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EXHIBIT 10.25
This Sabre Subscriber Agreement ("Agreement") is made by and between SABRE INC.
("Sabre") and 800 Travel Systems, Inc. ("Customer") as of the date signed by
Sabre below.
WHEREAS, Sabre provides computerized travel and related reservation services
through the Sabre System; and
WHEREAS, Customer desires to access the Sabre System for purposes of making
travel arrangements for itself and its customers.
NOW, THEREFORE, Sabre and Customer agree as follows:
1. TERM OF AGREEMENT. This Agreement will begin on the Effective Date and
will continue thereafter for sixty (60) months ("Initial Term"). Customer may be
responsible for initiation costs incurred by Sabre prior to the Effective Date
and will be obligated prior to such Effective Date to permit, and to reasonably
cooperate with, any and all installation and initiation activities by Sabre
necessary to activate Customer's access to the System and the Sabre System.
2. DEFINITIONS. The definitions set forth on Attachment 1 hereof apply to
and are a part of this Agreement.
3. LICENSE.
(A) LICENSE GRANT. Sabre grants Customer a non-exclusive, non-transferable
limited license to use the System at the Site during the term of this Agreement
for the sole purpose of accessing the Sabre System for travel-related
information or to book reservations for air transportation, car rentals, hotel
accommodations and other services and functions offered by Sabre from time to
time. Sabre represents that it has all applicable rights, title and interest in
the Sabre System and the System, including necessary IP Rights or has secured
from the applicable manufacturer the right to grant such license. Customer will
not disclose, lease, sell, export, distribute, copy, transfer or assign the
System to any third party without Sabre's written consent. One copy of the
System Software may be made for back-up purposes only and must incorporate all
notices and legends appearing on the original media. System Software
sub-licensed by Sabre hereunder may be subject to additional terms and
conditions contained in the license agreement for such System Software. Sabre
may audit the presence of System components at the Site at any time, through
manual or automated means.
(B) CUSTOMER MODIFICATIONS; OBLIGATIONS ON TERMINATION. Customer may not
modify, create derivative works, reverse compile, decompile, disassemble,
reverse assemble or reverse engineer the System Software. Customer must install
or allow Sabre to install non-optional modifications to the System, provided by
Sabre at no charge, within thirty (30) days of notification from Sabre. Upon
termination of this Agreement Customer agrees to immediately cease the use of
and cooperate with Sabre in arranging for the de-installation and return of the
System and all documentation and to pay all applicable deinstallation fees.
(C) SABRE MODIFICATIONS. Sabre retains the right to modify the Sabre System
or the System at its discretion at any time during the term of this Agreement
even if such modifications require Customer to make changes in its own equipment
or software, as long as such modifications do not materially alter Customer's
access to the Sabre System. Sabre will use reasonable efforts to notify Customer
in advance of such modifications.
4. FEES AND PAYMENT.
(a) Payment of Charges. Customer will pay Sabre the fees set forth in
Amendment One to the Sabre Subscriber Agreement as well as any fees for optional
products and services requested by Customer from time to time ("Charges"). All
amounts payable to Sabre will be paid within fifteen (15) days of Sabre's
invoice. Billing will commence upon the start of the Initial Term. All amounts
mentioned in this Agreement will be due and payable in United States dollars
unless both parties agree otherwise. Charges not paid when due may be subject to
a late fee at the highest rate permitted by the governing law indicated in
Section 18. Customer will pay any taxes, fees, licenses or assessments,
including withholding taxes, imposed or levied by any federal, state or local
authority as a result of this Agreement, excluding taxes based on Sabre's net
income. Customer will continue to be responsible for all applicable Charges
during any period in which Sabre, as allowed in this Agreement, has suspended
Customer's access to the Sabre System.
(B) INCREASES IN CHARGES. The Charges, other than the Fixed Monthly Fees
and the move/installation/deinstallation fees, if applicable, are subject to
change by Sabre upon thirty (30) days' written notice. Customer may terminate
this Agreement prior to implementation of the increase should the new rate
exceed a ten percent (10%) increase over the same fee in the previous twelve
(12) month period. The Charges related to communication access devices will be
subject to increase, at any time and without limitation upon thirty (30) days
advance notice to Customer.
(C) NON-SABRE EXPENSES. Customer is responsible for all Non-Sabre expenses
that Customer incurs to implement the System, including any telephone and/or ISP
charges resulting from accessing and using the Internet.
5. SABRE BOOKINGS. Air Sabre Bookings are credited in the calendar month
in which the Segment is actually processed by Sabre for billing to the
Participant unless the Segment is canceled or secured to another Pseudo City
Code by Customer in that same calendar month. The credit for air Sabre Bookings
is subject to removal in subsequent months, prior to the Segment Activity Date,
if the Sabre Booking is cancelled or secured to another Pseudo City Code by
Customer. Other Sabre Bookings are credited in the latter of (i) the calendar
month in which the Segment Activity Date occurs or (ii) the calendar month in
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which the Segment is actually processed by Sabre for billing to the Participant.
