Customer of, and Customer will obtain from Sabre all of its
requirements for, the Exclusive Variable Services. Except to the
extent that this Agreement specifically requires Sabre to provide
Exclusive Variable Services in certain circumstances, Sabre will not
begin performing any Exclusive Variable Service until the Parties
have completed and executed a Work Order for such Exclusive Variable
Service.
(b) NON-EXCLUSIVE VARIABLE SERVICES. Customer may obtain Non-Exclusive
Variable Services from any Third Party; provided, however, that
before entering into an agreement with a Third Party, Customer will
notify Sabre of Customer's intent to enter into such agreement; and
Customer shall comply with its obligations contained in
SECTION 2.8(a) and SECTION 5.2. If Customer and Sabre agree that
Sabre will provide Non-Exclusive Variable Services to Customer, then
(except to the extent that this Agreement specifically requires
Sabre to provide Variable Services in certain circumstances) Sabre
will not begin performing such Non-Exclusive Variable Service until
the Parties have completed and executed a Work Order for such
Non-Exclusive Variable Service.
2.3 MIGRATION OF PREVIEW OPERATIONS.
(a) As of the Effective Date, the Base Services do not pertain to the
Preview Operations. Pursuant to the provisions of this SECTION 2.3,
if Customer solicits (on a bid, RFP or other competitive basis) a
bona fide offer to provide IT services, then Customer will notify
Sabre and allow Sabre a period of time, consistent with the time
afforded to Third Party offerors, to submit a proposal to provide
such IT services with respect to the Preview Operations. In
response to Customer's solicitation, Sabre will submit a proposal to
provide Base Services with respect to the Preview Operations and, if
Customer accepts such proposal, will provide the Base Services with
respect to the Preview Operations. The expansion of Base Services to
include the Preview Operations will be a Change subject to the
Contract Administration Process.
(b) Within 180 days after the Effective Date, Customer will advise Sabre
if Customer desires Sabre to provide a Category of Service with
respect to the Preview Operations. Sabre will not be required to
provide Web Hosting Services with respect to the Preview Operations,
unless Sabre is also providing Data and Voice Services with respect
to the Preview Operations, and vice versa. As soon as reasonably
practicable following such notice, Sabre will consult with Customer
regarding, and develop the Migration Plan for, such Category of
Service. During the Migration Period, Customer and any Third Party
IT Service Providers of Customer will continue to provide the
selected services with respect to the Preview Operations, and
Customer will obtain, at its expense, the assistance of such Third
Party IT Service Providers in connection with the migration of such
services to Sabre, all according to the Migration Plan. Sabre's
work in developing the Migration Plan, and providing Migration
Services, will be an Exclusive Variable Service. During the
Migration Period, Customer will provide to Sabre the services of
Customer's transition team, and such other services as are required
by the Migration Plan.
(c) Following the Migration Completion Date with respect to any Category
of Service selected by Customer, the "Base Services" will include
such Category of Service with respect to the Preview Operations.
(d) If Customer requests that Sabre provide Web Hosting Services with
respect to the Preview Operations, then such Services will be
provided at the Data Center at which Web Hosting Services are then
being provided by Sabre, unless otherwise agreed by Sabre.
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2.4 LOCATIONS. The Fees provided in SCHEDULE 8 are based on the assumption
that the Base Services will be provided at the Service Locations, and that
(to the extent that Access Locations are specifically described in the
description of Services) Customer will access certain Services from the
Access Locations. Customer may, by notice to Sabre, request changes in
the specified locations pursuant to the Contract Administration Process.
2.5 WEB HOSTING SERVICES: SPECIAL PROVISIONS.
(a) Customer may, as a Change governed by the Contract Administration
Process, elect to have Sabre provide one or more of the Optional Web
Hosting Services identified in SCHEDULE 2.3. To the extent that
transition services are necessary or appropriate in order to
implement Sabre's provision of Optional Web Hosting Services
selected by Customer, then Sabre's work in developing a transition
plan and providing related transition services will be an Exclusive
Variable Service, and Customer will provide to Sabre the services of
Customer's transition team and such other services as are required
by the transition plan. Upon such effective date, the selected
Optional Web Hosting Service(s) will become part of the Web Hosting
Services. Customer may terminate one or more of the Optional Web
Hosting Service(s) upon not less than sixty (60) days notice to
Sabre. If Customer elects to terminate a particular service within
a category (e.g., optional capacity planning services, system
manager customer interface, etc.) of Optional Web Hosting Services,
then Customer must terminate all services within such category. If
Customer has terminated such a category of Optional Web Hosting
Services, then it may not later elect to have Sabre provide such
category of service.
(b) Immediately following the termination of the Web Hosting Services,
Customer will (at Customer's sole cost and expense) remove from the
Tulsa Data Center, or any other Data Center at which Sabre then
provides the Web Hosting Services, Customer's hardware, system
software, and other Customer Assets comprising the web hosting
infrastructure then located at the Tulsa Data Center or such other
Data Center, as applicable. As a Termination Assistance Service,
Sabre will cooperate with such removal. Customer will accomplish
such removal in accordance with the reasonable requirements of
Sabre, including those intended to avoid technical, operating or
security problems at the Tulsa Data Center or such other Data
Center, as applicable.
(c) Customer may (at its sole cost and expense) move its hardware,
system software and other Customer Assets comprising the web hosting
infrastructure from the Tulsa Data Center or any other Data Center
at which Sabre then provides the Web Hosting Services to a Data
Center located in the Dallas-Fort Worth Metroplex area. Sabre will
cooperate with such removal as a Change to the Web Hosting Services
subject to the Contract Administration Process. Customer will
accomplish such removal in accordance with the reasonable
requirements of Sabre, including those intended to avoid technical,
operating or security problems at the Tulsa Data Center and such
other Data Centers.
(d) Sabre will establish and maintain safeguards against the
destruction, loss or alteration of Equipment in the possession of
Sabre at its Tulsa Data Center, which are no less rigorous than
those in effect at the Tulsa Data Center as of the Effective Date.
While such Equipment is in the possession of Sabre, Sabre shall be
responsible for Losses with respect to such Equipment, except to the
extent that any Losses are caused by the actions or omissions of
Customer. Sabre will provide reasonable premises security
procedures and reasonable system security procedures at any place
where Web Hosting Services are performed by Sabre for Customer.
Such procedures at the Tulsa Data Center shall be no less rigorous
than those in effect at the Tulsa Data Center as of the Effective
Date.
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(e) Sabre's provision to Customer of the network portion of the Web
Hosting Services will be subject to the provisions of SCHEDULE 16.
2.6 DEVELOPMENT SERVICES: SPECIAL PROVISIONS.
(a) In providing Development Services, Sabre will use design,
programming, testing and acceptance methodologies consistent with
Sabre's methodologies for modifications of CRS Software initiated by
Sabre itself.
(b) Sabre will provide Development Services requested by Customer to the
extent contemplated in the Development Services Budget. [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(c) Customer may reprioritize projects or change projects upon written
request to Sabre. Customer acknowledges that if it reprioritizes
projects or changes projects from those contemplated in the
Development Services Budget, such reprioritization or change may
result in the need for additional and/or fewer Development Resources
(in the aggregate and with respect to particular skill sets) to
perform the Development Services, and will be addressed by SECTIONS
2.6(f) and (g). In particular, Customer acknowledges that such
reprioritization or change could require Development Resources with
different skills than those contemplated in the Development Services
Budget which could result in customer incurring charges under both
SECTIONS 2.6(f) and (g) even though the net aggregate Development
Resources is unchanged. Initiation of a new Development Services
project, not contemplated by the Development Services Budget,
constitutes a Change to be processed under the Contract
Administration Process.
(d) The relative Intellectual Property Rights of Sabre and Customer,
with respect to CRS Developments, are defined in SECTIONS 4.4 and
4.5 and may also be defined in the Intellectual Property Agreement.
If Sabre creates Premium IP in performing Development Services for
Customer, then the incremental costs and expenses incurred by Sabre
in complying with such restriction will be negotiated between the
Parties prior to commencing the development activities for such
Premium IP; [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(e) The initial Development Services Budget, attached as SCHEDULE 9,
will be effective for the twelve (12) month period commencing with
the month in which the Effective Date occurs. Within thirty (30)
days following the end of each Quarter thereafter, the Parties will
amend the then-current Development Services Budget to include the
Quarter that immediately follows the last Quarter covered by the
then-current Development Services Budget. The Parties will act in
good faith to establish the Development Services Budget for the new
Quarter, in a manner consistent with the terms of this Agreement.
In establishing the Development Services Budget for the new Quarter
Sabre will be obligated to perform the Development Services
requested by Customer, provided that unless Sabre otherwise agrees,
Sabre will not be required to provide Development Resources
exceeding twenty-five percent (25%) of the sum of the (i)
Development Resources actually provided during the Quarter most
recently completed; plus (ii) the Development Resources included in
the Development Services Budget for the three remaining Quarters of
the then-current Development Services Budget.
(f) If Sabre reasonably determines that the Development Resources (in
the aggregate and/or with respect to particular skill sets) required
to perform Development Services in a Quarter would exceed the
corresponding Development Resources contemplated by the
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Development Services Budget for such Quarter, then Sabre will so
advise Customer and will use commercially reasonable efforts to
procure such additional Development Resources for such Quarter. In
such event, Customer will pay Sabre for such additional Development
Resources, at the times and rates described in SCHEDULE 8.
(g) If Sabre reasonably determines that the Development Resources (in
the aggregate and/or with respect to particular skill sets) required
to perform Development Services in a Quarter would be less than the
corresponding Development Resources scheduled to be provided during
such Quarter pursuant to the Development Services Budget, then Sabre
will so advise Customer, and will use reasonable efforts to
reallocate to non-Customer engagements the unneeded Development
Resources during such Quarter. If Sabre is successful in
reallocating all or part of the unneeded Development Resources, then
Sabre will provide to Customer a credit against amounts payable
pursuant to SCHEDULE 8, with respect to such Quarter, in an amount
equal to: (i) for Development Resources successfully reallocated to
Sabre's engagements with Third Party customers, the amounts paid by
such customers to Sabre with respect to such re-allocated resources;
and (ii) with respect to those resources reallocated to internal
development projects of Sabre, Sabre's internal transfer rate; but
such credit under clause (i) or (ii) will not exceed the amount that
would have been paid to Sabre by Customer with respect to such
reallocated resources for such Quarter.
(h) Without duplicating credits provided under other provisions of this
Agreement, for any Quarter, Customer shall not be obligated to pay
for scheduled Development Resources which are not actually used to
provide Development Services as a result of Sabre's failure to
assign such Development Resources to development projects according
to priorities established in the Development Services Budget.
2.7 DATA AND VOICE SERVICES: SPECIAL PROVISIONS. Sabre's provision to
Customer of the Data and Voice Services will be subject to the provisions
of SCHEDULE 16.
2.8 CERTAIN OTHER MUTUAL SERVICES.
(a) If either Party solicits (on a bid, RFP or other competitive basis)
a bona fide offer to provide Software application development
services, but excluding any Development Services provided by Sabre
under this Agreement, then that Party will notify the other Party
and allow the other Party a reasonable period of time to submit a
proposal to provide such development services; provided, however,
that Sabre's obligation to notify Customer under this SECTION 2.8(a)
is limited to those application development services that fall
within the scope of Customer's core competency. The Party
soliciting offers may then, in its sole, reasonable discretion,
decide to accept the proposal submitted by the other Party or accept
a proposal from any Third Party. If the Party soliciting an offer
accepts the proposal submitted by the other Party, then the Parties
will execute a development agreement identifying the nature and
scope of the application development services, the period of time
during which such services will be provided, and the basis upon
which the Party performing such services will be compensated
therefor. Neither Party will be obligated to perform any such
services until the Parties have executed a development agreement.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(b) In addition, either Party may, but is not obligated to, offer the
other Party the opportunity to participate in joint development or
co-funding on any Software application development. To the extent
that the Parties decide to jointly develop or co-fund any such
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application development, the Parties will agree upon a development
process and ownership of any resulting intellectual property in the
Joint Development Agreement.
(c) The provisions of SECTIONS 2.8(a) and (b) shall continue as long as
Sabre is providing Development Services under this Agreement.
Except for the provisions expressly set forth in this SECTION 2.8,
the terms governing a Party's provision of Software application
development services to the other Party under SECTION 2.8 shall be
governed by the terms a separate development agreement executed by
the Parties with respect to such development services, rather than
the terms of this Agreement. Notwithstanding the foregoing, except
to the extent that such rights may be modified by the terms of the
particular development agreement: (i) the terms of SECTIONS 4.4 and
4.5 shall apply to Standard IP, Premium IP and Joint Interest IP
made by a Party, or the Parties jointly, pursuant to this Agreement
and the separate development agreement; [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]
(d) In addition to (and separate from) Sabre's providing Services to
Customer under this Agreement, a Party may permit the other Party to
share Software and hardware resources (e.g., BTS servers, and
"Destination Guide") of the first Party. Any such sharing of
resources shall be pursuant to the mutual agreement of the Parties,
as evidenced by a separate agreement for such sharing of resources
and reflected in the Parties' separate agreement. [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] Except for the expressed terms of
this SECTION 2.8(d), the terms governing the sharing of resources
shall be those set forth in such separate agreement, rather than the
terms of this Agreement.
2.9 LAN SERVICES. Sabre will provide certain local area network services to
Customer, the scope of which and the pricing for which will be determined
by the parties after the Effective Date.
ARTICLE III. SERVICE LEVELS
3.1 SERVICE LEVEL AGREEMENTS. Sabre will use commercially reasonable efforts
to provide the Base Services in accordance with the SLAs for the Measured
Services set forth in SCHEDULE 5.
3.2 SLA MONITORING; PERFORMANCE REVIEWS. Sabre will measure its performance
of Measured Services against the SLA Standards. If a measurement is not
the type of measurement performed by Sabre in the ordinary course of its
business either for Sabre's internal operations or with respect to other
Sabre customers, and requires additional software, equipment or other
measurement tools, then Sabre will acquire and implement such tools (and
perform such measurements) once the Parties have agreed in writing on the
resulting Change in Base Fees. Sabre will provide Customer with the
monthly performance reports listed on SCHEDULE 6 in the manner described
therein. If Customer objects to a performance report, Customer will
notify Sabre of its specific objections (which notice must describe in
detail Customer's position) within thirty (30) Business Days of its
receipt.
ARTICLE IV. PROPRIETARY RIGHTS
4.1 OWNERSHIP OF SABRE IP. As between Customer and Sabre, Sabre retains sole
and exclusive ownership of all worldwide Intellectual Property Rights in
the Sabre IP, including any derivative work, modification, update or
enhancement. All rights in and to the Sabre IP not expressly granted to
Customer in this Agreement or in another written agreement between the
Parties are reserved by
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Sabre. Nothing in this Agreement will be deemed to grant, by implication,
estoppel or otherwise, a license under any of Sabre's existing or future
patents.
4.2 THIRD PARTY SOFTWARE. All Third Party Software will be and will remain
the property of the applicable Third Party vendor(s), and, as between
Sabre and Customer, any derivative work, modification, updates or
enhancements made by Sabre thereto will be owned by Sabre.
4.3 CUSTOMER ASSETS. All Customer Assets will be and will remain the property
of Customer or Customer's Third Party licensors (as applicable), and, as
between Customer and Sabre, any derivative work, modification, updates or
enhancements made by Sabre thereto will (subject to SECTIONS 4.4 and 4.5)
be owned by Customer.
4.4 OWNERSHIP OF DEVELOPED IP.
(a) Each Party will own all right, title and interest in and to all
Standard IP and Premium IP made by such Party pursuant to this
Agreement, and will control and pay for legal protection, including
patents and copyrights where appropriate, for all such IP solely;
provided, however, that such Party will have no obligation to obtain
or maintain any legal protection for such IP. No Party will have
any obligation to enforce or defend any of its IP. If a Party
wishes to enforce any of its IP against a Third Party, the other
Party will cooperate in such enforcement at the enforcing Party's
expense.
(b) Joint Interest IP will be jointly owned by the Parties in accordance
with the terms of the agreement pursuant to which such Joint
Interest IP was made ("Joint Development Agreement"). Any rights or
obligations with respect to obtaining and maintaining legal
protection for Joint Interest IP will be allocated in accordance
with the terms of the Joint Development Agreement. Each Party will
cooperate with the other Party in any action brought by the other
Party to enforce Joint Interest IP.
4.5 LICENSE RIGHTS IN DEVELOPED IP.
(a) Sabre may grant a license to any Third Party under any of Sabre's
Standard IP to use and fully exploit such Standard IP.
(b) Sabre may grant a license under its Premium IP to any Third Party
who, at the time such license is granted, is not a Customer Direct
Competitor.
(c) Customer may grant a license to any Third Party under any of
Customer's Standard IP to use and fully exploit such Standard IP.
(d) Customer may grant a license under its Premium IP to any Third Party
who, at the time such license is granted, is not a Sabre Direct
Competitor.
(e) Sabre hereby grants to Customer a perpetual, worldwide,
non-exclusive, royalty-free license in all of Sabre's Standard IP
and Premium IP for the unrestricted use and exploitation (including
the right to make derivative works of and make modifications
thereto) by Customer in its business. Sabre further grants to
Customer the right to grant sublicenses under any of its Standard IP
and Premium IP to any Third Party who, at the time such sublicense
is granted, is not a Sabre Direct Competitor.
(f) Customer hereby grants to Sabre a perpetual, worldwide,
non-exclusive, royalty-free license to all of Customer's Standard
IP and Premium IP for the unrestricted use and exploitation
(including the right to make derivative works of and make
modifications
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thereto) by Sabre in its business. Customer further grants to Sabre
the right to grant sublicenses under any of its Standard IP and
Premium IP to any Third Party who, at the time such sublicense is
granted, is not a Customer Direct Competitor.
(g) Any Software included in a Party's Standard IP or Premium IP (a)
shall be licensed to the other Party in both source code and
executable code, and (b) may be licensed or sublicensed by the other
Party to Third Parties in executable code only.
(h) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
ARTICLE V. CONTRACT ADMINISTRATION
5.1 CONTRACT ADMINISTRATION PROCESS. The Contract Administration Process
describes and governs the process by which the Parties (a) propose or
request Changes, (b) implement and manage Changes agreed in writing by the
Parties, (c) resolve problems and issues with the Services and (d)
implement and manage any other item which this Agreement provides or
contemplates will be processed in accordance with the Contract
Administration Process.
5.2 TESTING OF THIRD PARTY SERVICES AND SYSTEMS. Sabre's acceptance,
installation, integration, implementation and operation of services,
software and technology provided by Third Parties or Customer is subject
to the Contract Administration Process. Sabre may test any such services,
software or technology (including changes to Customer's IT environment)
for compatibility with the Services, Sabre Software, and other components
of IT systems operated by Sabre. Sabre may refuse to consent to, accept,
install, integrate, implement or operate any service, software or
technology provided by a Third Party or Customer (including any change to
Customer's IT environment) if: (a) Sabre reasonably believes that any such
activity would likely (i) have a material adverse impact on Services,
Sabre Software, or other components of IT systems operated by Sabre or
Sabre's operations, or (ii) cause a material increase in Sabre's costs to
provide Services, unless the Parties have agreed in writing to an
associated increase in Base Fees; or (b) Sabre is not provided, at
Customer's expense, rights to Access and use such service, software or
technology on reasonable terms (including requirements for firewalls,
isolated access and password access) if Sabre's Access to or use thereof
is necessary to perform Services. All Sabre activities in connection with
this SECTION 5.2 are Exclusive Variable Services.
5.3 CHANGES IN DEMAND. Customer will give Sabre reasonable advance notice of
material changes in Customer's requirements for any Service. Customer's
failure to do so may adversely affect Services, SLAs and Sabre's
performance under this Agreement, and Sabre will not be liable to Customer
for such adverse effects. Subject to the Contract Administration Process
and Changes in writing agreed by the Parties, Sabre will adjust resources
in response to such changes in Customer's requirements for Services.
ARTICLE VI. MANAGEMENT OF RESOURCES
6.1 MANAGEMENT OF RESOURCES.
(a) GENERAL. Sabre may reasonably (i) manage all resources used in
providing Services as Sabre deems appropriate, (ii) decide which
member of Sabre will perform any particular Service, and (iii)
modify, enhance, update, add to, eliminate or replace any hardware,
software, other technology, personnel or other Sabre resource used
to provide Services or any element of its IT systems (and/or change,
consolidate, eliminate or add locations from
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which it provides Services) from time to time so long as such
action does not materially impair the functionality or performance
of the Services.
(b) CUSTOMER ASSETS. Sabre will give Customer reasonable advance notice
of proposed material changes to, replacements for or reallocations
of Customer Assets. If such action would constitute a Change, the
Parties will process such proposals pursuant to the Contract
Administration Process. Subject to SECTION 14.11, Customer may
reasonably refuse such proposed changes, replacements or
reallocations.
6.2 ACCOUNT TEAM REVIEW. If Customer is reasonably dissatisfied with any
Sabre personnel providing services, then Customer will describe in writing
such dissatisfaction and the reasons therefor. Sabre shall use
commercially reasonable efforts to remedy the problem giving rise to such
dissatisfaction within thirty (30) days after receiving such notice. If
Customer remains dissatisfied for good reason with the Sabre personnel in
question after such thirty (30) day period, Sabre will promptly replace
such Sabre personnel.
6.3 USE OF SUBCONTRACTORS. Sabre may subcontract any portion of the Services
to any Sabre Subsidiary, Sabre Affiliate, and any Third Parties; provided
that Sabre will not (without Customer's prior consent) subcontract
Services to a Third Party which (at the time of such subcontracting)
competes with Customer's business. Sabre will not disclose any
Confidential Information of Customer to any subcontractor unless it has
agreed in writing to protect the confidentiality of such Confidential
Information in a manner no less restrictive than required under SECTION
9.2, and to use such information only as needed to perform subcontracted
Services, and such disclosure shall be only to the extent reasonably
needed to perform subcontracted Services. Sabre is responsible for
Services performed by its subcontractors (excluding subcontractors under
Service Contracts or other agreements included with the Customer Assets,
whose performance is the responsibility of Customer).
