EXHIBIT 10.10
SABRE ASSOCIATE DISTRIBUTION
SABRE TOURGUIDE AGREEMENT
This Agreement is made as of the date set forth below between SABRE Travel
Information Network, a division of THE SABRE GROUP, INC., a Delaware
corporation, having its principal place of business at 0000 Xxxx Xxxxxx
Xxxxxxxxx, Xxxx Xxxxx, Xxxxx 00000 ("SABRE") and Capital Program Marketing, Inc.
d/b/a SunStyle International Holidays, having its principal place of business at
City Center, Suite 303N, 000 Xxxxxx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, XX 00000-0000
("Host").
WHEREAS, The SABRE Group provides, through its SABRE Travel Information Network
Division ("S.T.I.N."), computerized reservations services with related data
processing activities;
WHEREAS, Host provides travel related services at one or more
locations/facilities;
WHEREAS, SABRE and Host desire to enter into an agreement concerning the booking
of reservations and the sale of the Host's services through SABRE;
NOW THEREFORE, in consideration of the mutual covenants and promises set forth
in this Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS:
For the purposes of this Agreement, the following words shall have the meanings
set forth below:
A. Affiliate shall mean with respect to any person, any other person
directly indirectly controlling, controlled by, or under common control
with such person. For purposes of this definition, "control" shall mean
the power to direct or cause the direction of the management and
policies of such person whether through the ownership of voting
interests or by contract or otherwise.
B. "Agreement" shall mean this SABRE Associate Distribution SABRE Tourguide
Agreement.
C. "Associate SABRE Equipment Lease Agreement" shall mean an agreement
entered into by Host with SABRE for use of SABRE Equipment.
D. "Authorized SABRE User" shall mean any SABRE Subscriber who is
authorized by SABRE and Host to access SABRE Tourguide and sell Host's
tour products.
E. "Booking" shall mean any unduplicated completion of a sales transaction
of up to ten passengers stipulated therein, requested and effected by a
SABRE Subscriber
through SABRE Tourguide in the Host's system for any Product during any
one calendar month. Multiple tour segments within the same booking
record shall be counted as separate bookings.
F. "Booking Fee" shall mean the fees set out in Schedule D, attached
hereto.
G. "Cancellation" shall mean only those segments canceled by a SABRE
Subscriber through SABRE.
H. "Competent Authority" shall mean any national, federal, state, county,
local or municipal government body, bureau, commission, board, board of
arbitration, instrumentality, authority, agency, court, department,
inspector, minister, ministry, official or public or statutory person
(whether autonomous or not) having jurisdiction over this Agreement or
any of the parties to this Agreement.
I. "Effective Date" shall mean the date upon which both parties have signed
this Agreement.
J. "GDS" shall mean a Global Distribution System (commonly referred to as a
computer reservation system). A GDS collects, stores, processes,
displays and distributes information through computer terminals
concerning air and ground transportation, lodging and other travel
related products and services offered by travel suppliers and which
enables Subscribers to (i) reserve or otherwise confirm the use of, or
make inquiries or obtain information in relation to, such products and
services and/or (ii) issue documents for the acquisition or use of such
products and services.
K. "Host System" shall mean the computer processing system and inventory
control system created by Host for the purpose of creating, storing and
processing information related to pricing, availability and product
information for the Products as such system may be modified from time to
time.
L. "Implementation Date" shall mean that date upon which successful testing
as described in Article 5.3 is completed.
M. "Minimum Monthly Fee" shall mean the minimum monthly fee set out in
Schedule D, attached hereto.
N. "Non-Standard Device" shall mean any computer hardware equipment which
Host desires to connect to the SABRE System but for which SABRE does not
make maintenance services available.
O. "Optional Services" shall mean any service offered by SABRE other than
the specific services referred to in this Agreement. SABRE may make
available additional Optional Services at any time. Host may elect to
purchase an Optional Service by executing an addendum to this Agreement.
P. "PNR" shall mean a passenger name record created in SABRE.
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Q. "Product" means the products and services listed in Schedule A hereto.
R. "Professional SABRE" shall mean a version of the SABRE System primarily
marketed to travel agencies and used by personnel of SABRE through the
course of their employment.
S. "Purged Bookings" shall mean a travel service segment existing in the
itinerary portion of the customer's PNR on the day following the date in
the tour segment in the PNR.
T. "SABRE Equipment" shall mean any computer hardware connected to the
SABRE System, whether furnished by Host or leased to Host by SABRE.
U. "SABRE Licensee" shall mean a person or entity licensed to market SABRE
in a designated area of the world.