For purposes of calculating Sabre Bookings under this Agreement, each tour
Segment will equal 2 Sabre Bookings and each cruise Segment will equal 4 Sabre
Bookings ("Weighting Factors"). Sabre may change the Weighting Factors at any
time upon ninety (90) days advance written notice to Customer.
6. EQUIPMENT.
(a) STANDARD EQUIPMENT. If Customer is leasing Standard Equipment from
Sabre the additional terms and conditions contained in Schedule B apply to and
are a part of this Agreement.
(b) CUSTOMER-OWNED EQUIPMENT/SOFTWARE. Customer may use its own equipment
and software in conjunction with the Sabre System and the System, provided that
use of the System and Sabre System is limited to the purposes stated in Section
3 and remains subject to all the terms and conditions of this Agreement.
Customer-owned equipment must meet Sabre's minimum hardware specifications. Any
Customer-owned equipment or software that communicates directly with the Sabre
System, including without limitation emulator boards, gateways, routers, ticket
printers and data lines, must be approved and certified in advance by Sabre.
Upon Sabre's reasonable request, Customer will promptly modify, alter, repair or
de-install the Customer-owned equipment to remedy any impairment of Sabre System
integrity or any other user's access to or operation of the Sabre System caused
by Customer-owned equipment. Sabre may immediately suspend Customers access to
the Sabre System if the impairment is not remedied to Sabre's satisfaction.
Customer agrees to allow Sabre reasonable access to the Site at mutually
agreeable times to allow Sabre to inspect any Customer-owned equipment used in
conjunction with this Agreement. Sabre is not responsible for repairs and
maintenance of any Customer-owned hardware or software or any third-party
systems or networks accessed by Customer through the System. Customer will pay
Sabre's then prevailing maintenance Charges incurred in responding to any
reported malfunction that Sabre reasonably determines is attributable to
Customer-owned hardware or software or third-party systems or networks.
7. USE OF THE SABRE SYSTEM AND SYSTEM.
Customer agrees to the following limitations of use for the Sabre System and
System:
(a) Customer will take all precautions necessary to prevent unauthorized
use of the Sabre System and the System. Intentional misuse of the Sabre System
or the System is a material breach of this Agreement, and Sabre will have the
right to terminate this Agreement immediately without notice and without
liability to Customer. Misuse includes speculative booking, reservation of space
in anticipation of demand, the failure to cancel test or training bookings, or
the transmission, receipt, distribution or storage of material in violation of
applicable law, regulation or third-party intellectual property rights,
including obscene, defamatory or threatening material.
(b) Customer will remain responsible for any use of the System by itself or
a third party (including un-authorized use).
(c) Customer will not enter any Prohibited Segments into the Sabre System.
Prohibited Segments will not be counted for any purpose under the Agreement.
Customer must remove all Travel Service Segments from the Sabre System when the
corresponding internal reservation be canceled directly with the Participant.
(d) No input message may exceed three hundred (300) characters in length.
Customer can not exceed one hundred seventy (170) Transactions per Sabre
Booking.
("Transaction Limit") per month. Sabre may charge Customer for processing
Transactions which exceed a ratio of one hundred thirty (130) Transactions per
Sabre Booking ("Transaction Ratio") per month. Sabre will have the right, upon
thirty (30) days written notice to Customer, to change the Transaction Limit
and/or the Transaction Ratio.
(e) Customer's expected use of the System is the Fixed Monthly Discount
Booking Level stated in Amendment One to Sabre Subscriber Agreement.
(f) Customer will comply with Sabre's reasonable instructions regarding
proper use of the Sabre System and the System and will not use the System for
the direct or indirect purpose of bypassing or circumventing the Sabre System to
communicate directly with Participants.
8. ACCESS.
(a) AUTHORIZATION; ACCESS PROVIDED BY SABRE. Other than access through the
System, Sabre must approve in writing Customers access to the Sabre System
including any changes to Customers method of access. If Sabre is providing
access services to Customer, Sabre or its designated third party will install
the necessary communication access device to connect the System to the Sabre
System and other approved systems or networks. Customers first productive use of
the System to access the Sabre System will constitute acceptance of the System
by Customer.
(b) ACCESS USING NON-SABRE EQUIPMENT OR SERVICES. If Customer provides any
equipment or utilizes third party services (such as an ISP) as part of the
access to the Sabre System, Customer will be responsible for such equipment and
services. Sabre's approval of access as required by Section 8(a) does not
obligate Sabre to support any of the Customer-provided equipment or services.
(c) NON-SABRE TRAFFIC. Customer may use the System to transmit and receive
Non-Sabre Traffic only from systems or networks approved in writing by Sabre.
Customer acknowledges that in cases of communications capacity limits being
reached, data transmission with the Sabre System will be given priority over any
Non-Sabre Traffic.
9. INTERNET BOOKING SITE. Customer will notify Sabre of its intention to
use an Internet booking site that accesses the System and Sabre System. Subject
to the limitations stated in Section 7, Sabre grants Customer a non-exclusive
license during the Term of the Agreement to connect Customers Internet booking
site to the Sabre System and the System. The Internet booking site may only be
operated on behalf of Customer and may only be used by Customers clients for the
purposes stated in Section 3. In addition, Customer agrees to (i) comply with
Sabre's internet branding standards and requirements, (ii) utilize a Sabre
designated Internet Pseudo City Code for all activity done through the Internet
booking site, and (iii) pay
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Sabre's then-current Charge for PNRs created through internet sites.