6.4 MANAGEMENT OF THIRD PARTY SERVICES. The Parties acknowledge that, to the
extent provided in the description of Services in SCHEDULES 2.1, 2.2 AND
2.3, certain of the Services include Sabre's management or procurement of
various services and products provided by Third Parties at the request, or
with the consent, of Customer (e.g., certain telecommunications services).
Customer agrees that this arrangement does not constitute Sabre's
subcontracting of Services for purposes of this Agreement, and that Sabre
is not responsible or liable for the performance, inadequate performance
or non-performance of such Third Party services or products. The remedies
for any such Third Party service or product problems to the extent
attributable to nonperformance or inadequate performance by any such Third
Party provider or nonconformance of any such Third Party product will be
the remedies set forth in the applicable agreement with the provider of
such Third Party service or product. Nonetheless, if Customer expresses
any concerns to Sabre about any such Third Party services or products,
Sabre will use commercially reasonable efforts to manage relationships and
to minimize difficulties with providers of such Third Party services or
products.
ARTICLE VII. CUSTOMER'S OBLIGATIONS
7.1 RESTRICTIONS ON USE.
(a) GENERAL. Customer will restrict access to and use of the Services,
Sabre Software and other components of IT systems owned or licensed
by Sabre and utilized by Sabre to perform Services to Customer's own
employees and individual independent contractors who require such
access and use in performing their duties. Customer may not,
without Sabre's consent, which may be withheld in Sabre's sole
discretion: (i) access or use Services, Sabre Software or other
components of IT systems owned or licensed by Sabre and utilized by
Sabre to perform Services for any purpose other than for Customer's
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internal operations or (to the extent that the description of
Services specifies the Access Locations from which Services may be
Accessed) from any location other than the Access Locations (except
that Customer employees whose workplace is an Access Location may
remotely access Services and Sabre Software when away from their
workplace); or (ii) permit any Third Party to access or use
Services, Sabre Software or other components of IT systems owned or
licensed by Sabre and utilized by Sabre to perform Services.
Customer's access or use thereof for outsourcing, service bureau or
similar purposes, or for the benefit of any Third Party, is
prohibited. Notwithstanding the foregoing, Customer shall have the
Intellectual Property Rights provided for in SECTIONS 4.4 and 4.5;
and Customer may provide its customers with customary access to
Customer web sites hosted by Sabre.
(b) PERMITTED THIRD PARTY USE. Notwithstanding the foregoing, Customer
may permit Third Party IT Service Providers and their employees to
access and use, solely for the purpose of their performing services
for Customer, the Services, Sabre Software and other components of
IT systems owned or licensed by Sabre and utilized by Sabre to
perform Services, provided that such Third Party IT Service
Providers will be subject to the obligations of this Agreement
including, but not limited to, the confidentiality obligations set
forth in SECTION 9.2. Customer will notify Sabre of, and is
responsible and liable for, such access and use.
7.2 CUSTOMER FACILITIES AND RELATED SERVICES. Customer will provide to Sabre,
and its employees, subcontractors and agents, Access to Customer's
facilities, including all Access Locations, twenty-four (24) hours a day,
seven (7) days a week, as needed to perform the Services. Customer will
also provide, at Customer's expense, such resources and services at
Customer's facilities (including Access Locations), as are necessary for
Sabre to provide the Services. All space provided to Sabre at Customer's
facilities will remain free of health and safety hazards and in compliance
with applicable Environmental Laws. Sabre personnel shall comply with the
customary rules of Customer (which shall not unreasonably impede Sabre in
the performance of Services) with respect to Access to Customer's
facilities and Access Locations.
7.3 ASSISTANCE, CONSENTS AND GOVERNMENTAL APPROVALS.
(a) CUSTOMER COOPERATION AND PROVISION OF RESOURCES. Customer will
cooperate with, support and participate in Sabre's efforts to
provide Services and punctually accomplish its obligations under
this Agreement. Without limiting the generality of the foregoing,
Customer will, at Customer's expense: (i) promptly provide Sabre
with all resources, information, advice, authorizations,
instructions, decisions, approvals, signatures and other assistance
Sabre may reasonably request in connection with the Services; and
(ii) make available appropriate employees and contractors of
Customer for such purposes. In addition, Customer will provide
written evidence of Sabre's agency authority as Sabre may reasonably
request in order to provide the Services contemplated by this
Agreement. Customer's management authority shall include all
"ordinary course of business" functions related to management of
Customer Assets. Sabre shall consult with Customer prior to taking
any material actions (e.g., the institution of, or settlement of,
litigation or enforcement actions) with respect to Customer Assets.
(b) OBTAINING REQUIRED CONSENTS. Customer will use commercially
reasonable efforts to obtain all Required Consents (to the extent
related to the Customer Assets, or required under contracts to which
Customer is a party or Laws binding upon Customer) as promptly as
possible and will pay all fees, royalties, costs, expenses and other
charges now or hereafter properly payable to any Third Party in
order to obtain and maintain such Required Consents. Customer will
provide Sabre with written evidence of such Required
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Consents upon Customer's receipt thereof. Unless and until a
Required Consent is obtained, Customer will adopt such alternative
approaches as are necessary for Sabre to perform all obligations
and enjoy the benefits (economic, operational or otherwise) arising
under of in connection with this Agreement without such Required
Consent.
7.4 CUSTOMER ASSETS.
(a) GENERAL. Customer will provide Sabre Access to and use of the
Customer Assets, on terms and conditions acceptable to Sabre, for
use by Sabre and its subcontractors and agents in performing the
Services, and will act as Sabre's agent, to the maximum extent
permitted by law, to obtain the full benefits of the Customer Assets
for Sabre as needed to provide Services under this Agreement.
Customer will pay all fees, royalties, costs, expenses and other
charges now or hereafter properly payable to any Third Party in
connection with, or under agreements relating to, the Customer
Assets or arising from Sabre's Access thereto or proper use thereof.
Without limiting the foregoing, while Sabre is providing Web Hosting
Services to Customer, Customer shall retain all financial
responsibility for the servers, network equipment and other Customer
Assets furnished by Customer and operated and monitored by Sabre in
connection with the Web Hosting Services.
(b) INTELLECTUAL PROPERTY RIGHTS. Sabre's rights under this SECTION 7.4
include royalty-free rights for Sabre and its subcontractors and
agents to use, reproduce, create derivative works from and
sublicense all Customer Owned Systems, Customer Licensed Systems,
Customer Owned Intellectual Property Rights and Customer Third Party
Intellectual Property Rights solely for the purpose of performing
(and as needed to perform) the Services. Customer will provide to
Sabre copies of software included in the Customer Assets in object
code and source code formats, and in a form and on media compatible
with the equipment that Sabre is then operating on Customer's
behalf, together with all related documentation. To the extent that
Sabre makes any modifications or enhancements to Customer Owned
Systems, Customer Licensed Systems, Customer Owned Intellectual
Property Rights or Customer Third Party Intellectual Property Rights
under this Agreement, Sabre will provide Customer, upon expiration
or termination of this Agreement for any reason or upon Customer's
reasonable request, with sufficient documentation and source code to
fully utilize such modifications and enhancements.
(c) AMENDMENT, MODIFICATION OR TERMINATION. Customer will use
commercially reasonable efforts to notify Sabre prior to Customer's
extending the term of, modifying, or terminating any Equipment
Lease, System License Agreement, Intellectual Property License
Agreement, Real Property Lease, Service Contract, Authorization or
Other Contract included within the Customer Assets. If such
extension, modification or termination would prevent or interfere
with Sabre's compliance with its obligations under this Agreement,
or satisfying an applicable SLA, then such action will be processed
as a Change pursuant to the Contract Administration Process. If
such action would increase the costs or expenses incurred Sabre in
providing Services under this Agreement, or in satisfying applicable
SLAs, then, following Sabre's notice to Customer of such increase
and delivery to Customer of appropriate information evidencing such
increase, Customer shall reimburse Sabre for such increased costs
and expenses.
7.5 CUSTOMER'S IT ENVIRONMENT.
(A) GENERAL. Customer will not make any Change to Customer's IT
environment (including Customer's desktop environment, and including
Changes to personal computers, hardware, software, network
configuration or telecommunications network) without (i)
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conforming to Sabre's reasonable standards and requirements for
Customer's IT environment and (ii) complying with the Contract
Administration Process. Customer will not permit installation on,
or use with, personal computers or other elements of Customer's IT
environment or software which has not been validly licensed or
sublicensed to Customer by Third Parties or Sabre.
(b) SABRE RECOMMENDATIONS. Sabre may from time to time recommend
changes in Customer's IT environment. The Parties will process such
recommendations as Changes subject to the Contract Administration
Process. Subject to SECTION 14.11, Customer may reasonably refuse
such recommendations.
7.6 CUSTOMER DATA. Customer will be solely responsible for the accuracy of
Customer Data and the timely inputting of such Customer Data and any
changes thereto.
ARTICLE VIII. WARRANTIES AND ADDITIONAL COVENANTS
8.1 WARRANTIES AND ADDITIONAL COVENANTS.
(a) QUALIFIED WORK FORCE. Sabre represents and warrants that its
personnel possess the proper skill, training, experience and
background to perform the Services in a professional and workmanlike
manner.
(b) YEAR 2000. Sabre represents and warrants that the Sabre Software
specified in SCHEDULE 10 as of the Effective Date will be Year 2000
Compliant when running on computers and operating systems selected,
supplied or certified by Sabre and when used in accordance with
Sabre's documentation for such systems. If any such Sabre Software
is found not to be Year 2000 Compliant, Sabre will cause such non-
conforming system to be Year 2000 Compliant, at no additional cost
to Customer, as soon as reasonably practicable. Notwithstanding the
foregoing, Sabre will not be responsible for a failure of any Sabre
Software to be Year 2000 Compliant to the extent such failure is the
direct result of (A) the receipt of data in incorrect formats, (B)
the interoperation with machines, software or tools of Customer or
any other Third Parties that are not Year 2000 Compliant, and (C)
any modifications made by Customer or any other Third Parties to the
Sabre Software, unless such modifications were approved or
authorized by Sabre. The remedy provided in this SECTION 8.1(b) is
the sole and exclusive remedy available to Customer, and the sole
and exclusive obligation of Sabre, for a breach of this SECTION
8.1(b). The Services do not include, and Sabre will not be
responsible or liable for, any changes, modifications, updates or
Enhancements to any Assets or Third Party hardware, software,
equipment or other items which may be necessary so that such items
are Year 2000 Compliant.
(c) PASS-THROUGH WARRANTIES AND INDEMNITIES. Each Party, to the extent
permissible, will pass through to the other Party any rights it
obtains under warranties and indemnities given by its Third Party
licensors, subcontractors or suppliers in connection with any
services, telecommunications networks, software, equipment or other
assets provided by such Party pursuant to this Agreement. In the
event of a Third Party Software or equipment nonconformance, or
nonperformance or inadequate performance by any Third Party vendor,
Sabre will coordinate with, and be the point of contact for
resolution of the problem through, the applicable vendor. Upon
becoming aware of a problem, Sabre will notify such vendor and will
use commercially reasonable efforts to cause such vendor to promptly
repair or replace the nonconforming item or remedy the
nonperformance or inadequate performance in accordance with such
vendor's obligations. If any warranties or indemnities may not be
passed through, the Party providing such services, software,
equipment or other assets agrees
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that it will, upon request of the other Party, take commercially
reasonable action to enforce any applicable warranty or indemnity
which is enforceable by such Party in its own name. Neither Party,
however, is obligated to resort to litigation or other formal
dispute resolution procedures to enforce any such warranty or
indemnity unless the other Party agrees to reimburse such Party for
all costs and expenses incurred in connection therewith, including
reasonable attorneys' fees and expenses.
(d) CORPORATE MATTERS. Each Party represents and warrants that as of
the Effective Date: (i) it is a corporation or partnership duly
organized and validly existing and in good standing under the Laws
of its jurisdiction of formation and has the authority to carry on
its business as now conducted and to own, lease and operate its
assets; (ii) it has the power, authority and legal rights to
execute, deliver and perform its obligations under this Agreement
and to contemplate the transactions contemplated hereby; (iii) the
execution, delivery and performance of its obligations under this
Agreement and the transactions contemplated hereby have been duly
authorized by all necessary corporate or partnership action; and
(iv) this Agreement has been duly executed and delivered by duly
authorized officers of such Party and this Agreement constitutes a
legal, valid and binding obligation enforceable against it in
accordance with its terms.
(e) VALIDITY OF CONTEMPLATED TRANSACTIONS. Each Party represents and
warrants that as of the Effective Date neither the execution and
delivery of this Agreement, the performance of any of its
obligations hereunder, nor the consummation of any of the
transactions contemplated herein will violate, conflict with or
result in a breach of or default under any terms, conditions or
provisions of (i) any existing Law to which it or its assets is
subject, (ii) any judgment, order, writ, injunction, decree or award
of any Governmental Authority which is applicable to it or its
assets, (iii) any provision of its organizational documents or other
document of formation or governance to which it is a Party or by
which any of its assets are bound, (iv) any mortgage, indenture,
agreement, contract, commitment, lease, plan, Authorization or other
instrument, document or understanding, oral or written, to which it
is a Party.
(g) REQUIRED CONSENTS. Each Party represents and warrants that as of the
Effective Date it has duly obtained all Required Consents of, and
duly made all required registrations, declarations or filings with,
any Governmental Authority which are required on its part as a
condition to the execution, delivery and performance of this
Agreement. Customer represents and warrants as of the Effective
Date that SCHEDULE 11 sets forth a list of Required Consents (to the
extent related to the Customer Assets, or required under contracts
to which Customer is a party or Laws binding upon Customer) that
have not been obtained as of that date, and that such list is
accurate and complete in all material respects.
8.2 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS
OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY,
SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR
RESULTS TO BE DERIVED FROM THE USE, OF ANY SERVICE, SOFTWARE, HARDWARE OR
OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT.
ARTICLE IX. DATA, CONFIDENTIALITY AND AUDIT RIGHTS
9.1 CUSTOMER DATA.
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(a) OWNERSHIP. All Customer Data will remain the sole property of
Customer. Sabre may Access and use Customer Data as needed to
perform its obligations hereunder. Upon expiration or termination
of this Agreement, Sabre will, at Customer's expense, return to
Customer, in Sabre's then-existing, machine-readable format and
media, all Customer Data in Sabre's possession. Sabre will not use
Customer Data for any purpose other than providing Services.
(B) SAFEGUARDING. Sabre will employ substantially the same safeguards
it uses for data of its other customers of similar services, but not
less than reasonable safeguards, in protecting Customer Data against
accidental or unauthorized deletion, destruction or alteration.
Sabre personnel having Access to Customer Data will be informed of
their duties to maintain its confidentiality and to use it only for
purposes permitted hereunder. Customer may establish backup
security for Customer Data and retain backup data files if it so
chooses. Sabre will have Access to such backup data files as is
reasonably required by Sabre.
(c) USE IN SABRE CRS. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement will not apply to or
govern Customer Data that is processed by or stored in the Sabre
CRS. All rights and obligations with respect to Customer Data that
is processed by or stored in the Sabre CRS will be governed by the
Access Agreement.
9.2 CONFIDENTIALITY.
(a) OWNERSHIP; SCOPE OF OBLIGATION. As between the Parties, the
Confidential Information of each Party will remain its sole
property. Confidential Information will be used by the recipient
Party only for purposes of this Agreement. Each Party will hold the
Confidential Information of the other Party in strict confidence and
protect such Confidential Information from disclosure using the same
care it uses to protect is own confidential information of like
importance, but not less than reasonable care. No Confidential
Information will be disclosed by the recipient Party without the
prior written consent of the other Party, except that each Party may
disclose this Agreement and the other Party's Confidential
Information to its directors, employees, attorneys, agents,
auditors, insurers and subcontractors who require access to such
information in connection with their employment or engagement and
who are obligated to keep such information confidential in a manner
no less restrictive than set forth in this SECTION 9.2. The Party
employing or engaging such Persons is responsible and liable for
their compliance with such confidentiality obligations.
(b) EXCEPTIONS. This Agreement does not prevent or restrict use or
disclosure by the recipient Party of Confidential Information of the
disclosing Party that (i) was in the public domain when communicated
to the recipient Party, (ii) enters the public domain through no
fault of the recipient Party, (iii) was in recipient Party's
possession free of any obligation of confidence when communicated to
the recipient Party or (iv) was rightfully communicated to the
recipient Party by a Third Party free of any obligation of
confidence to the disclosing Party. If Confidential Information is
required to be disclosed by law or a Governmental Authority,
including pursuant to a subpoena or court order, such Confidential
Information may be disclosed, provided that the Party required to
disclose the Confidential Information (x) promptly notifies the
disclosing Party of the disclosure requirement, (y) cooperates with
the disclosing Party's reasonable efforts to resist or narrow the
disclosure and to obtain an order or other reliable assurance that
confidential treatment will be accorded the disclosing Party's
Confidential Information, and (z) furnishes only Confidential
Information that the Party is legally compelled to disclose
according to advice of its legal counsel. Upon written
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request at the expiration or termination of this Agreement, all
documented Confidential Information (and all copies thereof) owned
by the requesting Party will be returned to it or destroyed by the
recipient Party, with written certification thereof.
(c) RESIDUAL KNOWLEDGE. Each Party acknowledges that the other may, as
a result of its receipt of or exposure to the other Party's
Confidential Information, increase or enhance the knowledge and
experience retained in the unaided memories of its directors,
employees, agents or contractors. Notwithstanding anything to the
contrary in this Agreement, a Party and its directors, employees,
agents or contractors may use and disclose such knowledge and
experience in such Party's business, so long as such use or
disclosure does not involve specific Confidential Information
received from the other Party. The disclosing Party will not have
rights in such knowledge and experience acquired by the recipient
Party, nor rights in any business endeavors of the recipient Party
which may use such knowledge and experience, nor rights to
compensation related to the recipient Party's use of such knowledge
and experience.
9.3 AUDIT RIGHTS.
(a) GENERAL. Auditors designated by Customer, and who agree in writing
to the security and confidentiality obligations and procedures
required by Sabre, will be provided with reasonable access to
locations from which Sabre provides Services to enable them to audit
(at Customer's expense, subject to SECTION 9.3(e)) Sabre's
activities under this Agreement, including verifying that Services
are being provided in accordance with this Agreement and applicable
SLAs. The auditors must be nationally recognized firms and Customer
may not designate any auditor who, in Sabre's reasonable opinion, is
a competitor of, or affiliated with a competitor of, Sabre or its
Subsidiaries.
(b) PROCEDURES. Such audits may be conducted once a year during
reasonable business hours. Customer will provide Sabre with at
least thirty (30) days prior written notice of an audit. Sabre will
cooperate with the audit, will make the information reasonably
required to conduct the audit available on a timely basis and will
assist the designated employees of Customer's auditors as reasonably
necessary. If Sabre requires resources in addition to those
required in the ordinary course of its delivery of the Services to
satisfy its obligations under this SECTION 9.3(b), such additional
resources will be charged as Variable Services. Sabre will not be
required to provide access to the proprietary data of Sabre or other
Sabre customers. All information pertaining to Sabre (including the
IP, business, properties or Services of Sabre) learned or exchanged
in connection with the conduct of an audit, as well as the results
of any audit, is Confidential Information of Sabre.
(c) RESULTS. Customer will provide Sabre copies and results of each
audit. The Parties will review the results of an audit, will
identify all relevant audit issues and will determine (i) what, if
any, actions will be taken in response to such audit issues, and
(ii) which Party will be responsible for the cost of taking the
actions necessary to resolve such issues.
(d) RECORDS RETENTION. Sabre will retain books and records that are
reasonably required to verify that Services are being provided in
accordance with this Agreement and applicable SLAs for a period of
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]after their
creation.
(e) COSTS OF AUDIT. In the event an audit conducted pursuant to this
SECTION 9.3 reveals that Sabre has overcharged Customer by an amount
in excess of [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]during
a period of at least [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED], then Sabre will pay or
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reimburse Customer for the reasonable costs of such audit that are
attributable to that portion of the auditor's fees charged Customer
for auditing amounts charged by Sabre under the Agreement.
ARTICLE X. PAYMENTS
10.1 FEES FOR BASE SERVICES. In consideration for the performance of the Base
Services, Customer will pay to Sabre the Fees set forth in SCHEDULE 8.
Pursuant to the Contract Administration Process, the Fees for Base
Services will increase following the Migration Completion Date for any
Base Services provided with respect to the Preview Operations, and the
effective date of implementing any Optional Web Hosting Services.
10.2 FEES FOR VARIABLE SERVICES. In consideration for any agreement by Sabre
to provide Variable Services, Customer will pay to Sabre the Fees set
forth in SCHEDULE 8.
10.3 THIRD PARTY FEES. Customer will pay all fees, royalties, costs, expenses
and other charges now or hereafter payable to any Third Party in
connection with or related to Third Party Software, Customer Assets or
data used by Sabre in performing the Services or Accessed or used by
Customer (or permitted Third Parties).
10.4 EXPENSES. Customer will reimburse Sabre for all reasonable travel,
travel-related (including food, lodging and incidental) and out-of-pocket
expenses incurred by Sabre, its subcontractors or agents in performing
Services under this Agreement. Sabre has provided Customer with written
reimbursement guidelines as in effect on the Effective Date, and will
forward to Customer written copies of each amendment thereto.
10.5 MANNER OF PAYMENT. All payments will be made by wire transfer to a bank
account designated by Sabre or through such other means as the Parties
agree. If a Subsidiary or Affiliate of Sabre provides Services, Sabre may
opt for such Subsidiary or Affiliate to invoice Customer for Services it
provides, in which case Customer will pay that entity directly.
