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]."
INTELLECTUAL PROPERTY AGREEMENT
In this Agreement, SABRE INC., a corporation organized and existing
under the laws of the State of Delaware and having a principal place of
business at Fort Worth, Texas (hereinafter "Sabre"), and XXXXXXXXXXX.XXX LP,
a limited partnership organized and existing under the laws of Delaware and
having a principal place of business at Fort Worth, Texas (hereinafter
"Travelocity"), agree as follows:
1. DEFINITIONS
1.1 "Common Internet Architecture" or "CIA" means existing and future
versions of the functional software module that provides a common
interface between Internet applications and the Sabre host (i.e.,
the Sabre Table Builder (STB)).
1.2 "Effective Date" means March 7, 2000, at the time on such date
immediately after giving effect to the consummation of the
transaction described in that certain Xxxx of Contribution,
Assignment and Assumption Agreement, dated March 7, 2000, between
Sabre Inc. and Xxxxxxxxxxx.xxx LP.
1.3 "Existing Clone" means the product in existence and owned by
Travelocity as of the Effective Date of this Agreement that
Travelocity uses to distribute consumer-direct Internet travel
services and products.
1.4 "Existing Contract" means any contract or agreement between a Party
to this Agreement and a third party that was in existence and
enforceable on 3 October 1999.
1.5 "Existing IP" means all IP owned by a Party as of the Effective Date
of this Agreement.
1.6 "Future Clone" means any new or updated version of the Existing
Clone, which new or updated version is created, developed or
acquired during the Pool Term.
1.7 "Intellectual Property" or "IP" means and includes (a) inventions
whether or not patented or patentable and all worldwide patent
rights to such inventions, (b) technical information and knowhow,
and (c) software and related documentation
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and all worldwide copyrights therein. IP does not include customer
data, customer profiles, marketing plans, market intelligence data
and similar non-technical information.
1.8 "Joint Interest IP" means IP made jointly by the Parties pursuant to
a joint development, funding or other similar agreement between the
Parties.
1.9 "Made IP" means all IP made or acquired by a Party during the Pool
Term without funding from the other Party.
1.10 "New Contract" means any new contract or agreement between a Party
to this Agreement and a third party that is entered into after 3
October 1999 and any renewal or extension of an Existing Contract
that becomes effective after 3 October 1999.
1.11 "Non-Competition Agreement" means the agreement between the Parties
entitled "Non-Competition Agreement" having an effective date of
March 7, 2000.
1.12 "Party" means Sabre or Travelocity individually and "Parties" means
Sabre and Travelocity collectively.
1.13 "Pool IP" [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
1.14 "Pool Term" means the period from 3 October 1999 until the fifteenth
(15th) anniversary of the Effective Date of this Agreement, unless
the obligation to contribute to Pool IP is earlier terminated
pursuant to the terms of this Agreement.
1.15 "Premium IP" means IP made solely by one Party during the Pool Term
and paid for by the other Party at premium rates as provided in the
Technology Services Agreement.
1.16 "Sabre Direct Competitor" [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]
1.17 "Sabre Pool IP" [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
1.18 "Standard IP" means IP made solely by one Party during the Pool Term
and paid for by the other Party at standard rates as provided in the
Technology Services Agreement.
1.19 "Technology Services Agreement" means an agreement between the
Parties entitled "Information Technology Services Agreement" having
an effective date
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of March 7, 2000.
1.20 "Travelocity Direct Competitor" [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]
1.21 "Travelocity Pool IP" [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]
2. OWNERSHIP, MAINTENANCE AND ENFORCEMENT OF IP
2.1 Each Party will retain all ownership interest in Existing IP as it
had as of the Effective Date.
2.2 Each Party will own all right, title and interest in and to all Made
IP, Standard IP and Premium IP made or acquired by it during the
Pool Term.
2.3 Each Party will control and pay for necessary legal protection,
including patents and copyrights where appropriate, for all IP
solely owned by it during the term of this Agreement, PROVIDED,
HOWEVER, that no Party will have any obligation to obtain or
maintain any legal protection for IP, owned solely by such Party.
2.4 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.
2.5 No Party will have any obligation to enforce or defend any IP. If
one Party wishes to enforce any Pool IP against a third party, the
other Party will cooperate in such enforcement at the one Party's
expense.
3. POOL IP
3.1 During the Pool Term, each Party will disclose to the other Party
all Pool IP within [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
after a prototype is made or acquired. All software within Pool IP
will be disclosed to the other Party in executable and source code
versions and such disclosure will include all applicable
documentation.