10. OPTIONAL FUNCTIONS, SERVICES AND PRODUCTS. Additional optional
functions or services and products may be offered by Sabre and requested by
Customer at any time during the term of this Agreement, including optional
System Software upgrades, additional training, Site moves or relocations, and
Standard Equipment additions. Additional services are subject to Sabre's
approval, advance notice requirements and availability and will be charged to
Customer at Sabre's then current prices. Customers use of any optional functions
or services and products will be governed by the terms of this Agreement, and
use or payment of any related Charges will constitute acceptance of such
optional functions or services and products.
11. TRAINING. For a period of sixty (60) days after the System installation
date, Sabre will make available introductory Sabre System training at a location
mutually agreeable to both Sabre and Customer at no additional charge. Travel
expenditures of Customers personnel to attend pre-implementation training will
be Customer's responsibility. During the term of this Agreement, Customer must
insure its employees and agents accessing the System are properly trained and
Customer will be responsible for all Charges for additional training that may be
needed.
12. SABRE WARRANTIES.
(a) SABRE SYSTEM WARRANTY. Sabre warrants that during the term of this
Agreement the Sabre System will not be materially inoperable more than five
percent (5%) of Normal Business Hours in the aggregate, Monday through Saturday,
per month ("Inoperable Threshold").
(b) SYSTEM WARRANTY. Sabre warrants that during the term of this Agreement
the System will operate to provide access to the Sabre System during Normal
Business Hours, provided that (1) the System may not be operable during brief
periods due to routine maintenance, (2) Customer has installed or permitted
installation of all required upgrades to any software or hardware, including any
Customer owned equipment or software, and (3) the failure of the System to
operate is not caused by Customer.
(c) DISCLAIMER OF ALL OTHER WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN
THIS SECTION, THE SABRE SYSTEM, THE DATA DERIVED FROM THE SABRE SYSTEM, THE
SYSTEM AND/OR ANY COMPONENTS THEREOF ARE PROVIDED TO CUSTOMER BY SABRE "AS IS
AND WITH ALL FAULTS". ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY, COMPLETENESS AND NON-INFRINGEMENT
OF THE DATA DERIVED FROM THE SABRE SYSTEM, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR ANY
IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR
USAGE OF TRADE.
13. LIMITATION OF WARRANTIES.
(a) LIMITED REMEDY FOR BREACH OF SYSTEM WARRANTY. CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY FOR ANY BREACH OF THE SABRE SYSTEM WARRANTY IN SECTION 12(a)
WILL BE A REDUCTION OF CUSTOMER'S MONTHLY CHARGES EQUAL TO SABRE'S THEN-CURRENT
UP-TIME CREDIT RATE PER VIDEO AGENT SET AND VIDEO AGENT SET TERMINAL ADDRESS PER
HOUR OF IN-OPERABILITY WHICH EXCEEDS THE INOPERABLE THRESHOLD. CUSTOMER MUST
REQUEST SUCH REDUCTION IN WRITING WITHIN SIXTY (60) DAYS OF THE END OF THE
APPLICABLE MONTH AND INCLUDE A LOG CONTAINING THE DATE, TIME AND DURATION OF THE
IN-OPERABILITY, AND THE DATE AND TIME CUSTOMER REPORTED THE IN-OPERABILITY TO
SABRE. SABRE IS NOT RESPONSIBLE FOR IN-OPERABILITY CAUSED BY CUSTOMER'S ISP OR
TELEPHONE VENDOR.
(b) LIMITED WARRANTY FOR BREACH OF SYSTEM WARRANTY. IN THE EVENT OF A
MATERIAL MALFUNCTION OR DEFECT IN AN UNALTERED COMPONENT OF THE SYSTEM THAT
SUBSTANTIALLY AFFECTS PERFORMANCE OF THE SYSTEM THAT IS REPORTED BY CUSTOMER TO
SABRE AND THAT CAN BE REPRODUCED BY SABRE, SABRE WILL USE REASONABLE EFFORTS TO
CORRECT SUCH MALFUNCTION OR DEFECT AT NO ADDITIONAL CHARGE TO CUSTOMER. IF SUCH
MALFUNCTION OR DEFECT MATERIALLY IMPAIRS CUSTOMER'S USE OF THE SYSTEM AND CANNOT
BE CURED AS PROVIDED IN THIS SECTION, THEN CUSTOMER MAY TERMINATE THIS AGREEMENT
WITHOUT FURTHER LIABILITY TO SABRE. THE FOREGOING IS CUSTOMER'S SOLE AND
EXCLUSIVE REMEDY FOR ANY MALFUNCTION OR DEFECT IN THE SYSTEM OR ANY BREACH OF
THE SYSTEM WARRANTY IN SECTION 12(B).