V. "SABRE System" shall mean SABRE's GDS which has electronic facilities
able to provide, store, communicate, distribute, process and document
such information as is from time to time stored in the database.
W. "SABRE Subscriber" shall mean a person or entity which utilizes SABRE to
make reservations. The term "SABRE Subscriber" shall include any person
or entity, including SABRE, but excluding any other airline that uses
SABRE as its internal reservations system, that uses SABRE for making
reservations for Product(s) through one of the versions of SABRE,
including, but not limited to, Professional SABRE, EAASY SABRE,
Commercial SABRE, or any other version of SABRE marketed by a SABRE
licensee.
X. "SABRE Tourguide" shall mean the total-access system, common user
interface, developed as a function of SABRE under which SABRE
Subscribers are able to query the data base within Host's System and
make reservations for the Products offered by Host via a set of
standardized messages.
Y. "S.T.I.N." shall mean SABRE Travel Information Network.
Z. "Terminal" shall include all input-output devices, such as CRTS and
printers.
AA. "Tour Reservation" shall mean the travel offering of a Host which may
include some or all of the following components which the Host has
purchased and pre-arranged and is selling under a single contract: air
transportation, ground transportation, overnight accommodations, and
other travel related features.
ARTICLE II
EQUIPMENT:
2.1. If Host is not on the date hereof a party to an agreement with either
SABRE or a third party approved by SABRE, pursuant to which it can
receive data from and transmit data
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to the SABRE System, Host shall enter into such agreement in order to
enable it to receive the benefits of the System.
2.2. Host may elect to operate SABRE Equipment thereby affording Host access
to the SABRE System. In that event, Host may enter into a separate
Associate SABRE Equipment Lease Agreement with SABRE. SABRE agrees that
the SABRE Equipment and access to the SABRE System will be afforded
Host at SABRE's prevailing rates and charges. Host agrees that its use
of the SABRE Equipment and its access to the SABRE System will be
governed by the terms and conditions defined in the Associate SABRE
Equipment Lease Agreement.
2.3. Host agrees to only access the SABRE System via SABRE Equipment or
SABRE certified devices and applications as from time to time are
approved by SABRE. Host agrees to provide SABRE prior written
notification of its intent to utilize any SABRE certified device and
application.
2.4. Host may furnish its own computer hardware, as long as it is approved
in advance by SABRE for use with the SABRE System. Host acknowledges
that any computer hardware it purchases from another source may be
subject to an existing security interest or other ownership rights of
SABRE.
2.5. In the event Host desires to connect a Non-Standard Device to the SABRE
System, for which device SABRE does not make maintenance services
available, Host shall contact SABRE to ascertain SABRE's procedures and
fees for approving Non-Standard Devices. Any such Non-Standard Device
subsequently approved by SABRE at its sole discretion for connection to
the SABRE System shall be subject to Host's execution of SABRE's
written agreement covering such Non-Standard Device.
2.6. Notwithstanding anything to the contrary contained either in this
Agreement or in the Associate SABRE Equipment Lease Agreement, should
either SABRE or Host terminate this Agreement, then the Associate SABRE
Equipment Lease Agreement will be deemed to have been terminated
simultaneously.
ARTICLE III
RESPONSIBILITIES OF HOST:
3.1. Host shall be responsible for maintaining the timeliness and the
accuracy of all data supplied hereunder and for maintenance and
effecting changes in the availability status of its travel services. In
so doing, Host shall comply with all applicable laws and regulations
relative to the display of Host's data.
3.2. Host shall provide the Product to SABRE Subscribers through SABRE
Tourguide. Host will not discriminate in any manner, whatsoever,
against any SABRE Subscriber on account of the Subscriber's selection,
possession, or use of SABRE Tourguide. Host may refuse to provide to
any particular SABRE Subscriber through SABRE Tourguide the ability to
access or book the Product, provided that such decision by Host is part
of a termination of such Subscriber's ability to book the Product in
any manner, whatsoever,
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and, furthermore, that such decision is applied in a manner that is
consistent with Host's treatment, in similar circumstances, of travel
agencies regardless of GDS subscription.
3.3. The functions of Host's System that shall be made available through
SABRE Tourguide to SABRE Subscribers shall be those listed in Schedule
B.
3.4. Host shall not be obligated to provide electronic access to the Product
to SABRE Subscribers outside the United States; however, if the Host
does provide electronic access to the Product to any third party via a
GDS in a country outside the United States, then the Host shall also
make access to the Product available to SABRE for use by SABRE
Subscribers in such country, in accordance with the terms of this
Agreement. If Host offers access outside the United States, Host agrees
to initially provide electronic access to the Product through SABRE to
all SABRE Subscribers in the United States. The provisions of this
section are subject to the following: if Host provides electronic
access to its Products to any third party via a GDS in a country
outside the United States, then, as soon as reasonably possible, Host
shall also make access to the Products available to SABRE for use by
SABRE Subscribers in such country, in accordance with the terms of this
Agreement.