10.6 INVOICING AND TIME OF PAYMENT. SCHEDULE 8 sets forth procedures by which
Fees are invoiced by Sabre and dates by which Fees are due and payable by
Customer. Each invoice will itemize the Fees contained therein, and will
be accompanied by reasonable detail in accordance with Sabre's customary
billing practices. Sabre will provide Customer additional information
about invoices as Customer reasonably requests and as Sabre customarily
provides.
10.7 TAXES. Customer will be responsible for and will pay for any Taxes that
are imposed on or determined by reference to (a) services or property
provided under this Agreement, (b) the payments due to Sabre pursuant to
this Agreement, including (i) payments for the sale, delivery or
furnishing of any property or services (including the Services or access
to or use of Sabre Software) hereunder and (ii) Taxes arising from the
payments under this SECTION 10.7 and SECTION 10.8 below, or (c) the
execution, delivery, notarization, recordation or other similar action
with respect to, this Agreement; provided, however, that Customer will not
be responsible for Taxes imposed on the net income of Sabre.
10.8 NET PAYMENTS. All payments due to Sabre under this Agreement will be
made free and clear of any withholdings for present or future Taxes. If
Customer is required by law to make any deduction or withholding of Taxes
from any payment due to Sabre, then: (a) Customer will effect such
deduction or withholding, and remit such Taxes to the appropriate taxing
authorities; (b) the amount payable to Sabre upon which such deduction or
withholding is based will be increased to the extent necessary to ensure
that after such deduction or withholding Sabre is paid a net amount
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equal to the amount Sabre would have been paid in the absence of such
deduction or withholding; (c) if requirements of Law or any reason
indicated in this SECTION 10.8 cause any further deduction or withholding
of Taxes, the amount payable to Sabre will be further increased to the
extent necessary to ensure that after such deduction or withholding, Sabre
is paid a net amount equal to the amount Sabre would have been paid in
the absence of such further deductions or withholdings; and (d) Customer
will provide Sabre with the original receipt, a duplicate original
receipt, or a duly certified or authenticated copy of the receipt, and
copies of cancelled checks, for any Taxes deducted or withheld and
remitted to the appropriate taxing authorities under this SECTION 10.8.
Such receipts or copies will be provided to Sabre within sixty (60) days
following the date of deduction or withholding.
10.9 INTEREST. If Customer fails to pay any amount when properly due, the
past-due amount will bear interest, until paid, at a rate of [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED] or the maximum rate allowed by law,
whichever is less. Such interest will be payable as it accrues, upon
demand.
ARTICLE XI. TERM AND TERMINATION
11.1 TERM. The term of this Agreement will begin on the Effective Date and,
unless terminated earlier under SECTION 11.2, will remain in effect until
the expiration or termination of all of the Services. Subject to SECTION
11.2, the period of time during which Sabre will provide each of the
following Categories of Service will be as follows:
(a) DATA AND VOICE SERVICES: Three (3) years from the Effective Date.
(b) WEB HOSTING SERVICES: Six (6) months from the Effective Date;
PROVIDED, HOWEVER, that unless Customer notifies Sabre to the
contrary at least sixty (60) days prior to the end of the initial
six-month period, the initial term will be extended for one
additional six (6) month period, and Customer may terminate the Web
Hosting Services during such renewal six-month period at any time
upon not less than sixty (60) days written notice to Sabre. [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(c) DEVELOPMENT SERVICES: Fifteen (15) years.
(d) DESKTOP SERVICES: through August 31, 2000.
11.2 TERMINATION.
(a) If a Party commits a Material Breach, the other Party may terminate
this Agreement by notifying the breaching Party; provided, however,
that if a Material Breach pertains to only one Category of Services
then the other Party may terminate this Agreement only with respect
to the Category of Service to which the Material Breach pertains.
(b) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
11.3 EFFECT OF EXPIRATION OR TERMINATION.
(a) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(b) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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(c) TERMINATION ASSISTANCE. If this Agreement expires under SECTION
11.1 or is terminated by Customer under SECTION 11.2, Sabre will
provide Termination Assistance Services during a period of time
("TERMINATION ASSISTANCE PERIOD") beginning on the earlier of: (a)
the date of expiration or termination of a Category of Services
under the Agreement and (b) a date (not more than [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED]prior to then-scheduled expiration
of the Term) specified by Customer in a written notice to Sabre; and
ending that number of days following the commencement of the
Termination Assistance Period, for each of the following Categories
of Service as follows: (i) Data and Voice Services[TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED]; (ii) Development Services: [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED]; and (iii) Web Hosting
Services: [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
Customer will continue to pay all Fees during such period. This
Agreement remains in effect during the Termination Assistance Period
and applies to the Termination Assistance Services. Customer will
cooperate in good faith with Sabre in connection with Sabre's
obligations under this SECTION 11.3(c), and will perform its
obligations under the Termination Assistance Plan. Sabre is not
required to provide Termination Assistance Services if it terminates
this Agreement under SECTION 11.2(a), and is not required to begin
new Development Services projects following the termination of this
Agreement with respect to Development Services.
(d) DISCLOSURE OF INFORMATION. Sabre is not required to disclose
Sabre's Confidential Information to any successor Third Party IT
service provider except to the extent that Customer is entitled
thereto. Customer will cause any such Third Party IT service
provider to agree in writing on terms acceptable to Sabre to
maintain the confidentiality of all Sabre Confidential Information
and to use such information only for purposes authorized under this
Agreement. Customer will use commercially reasonable efforts to
assure such Third Party's compliance with such confidentiality
obligation.
(e) TERMINATION OF CATEGORY OF SERVICES. To the extent that this
Agreement is terminated with respect to a particular Category
of Services, and not in its entirety, then the provisions of
this SECTION 11.3 shall apply to the Category of Services with
respect of which this Agreement has been terminated. Further,
to the extent that a particular Category of Services is
terminated, the obligations with respect to associated
Exclusive Variable Services will also terminate.
ARTICLE XII. INDEMNITIES AND LIABILITY
12.1 INDEMNITIES.
(a) TAXES. Each Party will indemnify, defend and hold harmless the
other Party and its Affiliates from and against all Losses arising
out of, under or in connection with any claim for Taxes for which
the indemnitor is financially responsible under this Agreement.
(b) PERSONAL INJURY AND PROPERTY DAMAGE. Each Party will indemnify,
defend and hold harmless the other Party and its Affiliates from and
against all Losses arising out of, under or in connection with (i)
bodily or other personal injury to, or death of, any Person or (ii)
damage to or destruction of any tangible property, in each case
resulting from, or arising out of, under or in connection with, the
gross negligence or willful misconduct of the indemnitor or any of
its Subsidiaries; provided that Sabre will have no indemnification
obligation in respect of Losses arising out of, under or in
connection with
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any incident for which it is entitled to indemnification under
SECTIONS 12.1(d) and 12.1(g).
(c) INFRINGEMENT.
(i) GENERAL. Sabre will indemnify, defend and hold harmless
Customer and its Affiliates against any action or cause of
action based on a claim that any Sabre IP (excluding portions
owned by Third Parties or Customer Assets) (A) infringes a
copyright, (B) infringes a patent granted under United States
law (C) infringes a trademark granted under United States law,
or (D) constitutes an unlawful disclosure, use or
misappropriation of a Third Party's Trade Secrets. Customer
will indemnify, defend and hold harmless Sabre and its
Affiliates against any action or cause of action based on a
claim that any Customer IP (excluding portions owned by Third
Parties) or Owned Systems or Owned Intellectual Property
Rights (W) infringes a copyright, (X) infringes a patent
granted under United States law, (Y) infringes a trademark
granted under United States law, or (Z) constitutes an
unlawful disclosure, use or misappropriation of a Third
Party's Trade Secrets. The indemnitor will bear the expense
of such defense and pay any damages and attorneys' fees that
are attributable to such claim finally awarded by a court of
competent jurisdiction. Notwithstanding the foregoing,
neither Party will be liable to the other for claims of
indirect or contributory infringement, including claims based
on use of Intellectual Property Rights with equipment or
software not agreed by the indemnitor or in a manner for which
such rights are not designed or indemnitee's modifications to
Intellectual Property Rights (other than those made at the
indemnitor's request).
(ii) ADDITIONAL REMEDY. If Sabre IP or Customer IP (or Owned
Systems or Owned Intellectual Property Rights) becomes the
subject of a claim under this SECTION 12.1(c), or in the
indemnitor's reasonable opinion is likely to become the
subject of such a claim, then, in addition to defending the
claim and paying any damages and attorneys' fees as required
above, the indemnitor will use commercially reasonable efforts
to either (A) replace or modify the Sabre IP or Customer IP
(or Owned Systems or Owned Intellectual Property Rights), as
applicable, to make it noninfringing or cure any claimed
misuse of a Third Party's Trade Secret or (B) procure for the
indemnitee the right to continue using the Sabre IP or
Customer IP (or Owned Systems or Owned Intellectual Property
Rights), as applicable. Any costs associated with either
alternative will be borne by the indemnitor. If neither
option is available to the indemnitor through the use of
commercially reasonable efforts, (X) the indemnitee will
return such Sabre IP or Customer IP (or Owned Systems or Owned
Intellectual Property Rights), as applicable, to the
indemnitor and (Y) if requested by the indemnitee in good
faith, the Parties will negotiate, pursuant to SCHEDULE 13,
but subject to SECTION 12.2, to reach a written agreement on
what, if any, monetary damages (in addition to the
indemnitor's obligations under this SECTION 12.1(c)) are
reasonably owed by the indemnitor to the indemnitee.
(d) PROVISION OF SERVICES. Customer will indemnify, defend and hold
harmless Sabre and its Affiliates from and against all Losses
arising out of or in connection with (i) Customer's improper use of
the Services, (ii) the failure of any equipment, products or
services provided by Customer, including, without limitation, the
Customer Assets, (iii) any act or omission of any Third Party
furnishing products, equipment, software or any other items or
services which are required by Customer to use the Services, (iv)
unauthorized modifications, alterations, tampering, adjustment or
repair of the Services, Applications
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CONFIDENTIAL
or other components of the IT systems operated by Sabre to perform
the Services caused by Customer or any Third Party permitted access
to or use thereof by Customer; (v) the distribution, display or
publication of any material delivered by or through Customer (other
than material provided by Sabre) over or using the internet,
including with respect to such information: (A) content whether
editorial, advertising, or otherwise, (B) copyright infringement,
libel, indecency, misrepresentation, invasion of privacy, or (C)
statements for other materials made or made available by readers of
the content or by persons to whom the content is linked at the
request of Customer; and (vi) Customer's use of the Data and Voice
Services provided by Sabre including (A) the abuse or fraudulent use
of the Data and Voice Services (or the voice or data networks to
which the Data and Voice Services pertain), (B) any information,
data, or message transmitted over the network by Customer that
constitutes libel, slander, infringement of copyright, invasion of
privacy, violation of trans-border data flow regulations, or
alterations of private records or data, or (C) Customer's failure
to comply with the provisions of SCHEDULE 16.
(e) EMPLOYEES. Each Party will indemnify, defend and hold harmless the
other Party and its Affiliates from and against all Losses arising
out of, under or in connection with an act or omission of the
indemnitor in its capacity as an employer of a Person and arising
out of or relating to (i) federal, state or other Laws or
regulations for the protection of Persons who are members of a
protected class or category of Persons, (ii) sexual discrimination
or harassment, (iii) accrued employee benefits not expressly assumed
by the indemnitee and (iv) any other aspect of the employment
relationship or its termination (including claims for breach of an
express or implied contract of employment) and which, with respect
to each of clauses (i) through (iv), arose when the Person asserting
the claim, demand, charge, actions, cause of action or other
proceeding was or purported to be an employee of the indemnitor.
Customer acknowledges and agrees that its employee indemnity
obligation set forth above includes Losses for severance benefits.
(f) REQUIRED CONSENTS. Customer will indemnify, defend and hold
harmless Sabre and its Affiliates from and against all Losses
arising out of, under or in connection with Customer's failure or
inability to obtain any Required Consents (to the extent related to
the Customer Assets, or required under contracts to which Customer
is a party or Laws binding upon Customer). Sabre will indemnify,
defend and hold harmless Customer and its Affiliates from and
against all Losses arising out of, under or in connection with
Sabre's failure or inability to obtain any Required Consents (except
for Required Consents related to the Customer Assets, or required
under contracts to which Customer is a party or Laws binding upon
Customer).
(g) CUSTOMER'S END USERS. The Parties acknowledge that by entering into
this Agreement, Sabre shall not assume and should not be exposed to
the business and operational risks associated with Customer's
business. Customer therefore shall indemnify, defend and hold
harmless Sabre and its Affiliates from and against all Losses
arising out of or in connection with any claim by any customer or
end user of Customer, or of any of the customers or end users of any
such customer or end user.
(h) PROCEDURES FOR THIRD PARTY CLAIMS. Notwithstanding any provision to
the contrary, the indemnification obligations set forth in this
SECTION 12.1 for Losses arising out of, under or in connection with
Third Party claims, actions or causes of action will not apply
unless the Party claiming indemnification:
(i) promptly notifies the other Party of any matters to which the
indemnity may apply and of which the notifying Party has
knowledge in order to allow the indemnitor an
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CONFIDENTIAL
opportunity to investigate and defend the matter; provided
that the failure to so notify will only relieve the indemnitor
of its obligations if and to the extent that the indemnitor is
prejudiced thereby; and
(ii) gives the other Party full opportunity to control the response
thereto and the defense thereof, including any agreement
relating to the settlement thereof; provided that the
indemnitee will have the right to participate in any legal
proceeding or audit to contest and defend a claim for
indemnification involving a Third Party and to be represented
by legal counsel of its choosing, all at the indemnitee's cost
and expense. If the indemnitor fails to promptly assume the
defense of the claim, the Party entitled to indemnification
may assume the defense at the indemnitor's cost and expense.
The indemnitor will not be responsible or liable for any settlement
or compromise made without its consent, unless the indemnitee has
tendered notice and the indemnitor has then refused to assume and
defend the claim and it is later determined that the indemnitor was
liable to assume and defend the claim. The indemnitee agrees to
cooperate in good faith with the indemnitor at the request and
expense of the indemnitor.
(i) NEGLIGENCE. THE ORDINARY, BUT NOT GROSS, NEGLIGENCE OF ANY
INDEMNITEE OR THE JOINT OR CONCURRENT ORDINARY, BUT NOT GROSS,
NEGLIGENCE OF TWO OR MORE INDEMNITEES WILL NOT PRECLUDE SUCH
INDEMNITEE(S) FROM RECEIVING THE BENEFITS OF INDEMNIFICATION UNDER
THIS SECTION 12.1.
12.2 LIABILITY.
(a) GENERAL LIMITATION. The liability of Sabre to Customer for all
damages and other Losses arising out of or related to this Agreement
for all claims, actions and causes of action of every kind and
nature that arise or accrue during any calendar year, regardless of
the form of action that imposes liability, whether in contract,
equity, negligence, intended conduct, tort or otherwise, will be
limited to and will not exceed [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] Also, without increasing the aggregate amount
described in the preceding sentence, with respect to the
nonperformance or inadequate performance of any particular Service,
the liability of Sabre to Customer for all damages and other Losses
arising out of or related to this Agreement for all claims, actions
and causes of action of every kind and nature that arise or accrue
during any calendar year as a result of the nonperformance or
inadequate performance of such particular Service, regardless of the
form of action that imposes liability, whether in contract, equity,
negligence, intended conduct, tort or otherwise, will be limited to
and will not exceed [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]
(b) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(c) EXCEPTIONS TO LIMITATIONS. The limitations, waivers and disclaimers
set forth in SECTIONS 12.2(a) and 12.2(b) do not apply to the
liability of either Party resulting from: (i) that Party's
nonperformance of its payment obligations to the other expressly set
forth in this Agreement; (ii) that Party's breach of its obligations
under SECTIONS 7.1 or 9.2(a); or (iii) that Party's indemnification
obligations under SECTION 12.1 in respect of Losses arising out of,
under, or in connection with Third Party claims, actions or causes
of action.
(d) CONTRACTUAL STATUTE OF LIMITATIONS. No demand for mediation or
arbitration or cause of action which arose out of an event or events
which occurred more than two (2) years prior to
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the filing of a demand for mediation or arbitration or suit alleging
a claim or cause of action may be asserted by either Party against
the other.
(e) INJUNCTIVE RELIEF. Each of the Parties acknowledges that, in the
event a Party breaches its obligations under SECTIONS 4.1, 7.1 or
9.2(a), the non-breaching Party may be irreparably harmed. In such
a circumstance, the non-breaching Party may proceed directly to
court.
(f) EXCLUSIVE AND NON-CUMULATIVE REMEDIES. The rights and remedies of a
Party specified in this Agreement for any breach or event constitute
the exclusive rights and remedies of a Party for that breach or
event, except: (i) for injunctive relief to which Party is entitled
as a matter of law or equity; and (ii) that exercising the right to
terminate this Agreement entirely or with respect to a Category of
Services, following a breach of this Agreement, does not constitute
the exclusive remedy for the breach upon which such termination is
based.
(g) ACKNOWLEDGMENT. The Parties expressly acknowledge that the
limitations, waivers, disclaimers and exclusions set forth in this
SECTION 12.2 have been actively and completely negotiated by the
Parties and represent the Parties' agreement taking into account
each Party's level of risk associated with the performance or
nonperformance of its obligations under this Agreement and the
payments and other benefits to be derived by each Party pursuant to
this Agreement.
ARTICLE XIII. INSURANCE
13.1 GENERAL. Each Party will have and maintain in force insurance coverage,
including worker's compensation insurance and general liability insurance,
adequate for it to perform its obligations under this Agreement.
13.2 RISK OF LOSS. Each Party will be responsible for risk of loss of, and
damage to, any equipment, software or other materials in its possession or
under its control.
ARTICLE XIV. MISCELLANEOUS
14.1 RIGHT TO ENGAGE IN OTHER ACTIVITIES. Customer acknowledges and agrees
that Sabre and its Affiliates may provide data processing and other
information technology services for Third Parties at any Sabre facility
that Sabre uses to perform Services. Nothing in this Agreement will
impair Sabre's right to acquire, license, market, distribute, develop for
itself or others or have others develop for Sabre similar technology
performing the same or similar functions as the technology and Services
contemplated by this Agreement.
14.2 INDEPENDENT CONTRACTORS. The Parties are independent contractors, and
this Agreement will not be construed as constituting either Party as
partner, joint venturer or fiduciary of the other or to create any other
form of legal association that would impose liability on one Party for the
act or failure to act of the other or as providing either Party with the
right, power or authority (express or implied) to create any duty or
obligation of the other. Except as otherwise expressly provided in this
Agreement, each Party has the sole right and obligation to supervise,
manage, contract, direct, procure, perform or cause to be performed all
obligations to be performed by it pursuant to this Agreement.
14.3 ENTIRE AGREEMENT; SURVIVAL. This Agreement (including the Schedules
attached hereto and all Work Orders and SLAs entered into by the Parties
in connection herewith, each of which is incorporated into this Agreement
by this reference) constitutes the full and complete statement of the
agreement of
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the Parties with respect to the subject matter hereof and supersedes any
previous agreements, understandings or communications, whether written or
oral, relating to such subject matter. This Agreement does not supersede
the other agreements being executed by the Parties contemporaneously with
the execution of this Agreement, including the Sabre Access Agreement,
Noncompetition Agreement, and Intellectual Property Agreement. Any
provision of this Agreement which contemplates performance or observance
subsequent to any termination or expiration of this Agreement will survive
any termination or expiration of this Agreement and continue in full force
and effect. Such provisions will include ARTICLE IV, SECTION 8.2,
SECTION 9.1, SECTION 9.2, SECTION 10.7, SECTION 10.8, ARTICLE XII,
ARTICLE XIV, and obligations to make payments that remain due and payable
under this Agreement.
14.4 AMENDMENTS; WAIVER. Changes or modifications to this Agreement, Work
Orders and SLAs may not be made orally, but only by a written amendment or
revision signed by both Parties. Any terms and conditions varying from
this Agreement on any order, invoice or other notification from either
Party are not binding on the other unless specifically accepted in writing
by the other. Unless otherwise expressly provided in this Agreement, a
delay or omission by either Party to exercise any right or power under
this Agreement will not be construed to be a waiver thereof. No waiver of
any breach of any provision of this Agreement will constitute a waiver of
any prior, concurrent or subsequent breach of the same or any other
provision hereof.
14.5 BINDING NATURE; ASSIGNMENT. This Agreement will be binding on the
Parties and their successors and permitted assigns (it being understood
and agreed that nothing contained in this Agreement is intended to confer
upon any other Person any rights, benefits or remedies of any kind or
character whatsoever under or by reason of this Agreement). Except as
otherwise expressly provided in SECTION 6.3, neither Party may, nor will
it have the power to, assign this Agreement, or any part hereof, without
the prior written consent of the other, provided, that Sabre may assign
its rights and delegate its duties and obligations without the prior
written consent of Customer to any Subsidiary or Affiliate of Sabre as
necessary in order for such Subsidiary or Affiliate to provide all or part
of the Services. The Parties acknowledge that either Party might become a
party to one or more transactions in the form of a merger, consolidation,
reorganization, stock sale or exchange, sale of any substantial portion of
such Party's assets or similar transaction. Any such transaction
involving a Party (and whether or not it is the surviving entity) will be
deemed to be an assignment of this Agreement by that Party requiring the
consent of the other Party if in Sabre's reasonable opinion: (a) in the
case of Sabre being involved in such a transaction, the transaction
materially and adversely affects Sabre's ability to continue to perform
the Services in accordance with this Agreement; or (b) in the case of
Customer being involved in such a transaction, the transaction (i) causes
a material increase in Sabre's costs to provide Services, unless the
Parties have agreed in writing to an associated increase in Base Fees,
(ii) impairs Sabre's ability to meet SLAs or SLA Standards, unless the
Parties have agreed in writing to amendments thereto that remove such
impairment, or (iii) impairs Customer's ability to meet its financial
obligations hereunder.