14. LIMITATION OF LIABILITY. AS A CONDITION TO ENTERING INTO THIS
AGREEMENT, CUSTOMER AGREES THAT (a) SABRE WILL NOT BE LIABLE TO CUSTOMER FOR ANY
LOSS, CLAIM OR DAMAGE CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (EXCLUDING
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF SABRE OR BY EVENTS BEYOND THE CONTROL
OF SABRE.
(b) IF A PASSENGER USING A CONFIRMED RESERVATION MADE BY CUSTOMER THROUGH
THE SABRE SYSTEM IS REFUSED SERVICE BY THE PARTICIPANT DUE TO AN OVERSALE OR THE
LACK OF RECORD OF SUCH RESERVATION, THE SOLE REMEDY OF CUSTOMER WILL BE THAT
PROVIDED FOR BY SUCH PARTICIPANT IN ITS TARIFF OR THE TERMS AND CONDITIONS OF
THE PARTICIPANTS CONTRACT APPLICABLE TO CUSTOMER AND/OR THE PASSENGER.
(c) TO THE EXTENT THAT SABRE HAS ANY LIABILITY UNDER THIS AGREEMENT OR
UNDER ANY THEORY OF LIABILITY, SABRE'S CUMULATIVE LIABILITY FOR DAMAGES TO
CUSTOMER HEREUNDER WILL BE LIMITED TO THE LESSER OF (1) CUSTOMER'S DIRECT
DAMAGES, (2) THE TOTAL AMOUNT OF CHARGES ACTUALLY PAID BY CUSTOMER TO SABRE
PURSUANT TO THIS AGREEMENT OVER THE TERM OF THIS AGREEMENT, OR (3) ONE MILLION
DOLLARS ($1,000,000).
(d) SABRE WILL NOT BE LIABLE TO CUSTOMER UNDER ANY THEORY OF LIABILITY OR
ANY FORM OF ACTION (INCLUDING NEGLIGENCE) FOR ANY
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INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES UNDER ANY
CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE OR SAVINGS, OR
THE LOSS OF USE OF ANY DATA, EVEN IF SABRE HAD BEEN ADVISED OF, KNEW, OR SHOULD
HAVE KNOWN, OF THE POSSIBILITY THEREOF.
15. INDEMNIFICATION/RELEASE.
(a) Mutual Indemnities. Customer and Sabre ("lndemnitor") hereby agree to
indemnify and hold each other, their officers, directors, agents, employees,
("Indemnitees") harmless from and against all third-party liabilities including
but not limited to attorneys' fees, experts' fees, expenses and costs incident
thereto, which may be suffered by, accrued against, charged to or recoverable
from the Indemnitees by reason of any injuries to or deaths of persons or loss
ot damage to or destruction of property (including loss of use thereof) arising
out of or in connection with any act or omission of the Indemnitor under this
Agreement.
(b) Customer Indemnification of Sabre. Customer will defend, indemnify and
hold harmless Sabre and its officers, directors, agents, employees and direct
and indirect subsidiaries of Sabre Holdings Corporation against all costs, fines
and expenses, including attorneys fees, resulting from (1) Customer's failure to
pay any taxes as required in this Agreement, (2) any claims, including debit
memos issued by Participants, arising from Customer's misuse of the Sabre System
including, without limitation, making fraudulent bookings and/or failing to
honor Participant ticketing and fare rules, or (3) any claims arising from or
related to any Customer-owned software, Customer-owned hardware, or Non-Sabre
Traffic that is used in conjunction with the System including Customer's.
failure to remove such items from the Standard Equipment prior to Sabre's
removal or repair of any item of the System and Customer's failure to back-up
its own software and data.
16. EXCUSABLE DELAY. Neither party will be liable for delays in performance
of this Agreement caused by acts of God, strikes or other labor difficulties,
fires or any other cause beyond the party's reasonable control, including but
not limited to delays, deficiencies or interruptions caused by the electrical or
telephone line suppliers, ISP or other common carriers.
17. ASSIGNMENT. Customer will not transfer or assign this Agreement, or any
right or obligation under it, by operation of law or otherwise without Sabre's
prior written authorization which will not be unreasonably withheld, and any
attempt to transfer or assign will render this Agreement null and void. Sabre
may assign or delegate its interest, rights and/or obligations in this Agreement
and Sabre will be released of all obligations as long as the transferee assumes
all of Sabre's obligations in writing.
18. APPLICABLE LAW. This Agreement, and all of its provisions, will be
governed by the substantive laws of the state of Texas without reference to its
conflict of laws provisions. Each party hereby consents to the non-exclusive
jurisdiction of the United States District Court for the Northern District of
Texas and the courts of the State of Texas in any dispute arising out of this
Agreement.
19. NOTICES. Notices given or required under this Agreement will be deemed
delivered if sent by mail, Postage prepaid, to Sabre at 4200 American Blvd, MD
3558, Xxxx Xxxxx XX 00000 XXX, Attn: Financial Services; and to Customer at the
address set forth below: 0000 Xxxx Xxxxxxx, Xxx. 000, Xxxxx, Xx. 00000.