3.5. Host agrees to guarantee to SABRE Subscribers and clients of SABRE
Subscribers the accuracy of Host's policies, rates, and availability
data as displayed in the Host System on the date of booking of Host's
services by the SABRE Subscriber. Host will be responsible directly to
SABRE Subscribers and clients of SABRE Subscribers for providing Host's
travel services as displayed in the Host System.
3.6. Host agrees to transmit promptly confirmation numbers for all
reservations to SABRE Tourguide.
3.7. Host acknowledges and agrees that SABRE has not undertaken to perform
any verification of any sort of data to be available through the SABRE
System.
3.8. Host may use the name "SABRE" in any promotional material, subject to
SABRE's prior written approval, provided that SABRE's registered
service xxxx in the name is fully protected. SABRE's approval shall not
be unreasonably withheld. Host may not use any other trademark, service
xxxx, or trade name in any promotional material.
3.9. Host acknowledges that it may be necessary for S.T.I.N to change the
three-letter alpha code assigned to Host due to operational
necessities. S.T.I.N. may withdraw Host's right to use its three letter
code upon ten (10) days' prior written notice. Host acknowledges that
S.T.I.N. shall not be liable to it for any costs or expenses incurred
by Host as a result of the change in such alpha code.
3.10. At its own expense, Host shall have responsibility for the technical
aspects relating to the Host System and for implementation,
maintenance, and support of capabilities described herein, including
language translation for products offered via electronic access to
SABRE Subscribers via SABRE Tourguide in countries outside the United
States.
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3.11. At its own expense, Host shall provide a direct telecommunications link
(the "Line") between Host's System and the hardware composing the
total-access message transfer mechanism of SABRE Tourguide, provide
information to SABRE, and make modifications to Host's System, as
described in Schedule B, to ensure connections are maintained and
operational. Host will ensure that Host's System, and the Lines linking
it to SABRE Tourguide are operable at least 95% of the time from 8:00
a.m. to 9:00 p.m. (U.S. Eastern Time) Monday through Saturday.
3.12. Host shall make available five (5) simultaneous accesses in Host's
System, for support of SABRE Tourguide. Host shall add additional
Terminal addresses as reasonably required by SABRE to ensure sufficient
access to Host's System, without delay, for SABRE Subscribers.
3.13. Host shall provide help desk support in each market where SABRE
Subscribers have access to the Host's System, to assist SABRE
Subscribers with format and Product questions. Host shall maintain a
toll-free telephone support service available daily from 8:00 a.m.
until 9:00 p.m. U.S. Eastern Time, for SABRE Subscribers in the United
States, and during normal business hours for SABRE Subscribers outside
the United States as set out in Schedule C, except for local holidays.
Should SABRE determine that SABRE Subscribers require additional
service support, Host shall promptly provide all such reasonable
service support needs.
3.14. Host is authorized to provide only the Products listed in Schedule A
hereto through SABRE Tourguide. Host shall not provide any other
services or products through the SABRE Tourguide System without first
obtaining the prior written consent of SABRE.
3.15. Host agrees to honor reservations, prices, and sales made through SABRE
Tourguide, subject to Host's standard non-discriminatory policies. Host
agrees that it will not close for sale the Products through SABRE
unless such Products are closed for sale in Host's System and other
GDSs.
3.16. Host shall promptly advise SABRE, in writing, of any and all planned
changes to Host's formats, entries, and responses that will affect
SABRE at least sixty (60) days prior to the planned or actual
implementation of such changes whichever is to occur earlier. If Host
fails to give the notice required in this section, SABRE shall have the
right to restrict access to Host's System if the changes either, i)
have an adverse effect on the operation of SABRE; or ii) require
additional training for SABRE's support personnel, until Host complies
with the notice required herein.
ARTICLE IV
RESPONSIBILITIES OF SABRE:
4.1. SABRE shall maintain and operate SABRE Tourguide, and shall cooperate
with Host in resolving any problems encountered in the maintenance of
the telecommunications lines between SABRE Tourguide and Host's
internal Tour Reservation System.
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4.2. SABRE will provide access to as many SABRE Subscribers as is practical.