14.6 THIRD PARTY BENEFICIARIES. Except as provided in this Agreement, this
Agreement is entered into solely between, and may be enforced only by,
Sabre and Customer, and this Agreement will not be deemed to create any
rights in Third Parties, including suppliers and customers of a Party, or
to create any obligations of a Party to any such Third Parties.
14.7 DISPUTE RESOLUTION. All Disputes arising out of the transactions
contemplated by this Agreement (including any Disputes governed but not
resolved under the Contract Administration Process) will be resolved in
accordance with the Dispute resolution procedures set forth in SCHEDULE
13.
14.8 EXPORT REGULATIONS. This Agreement is expressly made subject to any
United States government Laws or other restrictions regarding export from
the United States of computer hardware, software, technical data or
derivatives of such hardware, software or technical data. Notwithstanding
anything
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CONFIDENTIAL
to the contrary in this Agreement, Customer will not directly or
indirectly export (or re-export) any computer hardware, software,
technical data or derivatives of such hardware, software or technical
data, or permit the shipment of same: (a) into (or to a national or
resident of) any country to which the United States has embargoed goods;
(b) to anyone on the U.S. Treasury Department's List of Specially
Designated Nationals, List of Specially Designated Terrorists or List of
Specially Designated Narcotics Traffickers, or the U.S. Commerce
Department's Denied Parties List; or (c) to any country or destination for
which the United States government or a United States governmental agency
requires an export license or other approval for export without first
having obtained such license or other approval. Each Party will
reasonably cooperate with the other and will provide to the other promptly
upon request any end-user certificates, affidavits regarding re-export or
other certificates or documents as are reasonably requested to obtain
approvals, consents, licenses and/or permits required for any payment or
any export or import of products or services under this Agreement.
14.9 APPROVALS AND SIMILAR ACTIONS. Except as otherwise expressly provided in
this Agreement, where agreement, approval, acceptance, consent or similar
action is required of either Party by any provision of this Agreement,
such action will not be unreasonably withheld or delayed. An approval or
consent given by a Party under this Agreement will not relieve the other
Party from responsibility for complying with the requirements of this
Agreement, nor will it be construed as a waiver of any rights under this
Agreement, except as and to the extent otherwise expressly provided in
such approval or consent.
14.10 NOTICES. All notices under this Agreement will be in writing and will be
deemed to have been duly given if delivered personally or by a nationally
recognized courier service, faxed, electronically mailed or mailed by
registered or certified mail, return receipt requested, postage prepaid,
to the Parties at the addresses set forth in SCHEDULE 14. All notices
under this Agreement that are addressed as provided in this SECTION 14.10,
(a) if delivered personally or by a nationally recognized courier service,
will be deemed given upon delivery, (b) if delivered by facsimile or
electronic mail, will be deemed given when confirmed and (c) if delivered
by mail in the manner described above, will be deemed given on the fifth
(5th) Business Day after the day it is deposited in a regular depository
of the United States mail. Either Party from time to time may change its
address or designee for notification purposes by giving the other Party
notice of the new address or designee and the date upon which such change
will become effective.
14.11 EXCUSED PERFORMANCE.
(a) CERTAIN EVENTS.
(i) If any of the items, events, conditions, acts or omissions
described in clause (ii) below:
(A) causes, results in or contributes to any impairment of
functionality or performance of any Service (or any
component of IT systems operated by Sabre to perform
Services): (1) Sabre will not be responsible or liable
for such impairment and will be excused, to the extent
of such impairment, from performing (x) impacted
Measured Services in accordance with the SLAs and SLA
Standards therefor until such impairment is cured or the
Parties agree on revised SLAs and SLA Standards therefor
and (y) impacted Services in accordance with the terms
of this Agreement until such impairment is cured; (2)
except in the instance of acts or omissions by Customer
that constitute a breach of this Agreement, Sabre will
use commercially reasonable efforts, at Customer's
expense and as Variable Services, to mitigate such
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CONFIDENTIAL
impairment; and (3) pursuant to the Contract
Administration Process, Sabre and Customer will modify,
amend or, in certain circumstances, terminate Services,
SLAs, SLA Standards and other non-monetary obligations
of the Parties, in each case as appropriate in light of
such impairment; or
(B) causes, results in or contributes to a material increase
in Sabre's cost to provide the Services, Sabre will
reasonably determine the resulting increase in Base
Fees.
(ii) The following items, events, conditions, acts or omissions are
subject to this SECTION 14.11(a): (A) Customer's purchase or
use of Third Party IT Services; (B) the failure of any
equipment, products or services provided by Customer,
including the Customer Assets; (C) performance, nonperformance
or inadequate performance by any Third Party IT Service
Provider; (D) unauthorized modifications, alterations,
tampering, adjustment or repair of the Services, Applications
or other components of the IT systems operated by Sabre to
perform the Services caused by Customer or a Third Party
permitted access to or use thereof by Customer; (E) the
failure of any item to be Year 2000 Compliant (except for
items warranted by Sabre in SECTION 8.1(c)); (F) changes made
by Customer to Customer Assets, Customer's IT environment, or
IT services performed by Customer, or Customer's refusal to
implement changes to, replacements for or reallocations of
Customer Assets, Customer's IT environment or IT services
performed by Customer that are recommended by Sabre; (G)
inaccuracies of Customer Data; (H) any failure or inability by
Customer to obtain any Required Consent under this Agreement;
or (I) any other act or omission by Customer, any Third Party
that is a party to any agreement included within the Customer
Assets (when acting in that capacity) or any other Third
Party over which Sabre has no reasonable control.
(iii) The rights of Sabre set forth in this SECTION 14.11(a) are in
addition to, and not in limitation of, the rights afforded
Sabre under SECTION 14.11(b).
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CONFIDENTIAL
(b) FORCE MAJEURE.
(i) Except for the obligations to make payments due hereunder,
each Party will be relieved of its obligations under this
Agreement to the extent that performance is delayed or
prevented by a Force Majeure Event.
(ii) In such event the non-performing Party will be excused from
further performance or observance of the obligation(s) so
affected for as long as such circumstances prevail and such
Party continues to use commercially reasonable efforts to
recommence performance or observance whenever and to whatever
extent possible without delay.
(iii) If any such Force Majeure Event substantially prevents,
hinders, or delays performance of Services necessary for the
performance of mission critical Customer functions for more
than [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED], then
Customer, at its expense, may procure such Services from an
alternate source until such time as Sabre is able to
recommence performance of such Services.
(iv) If a Force Majeure Event that substantially prevents, hinders,
or delays performance of Services necessary for the
performance of mission critical Customer functions continues
for [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED], then
either Party will have the right to terminate this Agreement
upon notice to the other Party.
(v) The Party suspending or delaying performance will notify the
other Party promptly upon learning of the occurrence of the
Force Majeure Event.
14.12 PRESS RELEASES. All press releases, public announcements or similar
public disclosure by either Party relating to this Agreement or its
subject matter, including promotional or marketing material, will be
coordinated with and approved by the other Party prior to release.
Notwithstanding the foregoing: Sabre will have the right to make general
references to Customer and the type of services being provided by Sabre to
Customer under this Agreement in Sabre's promotional and marketing
materials as well as in Sabre's presentations to prospects; and Customer
will have the right to make general references to Sabre and the type of
services provided by Sabre to Customer under this Agreement in Customer's
promotional and marketing materials. This provision does not alter the
restrictions on the disclosure of Confidential Information set forth in
SECTION 9.2 and, subject to SECTION 9.2, will not be construed so as to
delay or restrict either Party from disclosing any information required to
be disclosed in order to comply with any applicable law, rule or
regulation.
14.13 CONSTRUCTION RULES. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be affected
or impaired, and such provision will be deemed to be restated to reflect
the original intentions of the Parties as nearly as possible in accordance
with applicable law. The Parties agree that this Agreement is an
executory contract as contemplated by 11 U.S.C. Section 365. In
performing its obligations under this Agreement, neither Party will be
required to undertake any activity that would conflict with the
requirements of any applicable law, rule, regulation, interpretation,
judgment, order or injunction of any Governmental Authority. This
Agreement may be executed in multiple counterparts, each of which will be
deemed an original and all of which taken together will constitute one
instrument. The Parties acknowledge and agree that each has been
represented by legal counsel of its choice throughout the negotiation and
drafting of this Agreement, that each has participated in the drafting
hereof and that this Agreement will not be construed in favor of or
against either Party solely on the basis of a Party's drafting or
participation in the drafting of any portion of this Agreement.
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14.14 FURTHER ASSURANCES. The Parties will execute and deliver such other
instruments and documents, and take such other actions, as either Party
reasonably requests to evidence or effect the transactions contemplated by
this Agreement.
14.15 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the substantive Laws of the State of Texas, without giving
effect to any choice-of-law rules that may require the application of the
Laws of another jurisdiction.
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IN WITNESS WHEREOF, the Parties have duly executed and delivered this
Agreement as of the Effective Date.
XXXXXXXXXXX.XXX LP SABRE INC.
By: TRAVELOCITY HOLDINGS, INC., By: Xxxxxxx X. Xxxxxxx
its general partner ----------------------------------
Title: Sr. V.P. and CFO
-------------------------------
By: /s/ Xxxxxxx X. Xxxxxxx Date: March 7, 2000
---------------------------------- --------------------------------
Title: Sr. V.P. and CFO
-------------------------------
Date: March 7, 2000
--------------------------------
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LIST OF SCHEDULES
Schedule 2.1 Desktop Services
Schedule 2.2 Data and Voice Services
Schedule 2.3 Web-hosting Services
Schedule 2.4 Development Services
Schedule 3 Exclusive Variable Services
Schedule 4 Measured Services
Schedule 5 Service Level Agreements
Schedule 6 Performance Reports
Schedule 7 Contract Administration Process
Schedule 8 Fees
Schedule 9 Development Services Budget
Schedule 10 Sabre Software
Schedule 11 Required Consents
Schedule 12 Customer Assets
Schedule 13 Dispute Resolution Procedures
Schedule 14 Notices
Schedule 15 Termination Assistance
Schedule 16 Telecommunications Provisions
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APPENDIX A
TO
INFORMATION TECHNOLOGY SERVICES AGREEMENT
BETWEEN
SABRE INC.
AND
XXXXXXXXXXX.XXX, L.P.
GLOSSARY
1. RULES OF INTERPRETATION. The following rules of interpretation apply to
the Agreement (and are by this reference incorporated into the Agreement):
(a) the word "or" is not exclusive and the words "including" or
"include" are not limiting;
(b) the words "hereby," "herein," "hereof," "hereunder" or other words
of similar meaning refer to the entire document in which it is
contained;
(c) a reference to any agreement or other contract includes permitted
supplements, amendments and restatements;
(d) a reference to a law includes any amendment or modification to such
law and any rules or regulations promulgated thereunder or any law
enacted in substitution or replacement therefor;
(e) a reference to singular includes plural and vice-versa and each
gender includes the other;
(f) a reference to days, months, or years refers to calendar days,
months, and years, unless Business Days are specified;
(g) Article and Section headings and table of contents are only for
reference and are not to be considered in interpreting the
agreement;
(h) a reference to an Article, Section, Appendix, Exhibit or Schedule
which does not specify a particular document is to the relevant
Article, Section Appendix, Exhibit or Schedule of the document
containing the reference;
(i) a reference to an Article includes all Sections and subsections
contained in such Article, and a reference to a Section or
subsection includes all Subsections of such Section or subsection;
(j) if an ambiguity arises in an Article's, Section's or subsection's
cross-reference to another Article, Section or subsection, the
cross-referenced heading controls over the cross-referenced Article,
Section or subsection number;
(k) All terms not otherwise defined herein shall have the meaning
commonly ascribed thereto in the information technology industry;
and
(l) "$" refers to United States dollars.
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2. DEFINITIONS. As used in the Agreement, the following terms will have the
following meanings:
"ACCESS" means the enjoyment of physical and legal use and operation of a
specific item of property in order for Sabre to perform the Services.
"ACCESS AGREEMENT" means that certain agreement allowing Customer to access
the Sabre CRS and executed by the Parties as of the Effective Date.
"ACCESS LOCATIONS" means (to the extent that the description of Services
specifies the facilities or locations from which Services may be Accessed)
the Customer facilities and other locations specified in the description of
Services, as the same may be changed from time to time in accordance with the
Contract Administration Process.
"ACCOUNT MANAGERS" means the Sabre Account Manager and Customer Account
Manager.
"AFFILIATE" means, with respect to any Person at any time, any other Person
that controls, is controlled by or is under common control with the first
mentioned Person.
"AGREEMENT" means the Information Technology Services Agreement between Sabre
and Customer.
"ANTITRUST LAWS" means any Law which relates to unlawful restraints on trade
and commerce, price discriminations, price fixing, monopolies or interference
with competition.
"AUTHORIZATIONS" means any franchises, licenses, permits, easements, rights,
applications, filings, registrations and other authorizations required or
useful in connection with the ownership or use of any Customer Asset.
"BASE FEE" means, for each calendar month, the amount that Customer is
obligated to pay to Sabre pursuant to SCHEDULE 8 of the Agreement in
connection with Base Services provided in that month.
"BASE SERVICES" means the Web Hosting Services, Data and Voice Services,
Development Services and Desktop Services provided by Sabre under the
Agreement.
"BUSINESS DAY" means usual days that the Parties conduct business.
"CATEGORY OF SERVICE" means each of the following major categories of the
Base Services: Web Hosting Services, Data and Voice Services, and
Development Services.
"CHANGE" means: (a) any amendment, modification, addition or deletion
proposed by any Party to the Agreement, any Work Order, any SLA, any Service,
the Service Locations, the Access Locations or any Fees; (b) Customer's
request that Sabre perform any Variable Service or that any Third Party
provide any Non Exclusive Variable Service (including provision of Third
Party Software or other technology); (c) any amendment, modification,
addition or deletion proposed by Customer to any component of the IT systems
operated by Sabre to perform the Services; (d) Customer's request to move its
web hosting infrastructure, as described in Section 2.5(c); (e) Customer's
request that Sabre perform any Optional Web Hosting Service; or (f) any
amendment, modification, addition or deletion proposed by Customer to the
type (as opposed to a change in the model only) of Customer Assets which
constitute the web hosting infrastructure managed and operated by Sabre in
providing Web Hosting Services; or (g) the inclusion of Preview Operations
within the scope of Base Services.
"CIA" has the meaning given in SECTION 4.5(h).
"CONFIDENTIAL INFORMATION" means (i) all information identified by a Party as
confidential to which the other Party has access in connection with the
Services, whether before or after the Effective Date, (ii) the
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CONFIDENTIAL
Agreement and the Parties' rights and obligations thereunder, (iii) in the
case of Sabre, all Sabre IP, (iv) in the case of Customer, all Customer IP,
and (v) the terms of this Agreement; but in all cases excluding information
and Intellectual Property Rights independently developed by or on behalf of
the recipient Party without use of or reference to the disclosing Party's
Confidential Information.
"CONTRACT ADMINISTRATION PROCESS" means the process described in SCHEDULE 7
of the Agreement.
"CRS COMMUNICATIONS SYSTEMS" [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
"CRS DEVELOPMENT" means a development to or modification of the CRS Software,
created using the Development Services.
"CRS SOFTWARE" [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
"CUSTOMER ACCOUNT MANAGER" means the individual, and any successor
individual, who is a senior level individual within Customer's organization
and who is designated in writing by Customer from time to time.
"CUSTOMER ASSETS" means all Owned Systems, Licensed Systems, Systems License
Agreements, Owned Intellectual Property Rights, Third Party Intellectual
Property Rights, Intellectual Property License Agreements, Third Party IT
Services, Service Contracts, Equipment, Leased Equipment, Equipment Leases,
Real Property, Leased Real Property, Real Property Leases, Authorizations,
Other Contract Benefits, Other Contracts and Other Assets that are: (a) used
by or for the benefit of Customer, or that are necessary, to perform or
manage the Services, including without limitation the assets described in
SCHEDULE 12 of the Agreement, or (b) acquired by Customer after the Effective
Date and the Access by Sabre of which is necessary for Sabre to perform
Services.
"CUSTOMER DATA" means the following data, whether provided or produced
before, on or after the Effective Date: (a) all information relating to
Customer's business, financial condition or operations provided by Customer
to Sabre in connection with the Services; (b) all data that is provided by or
on behalf of Customer to Sabre in order for Sabre to perform the Services;
(c) all data that is produced in the Services using data described in clauses
(a) and (b); but in all cases excluding any Sabre IP.
"CUSTOMER DIRECT COMPETITOR" [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
"CUSTOMER EMPLOYEE(S)" means all employees of Customer who are engaged in,
or are related to, performing or managing the Services.
"CUSTOMER IP" means the Intellectual Property Rights of Customer, including
all Customer Systems.
"CUSTOMER SYSTEMS" means the Owned Systems and the Licensed Systems.
"DATA CENTER" means any computer data processing facility operated by Sabre.
"DATA AND VOICE SERVICES" means the Services described in SCHEDULE 2.2.
"DESKTOP SERVICES" means the Services described in SCHEDULE 2.1.
"DEVELOPMENT RESOURCES" means the personnel resources (expressed as FTE's)
used by Sabre in providing Development Services.
"DEVELOPED IP" means IP made by our Party, or jointly by the Parties,
pursuant to this Agreement.
"DEVELOPMENT SERVICES" means the Services described in SCHEDULE 2.4.
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CONFIDENTIAL
"DEVELOPMENT SERVICES BUDGET" means a budget of Development Resources to be
provided by Sabre during the twelve (12) calendar months specified in such
budget, and a description of development projects which will be the subject
of Development Services during such period, including whether a project is to
be performed at Premium Rates.
"DISPUTE" means any dispute, claim or controversy of any kind or nature
arising under or in connection with the Services, Agreement and any related
agreements between any of the Parties (including disputes as to the Services,
billing, or the creation, validity, interpretation, breach or termination of
the Agreement).
"EFFECTIVE DATE" means March 7, 2000, at the time on such date immediately
after giving effect to the consummation of the transactions described in the
Xxxx of Contribution, Assignment and Assumption Agreement, dated March 7,
2000, between Sabre Inc. and Xxxxxxxxxxx.xxx LP.
"EMPLOYEE BENEFIT LAW" means any Law that relates to Employee Benefit Plans
or the payment of salary, wages or commissions.
"ENVIRONMENTAL LAWS" means all Laws relating to pollution or protection of
human health, safety or the environment (including ambient air, surface or
subsurface water, land surface or subsurface strata).
"EQUIPMENT" means all equipment owned by Customer on or after the Effective
Date.
"EQUIPMENT LEASES" means all leases of Leased Equipment to which Customer is
a party that are effective on, or entered into after, the Effective Date.
"EXCLUSIVE VARIABLE SERVICES" means the Exclusive Variable Services described
in SCHEDULE 3 of the Agreement.
"FEES" means all fees, Fees, expenses and other amounts payable by Customer
to or at the direction of Sabre under or in connection with the Agreement.
"FTE" means a full time equivalent person, computed on the basis of an
average of 1,777 working days in a calendar year.
"FORCE MAJEURE EVENT" means any cause beyond a Party's reasonable control,
including but not limited to failures attributable to any action or failure
to act of any Governmental Authority; or as the result of strikes, lockouts
or other labor difficulties; riot, insurrection, protest, security breaches
or other hostilities; boycott, embargo, blockade, fuel or energy shortages;
fire, flood, cyclone, earthquake or other natural disasters; or acts of God
or other supreme beings; wrecks, transportation delays or telecommunication,
electrical or other utility system limitations or outages; or the inability
to obtain necessary labor, materials, or utilities from usual sources.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal, state,
province, territory, city, town, municipality, county, local or other
political subdivision thereof or thereto, any quasi-governmental authority,
and any court, tribunal, arbitral body, department, commission, board,
bureau, agency, instrumentality thereof or thereto or otherwise which
exercises executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"HAZARDOUS MATERIAL" means any chemical, substance, waste, material,
pollutant, contaminant, equipment or fixture defined as or deemed hazardous
or toxic or otherwise regulated under any Environmental Law.
"INTELLECTUAL PROPERTY AGREEMENT" means the Intellectual Property Agreement
between Sabre and Customer of even date herewith.
"INTELLECTUAL PROPERTY LICENSE AGREEMENTS" means all license agreements for
Third Party Intellectual Property Rights to which Customer is a party that are
effective on, or entered into after, the Effective Date.
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CONFIDENTIAL
"INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property rights,
including (i) any patent, patent application, trademark (whether registered
or unregistered), trademark application, trade name, service xxxx (whether
registered or unregistered), service xxxx application, copyright (whether
registered or unregistered), copyright application, Trade Secret,
Confidential Information, know-how, process, technology, development tool,
ideas, concepts, design right, moral right, data base right, methodology,
algorithm or invention, (ii) any right to use or exploit any of the
foregoing, and (iii) any other proprietary right or intangible asset
(including Software).
"IT" means information technology.
"JOINT DEVELOPMENT AGREEMENT" has the meaning given in SECTION 4.4(b).
"JOINT INTEREST IP" means IP made jointly by the Parties pursuant to a joint
development or funding agreement between the Parties, as contemplated by
SECTION 2.8(b).
"LAWS" means any applicable code, statute, law (including common law),
ordinance, regulation, order, directive, rule or requirement of any
Governmental Authority, including Environmental Laws, Antitrust Laws and
Employee Benefit Laws.
"LEASED EQUIPMENT" means all Equipment leased by Customer pursuant to
Equipment Leases.
"LEASED REAL PROPERTY" means all real property leased by Customer pursuant to
Real Property Leases.
"LIABILITIES" means any direct or indirect indebtedness, guaranty,
endorsement, claim, loss, damages, deficiency, assessment, cost, expense,
obligation, disgorgement or responsibility, fixed or unfixed, known or
unknown, asserted or unasserted, liquidated or unliquidated, secured or
unsecured.
"LICENSED SYSTEMS" means all Software systems and/or components thereof
(including applications and operating systems) licensed to Customer by Third
Parties pursuant to Systems License Agreements.