20. CONFIDENTIALITY. Each party's Confidential Information will remain that
party's exclusive property. Each party will maintain the confidentiality of the
other party's Confidential Information at all times during and after the term of
this Agreement. Neither party will use, sell, sublicense, transfer, publish,
disclose, display, or otherwise make available to others, except as authorized
in this Agreement, the Confidential Information of the other party or any other
material relating to the Confidential Information of the other party nor will
either party permit its officers, employees, agents, contractors or
subcontractors to divulge the other party's Confidential Information without
that party's prior written consent. Nothing in this Agreement will be
interpreted to limit in any way Sabre's right to use, market, sell or publish
any booking related data subject only to any applicable laws or regulations.
21. SABRE DATA. Any data made available to Customer by Sabre through the
Sabre System under this Agreement ("Sabre Data") will be used by Customer solely
in connection with rendering the following services: (1) customer accounting and
record keeping activities; or (2) the sale of or reservations for travel
products and services, including schedule quotations, offered in the Sabre
System. Customer will not publish, disclose or otherwise make available to any
third party any compilation of Sabre Data. However, Customer may use specific
Sabre Data for the benefit of its customers in connection with any reservation,
schedule quotation, or production of a travel itinerary, invoice, statement or
ticket.
22. TERMINATION AND DEFAULT. Upon the occurrence of any of the following
instances of default and, in the case of (a) and (b), the failure of the
defaulting party to cure such default within fifteen (15) days of written notice
from the other party, the non-defaulting party will have the right to suspend
services or terminate this Agreement and pursue all legal and equitable remedies
to which it is entitled:
(a) Customer fails to pay any amount when due;
(b) either party breaches any material term or obligation under this
Agreement; or
(c) either party ceases to do business as a going concern, makes an
assignment for the benefit of creditors, admits in writing its inability to pay
debts as they become due, acquiesces in the appointment of a trustee, receiver
or liquidator for it or any substantial part of its assets or properties, or
executes an agreement to sell all or substantially all of its assets without
complying with Sections 17 or 23.
23. CUSTOMER LOSS OF BUSINESS. At any time during the term of this
Agreement, if Customer experiences or is threatened with a substantial loss of
existing business, Sabre will, upon receipt of written notice from Customer,
meet and confer with Customer within thirty (30) days to discuss the impact of
the loss of business on this Agreement and to determine what changes to the
Agreement, if any, can be made in good faith by the parties. If Customer ceases
operation as a business other than as a result of a merger or sale of all or
substantially all of its assets including without limitation its customer lists,
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Sabre agrees to suspend Customer's obligations under this Agreement upon
Customer's compliance with and execution of Sabre's then-current Suspension of
Services Agreement, including but not limited to any fees or charges that may be
applicable.
24. DELETION OF SYSTEM. Once during the Initial Term of the Agreement,
Customer may delete at least one (1) but no more than ten percent (10%) of the
Video Agent Set Terminal Addresses and, if applicable, installed productive
Video Agent Sets and printers, contingent upon the following:
(a) Customer provides Sabre with documentation of a substantial decrease in
the number of Sabre Bookings resulting from the loss of its commercial accounts
and/or customer base;
(b) Customer notifies Sabre, in writing, of the description and location of
System components to be deleted (the "Deleted System"); and
(c) Customer pays Sabre the applicable de-installation Charges plus any
applicable monthly Charges for such Deleted System through the Stop Billing Date
which Sabre will specify to Customer.
Upon Sabre's de-installation of the Deleted System Sabre will defer all Charges
related to the Deleted System ("Deferred Charges") from the Stop Billing Date to
the termination or expiration date of this Agreement. In addition to all other
rights under the Agreement, upon termination of this Agreement due to an uncured
event of default by Customer, Sabre will be entitled to immediate payment of the
Deferred Charges plus interest, at the maximum rate allowed by applicable law
from the date of the deferral until payment. If the Agreement expires by its own
terms, Sabre will waive payment of the Deferred Charges.
25. EXISTING SUBSCRIBER AGREEMENT. If Customer has an existing Sabre
subscriber agreement with Sabre, the parties agree to extend the term of the
prior agreement through the Effective Date of this Agreement.
26. MISCELLANEOUS. This Agreement constitutes the entire agreement between
the parties relating to the subject matter hereof and supersedes, as of the
Effective Date, any prior agreements and understandings, whether oral or
written, between the parties relating to the same subject matter. No
modification, amendment or change hereof will be effective or binding on any
party unless set forth in writing, duly executed by the parties. The waiver by
any party hereto of any requirement or obligation arising hereunder will not
operate or be construed as a subsequent waiver thereof. This Agreement will be
binding upon and will inure to the benefit of the parties, their legal
representatives, successors and assigns. This Agreement is not exclusive and
each party is free to enter into similar agreements with any other party. The
headings in this Agreement are for purposes of reference only and will not limit
or define the meaning hereof. This Agreement may be executed in one or more
counterparts, each of which will be an original but all of which will constitute
one instrument. Any provision of this Agreement which may be determined by a
court or other competent governmental authority to be prohibited or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability, without invalidating
the remaining provisions thereof, unless said prohibition or unenforceability
materially alters the rights or obligations of either party.