Given the technical and capacity restraints of the SABRE System, SABRE
shall retain the right in its sole discretion, to limit the number of
SABRE Subscribers that may be authorized to access Host. Such
limitation is to be solely based on SABRE's determination that
authorizing such SABRE Subscribers to access the System under the
circumstances may result in an inability to effectively access the
SABRE System or SABRE Tourguide. Such limitation shall be
non-discriminatorily applied to all Hosts. SABRE will provide to SABRE
Subscribers the necessary technical services and support to allow them
to utilize Host's System.
4.3. SABRE retains the right, in its sole discretion, to modify or alter the
operation of the SABRE System at any time it deems such modification or
alteration to be desirable; provided, however, that SABRE shall provide
Host sixty (60) days prior written notice of such modifications or
alterations, other than those corrective in nature, which would
materially affect the services provided to Host under this Agreement.
Any and all costs incurred by Host or any third party in connection
with or as a result of non-corrective alterations or modifications
shall be borne by Host or such other party as the case may be, provided
that Host elects to participate in such alterations or modifications.
4.4. Upon receipt of documented evidence from Host of a history of instances
of speculative Bookings or other related abusive practices by a SABRE
Subscriber involving the sale of Host's travel services, SABRE shall,
if warranted after reasonable investigation, assist Host by initiating
appropriate, timely and reasonable remedial procedures against such
SABRE Subscriber.
ARTICLE V
JOINT RESPONSIBILITIES:
5.1. Unless otherwise stated in this Agreement, Host and SABRE will each be
responsible for its own costs and expenses incurred in connection with
introducing and expanding the distribution of the System to
Subscribers.
5.2. SABRE and Host shall cooperate with each other to develop, implement,
maintain and operate the SABRE Tourguide link between the Host System
and the SABRE System. This link will provide SABRE Subscribers, among
other things, with the capability to obtain information regarding the
Products and to sell and book the Product.
5.3. Upon successful completion of the SABRE Tourguide implementation, for a
period of no longer than sixty (60) days ("Beta Test Period"), the
parties may conduct, either jointly or independently, a beta test, by
providing a selected group of SABRE Subscribers with real time access
to the Product, for the purpose of (i) confirming and validating the
capability for the SABRE Subscriber to successfully perform the
specifications criteria contained in Schedule B and (ii) determining
whether the electronic transmission of traffic to SABRE Tourguide will
adversely affect other functions, databases, application programs
and/or communication facilities of either Host's System or SABRE.
Testing shall be deemed successful when the parties agree in writing
that no deficiencies or adverse effects in the
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items described in (i) and (ii) have occurred. The parties shall work
in good faith and with reasonable speed to remedy any problems,
provided that each party has the responsibility to remedy defects
contained in its own System. Notwithstanding the foregoing, in the
event that either party reasonably determines during the Beta Test
Period that remedy of problems, as described in (i) or (ii) above,
cannot be achieved at a reasonable cost, it may terminate this
Agreement on written notice to the other party. Additionally, either
party may terminate this Agreement in the event that successful testing
is not accomplished within the Beta Test Period. Any termination
provided in this paragraph shall be without liability to the other
party and each party shall bear all costs incurred during the Beta Test
Period.
ARTICLE VI
OPTIONAL SERVICES:
Host may elect at anytime to participate in any Optional Service(s) offered by
SABRE. Unless otherwise specified in an Addendum hereto, all terms and
conditions of this Agreement will apply to the Optional Services selected by
Host. Fees for Optional Services are subject to change upon thirty (30) days'
prior written notice from SABRE. If Host does not agree to pay any such revised
fee, it may terminate the Optional Services Addendum(s) by giving written notice
to SABRE at least five (5) days prior to the effective date of the price change.
SABRE reserves the right to change Optional Service offerings from time to time.
ARTICLE VII
TERM OF AGREEMENT:
This Agreement shall become effective when signed by both of the parties hereto,
("Effective Date") and shall continue in effect for an initial term of thirty
six (36) full calendar months after the Implementation Date. This Agreement
shall automatically renew for successive one year periods unless either party
gives written notice to the other, at least sixty (60) days prior to the end of
the then-current term, of its intention to terminate this Agreement.
Implementation shall proceed when SABRE Subscribers obtain access to the Product
via SABRE Tourguide and in accordance with a phase-in of SABRE Subscribers, as
agreed by the parties. Upon termination or expiration of this Agreement, the
Lease Agreement referred to in Section II hereof shall be deemed to have
terminated simultaneously, and any fees and charges which Host owes to SABRE
hereunder or under the Lease Agreement shall become immediately due and payable
in accordance with the terms hereof and thereof.