"LIEN" means any conditional sale agreement, default of title, easement,
encroachment, encumbrance, hypothecation, infringement, lien, mortgage,
pledge, reservation, restriction, security interest, title retention or other
security arrangement, or any adverse right or interest, charge, or claim of
any nature whatsoever of, on, or with respect to any Asset.
"LOSSES" means all Liabilities, judgments, claims, settlements, losses,
damages, fees, Liens, Taxes, penalties, obligations and expenses (including
reasonable attorneys' fees).
"MARKET RATE" means, for a particular type of Service, the market rate
charged by Sabre for such type of Service, as reasonably determined by Sabre.
Market Rates for Development Services will be comparable to those charged to
future contractual customers of Sabre. With respect to Standard IP developed
by Customer for Sabre pursuant to SECTION 2.8(a), "Market Rate" means the
Market Rate that would have been charged by Sabre for a similar development
service.
"MATERIAL BREACH" means:
(a) The occurrence or existence of any of the following events,
circumstances or conditions will constitute, and be deemed to
constitute, a Material Breach by Sabre:
(i) a material failure or a series of material failures by Sabre
to meet SLA Standards, which failure or series of failures (i)
has a material adverse effect on Customer and (ii) as a result
the Agreement fails of its essential purpose, unless Sabre
cures such failures [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]of receiving notice thereof;
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CONFIDENTIAL
(ii) Sabre breaches SECTION 9.2(a) of the Agreement, such breach
has a material adverse affect on Customer, and such breach is
not cured [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
after Sabre's receiving notice thereof;
(iii) Sabre breaches the anti-assignment provisions of SECTION 14.5
of the Agreement;
(iv) Sabre becomes or is declared insolvent or bankrupt, is the
subject of any proceedings relating to its liquidation,
bankruptcy, insolvency or for the appointment of a receiver or
similar officer for it, makes an assignment for the benefit of
all or substantially all of its creditors or enters into an
agreement for the composition, extension or readjustment of
all or substantially all of its obligations, provided that no
such Material Breach will be deemed to have occurred if the
events of this paragraph are involuntary and such state of
events no longer exists [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] of the original occurrence thereof; or
(V) a material failure or a series of material failures by Sabre
to perform its Development Services obligations, which failure
or series of failures has a material adverse effect on
Customer, unless Sabre cures such failures [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] of receiving notice thereof.
(b) The occurrence or existence of any of the following events,
circumstances or conditions, will constitute, and be deemed to
constitute, a Material Breach by Customer:
(i) Customer defaults in the payment when due of any undisputed
amount ([TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED])
properly due to Sabre pursuant to the Agreement and such
default is not cured [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after Customer's receiving notice thereof;
(ii) Customer breaches its obligations under ARTICLE II of the
Agreement to obtain all of its requirements for Base and
Exclusive Variable Services from Sabre and such breach is not
cured [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]after
Customer's receiving notice thereof;
(iii) Customer breaches SECTION 9.2(a) of the Agreement, such breach
has a material adverse affect upon Sabre, and such breach is
not cured [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
after Customer's receiving notice thereof;
(iv) Customer breaches the anti-assignment provisions of SECTION
14.5 of the Agreement; or
(v) Customer becomes or is declared insolvent or bankrupt, is the
subject of any proceedings relating to its liquidation,
bankruptcy, insolvency or for the appointment of a receiver or
similar officer for it, makes an assignment for the benefit of
all or substantially all of its creditors or enters into an
agreement for the composition, extension or readjustment of
all or substantially all of its obligations, provided that no
such Material Breach shall be deemed to have occurred if the
events of this paragraph are involuntary and such state of
events no longer exists [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] of the original occurrence thereof.
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CONFIDENTIAL
"MEASURED SERVICES" means those Services listed in SCHEDULE 4 of the Agreement.
"MIGRATION COMPLETION DATE" shall mean, for any Category of Service which
Customer elects to have Sabre provide with respect to the Preview Operations,
the date upon which the migration contemplated by the applicable Migration
Plan shall have been completed, and Sabre shall have begun performing the
selected Base Services on a regular basis with respect to the Preview
Operations.
"MIGRATION PERIOD" means the period during which Migration Services are to be
performed, and concluding on the Migration Completion Date.
"MIGRATION PLAN" means a written plan which shall describe the tasks to be
performed by Sabre, Customer, and any Third Party IT Service Provider of
Customer with respect to the Preview Operations, in connection with the
migration of the selected Category of Services to Sabre under SECTION 2.3.
"MIGRATION SERVICES" means services to be provided by Sabre pursuant to a
Migration Plan.
"NON-EXCLUSIVE VARIABLE SERVICES" means IT services other than Base Services
or Exclusive Variable Services.
"OPTIONAL WEB HOSTING SERVICES" are described in SCHEDULE 3.
"OTHER ASSETS" means all assets, to which Customer has rights on or after the
Effective Date, other than Owned Systems, Licensed Systems, Systems License
Agreements, Owned Intellectual Property Rights, Third Party Intellectual
Property Rights, Intellectual Property License Agreements, Third Party IT
Services, Service Contracts, Equipment, Leased Equipment, Equipment Leases,
Real Property, Leased Real Property, Real Property Leases, Authorizations,
Other Contract Benefits and Other Contracts.
"OTHER CONTRACT BENEFITS" means all benefits, entitlements, rights and
interests of Customer arising under or in connection with the Other
Contracts.
"OTHER CONTRACTS" means all contracts in effect on, or entered into after,
the Effective Date to which Customer is a party, other than Systems License
Agreements, Intellectual Property License Agreements, Service Contracts,
Equipment Leases, Real Property Leases and Authorizations.
"OWNED INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property Rights
owned by Customer on or after the Effective Date.
"OWNED SYSTEMS" means all Software systems and/or components thereof
(including applications and operating systems) owned by Customer on or after
the Effective Date.
"PARTY" means each of the signatories to the Agreement and their successors
and assigns as permitted by the Agreement.
"PERSON" means an individual, corporation, limited liability company,
partnership, trust, association, joint venture, unincorporated organization
or entity of any kind or nature, or a Governmental Authority.
"PREMIUM IP" means IP made solely by one Party pursuant to this Agreement and
paid for by the other Party at Premium Rates.
"PREMIUM RATES " means, for Development Services, the "Premium Rate" provided
in SCHEDULE 2.8. With respect to Premium IP developed by Customer for Sabre
pursuant to SECTION 2.8(a), [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
"PREVIEW " means Preview Travel, Inc., a Delaware corporation.
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CONFIDENTIAL
"PREVIEW OPERATIONS" means the web hosting and network, and operations of
Preview which support Preview's online travel services business.
"QUARTER" means each three-calendar-month period ending during the term of
this Agreement.
"QUARTERLY AMOUNT" is described in SCHEDULE 8.
"REAL PROPERTY" means all real property owned by Customer on or after the
Effective Date.
"REAL PROPERTY LEASES" means all leases for Leased Real Property to which
Customer is a party and that are effective on, or entered into after, the
Effective Date.
"REQUIRED CONSENTS" means those authorizations, consents, orders and
approvals of Persons necessary or appropriate (a) for the execution and
delivery of the Agreement, (b) to effectuate or permit the sale, transfer,
assignment, lease, sublease, license, sublicense or provision of access to
any Customer Assets, (c) for performance by Sabre of the Services or (d) to
otherwise consummate or effectuate the transactions contemplated by the
Agreement.
"SABRE ACCOUNT MANAGER" means an individual, and any successor individual, so
designated in writing by Sabre from time to time.
"SABRE CRS" means a system providing any of the following products or
services, using CRS Software and CRS Communications Systems: (a) publication
and distribution of consumer travel-related information from computerized
data bases; (b) processing of passenger travel-related reservations and
transactions; (c) marketing and sales of passenger travel-related products
and services and related electronic transactions; or (d) publication and
distribution of passenger travel-related documents (including tickets).
"SABRE DIRECT COMPETITOR" [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
"SABRE GROUP" means, severally and collectively, Sabre and any Subsidiary of
Sabre that Sabre designates in writing as being a member of the Sabre Group.
"SABRE IP" means Intellectual Property Rights of Sabre, including all Sabre
Software.
"SABRE SOFTWARE" means all Software which is owned or developed by Sabre, or
in which Sabre otherwise holds Intellectual Property Rights.
"SERVICES" means the Base Services, Variable Services and Termination
Assistance Services performed by Sabre under the Agreement.
"SERVICE CONTRACTS" means all agreements, contracts or other arrangements
effective on, or entered into after, the Effective Date to which Customer is
a party and pursuant to which Third Party IT Service Providers provide Third
Party IT Services to Customer.
"SERVICE LOCATIONS" means the following locations at or for which SABRE
provides Base Services: [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
"SLA" OR "SERVICE LEVEL AGREEMENT" means each of the written statements of
performance levels for Measured Services that are described in SCHEDULE 5.
"SLA STANDARD" means the acceptable level of performance for a Measured
Service specified in the applicable SLA.
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CONFIDENTIAL
"SOFTWARE" or "SOFTWARE" means any computer programming code consisting of
instructions or statements in a form readable by individuals (source code) or
machines (object code), and documentation and supporting materials therefor,
in any form or medium, including electronic media.
"STANDARD IP" means IP made solely by one Party pursuant to this Agreement
and paid for by the other Party at Market Rates.
"SUBSIDIARY" means, as to any Person, any other Person of which more than
fifty percent (50%) (in number of votes) of the issued and outstanding
securities having ordinary voting power for the election of at least a
majority of the directors is owned or controlled, directly or indirectly, by
that Person.
"SYSTEM LICENSE AGREEMENTS" means all license agreements for Licensed Systems
to which Customer is a party and that are effective on, or entered into
after, the Effective Date.
"TAX RETURNS" means all tax returns, reports, statements and other similar
filings with respect to any Taxes.
"TAXES" means any present or future taxes (including taxes denominated as
income taxes, franchise taxes, corporation taxes, withholding taxes, gross
receipts taxes, excise taxes (including federal excise taxes), doing business
taxes, capital taxes, net worth taxes, asset taxes, social security or social
contribution taxes, stamp taxes, transaction taxes, transfer taxes,
telecommunications taxes and assessments, exchange taxes, documentary taxes,
sales taxes, use taxes, or value added taxes), levies, imposts, duties, fees,
assessments or other Fees, and all interest, penalties or similar liabilities
with respect thereto, of whatever nature now or hereafter imposed by any
jurisdiction or any Governmental Authority.
"TERM" means the initial term and each renewal period of the Agreement, which
is subject to expiration in accordance under SECTION 11.1 thereof, or earlier
termination in accordance with SECTION 11.2 or 14.12 thereof.
"TERMINATION ASSISTANCE PERIOD" has the meaning given in SECTION 11.3(c).
"TERMINATION ASSISTANCE PLAN" means a plan to govern the migration/conversion
from Services to IT services, software and other resources to be provided by
Customer or a successor Third Party IT Service Provider. The Termination
Assistance Plan is a Work Order the production of which will be governed by
the Contract Administration Process.
"TERMINATION ASSISTANCE SERVICES" means the Services determined by the
Parties pursuant to the Contract Administration Process consistent with the
principles outlined in SCHEDULE 15 of the Agreement, and to be provided
pursuant to the Termination Assistance Plan.
"THIRD PARTY" means a Person excluding any Party or, with respect to Sabre,
another member of the Sabre Group.
"THIRD PARTY INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property
Rights licensed to Customer from Third Parties pursuant to Intellectual
Property License Agreements.
"THIRD PARTY IT SERVICE PROVIDERS" means all Third Parties that provide IT
services to Customer pursuant to Service Contracts.
"THIRD PARTY IT SERVICES" means all IT services provided to Customer pursuant
to Service Contracts.
"THIRD PARTY SOFTWARE" means any Software owned by or licensed from a Third
Party vendor.
"TRADE SECRETS" means information related to a Person (a) which derives
economic value, actual or potential, from not being generally known to or
readily ascertainable by other Persons who can obtain
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CONFIDENTIAL
economic value from its disclosure or use, and (b) which is the subject of
efforts by said Person that are reasonable under the circumstances to
maintain its secrecy.
"TULSA DATA CENTER" means the existing underground computer data processing
facility operated by Sabre in Tulsa, Oklahoma; provided that Sabre may elect
to use another principal data center of Sabre so long as such use does not
materially and adversely affect the Services or increase the Fees to Customer.
"VARIABLE FEE" means, for each calendar month, the amount that Customer is
obligated to pay to Sabre pursuant to SCHEDULE 8 of the Agreement in
connection with Variable Services provided in that month.
"VARIABLE SERVICES" means the Exclusive Variable Services and Non Exclusive
Variable Services performed by Sabre.
"WEB HOSTING SERVICES" means the Services described in SCHEDULE 2.3.
"WORK ORDER" means an agreement or other document signed by the Parties
pursuant to the Contract Administration Process to describe Services or to
implement an approved Request.
"YEAR 2000 COMPLIANT" means that the software program or computer system (a)
will operate and produce data before, on or after January 1, 2000 (including
taking into effect that such year is a leap year), accurately and without
delay, interruption or error relating to the fact that the time at which and
the date on which such items are operating is on or after 12:00 a.m. on
January 1, 2000; or (b) will accept, calculate, process, maintain, write and
output, accurately and without delay, interruption, or error any function
referencing a time or date on or after 12:00 a.m. January 1, 2000 or both,
whether before, on or after 12:00 a.m. on January 1, 2000, and any time
period determined or to be determined based on any such times or date, or
both.
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CONFIDENTIAL
SCHEDULE 2.1: DESKTOP SERVICES
1. SERVICE SCOPE. Desktop LAN management. Other hardware, software and
devices may be added to the Standard Desktop Environment as a Change
governed by the Contract Administration Process. The term of Schedule 2.1
will not extend beyong 8/31/2000. Prior to 8/31/2000 Sabre and
Travelocity will either terminate Schedule 2.1 or reach a new agreement
governed by the Contract Administration Process.
2. DESKTOP LAN MANAGEMENT.
- Sabre will monitor LAN availability and security.
- Sabre will provide LAN configuration management.
- Sabre will provide fix/break support for the Desktop LAN.
- Sabre will perform on-site technical troubleshooting and problem
resolution at Service Locations.
3. EXCLUSIONS. The following services are not considered Desktop Services
and are Customer's responsibility, but can be provided by Sabre as
Non-Exclusive Variable Services:
a. FACILITY ENGINEERING.
- Consulting related to the design of TI rooms and wiring closets, and power
systems supporting computer workstations and information systems,
including dimensions, materials, room layout, and design/location of
communication equipment racks/rails.
- Consulting on TI room mechanical requirements, including air conditioning,
ventilation and fire suppression systems.
- Consulting on TI room electrical requirements, including UPS, surge
suppression, emergency generators, voltage regulators, transformers,
panelboards, branch circuitry, receptacles, grounding, lighting, and alarm
systems.
- Consulting on the routing of cabling through conduit, and cable tray and
conduit sizing.
a. PHYSICAL SITE PREPARATION. All work related to preparing and
maintaining floors, walls, ceilings, counters, cubicles and similar
facilities.
b. ADDRESS PROBLEMS. Resolving address problems which occur as a
direct result of an end user using devices not included in the
Standard Desktop Environment.
c. NON-STANDARD SUPPORT. Supporting hardware, software and other
devices not included in the Standard Desktop Environment or not
certified through Sabre's Integration Lab, and supporting trouble
calls arising from Customer attaching or loading hardware, software
or other devices to the LAN that are not included in the Standard
Desktop Environment.
d. CUSTOMER MOVES, ADDS, INSTALLS OR CHANGES. Customer moving,
installing, changing or de-installing its own devices and contacting
Sabre for the connection or to correct improper work.
e. NEW TECHNOLOGIES. Consulting related to assessing new technologies.
f. BACKUP SERVICES. Backing up, restoring and reloading Customer files
and infrastructure fileservers where an appropriate backup solution
has been acquired by Customer.
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CONFIDENTIAL
SCHEDULE 2.2: DATA AND VOICE SERVICES
Data and Voice Services refers to the following services:
1. DATA SERVICES.
a. DATA NETWORK SERVICES. Sabre will arrange for and manage the
following Third Party data network services:
- X.25/SDLC/ACL/SDN Service. Low-speed connections providing
data communication service between any two locations in which
Sabre's Third Party vendors have a presence. Customer can
request Sabre to arrange for remote areas to be covered using
Third Party satellite services.
- Frame Relay Service. High-speed direct access to the packet
switched data network and bandwidth management providing
"bandwidth on demand" and "bursty traffic requirements"
capabilities by use of a high bandwidth path, called a
Permanent Virtual Circuit ("PVC"), between two networks.
Customer shall subscribe to an allocated level of bandwidth
over the PVC, called the Committed Information Rate ("CIR"),
to obtain throughput at a certain speed.
- Circuit, Data Port and Router Installation. Sabre will
validate order information, oversee the installation services
provided by Third Parties, and initiate and manage problem
resolution on behalf of Customer with such Third Party
providers. Sabre will also provide on-site support for
installations at the Service Locations utilizing Sabre
personnel or Third Party vendors. Customer remains
responsible for ensuring that Customer's facilities can
accommodate any such installations.
b. ROUTER SERVICE. Sabre will arrange for and manage routers. Sabre
will arrange for an manage router hardware and software as part of
this managed service. Sabre will arrange for and manage router
hardware and software maintenance services provided by Third Party
vendors selected by Sabre. The Account Managers shall determine the
level of maintenance support provided by such Third Party vendors at
the various Service Locations by selecting among the following three
levels of service:
- Monday through Friday, 9 a.m. to 5 p.m., with a [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED]response time;
- 7x24, with a [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]response time; and
- 7x24, with a [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]response time.
All of the foregoing levels of maintenance include parts, labor and
travel expenses. Sabre will arrange for hardware and software
upgrades for technology refreshes that are performed at Sabre's
discretion. A technology refresh is the process of upgrading router
hardware or software components to install the next generation or
version of the existing resource. From time to time Customer may
request changes in the technology configuration utilized by Sabre,
provided Customer is responsible for all costs and expenses incurred
by Sabre in implementing such changes. A technology change is the
process of altering the configuration of router hardware or software
components (e.g. introducing high capacity routers to accommodate
additional Customer requirements).
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CONFIDENTIAL
c. LOCAL CHANNEL DIAL BACKUP SERVICE. Sabre will arrange for Third
Party vendors to provide dial backup services enabling network
redundancy and recovery capability. This service provides service
protection from the digital service unit to the network frame relay
port at any Service Location with a Sabre-provided data port. The
service bypasses the local circuit in the event of failure and
connects via analog or ISDN service from the digital service unit to
the frame relay provider's local point of presence. The service
automatically executes dial back-up on detection of local channel
failure and disconnects when service is again recognized.
d. MANAGEMENT SERVICES. In managing the data network services
described in paragraph 1 of this SCHEDULE 2.2, Sabre will provide
the following administrative services:
- NETWORK DESIGN. Sabre will define data parameters, perform a
customer needs analysis, provide a cost analysis and deliver a
solution recommendation. Sabre will create the network design
and specifications package and will oversee those Third
Parties that implement the agreed solution.
- ENGINEERING. Sabre will provide traffic engineering and
network capacity planning to maximize circuit usage, assess
host connectivity, and install technologies that the parties
determine best meets Customer's specific usage requirements.
Such technologies include, without limitation, ALC, X.25,
Frame Relay, and TCP/IP.
- NEW COMPONENT TESTING. Sabre will test new network components
before adding them to the existing network.
- APPLICATIONS SUPPORT. Sabre will provide consulting support
on customer applications to provide for compatible interface
and transmission protocols with the wide area network.
- NETWORK OPERATIONS CENTER. Sabre will monitor the reliability
of Third Party service providers.
- HELP DESK. Sabre will provide a 7x24 help desk for
coordinating problem resolution services. Customer's service
representative will initiate such services by contacting the
help desk to log details associated with the problem. If
Sabre determines the problem relates to products or services
provided by Sabre, the help desk representative will refer the
problem to Sabre's designated subject matter expert ("SME")
for resolution. If Sabre determines the problem relates to
products or services provided by Third Party vendors and
arranged for by Sabre, Sabre will request the appropriate
Third Party vendor to resolve the problem. A Sabre
representative will work with such Third Party vendor to
monitor problem resolution and follow-up with Customer to
close out open logged problems.
- PLANNING. Sabre will analyze and communicate to Customer
changes in related technology, marketplaces, and regulatory
treatments.
- CONTRACT ADMINISTRATION. Sabre will provide contract
administration services related to those contracts with Third
Party service providers, including tariff analysis, contract
management, and interfacing with vendors to resolve
performance or other contractual issues on behalf of Customer.
- AUDITING SERVICES. Sabre will review invoices submitted by
Third Party service providers to assess the accuracy of such
invoices.
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- CUSTOMER REPORTS. Sabre will provide billing, volume, usage
trends and analysis reports describing Customer's utilization
of its data network.
- EVALUATION OF NEW TECHNOLOGY. Sabre will research new and
emerging telecommunications technology features and
enhancements that may provide cost reductions while improving
overall service capabilities.
- IP ADDRESS MANAGEMENT. Sabre will manage Customer's IP
addresses.
e. ON-SITE SUPPORT. Sabre can send personnel at the request of
Customer to provide on-site support for problem management or
resolution, as applicable, provided Customer is responsible for
paying or reimbursing Sabre for all costs and expenses related to
sending personnel to such sites.
2. REMOTE CONNECTIVITY.
a. MANAGED DIAL SERVICES. Sabre will arrange for and manage Third
Party remote dial services allowing Customer to remote access its
LAN infrastructure without requiring a dedicated communications line
by using point to point protocol to provide remote access to
Internet protocol hosts. ISDN may be available to Customer if ISDN
services are offered by the Third Party provider in the area from
which the user attempts to remote access the network.
b. MANAGEMENT SERVICES. In managing the managed dial services
described in paragraph 2(a) of this SCHEDULE 2.2, Sabre will provide
the following administrative services:
- ENGINEERING. Sabre will provide traffic engineering and
network capacity planning to maximize circuit usage, assess
host connectivity, and install technologies that the parties
determine best meets Customer's specific usage requirements.