27. SURVIVING SECTIONS. If the term of the Agreement expires or is
terminated for any reason before Customer has paid to Sabre all of the sums due,
the Agreement will survive such expiration or termination to the extent
necessary to protect Sabre's rights until all sums owed to Sabre have been paid.
Notwithstanding anything to the contrary referenced herein, Sections 3(b),
4, 13, 14, 15, 18, 20, and 21 will survive the termination of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and
year written below.
800 TRAVEL SYSTEMS, INC.
By: By: SABRE INC.
---------------------------------- -------------------------------
(Signature) (Signature)
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxx
(Print Name) (Print Name)
Title: CEO Title: Vice President, Southern
Date: 12/14/00 Date: 12/21/00
Date: Date:
PCC: B8T3, I944, AQ09, AQZ9, 9IX2
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1. LEASE TERM. The lease term of the Standard Equipment will commence on
the date of installation or, if already installed, the Effective Date and will
continue for sixty (60) months ("Initial Lease Term"). Any additional Standard
Equipment installed up to and including the thirty-sixth (36tn) month after the
Effective Date shall terminate at the end of the Initial Term. The term of any
additional Standard Equipment installed subsequently to the thirty-sixth (36 )
month of this Agreement shall have a term of sixty (60) months commencing on the
date of installation. ("Additional Lease Term"). Any addition Standard Equipment
installed after the Effective Date shall be subject to the same terms and
conditions of this Agreement.
2. CHARGES AND PAYMENTS. In addition to the Charges, Customer agrees to
pay to Sabre additional Charges for services and materials including without
limitation the following: (a) the installation or removal of Standard Equipment;
(b) Standard Equipment relocation within the Site; (c) modifications, upgrades,
enhancements or additions of Standard Equipment; (d) installation of peripheral
devices requested by Customer, (e) materials for use with the Standard
Equipment, including without limitation, ticket stock for use with thermal
ticket printers.
3. INSTALLATION AND DELIVERY. Sabre will arrange for delivery of the
Standard Equipment to the Site on the estimated installation date. Customer, at
its expense, will be responsible for preparing, on or before the estimated
installation date, the Site for the Standard Equipment in accordance with
Sabre's reasonable instructions. If the Site is not prepared Customer will pay
Sabre's reasonable expenses related to the attempted installation and the
resulting delay in installation. Customer's failure to prepare the Site or
failure to allow Sabre to install the Standard Equipment on the date mutually
agreed to will be deemed an event of default. Customer will at all times keep
the Standard Equipment in its sole possession and control at the Site. Customer
will not move any part of the Standard Equipment from the Site without first
obtaining the written consent of Sabre. Such consent will not be unreasonably
withheld. Customer will install or allow Sabre to install any upgrade to the
Standard Equipment deemed necessary by Sabre and provided by Sabre at no charge
to Customer as long as. such upgrade does not materially impair Customer's
ability to access and use the Sabre System in the manner expressly permitted in
the Agreement. Customer will not install any Standard Equipment itself unless
given written permission from Sabre to do so.
4. ACCEPTANCE OF THE STANDARD EQUIPMENT. Upon installation of the Standard
Equipment and establishment of a successful connection with the Sabre System and
any other Sabre approved systems or networks, Customer will be deemed to have
accepted the Standard Equipment.
5. REPAIRS AND MAINTENANCE. Upon prompt notification from Customer, Sabre
or its designated agent will promptly repair and maintain or replace the
Standard Equipment provided that the Standard Equipment has been subject to
reasonable operation. Customer will not make any modifications nor attempt to
perform repairs or maintenance of any kind to the System. Customer will promptly
inform Sabre of any breakdown of the Standard Equipment by contacting Sabre
Customer Services. Repair or maintenance services on Standard Equipment during
Normal Business Hours, Monday through Friday excluding legal holidays, are
included in the Charges, provided that Customer has not been negligent and the
Standard Equipment has been subject to reasonable operation; otherwise, Customer
will be charged a service fee in accordance with Sabre's or its independent
contractor's then prevailing rates.
6. TITLE AND OWNERSHIP. The Standard Equipment leased from Sabre will
remain the property of Sabre. Customer will not in any other manner dispose of
the Standard Equipment or any part thereof or suffer any lien or legal process
to be incurred or levied on the Standard Equipment without Sabre's prior written
permission.
7. INSURANCE. Customer will take all precautions to protect the Standard
Equipment installed at the Site. At its own cost, Customer will procure and
maintain insurance insuring the Standard Equipment against all risk of loss or
damage, including, without limitation, the risk of fire, theft and any other
such risks as are customarily insured in a standard all risk property insurance
policy. Such insurance will also provide the following: (a) full replacement
value coverage for the Standard Equipment; (b) an endorsement naming Sabre as a
loss payee to the extent of its interest in the Standard Equipment; and (c) an
endorsement requiring the insurer to give Sabre at least thirty (30) days prior
written notice of any intended cancellation, non-renewal, material change in
coverage or, within thirty (30) days of the event, written notice of any default
in the payment of a premium. Risk of loss for and damage to the Standard
Equipment will pass to the Customer upon delivery of the Standard Equipment to
the Site. Sabre may request at any time proof of such insurance and/or other
form of surety from Customer. The failure of Customer to produce such proof or
surety within thirty (30) days of the request by Sabre will be considered an
event of default.