ARTICLE VIII
CHARGES:
8.1. In consideration of the services to be provided by SABRE hereunder,
Host agrees to pay SABRE the following fees and charges:
8.2. A Five Thousand Dollar ($5,000.00 USD) deposit fee will accompany this
Agreement when implementation into Tourguide occurs, this deposit will
be held by SABRE.
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SABRE may, at its option, apply any portion or all these funds towards
any balance due SABRE by Host for booking fees as defined in Article
8.5 below. This does not eliminate Host's obligation under Article 9 of
this Agreement. SABRE agrees to return the Five Thousand Dollar
($5,000.00 USD) deposit, or balance if any, without interest, to Host
after three (3) years from the date of this Agreement should Host's
payments for booking fees remain current for the duration of this
Agreement.
8.3. Host shall pay to SABRE a non-refundable implementation fee of Ten
Thousand Dollars ($10,000.00) to cover programming and other costs
incurred by SABRE in establishing the connection between the SABRE
System and the Host System. A payment of Five Thousand Dollars
($5,000.00) will be due upon contract signature, with the remaining
Five Thousand Dollars ($5,000.00) due when Capital Program Marketing,
Inc., d/b/a SunStyle International Holidays is implemented into SABRE
Tourguide.
8.4. Host will assume responsibility to pay the costs associated with the
Line, as defined in Section 3.11 above, between Host's system and SABRE
Tourguide.
8.5. Fees. The fees for Host are set out in Schedule D, attached hereto.
8.6. SABRE may increase the Booking Fee at any time after December 31, 1996.
Such increases will be effective upon thirty (30) days' written notice
to Host and will not exceed ten percent (10%) in any twelve (12) month
period.
8.7. At the completion of the initial thirty six (36) month term, SABRE may
increase applicable Monthly Minimum Fees, and such increase will not
exceed a One Thousand Dollar ($1,000.00 USD) per month increase in any
twelve (12) month period. SABRE will provide Host a thirty(30) day
written notice of any intention to increase such fees.
ARTICLE IX
PAYMENT:
9.1. Payments due to SABRE pursuant to the charges described in Section 8
shall be made within thirty (30) days of Host's receipt of the monthly
invoice from SABRE. Late payments on amounts due shall accrue interest
at eighteen percent (18%) per annum or the highest rate permitted by
law, whichever is lower. In the event amounts were paid to SABRE which
subsequently were determined not to be due, such amounts including
accrued interest, if any, shall be credited to the Host on the next
invoice. Any disputes arising from such invoice shall not delay payment
as described hereto. Such payments should be forwarded directly to:
SABRE Group, Inc.
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000-0000
9.2. Upon termination of this Agreement, all unpaid charges owed by Host
shall become immediately due and payable, and Host shall forthwith
remit payment thereof with no right of set off or deduction whatsoever.
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ARTICLE X
BOOKS AND RECORDS:
SABRE, or its designated representative, shall have the right, during regular
business hours, to audit and inspect the books and records of Host which relate
to Host's transactions through the SABRE System upon five (5) days written
notice.
ARTICLE XI
TAXES:
In addition to any other charges set forth in the Agreement, Host shall pay to
SABRE any and all license fees, sales, use, excise, personal property, or other
taxes and any and all domestic and foreign duties, import and export fees and
licenses, howsoever designated, now or hereafter imposed by any Federal, state
or local taxing authority or any foreign government or agency thereof, arising
in connection with this Agreement, other than taxes assessed on the income or
property of SABRE.
ARTICLE XII
PROMOTION:
12.1. At its own cost and expense, Host shall be responsible for marketing
and promoting the Products in the manner and to the extent it deems
appropriate and for encouraging the travel agency community to book the
Product. Host shall obtain the prior written approval of SABRE for the
use of any of SABRE's registered trade marks or service marks in any
such communications, and Host shall also obtain the prior written
approval of SABRE to the extent that any communications undertake to
instruct SABRE Subscribers on the technical use of SABRE or SABRE
Tourguide.
12.2. At its own cost and expense, SABRE shall be responsible for marketing
and promoting Host's Product in the manner and to the extent it deems
appropriate for encouraging SABRE Subscribers to book the Product.
SABRE shall obtain the prior written approval of Host for the use of
any of Host's registered trademarks or service marks in any such
communications. SABRE shall also obtain the prior written approval of
Host to the extent that such communications undertake to instruct SABRE
Subscribers on the technical use of Host's System.