Such technologies include, without limitation, X.28 dial, PPP,
TCP/IP, and VPN.
- PROVISIONING. Sabre will set up and monitor Customer user
accounts, as well as order, oversee delivery of and test the
managed dial services.
- APPLICATIONS SUPPORT. Sabre will provide consulting support
on customer applications to provide for compatible interface
and transmission protocols with the network.
- NETWORK OPERATIONS CENTER. Sabre will monitor the reliability
of Third Party service providers.
- HELP DESK. Sabre will provide a 7x24 help desk for
coordinating problem resolution services. Customer's service
representative will initiate such services by contacting the
help desk to log details associated with the problem. If
Sabre determines the problem relates to products or services
provided by Sabre, the help desk representative will refer the
problem to Sabre's designated subject matter expert ("SME")
for resolution. If Sabre determines the problem relates to
products or services provided by Third Party vendors and
arranged for by Sabre, Sabre will request the appropriate
Third Party vendor to resolve the problem. A Sabre
representative will work with such Third Party vendor to
monitor problem resolution and follow-up with Customer to
close out open logged problems.
- PLANNING. Sabre will analyze and communicate to Customer
changes in related technology, marketplaces, and regulatory
treatments.
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- AUDITING SERVICES. Sabre will review invoices submitted by
Third Party service providers to assess the accuracy of such
invoices.
- CUSTOMER REPORTS. Sabre will provide billing, volume, usage
trends and analysis reports describing Customer's utilization
of the managed dial services.
- EVALUATION OF NEW TECHNOLOGY. Sabre will research new and
emerging telecommunications technology features and
enhancements that may provide cost reductions while improving
overall service capabilities.
- USER MANUALS. Sabre will develop and coordinate distribution
of user manuals.
3. VOICE SERVICES.
a. VOICE NETWORK SERVICES. Sabre will arrange for and manage
Customer's voice network for inbound and outbound calls across
multi-vendor networks. Such Third Party provided services include
inbound 800 services, outbound long distance services, and calling
card services, and related provisioning, engineering, consulting,
operation and management services.
b. MANAGEMENT SERVICES. In managing the voice services described in
paragraph 3 of this SCHEDULE 2.2, Sabre will provide the following
administrative services:
- ENGINEERING. Sabre will provide traffic engineering and
network capacity planning to maximize circuit usage. Sabre
will manage the traffic across all network trunks including
trunk analysis and optimization, traffic routing based on
Customer's requirement profiles including, without limitation,
time of day routing, geographical routing or traffic load
routing based on the volume of traffic at any given time.
- PROVISIONING. Sabre will order, oversee delivery of and test
the voice services.
- NETWORK OPERATIONS CENTER. Sabre will monitor the reliability
of Third Party service providers.
- HELP DESK. Sabre will provide a 7x24 help desk for
coordinating problem resolution services. Sabre will take
calls into the help desk between the hours of 8 am to 5 pm and
then via pager after hours. Customer's service representative
will initiate such services by contacting the help desk to log
details associated with the problem. If Sabre determines the
problem relates to products or services provided by Sabre, the
help desk representative will refer the problem to Sabre's
designated subject matter expert ("SME") for resolution. If
Sabre determines the problem relates to products or services
provided by Third Party vendors and arranged for by Sabre,
Sabre will request the appropriate Third Party vendor to
resolve the problem. A Sabre representative will work with
such Third Party vendor to monitor problem resolution and
follow-up with Customer to close out open logged problems.
- PLANNING. Sabre will analyze and communicate to Customer
changes in related technology, marketplaces, and regulatory
treatments.
- CONTRACT ADMINISTRATION. Sabre will provide contract
administration services related to those contracts with Third
Party service providers, including tariff analysis, contract
management, and interfacing with vendors to resolve
performance or other contractual issues on behalf of Customer.
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- AUDITING SERVICES. Sabre will review invoices submitted by
Third Party service providers to assess the accuracy of such
invoices.
- CUSTOMER REPORTS. Sabre will provide billing, volume, usage
trends and analysis reports describing Customer's utilization
of the voice services.
- EVALUATION OF NEW TECHNOLOGY. Sabre will research new and
emerging telecommunications technology features and
enhancements that may provide cost reductions while improving
overall service capabilities.
- AUTHORIZATION CODE MANAGEMENT. Sabre will manage long
distance dialing codes to monitor and track abuse of long
distance voice services by Customer's employees.
4. VOICEMAIL.
a. VOICE MESSAGING SERVICES. Sabre will arrange for and manage voice
messaging services that include message storage and retrieval,
network messaging, dial-by-name capabilities, and creation and
deletion of voice mailbox for users. Sabre may, at Sabre's sole
discretion, later outsource the voice messaging services to a Third
Party provider. Customer may select among the classes of service
indicated below. Customer will make such selection according to its
requirements for each Customer employee and at the time it adds a
mailbox. Customer may then change the selection it made at any time
following the month in which Customer initiated the service.
- Service Level 1 - Voice Box: [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]messages retained for up to [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED] days
- Service Level 2 - Message Lite: Adds more memory and
outcall/pager in addition to voice box.
- Service Level 3 - Answer Box: Adds telephone answering in
addition to voice box and message lite.
- Service Level 4 - Remote Box: Adds remote answering in
addition to voice box, message lite and answer box.
- Service Xxxxx 0 - Advanced: Adds additional memory in addition
to voice box, message lite, answer box and remote box.
- Service Level 7 - Advanced Custom: Unlimited message retention
in addition to voice box, message lite, answer box, remote box
and advanced.
b. MANAGEMENT SERVICES. In providing the voice messaging services
described in paragraph 4 of this SCHEDULE 2.2, Sabre will also
provide the following administrative services:
- ENGINEERING. Sabre will provide traffic engineering and
capacity planning to maximize circuit usage. Voice mail
engineers will ensure that the Voice Mail systems integrate
with the premise switch and the traffic to the voicemail
system is received over optimized trunks so that voicemail
does not give a busy signal to the Customer.
- PROVISIONING. Sabre will set up and maintain Customer user
accounts, as well as order, deliver and test the voice
messaging services.
- OPERATIONS. Sabre will monitor the reliability of Third Party
service providers.
- HELP DESK. Sabre will provide a 7x24 help desk for
coordinating problem resolution services. Sabre will take
calls into the help desk between the hours of 8 am to 5 pm
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and then via pager after hours. Customer's service
representative will initiate such services by contacting the
help desk to log details associated with the problem. If
Sabre determines the problem relates to products or services
provided by Sabre, the help desk representative will refer the
problem to Sabre's designated subject matter expert ("SME")
for resolution. If Sabre determines the problem relates to
products or services provided by Third Party vendors and
arranged for by Sabre, Sabre will request the appropriate
Third Party vendor to resolve the problem. A Sabre
representative will work with such Third Party vendor to
monitor problem resolution and follow-up with Customer to
close out open logged problems.
- PLANNING. Sabre will analyze and communicate to Customer
changes in related technology, marketplaces, and regulatory
treatments.
- CUSTOMER REPORTS. Sabre will provide billing, volume, usage
trends and analysis reports describing Customer's utilization
of the managed dial services.
- EVALUATION OF NEW TECHNOLOGY. Sabre will research new and
emerging telecommunications technology features and
enhancements that may provide cost reductions while improving
overall service capabilities.
- USER TRAINING AND MANUALS. Sabre will provide user training
classes at the Service Locations and will develop and
coordinate distribution of user manuals.
5. CAMPUS TELEPHONE. Sabre will manage campus telephone lines and manage,
plan, design and engineer the infrastructure of telephone systems at the
Service Locations. Telephone lines managed by Sabre include Private
Branch Exchanges (PBX), Centrex Service and Automatic Call Distributors
(ACD's), and large telephone key systems for large business applications.
Sabre will recommend telephone system modifications based on changing
Customer requirements and negotiate service contracts such as rate
stabilization contracts, maintenance contracts and local trunking
contracts with Third Party providers. Sabre provides for the
Install/Move/Add/Change ("IMAC") activity for Customer.
a. Add: Any activity related to adding a new device. An add will
increase the count of the inventory database.
b. Change: Changing a device configuration or peripheral component.
Includes installing, deinstalling, or changing software on the
device. This activity does not alter the number of devices on the
inventory database.
c. Move: Relocation of an existing device. Equipment-funding document
is not required. A move will not alter the number of devices on the
inventory database.
Sabre will provide a 7x24 help desk for coordinating problem resolution
services. Sabre will take calls into the help desk between the hours of 8
am to 5 pm and then via pager after hours. Customer's service
representative will initiate such services by contacting the help desk to
log details associated with the problem. If Sabre determines the problem
relates to products or services provided by Sabre, the help desk
representative will refer the problem to Sabre's designated subject matter
expert ("SME") for resolution. If Sabre determines the problem relates to
products or services provided by Third Party vendors and arranged for by
Sabre, Sabre will request the appropriate Third Party vendor to resolve
the problem. A Sabre representative will work with such Third Party
vendor to monitor problem resolution and follow-up with Customer to close
out open logged problems.
[6. INTERNET ACCESS.
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a. HOST LINK. Sabre will arrange for a Third Party Internet service
provider to provide a host link enabling Customer's employees to
access standard business oriented Internet information services on
the World Wide Web at the following Customer sites: Centreport I,
Centreport II, Centreport IV, Centreport V, Trinity and Solana.
Users are able to browse the World Wide Web and utilize those
resources of the Internet permitted under Customer's Internet usage
policies. Internet access is integrated into the user's desktop and
allows seamless access to both the corporate Intranet sites and to
Internet sites. Netscape Communicator 4.5 will be provided to
Customer. Setup instructions for Microsoft Internet Explorer will
be made available if Customer does not desire to use Netscape
Communicator 4.5.
b. SCOPE OF SERVICES.
- HTTP Proxy - Browser access to the World Wide Web
- Telnet Proxy - Command Line Telnet
- FTP Proxy - File Transfer Protocol for uploading or
downloading files
- Newsgroups - Access to USENET News Services
- Real Audio - Streaming Audio and Video
- AOL Instant Messenger - Online Chat service
- Pointcast - Push News service
- NTP - Time Services to set computer with Atomic clock
- SOCKS Services - Multi-purpose Internet Access
c. ATTRIBUTES OF INTERNET SERVICES.
- Integrated into Customer desktop
- Includes Netscape Communicator 4.5
- Setup instructions for Microsoft Internet Explorer will
be made available
- Does not require external modem or dial connection
- Utilizes existing desktop LAN infrastructure
- Performance
- Connection speeds of up to 10Mbps
- Utilizes fully redundant dedicated ISP connections
- Dedicated connection - no dial connect time delay
- Availability
- Never a busy signal delay
- Available 7x24 (seven days a week, 24 hours per day)
- Security
- Firewall protection of workstation and internal network
- User Authentication
- Enforcement of Customer's Internet usage policies
- Monitoring of access to inappropriate sites
- List of 200 banned words/sites
- Reports sent to human resources for employees violating
policy
- Availability of full access logs and audit trail
- Query function available to human resources'
representative
- Filtered newsgroups
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- Customer Support
- Sabre will provide a 7x24 help desk for coordinating
problem resolution services. Sabre will take calls into
the help desk between the hours of 8 am to 5 pm and then
via pager after hours. Customer's service
representative will initiate such services by contacting
the help desk to log details associated with the
problem. If Sabre determines the problem relates to
products or services provided by Sabre, the help desk
representative will refer the problem to Sabre's
designated subject matter expert ("SME") for resolution.
If Sabre determines the problem relates to products or
services provided by Third Party vendors and arranged
for by Sabre, Sabre will request the appropriate Third
Party vendor to resolve the problem. A Sabre
representative will work with such Third Party vendor to
monitor problem resolution and follow-up with Customer
to close out open logged problems.
- Browser software upgrades to Sabre-certified Netscape
Communicator Software. Sabre can peform upgrades or
change browsers at Customer's request, provided Customer
pays or reimburses Sabre for all costs and expenses
incurred by Sabre relating to such upgrades or changes.
- User documentation is available on line
7. INITIAL CONFIGURATION. For purposes of delivering the Data and Voice
Services, the initial configuration is set forth in EXHIBIT A to this
SCHEDULE 2.2. Any modifications to such initial configuration shall be
considered a Change governed by the Contract Administration Process.
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EXHIBIT A TO SCHEDULE 2.2: [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 2.3: WEB HOSTING SERVICES
Web Hosting Services refers to the services described below:
1. TULSA DATA CENTER: PREMISES AND SECURITY.
a. TULSA DATA CENTER PREMISES. In connection with providing the Web
Hosting Services described below, Sabre will provide and maintain
the Tulsa Data Center as follows:
- RESTRICTED ACCESS. Sabre will provide secure key card
restricted access to the Tulsa Data Center. Sabre will
provide controlled access to Third Party vendors from whom
Customer acquired hardware for use in the Tulsa Data Center to
enable hardware maintenance to be performed. In providing
such access, appropriate Sabre personnel will accompany Third
Party personnel while they perform such maintenance services
at the Tulsa Data Center.
- RAISED FLOOR. Sabre will provide for a raised floor at the
Tulsa Data Center to enable cable clearance for housing
Customer's servers.
- POWER HEAT AND COOLING. Sabre will provide environmentally
controlled conditions through the use of water powered heating
and cooling systems. Fire suppression equipment consisting of
dry pipe and deluge sprinklers, and inert gas and limited
applications, is also present in the Tulsa Data Center.
- UNINTERRUPTED POWER SUPPLY ("UPS"). Sabre will provide UPS to
back up all power supplies at the Tulsa Data Center. These
battery systems provide xxxxx tolerance and provide sufficient
power to operate the Tulsa Data Center for at least fifteen
(15) minutes. In addition, diesel generators automatically
start in the event of a power outage. These generators supply
all of the power necessary for the Tulsa Data Center, and can
be refueled to power the facility indefinitely. Sufficient
fuel is stored on premise to supply three days of operation,
and fuel delivery contracts are in place with multiple local
diesel fuel suppliers.
b. TULSA DATA CENTER SECURITY. In connection with providing the Web
Hosting Services described below, Sabre will provide facility and
resource security services at the Tulsa Data Center as follows:
- FACILITY SECURITY SERVICES. Sabre will provide physical
security for the Tulsa Data Center at commercially reasonable
levels, and in such a manner as to reasonably satisfy
Customer's external audit and risk management insurance
requirements. Multi-layered electronic access control, 24x7
on-site security guards and video surveillance equipment also
are utilized to provide additional protection.
- RESOURCE SECURITY SERVICES. Sabre will provide perimeter
infrastructure security around infrastructure system and
network resources. Sabre retains control and sole
responsibility for creating system security policies for all
Sabre infrastructure system and network resources. Sabre will
also be responsible for user account maintenance, including
adding, changing, and deleting user accounts, issuing
passwords, and tracking user access. Customer will be
responsible for creating system security policies for Sabre
managed Customer resources, approving user accounts, and
performing security audits within Sabre managed Customer
servers and Customer firewalls.
2. SERVER MONITORING: HARDWARE AND OPERATING SYSTEM.
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a. MONITORING. Sabre will monitor the operability and performance of
Sun, SGI, Windows NT, NCR and IBM hardware and related operating
systems at the Tulsa Data Center.
b. SERVICES. Sabre will perform the following services with respect to
the hardware and operating system software monitored by Sabre at the
Tulsa Data Center:
- Installation and testing of operating system and layered
products.
- Installation of software licenses.
- Upgrade operating system as provided by Customer.
- Evaluation of operating system and layered products.
- Apply provided software patches.
c. OPERATING SYSTEM MONITORING METHODOLOGY. Sabre will monitor the
systems identified in paragraph 2(a) of this SCHEDULE 2.3 on a 24x7
basis with respect to:
- Swap.
- Memory Utilization.
d. HARDWARE MONITORING METHODOLOGY. Sabre will provide 24x7 re-boot
services, and monitor the hardware identified in paragraph 2(a) of
this SCHEDULE 2.3 on a 24x7 basis with respect to:
- CPU Utilization.
- Disk Space.
- Network Pinging.
e. LIMITED APPLICATION MONITORING. Sabre will provide 24x7 automated
monitoring of Customer applications. Sabre and Customer will
establish reasonable levels of monitoring with respect to:
- Application Error and Performance (response time).
- URL Monitoring.
f. NOTIFICATION AND ESCALATION PROCEDURES. Sabre and Customer will
establish reasonable notification and escalation procedures with
respect to each of the performance criteria monitored under
paragraphs 2(a), (c), and (d) above. The procedures will include
notification and escalation thresholds appropriate for Customer's
business operations.
g. MAINTENANCE SERVICES. Sabre shall initiate problem resolution
services in response to problems in operating system or hardware
performance identified by Sabre under paragraphs 2(c) and 2(d) of
this SCHEDULE 2.3. Unless otherwise agreed by Sabre and Customer,
the resolution of operating system and hardware problems will be
performed by Third Party vendors, selected by Customer and
reasonably approved by Sabre, pursuant to maintenance contracts
between Customer and such Third Party vendors. Sabre and Customer
shall establish, by mutual agreement, reasonable levels of problem
resolution initiation communication between Sabre and such Third
Party vendors.
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h. EXCLUSIONS. Customer will be responsible for the following:
- Problem resolution relating to any failure of application
software monitored by Sabre at the Tulsa Data Center. Sabre's
only obligations with respect to problem resolution of
application software problems are to monitor problems
experienced in the production environment as specified in
paragraph 2(e) of this SCHEDULE 2.3, and notify Customer of
such problems pursuant to paragraph 2(f) of this SCHEDULE 2.3.
- All obligations and liabilities related to temporary root
passwords.
- Implementing software applications hosted on servers located
in the Tulsa Data Center and monitoring the operability and
performance of such software applications.
i. CUSTOMER NOTIFICATION. Customer will notify Sabre of any changes in
monitored operating systems, resulting from temporary root password
functions in Customer's possession/control.
3. SERVER MONITORING: DATABASE.
a. MONITORING. Sabre will monitor the operability and performance of
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] databases at the
Tulsa Data Center.
b. DATABASE MONITORING METHODOLOGY. Sabre will monitor the databases
identified in paragraph 3(a) of this SCHEDULE 2.3 on a 24x7 basis
with respect to:
- CPU Utilization.
- Disk Space.
- Extents Monitoring.
- Memory Utilization.
- Disk Failure Notification.
- DB Processes.
- DB Parameters.
c. EXCLUSIONS. Customer will be responsible for problem resolution
relating to any failure of the databases monitored by Sabre to
perform in accordance with their specifications or the Service
Levels set forth in SCHEDULE 5, unless Customer obtains such service
from Sabre as an Optional Web Hosting Service.
4. NETWORK SERVICES.
a. NETWORK. Sabre will arrange for and manage the communications
lines, network devices and related telecommunications infrastructure
used by Sabre in the Tulsa Data Center to connect Customer's servers
to the Internet, including LAN connectivity, load balancers, cache,
and switch/router administration. From time to time, Customer may
request Sabre to install at the Tulsa Data Center additional network
devices such as switches, routers,
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load balancers and firewalls purchased by Customer from Third Party
vendors pre-approved by Sabre, and Sabre will use commercially
reasonable efforts to provide such installation services within a
reasonable period of time from Customer's request.
b. NETWORK SUPPORT. Sabre will provide the following support services
relating to the communications lines, network devices and related
telecommunications infrastructure used by Sabre in the Tulsa Data
Center:
- Install network device software as Third Party vendors issue
new releases;
- Install, monitor and maintain network device software for
system connectivity;
- Maintain network equipment;
- Troubleshoot and repair network devices;
- Plan installation of network and environmental equipment at
the Tulsa Data Center;
- Initiate and manage problem resolution with Third Party
hardware vendors in order to resolve hardware problems;
- Order and schedule installation of network hardware with Third
Party vendors; and
- Initiate and manage problem resolution with Third Party
maintenance providers in order to resolve network device and
software problems.
c. MANAGEMENT SERVICES. Sabre will provide the following administrative
services with respect to the communications lines, network devices
and related telecommunications infrastructure used by Sabre in the
Tulsa Data Center:
- DESIGN. Sabre will provide network design and engineering
services.
- CONFIGURATION. Sabre will configure and test network
equipment.
- INSTALLATION SUPPORT. Sabre will provide network installation
support for adding devices, upgrading systems, and replacing
devices during the implementation window.
- TUNING. Sabre will analyze the network and provide
performance tuning.
- SECURITY. Sabre will monitor network systems for misuse and
unauthorized access.
- SECURITY CONSULTING. Sabre will provide network security
consulting services.
- ON-CALL SUPPORT. Sabre will provide 24x7 on-call engineering
support.
- NETWORK CONSULTING. Sabre will provide network consulting
services.
- STANDARD CAPACITY PLANNING. Sabre will provide capacity
planning and forecasting services.
- PLANNED CHANGES. Sabre will assess planned changes to the
network.
- PRODUCT EVALUATION. Sabre will evaluate new network products.
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d. FIREWALL. Sabre will provide firewall infrastructure devices at the
Tulsa Data Center comprised of redundant enterprise class [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] and stateful inspection
firewalls to form a multi-layered switched and routed network
infrastructure providing [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] access speeds with stateful packet inspection technology
and intrusion detection. This architecture comprises full backup
power systems and redundant network connectivity.
e. LOAD BALANCING SERVICE. Sabre will arrange for a Third Party vendor
to provide load balancing services within the Tulsa Data Center
firewall architecture in order to split data transmission into two
or more routes among the web and application servers located within
Customer's server architecture.