7
ATTACHMENT 1 - DEFINITIONS
For the purposes of this Agreement, the following words will have the meanings
set forth below:
"CHARGES" has the meaning given in Section 4(a).
"CONFIDENTIAL INFORMATION" means the terms and conditions of this Agreement, any
and all applicable IP Rights, proprietary and confidential information of Sabre
or Customer, their affiliates, subsidiaries, successors or assigns concerning
their past, present or future research, development, business activities or
affairs, finances, properties, methods of operation, processes and systems,
agreements (including without limitation private fare or special discount
agreements) related to the business of Sabre or Customer disclosed under this
Agreement. Confidential Information does not include any information that (1) is
or becomes generally known to the public, (2) which was in the receiving party's
possession or was known by it prior to receipt by the disclosing party, (3) was
rightfully disclosed to the receiving party without restriction, or (4) was
independently developed by a party without the use of the other party's
Confidential Information.
"EFFECTIVE DATE" means (1) if Customer has (a) no previous Sabre Subscriber
Agreement with Sabre, or (b) is changing its existing System configuration in
conjunction with entering into this Agreement, the installation date of the
System; otherwise (2) the date this Agreement is signed by Sabre.
"INTERNET" means the global computer network commonly referred to as the
Internet.
"IP RIGHTS" means all intellectual property rights, including (1) 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, (2) any right to
use or exploit any of the foregoing, and (3) any other proprietary right or
intangible asset (including software).
"ISP" means an Internet service provider other than Sabre or its authorized
providers.
"NON-SABRE TRAFFIC" means data other than that passing to and from the Sabre
System which is transmitted and received by Customer using the System.
"NORMAL BUSINESS HOURS" means 9:00 a.m. to 6:00 p.m. in Customer's local time
zone.
"PNR" means a passenger name record created in the Sabre System.
"PARTICIPANT" means any vendor of travel related products, information or
services which has an agreement with Sabre or an affiliate of Sabre for the
display of information regarding its products or services in the Sabre System.
"PROHIBITED SEGMENT" means a Travel Service Segment for which no corresponding
reservation has been made within the Participant's internal reservation system.
"PSEUDO CITY CODE" means a code or codes assigned by Sabre to uniquely identify
the Site.
"SABRE ACCESS" means the System Software, Video Agent Set Terminal Addresses,
and communication access devices and networks provided to Customer by Sabre
under this Agreement. "SABRE BOOKING" means an airline, hotel, tour, rental car
or cruise Segment that obligates a Participant to pay a booking fee to Sabre or
an affiliate of Sabre and that is created in or processed through the Sabre
System by Customer or that is secured to Customer. Sabre Bookings may include
additional product or service Segments in the future at Sabre's sole discretion.
"SABRE SYSTEM" means the host facilities of the Sabre0 global distribution
system which has electronic facilities able to provide, store, communicate,
distribute, process and document such information as is from time to time stored
in its database.
"SEGMENT" means (1) for airline bookings, each separate flight segment
reservation identified by a separate flight number in a PNR, multiplied by the
number of passengers booked in such PNR for such flight segment; (2) for hotel
bookings, each separate reservation that is processed through the Sabre System
with an action status code of HK, KK or KL regardless of the number of rooms,
suites or other accommodations or the number of persons or the duration of the
stay; (3) for car rental bookings, each separate reservation that is processed
through the Sabre System with an action status code of HK, KK or KL regardless
of the number of vehicles or persons or the duration of the rental; (4) for
cruise bookings, each separate cabin reservation that is created in or processed
through the Sabre System and confirmed by the Participant, regardless of the
number of travelers or the duration of the cruise; and (5) for tour bookings,
each separate reservation that is created in or processed through the Sabre
System and confirmed by the Participant, regardless of the number of travelers
or the duration of the tour. The term Segment does not include Prohibited
Segments.
"SEGMENT ACTIVITY DATE" means the first date listed in a PNR for the relevant
Segment. "SITE" means the Customer location identified herein.
"STANDARD EQUIPMENT" means the items, if any, of computer and/or communications
hardware leased by Sabre to Customer under this Agreement.
"SYSTEM" means the Sabre Access and, if applicable, any Standard Equipment.
"SYSTEM SOFTWARE" means any software delivered by Sabre to Customer under this
Agreement.
"TRANSACTION" means a grouping of characters transmitted to the Sabre System
whether such transmission is made in the Sabre System manually or automated.
Each transmission to the Sabre System from Customer constitutes one Transaction.
"TRANSACTION LIMIT" has the meaning given in Section 7(d).
"TRANSACTION RATIO" has the meaning given in Section 7(d).
"TRAVEL SERVICE SEGMENT" means a Sabre Booking entered in the Sabre System with
an action status code of GK, GL, BK, BL, HN, YK, HK*, or HL*.
"VIDEO AGENT SET" means an item of Standard Equipment through which Customer is
capable of making Sabre Bookings.
"VIDEO AGENT SET TERMINAL ADDRESS" means an assigned communication session
between Customer and the Sabre System through which Customer is capable of
making Sabre Bookings.