ARTICLE XIII
INDEMNIFICATION:
Each of Host and SABRE (each, individually, "lndemnitor") hereby agree to
indemnify defend and hold harmless each other, their affiliates, subsidiaries,
successors and assigns and their respective officers, directors, agents and
employees ("lndemnitees") from and against all liabilities, losses, damages,
claims, suits, recoveries, awards, judgments, executions, fines, penalties or
other costs and expenses of any nature or kind whatsoever (including, without
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limitation, costs of investigation, litigation costs, court costs, expert
witness fees, litigation support services costs, settlement costs and reasonable
attorneys' fees) which may be made, asserted, had, brought or recovered by any
third-party against Indemnitees by reason of, or on account of, Indemnitor's
performance, failure to perform, or improper performance of the provisions of
this Agreement, or any breach of any representation or warranty of Indemnitor
contained herein. Indemnitors shall also agree to indemnify, defend and hold
harmless each other against suits proceedings at law, and any and all liability
or expense arising out of or in connection with any claim that any permitted use
hereunder by the Indemnitor of the other Indemnitor's trademarks, service marks,
patents or copyright or property right infringes any existing trademark, service
xxxx, patent, copyright or property right of any third party.
ARTICLE XIV
FAILURE OR DELAY OF SERVICE:
SABRE shall not be liable to Host, nor deemed to be in default under .this
Agreement on account of any delays, errors, malfunctions, or breakdowns with
respect to the equipment, data or services provided hereunder, regardless of its
negligence.
ARTICLE XV
DISCLAIMER OF WARRANTIES:
SABRE MAKES NO REPRESENTATION OR WARRANTY AS TO THE DATA OR SERVICES PROVIDED
THEREIN, AND HOST HEREBY WAIVES, RELEASES AND RENOUNCES ALL CLAIMS AND REMEDIES
HOST HAS OR MAY HAVE AGAINST SABRE ARISING FROM ANY ACTUAL OR ALLEGED WARRANTY.
HOST ALSO WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO SUCH DATA OR
SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, OR FITNESS, OR OTHERWISE. HOST AGREES THAT SABRE'S SOLE
RESPONSIBILITY AND LIABILITY FOR ANY ERRORS IN THE FUNCTIONALITY OF THE SYSTEM
IS LIMITED TO THE CORRECTION OF THE CAUSE(S) THEREOF, AND ONLY IF DUE TO
CIRCUMSTANCES UNDER SABRE'S DIRECT CONTROL, AND IN NO EVENT SHALL SABRE BE
LIABLE FOR ANY CONSEQUENTIAL AND/OR INCIDENTAL DAMAGES OR PROFITS.
ARTICLE XVI
TITLE:
Title and full and complete ownership rights to all SABRE owned or developed
software used in the performance of this Agreement shall remain with SABRE. Host
acknowledges and agrees that the SABRE System is SABRE's proprietary information
and trade secret, whether or not any portion thereof is or may be validly
copyrighted or patented. Any manuals and other documentation in any form and any
and all copies thereof, and any and all parts or abstracts thereof, are for the
exclusive use of SABRE, and as such shall not be disclosed, copied, reproduced
or otherwise made available in any form whatsoever to any person, firm,
corporation or governmental entity not authorized under this Agreement, without
the prior written consent of
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SABRE; provided, however, that this restriction shall not apply to information
previously known to Host, legally acquired from third parties, independently
developed or subsequently publicly disclosed by SABRE.
ARTICLE XVII
ASSIGNMENT:
No party shall assign, transfer, license, franchise or otherwise convey this
Agreement or any rights hereunder or delegate any obligations hereunder to any
third person without the prior written consent of the other party, which consent
shall not be unreasonably conditioned, delayed or withheld, any attempted
assignment without consent shall be void ab initio; except that SABRE may from
time to time without consent assign this Agreement and all of its rights and
obligations hereunder to: (i) any Affiliate of SABRE; or (ii) to any third
person with which SABRE is amalgamated, merged or consolidated; or (iii) to any
third person that directly or indirectly acquires all or substantially all of
the business or assets of SABRE to which this Agreement relates; and upon any
such assignment the transferee shall be substituted for SABRE for all liability
under this Agreement. Any assignment of this Agreement shall be effective only
if (i) the assignee has the financial and technical capacity to perform the
obligations being assumed and (ii) the assignee shall assume in writing all
terms and conditions of this Agreement.
ARTICLE XVIII
NON-EXCLUSIVITY:
This is a non-exclusive Agreement and similar agreements may be entered into by
SABRE or Host with any other party.