5. BACKUP SERVICES.
a. TAPE BACKUP. Sabre will offer daily incremental backups on tape,
and weekly full system backups on tape. Customer will notify Sabre
of each database instance or server for which Customer desires Sabre
to produce tape backups, and Sabre will perform such service
accordingly.
b. BACKUP PROCESS STOPS AND RESTARTS. Sabre will monitor the backup
process and stop and restart the backup process in the event of any
problem.
c. VERIFICATION AND LOG REPORTING. Sabre will verify that each backup
is completed and that the data has been copied in the appropriate
format for reinstallation, and create management log reports
cataloging the location of data on the tapes.
d. NOTIFICATION. Sabre will notify Customer via e-mail of any problem
conditions during the backup process.
e. STORAGE. Sabre will provide off-site storage of backup tape.
f. CUSTOMER'S OBLIGATION. Customer shall be responsible for all
purchases of tape.
6. STANDARD CAPACITY PLANNING. Sabre will monitor and provide Customer with
monthly written reports identifying CPU and memory utilization, booking
information, number of hits and page views, and Internet utilization.
7. INTERNET SERVICE PROVIDER (ISP) ACCESS. Sabre will arrange for and manage
Third Party provided links between the Tulsa Data Center and the Internet.
The links between Sabre and the ISP's are comprised of fully redundant
routers with [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] speed
connections that currently are connected to two providers. The ISP's
utilize a full transit, route optimized TCP/IP connectivity linked
directly to major Internet communication backbone lines. These ISP's
provide 24x7 circuit monitoring, outage reporting and troubleshooting from
their network operating centers, or their equivalent.
8. DOCUMENTATION. Customer will provide all existing documentation to
include Customer application internals, flows or connectivities on or
before the Effective Date. Sabre will assist Customer in developing
documentation that is either non-existent or inadequate. Sabre expects,
without limitation, the following:
a. Application description, diagrams, connectivity;
b. Monitor console message descriptions and actions required;
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c. Hardware specifications;
d. Customer contacts;
e. Support contacts, if in addition to those contracts with Third Party
providers managed by Sabre pursuant to this Agreement;
f. Special backup requirements;
g. Application procedures; and
h. Operations procedures.
Sabre will maintain these documents during the term of this Agreement.
9. OPTIONAL WEB HOSTING SERVICES.
a. OPTIONAL CAPACITY PLANNING SERVICES. Sabre can provide the
following capacity planning services:
- Utilize Sabre-proprietary methods and models to forecast
infrastructure needs and measure end-to-end response time
performance.
- Provide rolling hardware purchasing forecasts in the monthly
written reports submitted to Customer.
- Provide infrastructure growth and performance enhancement
recommendations.
- Meet with Customer monthly and consult with Customer to
develop custom recommendations, modeling and trending
analysis.
b. SYSTEM MANAGER CUSTOMER INTERFACE. Sabre can provide a dedicated,
on-site resource to serve as a single point of contact for Customer
who will perform event management for existing systems, identify and
enlist necessary resource group participation, and track and drive
problem resolution, including action items and their ownership.
c. ASSET MANAGEMENT. Sabre can provide web hosting asset management
services, including warranty contract negotiation, software
licensing and contract renewal negotiation, hardware and software
purchase negotiation, and hardware tagging and tracking.
d. TECHNICAL CONSULTING. Sabre can provide technical consulting
services including, but not limited to, UNIX and database
engineering, database management, network connectivity, hardware and
application restoration and fixes, and disaster recovery planning
and validation.
e. DATABASE PROBLEM RESOLUTION. Sabre can provide problem resolution
services for any failure of the databases monitored by Sabre to
perform in accordance with their specifications or the Service
Levels set forth in SCHEDULE 5.
f. CHANGE MANAGEMENT SERVICES. Sabre can provide the following change
management services:
- Issue, track and manage change records.
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- Identify and coordinate the approval and notification process
for all implementations.
- Execute implementation policy for normal and exception change
records.
- Send out notification on change records that were created
after the implementation takes place ("after the fact"
records).
- Investigate "after the fact" change requests for status.
- Schedule and coordinate all implementations, with
communication through daily Internet implementation meetings.
10. REPORTS. Sabre will provide to Customer the following written reports at
the times indicated below:
a. Daily INET availability;
b. Daily keynote performance;
c. Monthly capacity of the hardware monitored under paragraph 2(a) of
this SCHEDULE 2.3;
d. Monthly performance of Customer's applications monitored under
paragraph 2(d) of this SCHEDULE 2.3; and
e. Monthly Internet utilization, capacity and performance.
11. CUSTOMER'S OBLIGATION TO REFRESH HARDWARE AND OPERATING SYSTEM. Customer
will upgrade and/or refresh the hardware and related operating systems
identified in paragraph 2(a) of this SCHEDULE 2.3 which Sabre monitors as
part of the Web Hosting Services no less than every two (2) years in order
to maintain a level of technology comparable to the level of technology
generally adopted from time to time by Web hosting service providers. In
the event Customer does not upgrade or refresh such hardware and related
operating systems pursuant to this paragraph 10, the affected SLAs will be
appropriately adjusted by Sabre.
12. INITIAL CONFIGURATION. For purposes of delivering the Web Hosting
Services, the initial configuration is set forth in EXHIBIT A to this
SCHEDULE 2.3. Any modifications to such initial configuration shall be
considered a Change governed by the Contract Administration Process.
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EXHIBIT A TO SCHEDULE 2.3:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 2.4: DEVELOPMENT SERVICES
Applications development services with respect to CRS Software; provided that
Sabre has the legal and contractual right to perform such development
services; and provided further that Sabre may refuse to perform a development
service if, in Sabre's reasonable business judgment, performing such
development service would jeopardize the security, integrity or viability of
the CRS Software or the Sabre CRS.
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SCHEDULE 3: EXCLUSIVE VARIABLE SERVICES
1. NETWORK SERVICES. The following Network Services are Exclusive Variable
Services:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 4: MEASURED SERVICES
1. MID RANGE SERVER AVAILABILITY. Mid range server availability measures the
uptime and downtime of mid range servers managed by Sabre at the Data
Center in order to gauge the performance, reliability and accessibility of
such servers and related infrastructure.
a. MAXIMUM AVAILABILITY. "Maximum Availability" is the maximum amount
of time each month during which the system shall be operable.
Maximum Availability is computed by multiplying the number of days
in a given month by the number of minutes in each such day (1440),
and subtracting from that the total minutes of the Scheduled
Outages.
(i) SCHEDULED OUTAGES. "Scheduled Outages" are those periods of
time during which Sabre takes the server(s) off-line in order
to perform the following pre-approved functions during the
times and days indicated below and are not considered Downtime
(defined below):
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
In addition, if Customer requests Sabre to take any of the
servers off-line, then the period of time during which the
server(s) remain off-line shall be considered a Scheduled
Outage.
(ii) IMPACT EVENTS. "Impact Events" are situations where one or
more functions of the system are inoperable for a period of
time but are not considered Unscheduled Outages, and will not
be included in the availability calculation, unless otherwise
noted. Impact Events may be reported separately from SLA
performance. Impact Events may include any of the following
occurrences:
(A) Failures of an Internet Service Provider (ISP)
connectivity or network services that are provided by
Third Parties; as long as it does not result in an
Unscheduled Outage;
(B) Farewatcher failure;
(C) Email failure;
(D) BTS Seatmaps failure;
(E) Weather failure;
(F) Unscheduled Outages caused by any failure or changes in
Customer's proprietary applications hosted on the
servers;
(G) Failure in LAN components managed by Sabre including,
without limitation, routers and switches; as long as it
does not result in an Unscheduled Outage;
(H) Sabre DNS failure in which the duration is less than
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]. Once
the duration of the DNS failure exceeds [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED], then it is considered
an Unscheduled Outage;
(I) Unscheduled Outages caused by any failure of the Open
Front End Processor or Sabre's PSS or FPC mainframe
system;
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CONFIDENTIAL
(J) Any system failure that does not result in an
Unscheduled Outage but negatively impacts Customer's
users' ability to access Customer's product; or
(K) When the peak response time for Customer's applications
is [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]times the "normal." (average of peak response
times, measured Monday through Friday). Sabre will
periodically benchmark the "normal" response time as
described below in paragraph 1(c) of this SCHEDULE 4.
b. UNSCHEDULED OUTAGE. "Unscheduled Outage" measures those periods of
time during which the system is completely inoperable. An
Unscheduled Outage is measured from the point in time in which the
problem begins due to the occurrence of one of the events listed
below to the point in time in which such problem is resolved
(problem ticket is closed). However, Unscheduled Outages that are
attributed to Customer negligence or Customer software failure are
considered an Impact Event. For Unscheduled Outages that are
attributed to Customer negligence or Customer software failure,
Sabre will only be responsible from the time that the Unscheduled
Outage began until the time in which the Unscheduled Outage is
reported according to agreed upon problem escalation procedures.
Customer may request a correction of the Unscheduled Outage period
by submitting evidence to the Account Managers that the problem
began or got resolved at a time different than what was reported in
the problem ticket. Upon review of the evidence, if the Account
Managers agree that the problem ticket did not accurately reflect
the Unscheduled Outage period and the difference is greater than
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED], the problem
ticket will be corrected.
Unscheduled Outages include any of the following occurrences:
(i) Inoperability of all application servers;
(ii) Inoperability of all homepage servers;
(iii) Inoperability of all content servers;
(iv) Inoperability of the profile or content database;
(v) When the number of concurrent users in a [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] period decreases by [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] or more from the
previous [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]period and the cause of the decrease is determined
to be the result of Sabre support activity; or
(vi) When the number of passenger bookings in a [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] period decreases by [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] or more from the
previous [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
period and the cause of the decrease is determined to be the
result of Sabre support activity.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 5: SERVICE LEVEL AGREEMENTS
1. MID RANGE SERVER AVAILABILITY. The mid-range server availability SLA
Standard shall equal [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED],
calculated on a monthly basis as follows:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 6: PERFORMANCE REPORTS
1. OVERVIEW.
The monthly performance reports for the SLAs will be released and viewable
online at a URL address that will be disseminated to Customer no later than June
30, 2000 (the "SLA PERFORMANCE DATABASE WEBSITE"). The SLA Performance Database
Website will enable recording, tracking, reporting, and storing of the Measured
Services. These performance data and metrics will be secured to serve only
designated and approved employees of Sabre and Customer.
As the monitoring/reporting cycle begins anew each consecutive calendar month,
the following steps are performed:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
2. ACCESS.
Users of the SLA Performance Database Website access the reports via a PC
running a minimum operating system of DOS 3.1 or WIN95 and a minimum browser of
Netscape browser (version 3.0 or 4.0, with 4.0 preferred), or Internet Explorer
3.0 and Sabre's Intranet/Internet.
The SLA Performance Database Website has restricted read and write access:
- Update access is granted only to support personnel such as Sabre Reporters
who actually gather measurement data required for each SLA;
- one of the Sabre SLA Performance Report Coordinators, who also serves as a
database administrator; and
- Read access is furnished on a "need-to-know" basis, including Sabre
support personnel, Sabre Account Management teams, and the specific
individuals identified by Customer's management.
3. REPORT TYPES.
The reports are generated and viewable online and will appear as follows:
(a) TABLE OF CONTENTS.
Lists all the summary reports as well as reports on individual SLA
environments.
(b) EXECUTIVE SUMMARY REPORT.
Recaps performance each month, alphabetically listing data by
category and SLA, and displaying availability/prime hours, number of
green days, and red days.
(c) MONTHLY PERFORMANCE.
Summarizes performance for 13 months, alphabetically listing data by
SLA, risk level, and metric description. Color and symbols are
combined as green (up) arrows, yellow (horizontal) arrows, and red
(down) arrows to indicate acceptable, marginally acceptable, and
unacceptable performance, respectively. Diamonds indicate that
tolerances for performance have not yet been set. Clicking on the
symbol links to the full document.
(d) DAILY PERFORMANCE.
Summarizes daily performance each month alphabetically by SLA.
Color and symbols are combined as green (up) arrows, yellow
(horizontal) arrows, and red (down) arrows to
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CONFIDENTIAL
indicate acceptable, marginally acceptable, and unacceptable
performance, respectively. Diamonds indicate that tolerances for
performance have not yet been set. Clicking on the symbol links
to the full document.
(e) PROBLEM/ STATUS INFORMATION.
Lists monthly Outages, providing date, time of day, duration, and
textual descriptions of the problem and its explanation.
(f) PROBLEM EXPLANATION.
Sabre will provide explanations of any incident where availability
fails to meet standard.
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SCHEDULE 7: CONTRACT ADMINISTRATION PROCESS
1. OVERVIEW.
This Contract Administration Process outlines procedures by which the Parties
(i) propose or request Changes, (ii) implement and manage Changes agreed in
writing by the Parties, and (iii) resolve problems and Issues.
2. CERTAIN DEFINITIONS.
This Section 2 sets forth certain definitions used in this Contract
Administration Process. Other capitalized terms used but not defined herein
have the meanings ascribed to them in the Agreement.
IMPACT ANALYSIS
The Impact Analysis is the document analyzing the (a) cost, scope, timeline, and
technological and business risks, (b) impacts on other Customer or Sabre
departments, products, projects or customers, and/or (c) other impacts, in each
case resulting from implementation, or lack thereof, of a Change.
ISSUE
An Issue constitutes a question, concern or request which, in the opinion of
either Customer or Sabre, has not been, or may not be, efficiently or
effectively resolved and which may have an impact on the cost, scope, timeline,
objectives, deliverables or performance of the Base Services or Variable
Services, other than any question, concern or request that either Account
Manager has notified the other Account Manager and the Project Office that he
believes constitutes a Dispute.
ISSUE ANALYSIS
The Issue Analysis is the document analyzing the (a) cost, scope, timeline, and
technological and business risks, (b) impacts on other Customer or Sabre
departments, products, projects or customers, and/or (c) other impacts, in each
case resulting from resolution, or lack thereof, of an Issue.
OWNER
The individual responsible for evaluating the impact of a Change or Issue,
developing the Impact or Issue Analysis and facilitating implementation of the
solution when approved.
ORIGINATOR
The individual from either Customer or Sabre who initiates the Request.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
PROJECT OFFICE
The centralized management office where Changes, Issues and plans are
maintained, logged, tracked and reported, and where other central customer
service functions are located.
REQUEST
A request to resolve an Issue or implement a Change submitted by either Customer
or Sabre.
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STEERING COMMITTEE
The Steering Committee is a management body comprised of designated senior
management from each Party. The Steering Committee functions as the approving
body for all Requests that (a) involve (i) [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] in capital, or (ii) require [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] of labor, and/or (iii) require an amendment of this
Agreement, other than a Change in the Services to be provided by Sabre or within
the Account Managers' authority, or (b) are within the authority of, but not
approved by, the Account Mangers. The Steering Committee may delegate authority
to the Account Managers to manage recurring Requests such as capacity upgrades.
In addition, the Steering Committee functions as the forum in which the Parties
negotiate resolution of Disputes that (a) involve (i) ) [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] in capital obligations under this Agreement,
or (ii) involve ) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] of labor, or
(iii) would materially affect the rights (including Intellectual Property
Rights) of either Party, or (b) are within the authority of, but not resolved
by, the Account Managers.
STATUS CODES
Status codes are used by the Project Office to track and report Changes and/or
Issues.
------------------------------------------------------------------------------------------------------
Code Short Description Description
------------------------------------------------------------------------------------------------------
OPN Open Request New Request logged by Project Office. Owner not
assigned.
------------------------------------------------------------------------------------------------------
EST Prepare Analysis Estimate Request assigned to the Owner for the sole purpose of
preparing an estimate to perform Impact or Issue
Analysis.
------------------------------------------------------------------------------------------------------
ANL In Analysis Request currently being analyzed.
------------------------------------------------------------------------------------------------------
REV1 Account Management Review Request is waiting for Account Management action.
------------------------------------------------------------------------------------------------------
REV2 Steering Committee Review Request is waiting for Steering Committee action.
------------------------------------------------------------------------------------------------------
MOD Modifications Requested Open Request initial analysis completed and presented.
Modifications requested by Account Management or
Steering Committee.
------------------------------------------------------------------------------------------------------
APR Approved Request approved or approved with modifications by
Account Management and/or Steering Committee.
------------------------------------------------------------------------------------------------------
DEF Defer Request will be considered.
------------------------------------------------------------------------------------------------------
REJ Rejected Request not approved, will not be revisited.
------------------------------------------------------------------------------------------------------
CLS Closed Request Approved and incorporated into applicable
------------------------------------------------------------------------------------------------------
WORK ORDER
An agreement or other document signed by both Parties pursuant to this Contract
Administration Process that sets forth the terms and conditions pursuant to
which the Parties agree that a Change is to be implemented or an Issue or
Dispute resolved.
3. CONTRACT ADMINISTRATION PROCESS FOR REQUESTS TO IMPLEMENT CHANGES AND
RESOLVE ISSUES.
(a) SUBMIT REQUEST.
The Originator will complete the Request and submit it to either
Account Manager or to the Project Office. If a Request is submitted
to an Account Manager, he will forward the Request to the Project
Office, with a copy to the other Account Manager.
If at any time during the process set forth in this Section 3(a),
either Account Manager determines that funding for a Request will
not be approved, the Request will be immediately rejected.
71
If at any time during the process set forth in this Section 3(a),
either Account Manager determines that a question, concern or
request characterized as an Issue constitutes, or has evolved into,
a Dispute that should be resolved under the process set forth in
SCHEDULE 13, he shall so notify the other Account Manager and the
Project Office. From and after such notification, such question,
concern or request shall be processed as a Dispute under the Dispute
Resolution Process set forth in SCHEDULE 13 to the Agreement.
(b) LOG REQUEST.
The Project Office will assign a number to the Request, create a
brief description for reporting purposes, and log the Request into
the tracking system.
(c) ASSIGN RESPONSIBILITY FOR IMPACT OR ISSUE ANALYSIS.
The Project Office will assign an Owner and forward the Request to
the Owner for preparation of an Impact or Issue Analysis. The
Account Managers must approve the initiation of the research and
preparation for an Impact or Issue Analysis.
Labor and other costs incurred by Sabre in connection with
researching and preparing Impact and Issue Analyses (including
revisions or additions) will be charged to Customer as Exclusive
Variable Services.
(d) PREPARE IMPACT OR ISSUE ANALYSIS.
When researching and preparing an Impact or Issue Analysis, the
Owner shall solicit input from all impacted project team members. An
Impact or Issue Analysis shall include at least one recommended
solution from the Owner. Upon completion, the Owner shall forward
the Impact or Issue Analysis to the Project Office.
(e) REVIEW AND DECIDE.
The Project Office will hold regular meetings to perform a
preliminary review and summary of all Requests and Impact or Issue
Analyses. The Account Managers and other appropriate personnel will
attend the regular meetings. The Account Managers will have the
authority to approve all Requests that (a) involve less than ) [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] in capital, (b) require
less [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] of labor, and
(c) do not require an amendment to this Agreement other than as a
result of the foregoing (other than an amendment of the description
of Services to be provided by Sabre under this Agreement.) In
addition, the Account Managers will have the authority to negotiate
resolution of Disputes that (a) involve less than [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] in capital obligations under this
Agreement, (b) involve less than [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] of labor and (c) would not materially affect
the rights (including Intellectual Property Rights) of either Party.
The Account Managers may, at their election, require revisions to,
or additional research or information not included in, an Impact or
Issue Analysis in connection with their analysis of a Request and
related Impact or Issue Analysis.
(i) If the Request is within the authority of the Account
Managers, the Account Managers will approve or reject the
Request.
If the Account Managers approve the Request, the approval and
reasons therefor shall be documented, a copy retained by the
Account Mangers and the Project Office, a copy forwarded to
the Owner and Originator, and the Request shall be
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CONFIDENTIAL
implemented commencing upon completion and execution by both
Parties of the applicable Work Order(s).
If the Account Managers reject the Request, the rejection and
reasons therefor shall be documented, a copy retained by the
Account Managers and Project Office, a copy forwarded to the
Owner and Originator, and the Request will not be implemented.
If the Account Mangers cannot agree whether to approve or
reject the Request, the disagreement and reasons therefor
shall be documented, a copy retained by the Account Managers
and Project Office, a copy forwarded to the Owner and
Originator, and the Request and related documentation shall be
forwarded to the Steering Committee for their review and
decision.
(ii) If the Request is not within the authority of the Account
Managers, the Account Managers will (1) summarize the Request
and Impact or Issue Analysis, (2) determine and document their
recommended solution in respect of the Request (or, if they
cannot agree on a recommended solution, the Account Mangers
will document such disagreement and reasons therefor), (3)
prepare a written summary outlining any aspects of the
Agreement, including Fees, requiring revision as a result of
their recommended solution, and (4) forward the Request and
related documentation to the Steering Committee for their
review and decision.
(iii) Upon receipt of a Request and requisite related documentation
from the Account Managers, the Steering Committee will approve
or reject the Request.
If the Steering Committee approves the Request, the approval
and reasons therefor shall be documented, a copy retained by
the Account Managers, a copy forwarded to the Project Office,
the Owner and Originator, and the Request shall be implemented
commencing upon completion and execution by both Parties of
the applicable Work Order(s).
If the Steering Committee rejects the Request, the rejection
and reasons therefor shall be documented, a copy retained by
the Account Managers, a copy forwarded to the Project Office,
Owner and Originator, and the Request will not be implemented.
If the Steering Committee cannot agree whether to approve or
reject the Request, the disagreement and reasons therefor
shall be documented, a copy retained by the Account Managers,
and a copy forwarded to the Project Office, the Owner and
Originator. In addition, the disagreement shall, at the
written request of either Party, be submitted to mediation in
accordance with the Dispute Resolution procedures set forth in
SCHEDULE 13 to the Agreement.
(f) IMPLEMENT APPROVED REQUESTS.
Upon approval of a Request, the Account Managers, working in
conjunction with the Project Office and the affected areas, shall
coordinate and supervise the preparation of appropriate Work
Order(s) to implement the approved Change or the resolution of the
resolved Issue.