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3.2 To the extent a Party considers any of its Pool IP to be proprietary
and confidential, the Party may disclose it to the other Party in
confidence. Such disclosure shall be in writing or other tangible
form that is marked as confidential and proprietary to the
disclosing Party. The other Party will receive and maintain such
Pool IP in confidence and will treat it as it does its own
proprietary information. Obligations of confidentiality shall not
apply to Pool IP that becomes part of the public domain through no
fault of the receiving Party, that the receiving Party can show by
documentary evidence was in its possession prior to disclosure of
such Pool IP, or that was rightfully communicated to the receiving
Party by a third party free of any obligation of confidence owed by
such third party to the other Party.
3.3 [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
3.4 Each Party will be free to use and to fully exploit in its own
business throughout the world all Pool IP owned by it.
4. POOL IP LICENSE RIGHTS
4.1 Sabre may grant a license to any third party under any Sabre Pool
IP, except for Premium IP, to use and fully exploit such Sabre Pool
IP.
4.2 Sabre may grant a license under any Premium IP that is a part of
Sabre Pool IP to any third party who, at the time such license is
granted, is not a Travelocity Direct Competitor.
4.3 Travelocity may grant a license to any third party under any
Travelocity Pool IP, except for Premium IP, to use and fully exploit
such Travelocity Pool IP.
4.4 Travelocity may grant a license under Premium IP that is a part of
Travelocity Pool IP to any third party who, at the time such license
is granted, is not a Sabre Direct Competitor.
4.5 [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
4.6 Travelocity hereby grants to Sabre a perpetual, worldwide, non-
exclusive, royalty-free license to all Travelocity Pool IP for the
unrestricted use and exploitation by Sabre in its business.
Travelocity further grants to Sabre the right to grant sublicenses
under any Travelocity Pool IP (regardless of which party paid for
the IP or at what rate it was paid for) to any third party who, at
the time such sublicense is granted, is not a Travelocity Direct
Competitor.
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4.7 Any software included in a Party's Pool IP shall include applicable
documentation and (a) shall be licensed to the other Party in both
source code and executable code, and (b) may be licensed or
sublicensed to third parties in executable code only.
4.8 [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
5. THIRD PARTY CONTRACTS
5.1 Nothing in this Agreement will prevent a Party from complying with
any Existing Contract. If required by an Existing Contract with a
third party, a Party may grant a license under Premium IP paid for
by the other Party and a sublicense under the other Party's Pool IP
to the third party even if the third party is or becomes a Direct
Competitor of the other Party.
5.2 Any New Contract with a third party will be subject to the
provisions and restrictions of Article 4 of this Agreement relating
to Direct Competitors of the other Party. In the event such a third
party becomes a Direct Competitor after any such New Contract has
been executed, (a) the third party will be permitted to use whatever
IP was originally the subject of the New Contract in accordance with
the terms of that contract, and (b) each party acknowledges that
thereafter it can not grant to such third party additional rights or
extension of rights under any Pool IP that is subject to the Direct
Competitor provisions and restrictions outlined in Section 4 of this
Agreement.
6. ROYALTY AND LICENSE FEE
6.1 Except as provided in this Article 6 of this Agreement, no Party
will be obligated to pay to the other Party any fee, royalty or any
form of monetary consideration for use, exploitation or sublicensing
of Pool IP.
6.2 Travelocity hereby grants to Sabre the right and license to use the
Existing Clone in its business and grants to Sabre the right to
grant sublicenses to third parties who are not Travelocity Direct
Competitors.
6.3 [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
6.4 Upon request by Sabre, Travelocity will deliver to Sabre any Future
Clone and will grant to Sabre a license to use any Future Clone in
its business and to grant
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sublicenses to third parties who are not Travelocity Direct
Competitors.
6.5 If, after the Effective Date of this Agreement, Sabre grants a
sublicense to a third party to use any Future Clone, Sabre will
notify Travelocity of the sublicense within thirty (30) days after
execution thereof and will pay to Travelocity [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED]
7. TERM AND TERMINATION
7.1 All rights granted to and restrictions imposed on a Party pursuant
to this Agreement with respect to any Pool IP will continue in
perpetuity. Termination of this Agreement for any reason will not
affect rights granted or obligations assumed prior to the date of
such termination.
7.2 If Sabre either: (a) materially breaches the Noncompetition
Agreement, during the term thereof; or (b), after expiration of the
non-competition restriction provided in the Noncompetition
Agreement, Sabre commences a business that would have been subject
to the non-competition restriction, or acquires Control (as defined
in the Non-Competition Agreement) of such a business; then, in
either such event, Travelocity, by [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] advance written notice to Sabre, may terminate
the portion of this Agreement that obligates both parties to
contribute to Pool IP.
7.3 If at any time Travelocity commences (or acquires Control of) a
business of distribution (a) of travel inventory directly to travel
agents or corporations, or (b) of travel technology to any travel
industry suppliers (e.g., airlines, car companies, hotels, cruise
lines and tour companies), then Sabre, by [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] advance written notice to
Travelocity, may terminate the portion of this Agreement that
obligates both parties to contribute to Pool IP.