ARTICLE XIX
TERMINATION:
SABRE and Host shall be entitled to terminate immediately this Agreement upon
any of the following events:
A. In the event SABRE or Host breaches any of the terms of this Agreement;
and SABRE or Host fails to cure such default within fifteen (15) days
after receipt of written notice from the other party; or
B. In the event Host fails to pay any amount due hereunder; and Host fails
to cure such default within fifteen (15) days after receipt of written
notice; or
C. In the event SABRE or Host becomes insolvent; makes any assignment for
the benefit of creditors; calls a meeting of creditors; offers a
composition or extension to creditors; suspends payment; consents to or
suffers the appointment of a receiver, a trustee, a committee of
creditors or a liquidation agent; files a petition or answer in
bankruptcy seeking reorganization, arrangement or readjustment of
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its debt, or its dissolution or liquidation; request any other relief
under any bankruptcy or insolvency law; or
D. In the event SABRE or Host has entered against it a judgment or decree
for dissolution which remains undismissed or undischarged or unbonded
for a period of thirty (30) days; or
E. In the event that SABRE determines that Host's use of the System as to
any one or more travel services covered by this Agreement is
insufficient to justify SABRE's continuing to provide the System as to
such travel service, or any one or more of the Host's
facilities/locations fail to honor items contained in this Agreement,
and Host fails to cure such default or sufficiently increase its use of
the System within fifteen (15) days after receipt of written notice;
SABRE may elect to eliminate such travel service from SABRE and cease
to provide services hereunder; or
F. In the event either party gives sixty (60) day written notice to the
other, after the initial thirty six (36) month term as described in
Article VII.
ARTICLE XX
CONFIDENTIALITY:
For purposes of this Agreement, confidential information shall mean any and all
trade secrets or other proprietary information of a party concerning past,
present or future research, development, business activities or affairs,
finances, properties, methods of operation, processes and systems, whether
written, oral or contained in any magnetic, electronic or other media. SABRE and
Host expressly acknowledge and agree that the terms of this Agreement constitute
confidential information of both parties. Each party shall at all times remain
the owner of its confidential information. The party which receives confidential
information from the other party agrees to maintain such information in secrecy
at all times, using the same degree of care with respect to such confidential
information as its uses in protecting its own proprietary information and trade
secrets. Neither SABRE nor Host shall sell, transfer, publish, disclose, display
or otherwise make available the confidential information of the other party to
any third person, except as may be required by applicable law. The provisions of
this Article XX shall survive for a period of three (3) years after termination
or expiration of this Agreement.
ARTICLE XXI
INDEPENDENT CONTRACTORS:
SABRE and Host shall be deemed independent contractors with respect to each
other, and nothing in this Agreement is intended nor shall be construed to
create or establish the relationship of principal and agent, partners or joint
venturers between the parties hereto.
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ARTICLE XXII
GOVERNING LAW:
This Agreement and any disputes arising hereunder shall be governed by the laws
of the United States and the State of Texas without regard to its conflict of
laws rules. Each party hereby consents to the non-exclusive jurisdiction of the
courts of the State of Texas in any dispute arising out of this Agreement.
ARTICLE XXIII
FORCE MAJEURE:
Except for Host's obligations to make payments hereunder, neither party shall be
deemed in default under the Agreement as a result of a failure to perform its
obligations under this Agreement, if such failure is caused by acts of God, war
or the public enemy, strike, labor stoppage, fire, flood, weather, mechanical
difficulty, power shortage or any other cause beyond the reasonable control of
that party. The party unable to perform for such reason shall notify the other
party without delay.
ARTICLE XXIV
WAIVER:
No waiver of a breach of any provision of this Agreement by either party shall
constitute a waiver of any subsequent breach of the same or any other provisions
hereof and no waiver shall be effective unless made in writing.
ARTICLE XXV
CAPTIONS:
The captions appearing in this Agreement have been inserted as a matter of
convenience and in no way define, limit or enlarge the scope of this Agreement
or any of the provisions.
ARTICLE XXVI
NOTICES:
All notices, requests, and releases hereunder shall be in writing and shall be
sent to the address indicated below (or to such other addresses as may hereafter
be designated in writing):
-----------------------------------------------------------------------------------------------------
If to SABRE: If to Capital Program Marketing, Inc:
-----------------------------------------------------------------------------------------------------
The SABRE Group, Inc. Capital Program Marketing, Inc.