Work Orders include documentation of: (a) amendments, modifications,
additions or deletions to the Agreement, any Work Order, any Base
Services, Variable Service, or any Fees that are the subject of the
approved Request; (b) resolution of problems and Issues that
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are the subject of the approved Request; and/or (c) any
modifications to projects, timelines, plans, budgets, other
affected documents, departments or positions that are the subject
of the approved Request.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
Upon completion of the applicable Work Order(s) and their execution by
both Parties, the approved Change or resolution of the resolved Issue will
be implemented in accordance with the terms and conditions of the Work
Order(s) and the Agreement.
(g) CLOSE REQUESTS.
Upon completion of the applicable Work Order(s) and their execution by
both Parties for approved Requests, or upon rejection by the Account
Managers or Steering Committee, as applicable, of a Request, the Project
Office shall close the Request.
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SCHEDULE 8: FEES
Customer shall pay to Sabre Fees for the Services, computed as described in this
SCHEDULE 8. Sabre shall invoice Customer for such fees, computed for each month
ending after the Effective Date. Customer shall pay invoiced amounts within
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after receipt of the invoice.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
For purposes of this paragraph 1, the following definitions will apply:
a. "Device" means a piece of equipment or mechanism that is linked by a
network system to facilitate data communications between two end
points. The Device count will be based on Customer Devices that
reside or are located within the dedicated Customer network
structure, and will not include any shared Devices which Customer
utilizes in association with or in conjunction with other customers
of Sabre.
b. "Mission Critical" means those Servers whose outage or performance
degradation would cause substantial impact to Customer's business.
c. "Non-Mission Critical" means those Servers whose outage or
performance degradation would not cause substantial impact to
Customer's business.
d. "Port" means a network access point for data entry or exit through
the firewall.
e. "Server" means a logical server, evidenced by each instance of a
unique operating system that resides on either shared or distinct
computing machinery.
2. CHARGES FOR DATA AND VOICE SERVICES.
a. MANAGED NETWORK CHARGES. For each of the following types of Data
and Voice Services, Customer shall pay the charges assessed to Sabre
by the applicable Third Party communications provider, together with
the monthly management fee described below:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
b. DIRECT SERVICES. For each of the following Data and Voice Services
provided by Sabre, Customer shall pay the monthly charge described
below:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
The charges for the following categories (which are not intended to be
exclusive) of Exclusive Variable Services shall be as follows:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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Schedule 9: Development Services Budget
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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CONFIDENTIAL
SCHEDULE 10: SABRE SOFTWARE
SABRE-DEVELOPED SOFTWARE AND CONSTITUTING:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 11: REQUIRED CONSENTS
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 12: CUSTOMER ASSETS
TRAVELOCITY SYSTEMS INVENTORY
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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TRAVELOCITY SOFTWARE
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 13: DISPUTE RESOLUTION PROCEDURES
CONFIDENTIAL
1. CERTAIN DEFINITIONS
This Section 1 sets forth certain definitions used in this Dispute Resolution
Process. Other capitalized terms used but not defined here in have the meanings
ascribed to them in the Agreement.
ARBITRATION RULES
The rules of the American Arbitration Association ("AAA") in effect on the date
of the commencement of the arbitration.
CONTRACT ADMINISTRATION PROCESS
The Contract Administration Process is the process set forth on SCHEDULE 7 to
the Agreement.
QUALIFICATIONS
Having extensive knowledge or experience, or both, regarding information
technology services similar to the Base Services or the Variable Services that
are the subject of the Dispute, and fluent in English.
2. DISPUTE RESOLUTION PROCEDURE.
(a) GENERAL PROCEDURE.
The Parties shall resolve all Disputes in accordance with this
procedure:
(i) Disputes shall first be submitted to the Account Managers or
the Steering Committee as indicated in Section 3 of this
Schedule.
(ii) If a Dispute is not resolved by the Account Managers or the
Steering Committee, then either Party may submit the Dispute
to mediation as outlined in Section 4 of this Schedule.
(iii) If a Dispute is not resolved by mediation, then either Party
may submit the Dispute to binding arbitration in accordance
with Section 5 of this Schedule.
A referral under either Section 2(a)(ii) and/or 2(a)(iii) of this
Schedule shall be made by written notice to the Account Managers.
That notice shall be in a form mutually agreed to by the Account
Managers or an electronic mail message and addressed to each Account
Manager at his or her office address or electronic mail address;
each notice shall be given and effective upon actual receipt.
3. DISPUTE RESOLUTION.
(a) ACCOUNT MANAGEMENT ACTION.
If the Dispute (a) involves less than [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] in capital, (b) involves less than [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED], and (c) does not
require an amendment to the Base Services, the Variable Services,
Fees or any other material term of the Agreement, the Account
Mangers will discuss the Dispute in good faith in an attempt to
resolve the Dispute to the mutual satisfaction of both Parties. If
the Account Managers are unable to resolve the Dispute to the mutual
satisfaction of both Parties within [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after receipt of written notice by one Party
from the other that a Dispute exists, the Dispute shall be referred
to the Steering Committee.
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(b) STEERING COMMITTEE ACTION.
If the Dispute (a) involves (i) [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] or more in capital, (ii) requires [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED] of labor or more, and/or (ii)
requires an amendment to the Base Services, the Variable Services,
Fees or any other material term of the Agreement, or (b) is within
the authority of, but not resolved by, the Account Managers, then
the Steering Committee will discuss the Dispute in good faith in an
attempt to resolve the Dispute to the mutual satisfaction of both
Parties. If the Steering Committee is unable to resolve the Dispute
to the mutual satisfaction of both Parties within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after receipt of written notice by
one Party from the other that a Dispute exists, the Dispute shall,
at the written request of either Party, be submitted to mediation as
outlined in Section 4 of this Schedule.
4. MEDIATION.
The mediation of an unresolved Dispute shall be conducted in this manner:
(a) Either Party may submit the Dispute to mediation by giving notice of
mediation to the other Party. The Parties shall attempt to agree
promptly after that notice is given upon and appoint a sole mediator
who has the Qualifications.
(b) If the Parties are unable to agree upon a mediator within [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the date the
Dispute is submitted to mediation, either Party may request the
Dallas, Texas office of the AAA to appoint a mediator who has the
Qualifications. The mediator so appointed shall be deemed to have
the Qualifications and to be accepted by the Parties.
(c) The mediation shall be conducted in Dallas, Texas at a place and a
time agreed by the Parties with the mediator, or if the Parties
cannot agree, as designated by the mediator. The mediation shall be
held within [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after
the mediator is appointed.
(d) If either Party has substantial need for information from the other
Party in order to prepare for the mediation, the Parties shall
attempt to agree on procedures for the formal exchange of
information; if the Parties cannot agree, the mediator's
determination shall be effective.
(e) Each Party shall be represented in the mediation by a natural person
with authority to settle the Dispute on behalf of that Party and, if
desired by that Party, by counsel for that Party. The Parties'
representatives in the mediation shall continue with the mediation
as long as the mediator requests.
(f) Unless otherwise agreed by the Parties, each Party shall pay
one-half of the mediator's fees and expenses and shall bear all of
its own expenses in connection with the mediation. Neither Party
may employ or use the mediator as a witness, consultant, expert, or
counsel regarding the Dispute or any related matters.
5. ARBITRATION.
The arbitration of an unresolved Dispute shall be conducted in this manner:
(a) Either Party may begin arbitration by filing a demand for
arbitration in accordance with the Arbitration Rules. The Parties
shall attempt to agree upon and appoint a panel of
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three (3) arbitrators promptly after that demand is filed. Each
of those arbitrators must have the Qualifications unless otherwise
agreed by both Parties.
(b) If the Parties are unable to agree upon any or all of the
arbitrators within [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
after the demand for arbitration was filed (and do not agree to an
extension of that [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
period), then each Party shall designate one arbitrator with
Qualifications and the AAA shall designate a third, if possible,
with Qualifications; nevertheless, such arbitrator so appointed
shall be deemed to have the Qualifications and to be accepted by the
Parties as part of the panel.
(c) The arbitration shall be conducted in Dallas, Texas at a place and a
time agreed by the Parties with the panel, or if the Parties cannot
agree, as designated by the panel. The panel may, however, call and
conduct hearings and meetings at such other places as the Parties
may agree or as the panel may, on the motion of one Party, determine
to be necessary to obtain significant testimony or evidence.
(d) The Parties shall attempt to agree upon the scope and nature of any
discovery for the arbitration. If the Parties do not agree, the
panel may authorize any and all forms of discovery, including
depositions, interrogatories, and document production, upon a
showing of particularized need that the requested discovery is
likely to lead to material evidence needed to resolve the Dispute
and is not excessive in scope, timing, or cost.
(e) The arbitration shall be subject to the Federal Arbitration Act and
conducted in accordance with the Arbitration Rules to the extent
they do not conflict with this Section 5. The Parties and the panel
may, however, agree to vary the provisions of this Section 5 or the
matters otherwise governed by the Arbitration Rules.
(f) The panel has no power to:
(i) rule upon or grant any extension, renewal, or continuance of
the Agreement;
(ii) award remedies or relief either expressly prohibited by the
Agreement or under circumstances not permitted by the
Agreement; or
(iii) grant provisional or temporary injunctive relief before
rendering the final decision or award.
(g) Unless the Parties otherwise agree, all Disputes regarding or
related to the same topic or event that are subject to arbitration
at one time shall be consolidated in a single arbitration
proceeding.
(h) A Party or other person involved in an arbitration under this
Section 5 may join in that arbitration any person other than a Party
if:
(i) the person to be joined agrees to resolve the particular
dispute or controversy in accordance with this Section 5 and
the other provisions of this Schedule applicable to
arbitration; and
(ii) the panel determines, upon application of the person seeking
joinder, that the joinder of that other person will promote
the efficiency, expedition, and consistency of the result of
the arbitration and will not unfairly prejudice any other
Party to the arbitration.
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(i) The arbitration hearing shall be held within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after the appointment of the
panel. Upon request of either Party, the panel shall arrange for a
transcribed record of the arbitration hearing, to be made available
to both Parties.
(j) The panel's final decision or award shall be made within [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the hearing. That
final decision or award shall be made by unanimous or majority vote
or consent of the arbitrators constituting the panel, shall be
deemed issued at the place of arbitration and shall be made in U.S.
dollars. The panel shall issue a reasoned written final decision or
award based on the Agreement and Texas law; the panel may not act
according to equity and conscience or as an amicable compounder or
apply the law merchant.
(k) The panel's final decision or award may include:
(i) recovery of general damages to the extent permitted by the
Agreement (but not consequential, exemplary or punitive
damages); or
(ii) injunctive relief in response to any actual or threatened
breach of the Agreement or any other actual or threatened
action or omission of a Party under or in connection with the
Agreement.
(l) The panel's final decision or award shall be final and binding upon
the Parties, and judgment upon that decision or award may be entered
in any court having jurisdiction over either or both of the Parties
or their respective assets. The Parties specifically waive any
right they may have to apply or appeal to any court for relief from
the preceding sentence or from any decision of the panel made, or
any question of law arising, before the final decision or award; and
the Parties shall not dispute nor question the validity of such
award before any regulator or other authority in any jurisdiction
where enforcement action is taken by the Party or Parties in whose
favor the award was rendered. If any decision by the panel is
vacated for any reason, the Parties shall submit that Dispute to a
new arbitration in accordance with this Section 5.
(m) Each Party shall pay one-half of the arbitrators' fees and expenses,
and shall bear all of its own expenses in connection with the
arbitration. The panel has the authority, however, to award
recovery of all costs and fees (including attorneys' fees,
administrative fees and the panel's fees and expenses) to the
prevailing Party in the arbitration.
6. RECOURSE TO COURTS.
Nothing in this Schedule limits the right of either Party to apply to a court or
other tribunal having jurisdiction to:
(a) enforce this Schedule, including the agreement to arbitrate in this
Schedule;
(b) seek provisional or temporary injunctive relief, in response to an
actual or impending breach of Sections 4.1, 7.1 and 9.2 of the
Agreement or otherwise so as to avoid irreparable damage or maintain
the status quo, until a final arbitration decision or award is
rendered or the Dispute is otherwise resolved; or
(c) challenge or vacate any final arbitration decision or award that
does not comport with Section 5 of this Schedule.
7. SUBMISSION TO JURISDICTION.
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Each Party irrevocably submits to the jurisdiction of the federal courts of
the United States and the state courts of Texas located in Fort Worth. Each
Party waives any defense or challenge to that jurisdiction based on lack of
personal jurisdiction, improper venue, or inconvenience of forum.
8. CONFIDENTIALITY.
The proceedings of all negotiations, mediations, and arbitrations shall be
privately conducted. The Parties shall keep confidential all conduct,
negotiations, documents, decisions, and awards in connection with those
proceedings under this Schedule.
9. EXCLUSIVE REMEDY.
OTHER THAN THOSE MATTERS INVOLVING INJUNCTIVE OR OTHER EXTRAORDINARY RELIEF
OR ANY ACTION NECESSARY TO ENFORCE THE AWARD OF THE ARBITRATOR, THE PARTIES
AGREE THAT THE PROVISIONS OF THIS SCHEDULE ARE A COMPLETE DEFENSE TO ANY
SUIT, ACTION OR OTHER PROCEEDING INSTITUTED IN ANY COURT OR BEFORE ANY
ADMINISTRATIVE TRIBUNAL WITH RESPECT TO ANY DISPUTE OR THE PROVISION OF THE
BASE SERVICES OR VARIABLE SERVICES BY SABRE. NOTHING IN THIS SCHEDULE
PREVENTS THE PARTIES FROM EXERCISING THEIR RIGHTS TO TERMINATE THE AGREEMENT
IN ACCORDANCE WITH SECTION 11.2 OF THE AGREEMENT.
10. CONTINUED PERFORMANCE; ESCROW ACCOUNT.
Unless (a) Sabre has commenced a proceeding or has presented a claim for
nonpayment by Customer of amounts due under the Agreement, and Customer does
not promptly pay all amounts in dispute into the escrow account referred to
below, or (b) the Agreement has been terminated in accordance with Section
11.2, Sabre will continue to provide the Base Services and Variable Services
during any dispute resolution proceedings (whether informal or formal)
commenced pursuant to this Schedule and Customer will continue to perform its
obligations (including the making of payments to Sabre) in accordance with
the Agreement. Up to the maximum amount in dispute, any disputed payment will
be paid pending resolution of the Dispute into an escrow account that is
structured by agreement of the Parties or, if agreement cannot be reached, as
directed by the mediator or arbitrator, as the case may be, engaged in
accordance with this Schedule. Any such escrow account will provide for the
payment of interest on the amounts deposited therein, and the Parties (if the
Dispute is resolved informally) or the mediator or arbitrator, as the case
may be (if the Dispute is resolved formally), will make the determination
regarding distribution of such deposited amounts plus interest. If Customer
fails to escrow disputed payments as required by the Agreement, Sabre may
apply to any court of competent jurisdiction to seek injunctive relief for
such failure and will have the right to terminate the Agreement in accordance
with Section 11.2(a) of the Agreement.
11. OTHER.
(a) U.N. CONVENTION.
The enforcement of any arbitral award will be in accordance with and
governed by the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards.
(b) LANGUAGE.
NEGOTIATIONS, MEDIATIONS AND ARBITRATIONS WILL BE CONDUCTED IN THE ENGLISH
LANGUAGE.
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SCHEDULE 14: NOTICES
If to Sabre:
Sabre Inc.
MD 4204
0000 Xxxx Xxxxxx Xxxx.
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: President
With a copy to:
Sabre Inc.
MD 4204
0000 Xxxx Xxxxxx Xxxx.
Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: General Counsel
If to Customer:
Xxxxxxxxxxx.xxx LP
0000 Xxxxxxxxxx Xxxx, XX 1400
Xxxx Xxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: President
With a copy to:
Xxxxxxxxxxx.xxx LP
0000 Xxxxxxxxxx Xxxx, XX 1400
Xxxx Xxxxx, Xxxxx 00000
Fax: (000) 000-0000
Attention: General Counsel
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SCHEDULE 15: TERMINATION ASSISTANCE
Sabre will provide the following Termination Assistance Services:
1. Sabre will continue to perform, during the specified Termination
Assistance Period, any or all of the Services then being performed by
Sabre.
2. Sabre will develop, with the assistance of Customer, a plan for the
transition of Services from Sabre to Customer or Customer's designee.
3. Sabre will provide training to Customer personnel in the performance of
the Services then being performed by Sabre.
4. Sabre will make available to Customer, pursuant to mutually agreeable
terms and conditions, any Third Party IT Services obtained by Sabre that
are then dedicated solely to the performance of Services hereunder, which
terms and conditions permit Customer to assume Sabre's rights and
obligations with respect to any such Third Party IT Services.
5. Sabre will provide to Customer copies of documentation and procedures then
in existence that are necessary to provide the Services. Documentation
and procedures located on magnetic media will be delivered on magnetic
media; those contained on other media (such as paper) will be duplicated
and delivered at Customer's expense.
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SCHEDULE 16: TELECOMMUNICATIONS PROVISIONS
1. AGENCY. Customer will if requested by Sabre provide a letter of agency in
form and substance reasonably satisfactory to Sabre and the vendors
designating Sabre to act as agent for Customer with respect to all matters
related to obtaining the telecommunications services from the vendors.
Customer shall do, or cause to be done, all such further acts and to
execute, acknowledge, and deliver, or cause to be executed, acknowledged,
and delivered, all such further documentation (including billing transfer
letters) as Sabre may reasonably request in connection with Customer's use
of the Data and Voice Services and the network portion of the Web Hosting
Services. Customer acknowledges that Sabre's performance of its
obligations under this Agreement, and the timing of such performance,
depend upon Sabre's ability to acquire the telecommunications services
from the vendors on terms that will allow the telecommunications services
to be managed for Customer in the manner contemplated hereby.
2. USE OF THE DATA AND VOICE SERVICES AND THE WEB HOSTING SERVICES. Customer
will be responsible for all use (whether authorized and unauthorized) of
the Data and Voice Services and the Web Hosting Services, and for
complying with all obligations that are applicable to Customer as set
forth in this Agreement or in any tariff, regulation, or agreement with
the vendors. In particular, Customer will be responsible for the
protection of all transmission facilities from unauthorized access, for
the selection of the appropriate access control products or services, and
for the proper use of such products or services.
Customer will not: (i) use the Data and Voice Services or the Web Hosting
Services (including related networks and circuits) made available by Sabre
under this Agreement for purposes other than for which they are designed,
which are lawful, and which are intended by this Agreement; (ii) perform
or attempt any alteration of or tampering with the networks or circuits
provided as part of the Data and Voice Services or the Web Hosting
Services; (iii) use the Data and Voice Services or the Web Hosting
Services in a manner which interferes with the use by any Authorized Sabre
User (defined below); or (iv) use the Data and Voice Services or the Web
Hosting Services for any purpose or in any manner directly or indirectly
in violation of the law or in aid of any unlawful act or undertaking. As
used in this Agreement, "AUTHORIZED SABRE USER" means any person or entity
authorized by Sabre to use any Data and Voice Services or any Web Hosting
Services managed by Sabre, including the Data and Voice Services and the
Web Hosting Services. Sabre will have no liability whatsoever to Customer
arising out of or relating to the illegal or fraudulent use of the Data
and Voice Services or the Web Hosting Services by any Third Party.
3. TELECOMMUNICATIONS EQUIPMENT. Other than the Wide Area Network Routers,
Customer will provide all telecommunications equipment and related
services that are required at all Customer locations to which the Data and
Voice Services and the network portion of the Web Hosting Services will be
provided (the "TELECOMMUNICATIONS EQUIPMENT"). Customer will be
responsible for the operation and maintenance of the Telecommunications
Equipment, including any transfers, modifications, or adjustments of the
Telecommunications Equipment or any configurations thereof. In addition,
Customer will be responsible for any termination or other liabilities
under any supplier contracts the services under which will be replaced by
the Data and Voice Services or the network portion of the Web Hosting
Services, as well as for any deinstallation activities that are required
before performance of the Data and Voice Services or the network portion
of the Web Hosting Services can begin.
4. REGULATORY REQUIREMENTS.
(a) The parties expressly acknowledge that this SCHEDULE 16 has been
negotiated, and the Data and Voice Services and Web Hosting Services
have been uniquely customized, to satisfy the special requirements
of Customer. The Data and Voice Services and Web Hosting Services
are private services and are not common carrier services.
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(b) If a vendor amends or obtains revisions to, or withdraws, any tariff
covering the Data and Voice Services or the Web Hosting Services and
that action materially impairs Sabre's ability to provide the Data
and Voice Services or the Web Hosting Services, Sabre may, in its
sole discretion, (i) negotiate modifications to this Agreement with
Customer, or (ii) without any liability whatsoever, terminate the
affected Data and Voice Services or the affected Web Hosting
Services, in whole or in part, by giving Customer at least 30 days'
prior notice of the nature and effective date of such termination
and provide to Customer a pro-rata refund of any prepaid charges,
subject to any limitations set forth in this Agreement. In no event
will Sabre be considered in breach or default as a result of the
occurrence of any of the preceding circumstances.
(c) In no event will Sabre have any liability to Customer as a result of
(i) any regulatory requirements imposed by any agency of the United
States or Customer jurisdiction government, state, or local
governments or applicable foreign government on a vendor or (ii) any
independent actions that a vendor may undertake which alter the
terms, conditions, or methodology for providing the Data and Voice
Services or the Web Hosting Services, or render the provision of the
Data and Voice Services or the Web Hosting Services unlawful.
(d) If, at any time, the prices charged under a tariff by a vendor to
Sabre for the transmission of data over a network or circuit
increases or decreases, then Sabre may, if an increase (and will if
a decrease) by written notice to Customer (which notice will be sent
by Sabre within 30 days following when Sabre learns that the tariff
prices have changed), increase or decrease, as the case may be,
Sabre's fees by a percentage equal to the percentage increase, or
decrease, by which such new tariff prices are higher or lower, than
the prices previously charged under tariff by the vendor to Sabre.
Such recalculated fees will remain in effect unless and until Sabre
adjusts the same pursuant to this paragraph.
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