7.4 The obligation of each party to contribute to Pool IP will
automatically terminate in the event Sabre no longer controls
Travelocity. Sabre shall be considered to have "control" of
Xxxxxxxxxxx.xxx so long as Sabre has (a) direct or indirect
ownership of, or the unrestricted right to acquire such ownership
of, at least 20% of the limited partnership units or other ownership
interests in Travelocity, and (b) effective control, by contract or
otherwise, of the management, governance and activities of
Travelocity.
7.5 Either Party may terminate the portion of this Agreement that
obligates both parties to contribute to Pool IP upon written notice
to the other Party in the event the other Party becomes insolvent,
makes a general assignment for the benefit of creditors, suffers or
permits the appointment of a receiver for its business or
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assets, becomes subject to any proceeding under any bankruptcy or
insolvency law whether domestic or foreign, or has wound up or
liquidated, voluntarily or otherwise.
7.6 Termination as provided herein will not be a Party's sole remedy,
and each Party hereby reserves all rights and remedies at law or in
equity for any breach by the other Party of any term of this
Agreement.
7.7 Termination of the obligation to contribute to Pool IP shall not
affect the rights of either party to Pool IP in existence before the
date of such termination. All rights and obligations that accrued
prior to termination of the obligation to contribute to Pool IP will
continue in full force and effect.
8. ASSIGNMENT
Neither this Agreement, nor any rights granted or obligations imposed
hereby, may be assigned or encumbered by either party without the prior
written consent of the other party.
9. MISCELLANEOUS
9.1 A waiver of any breach of any provision of this Agreement shall not
be construed as a continuing waiver of other breaches of the same or
other provisions of this Agreement.
9.2 Nothing herein shall be deemed to create an agency, joint venture or
partnership relation between the parties hereto.
9.3 This Agreement constitutes the entire agreement and understanding of
the Parties with regard to the IP that is the subject matter hereof
and merges and supersedes all prior discussions, negotiations,
understandings and agreements between the parties concerning the
subject matter hereof. 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 Information Services Technology
Agreement. Neither party shall be bound by any definition,
condition, warranty, right, duty or covenant other than as expressly
stated in this Agreement or as subsequently set forth in a written
document signed by both parties. Each party expressly waives any
implied right or obligation regarding the subject matter hereof.
9.4 This Agreement shall be interpreted and construed, and the legal
relations created herein shall be determined, in accordance with the
laws of the State of Texas (excluding conflicts of laws) and of the
United States.
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9.5 This Agreement may be amended only by a written document signed by
authorized representatives of both Parties.
9.6 Each party hereto agrees to execute, acknowledge and deliver all
such further instruments, and to do all such further acts, as may be
necessary or appropriate to carry out the intent and purposes of
this Agreement.
9.7 Should any part or provision of this Agreement be held unenforceable
or in conflict with the law of any jurisdiction, the validity of the
remaining parts or provisions shall not be affected by such holding.
In the event a part or provision of this Agreement held
unenforceable or in conflict with law affects consideration to
either Party, the Parties agree to negotiate in good faith amendment
of such part or provision in a manner consistent with the intention
of the Parties as expressed in this Agreement.
9.8 Neither Party shall be responsible or liable to the other Party for
nonperformance or delay in performance of any terms or conditions of
this Agreement due to acts or occurrences beyond the control of the
non-performing or delayed Party, including but not limited to, acts
of God, acts of government, wars, riots, strikes or other labor
disputes, shortages of labor or materials, fires and floods,
provided the nonperforming or delayed Party provides to the other
Party written notice of the existence and the reason for such
nonperformance or delay.
9.9 (a) Any and all notices or other communications required or
permitted by this Agreement or by law to be served on or given to
either party hereto by the other party shall be in writing and
delivered or sent to:
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.
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Xxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attention: General Counsel
To Travelocity:
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
Each party may change its address for purposes of this Agreement by
written notice to the other party.
(b) All notices or other communications shall be deemed duly
served and given on the date when personally delivered to the party
to whom it is directed, when transmitted electronically by telex or
facsimile, or when deposited in the United States mail, first class,
postage prepaid, and addressed to the party at the address in
Paragraph 9.9(a).
9.10 This Agreement shall be executed by each Party in duplicate
originals, each of which shall be deemed an original, but both
originals together shall constitute only one and the same
instrument.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
SABRE INC.
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Signature
Xxxxxxx X. Xxxxxxx
-----------------------------
Name
Sr. V.P. and CFO
-----------------------------
Title
March 7, 2000
-----------------------------
Date
XXXXXXXXXXX.XXX LP
/s/ Xxxxxx X. Xxxxxxxxx
-----------------------------
Signature
Xxxxxx X. Xxxxxxxxx
-----------------------------
Name
Sr. V.P., General Counsel and
Corporate Secretary of
Travelocity Holdings, Inc.
its General Partner
-----------------------------
Title
March 7, 2000
-----------------------------
Date
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