SABRE Travel Information Network dba SunStyle International Holidays
P.O. Box 619616, MD 3112 000 Xxxxxx Xxx. Xxxxx, Xxxxx 000X
XXX Xxxxxxx, XX 00000-0000 Xx. Xxxxxxxxxx, XX 00000-0000
Attn: Manager, Leisure Distribution Attn: Xxx Xxxxxxxx
Telephone: 000-000-0000 Telephone: 000-000-0000
Fax: 000-000-0000 Fax: 000-000-0000
-----------------------------------------------------------------------------------------------------
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ARTICLE XXVII
SEVERABILITY:
If any indication is received in writing by either party from any Competent
Authority to the effect that any part of this Agreement contravenes any
applicable law and cannot qualify for any applicable clearance or exemption, or
if any part of this Agreement is, or shall become, or shall be declared illegal,
invalid or unenforceable in any jurisdiction for any reason whatsoever
(including both by reason of the provisions of any legislation and also by
reason of any decision of any Competent Authority, either having jurisdiction
over this Agreement or having jurisdiction over any party to this Agreement),
such part shall be severed from this Agreement in the jurisdiction in question
and such contravention, illegality, invalidity or unenforceability shall not in
any way whatsoever prejudice or affect the remaining pads of this Agreement
which shall continue in full force and effect; provided, always, that if, in the
reasonable opinion of any party to this Agreement, such severance affects the
commercial basis of this Agreement, such party shall so inform the other party,
whereupon the parties will attempt to negotiate an amendment to the Agreement
which will maintain the balance of the commercial interests of the parties under
this Agreement. If, however, such negotiations shall not be successfully
concluded within ninety (90) days from the date the one party so informs the
other party that the commercial basis has been affected, either party shall have
the right to terminate this Agreement upon giving thirty (30) days prior written
notice to the other party.
ARTICLE XXVIII
ENTIRE AGREEMENT:
This Agreement and all schedules attached hereto, constitutes the entire
agreement and supersede any previous agreements, modifications, amendments or
waivers and contains the entire agreement between the parties with respect to
the subject matter hereof and no amendment or modification shall be effective
unless made in writing and duly executed by both parties.
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ARTICLE XXIX
COUNTERPARTS:
This Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, SABRE and Host have caused this Agreement to be executed by
their duly authorized representatives as of this ____ day of _____________, 1997
Capital Program Marketing, Inc. THE SABRE GROUP, INC.
d/b/a SunStyle International Holidays
By: By:
-------------------------------------- ----------------------------
Name:
------------------------------------ Xxxxxxx X. Xxxxxxxxx
Title:
---------------------------------- Manager
Leisure Marketing
Date: SABRE Travel Information Network
----------------------------------
Date:
--------------------------
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SCHEDULE A
Products and services offered through the System shall consist of the following:
Host's travel packages involving air, land and tour options.
17
SCHEDULE B
FUNCTIONS OF HOST'S COMPUTERIZED RESERVATION SYSTEM
Upon the Implementation Date of the Agreement, the following capabilities and
features for the use of the SABRE Subscribers shall be available:
1. DISPLAY/AVAILABILITY. The SABRE Subscriber shall have the capability to
request all travel package departures, all categories by specific departure
date, hotel availability.
2. PRICING. The SABRE Subscriber shall have the capability to inquire prices
for a specific travel package, and promotional travel packages.
3. BOOKING. The SABRE Subscriber shall have the capability to book Host's
travel packages.
4. CHANGES AND CANCELLATIONS. The SABRE Subscriber shall have the following
capabilities:
a. Modify Bookings made through the System.
b. Cancel Bookings made through the System.
c. View Bookings made through the System.
5. REQUEST. The SABRE Subscriber shall have the capability to request
brochures through the System.
6. QUEUE. The SABRE Subscriber shall have the following capability:
a. for SABRE Subscribers to queue messages from SABRE to the Host.
b. for the Host to queue messages from SABRE to SABRE Subscribers.
7. POST PAYMENT. The SABRE Subscriber shall have the ability to update the
booking record to post payments.
8. MERGE SEGMENTS. SABRE will merge the SABRE Tourguide booked segments from
the Host System into a SABRE PNR.
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SCHEDULE C
As of the Implementation Date, SABRE Subscribers in the following
regions/countries will have access to Host's System:
a. Worldwide
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SCHEDULE D
With respect to each calendar month beginning with Implementation Date, Host
shall pay to SABRE the greater of (i) a per Tour Booking fee as defined below or
the applicable monthly minimum amount, as follows:
a) Each of Months One (1) through Three (3): The greater of $10.00 per
Booking fee; monthly minimum fee waived;
b) Each of Months Four (4) through Twelve (12): The greater of $10.00 per
Booking fee; or a $600.00 monthly minimum fee;
c) Each of Months Thirteen (13) through Twenty Four (24): the greater of
$11.00 per Booking fee; or a $1,200.00 monthly minimum fee;
d) Each of Months Twenty Five (25) through Thirty-Six (36): The greater of
$12.00 per Booking fee; or a $1,800.00 monthly minimum fee;
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