8
AMENDMENT TO SABRE SUBSCRIBER AGREEMENT
This Amendment to that certain Sabre Subscriber Agreement is made and entered
into this 24th day of December, 2000, between Sabre Inc. ("Sabre") and 800
Travel Systems, Inc. ("Customer").
RECITALS
WHEREAS, Sabre and Customer have entered into that certain Sabre Subscriber
Agreement dated as of December 1, 2000 (the "Agreement"); and
WHEREAS, it is in the best interest of the parties to modify certain provisions
of the Amendment.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, Sabre
and Customer hereby agree as follows:
1. EFFECTIVE DATE. The effective date of this Amendment is December 1,
2000.
2. CASH ADVANCE. [**..**].
3. CURRENT AND EXPANSIONARY DEVICES. Upon the Effective Date of this
Amendment and provided Customer meets the terms and conditions as set forth
below and in the Agreement Sabre shall provide, each month during the term
hereof, fixed monthly discounts to offset the charges for the services and
products listed below that are either currently installed or installed
subsequent to the Effective Date of the Agreement:
[**..**]
4. SITE AND RATIOS OF STANDARD EQUIPMENT. [**..**].
5. BOOKING THRESHOLD. Notwithstanding anything contained herein, Sabre
shall have no obligation to perform the undertakings set forth in paragraph 3
unless: (a) the Standard Equipment is available for purchase by Sabre on
reasonable terms and conditions from the manufacturer; and (b) Customer
processes a minimum of [**..**] Sabre Bookings per year (the "Yearly Volume
Threshold") during the Initial Term of the Agreement or complies with paragraph
6.
6. SABRE BOOKINGS BELOW YEARLY VOLUME THRESHOLD. [**..**]
7. YEARLY VOLUME THRESHOLD INCENTIVE. [**..**]
SABRE BOOKING LEVEL ABOVE VOLUME THRESHOLD CREDIT
[**..**]
8. ADDITIONAL ANNUAL INCENTIVE. [**..**].
9. REPORTS. Reports showing the number of Sabre Bookings shall be provided
by Sabre on a monthly basis. Invoicing, if necessary, will be made at the end of
each month and Customer agrees to pay all amounts due to Sabre, including
applicable taxes, within thirty (30) days of the invoice date.
10. ACQUISITIONS. If at any time during the term of the Agreement, Customer
purchases or otherwise acquires all of the assets of any travel agency which
utilizes Sabre, then such travel agencies shall be bound by the terms and
conditions as set forth in the Agreement and this Amendment. Notwithstanding the
foregoing, all outstanding receivables at the time of acquisition by Customer
must be paid to Sabre prior to inclusion of the acquired locations and/or
equipment under the terms of the Agreement, unless otherwise agreed to by both
parties. Customer and travel agency acquired must both notify Sabre in writing
of the acquisition and must provide at a minimum (i) the pseudo city code of
acquired locations(s), (ii) total number of productive devices being acquired,
and (iii) the effective date of the acquisition.
11. BOOKING THRESHOLD REVIEWS. Commencing on the first anniversary of the
Effective Date but not more than once every contract year, the parties will
review the monthly booking threshold in order to adjust the monthly booking
threshold to reflect changes in the actual costs of providing products and
services hereunder. Upon conclusion of such review, Sabre and Customer agree to
reset the Yearly Volume Threshold goal to previous twelve (12) month cycle
actual Sabre bookings. Notwithstanding the foregoing, Sabre shall have the right
to increase the monthly booking threshold to recover any actual increases in
communication costs during the upcoming year. Sabre shall provide to Customer
satisfactory evidence of such increased communication costs. Sabre shall
decrease the monthly booking threshold upon conclusion of an annual review, in
the event and to the extent that Sabre's cost of providing automation or
communication services hereunder decreases.
12. WHOLLY OWNED OFFICE/OUTLETS. The terms and conditions of the Agreement
and this Amendment are only applicable to wholly owned offices/outlets of
Customer and shall not apply to any franchise or associate operation.
9
13. CONFIDENTIALITY. It is expressly understood and agreed that this
Amendment and the Agreement, and each and every provision hereof, shall be held
and treated as confidential and shall not be disclosed by Customer to any other
person, firm, organization, association, or entity, of any and every kind,
whether public, private or governmental, for any reason, or at any time, without
the prior written consent of Sabre (except that Customer may disclose the
provisions of the Agreement and this Amendment to its attorneys, accountants
and/or consultants), unless such disclosure is required by law or legal process.
In the event of such disclosure, this Amendment and the Agreement may be
terminated immediately by Sabre, without notice to Customer, and Sabre shall
have the right to pursue any remedies available to it in law or in equity.
14. DEFINED TERMS. The defined terms used in this Amendment shall have the
meaning assigned to such terms in the Agreement.
15. AGREEMENT. Except as otherwise provided herein, all other terms of the
Agreement remain in full force and effect. In the event of any conflict between
the terms of the Agreement and this Amendment, the Amendment shall control.
16. TERMINATION OF PRIOR AGREEMENTS. All oral or written agreements entered
into by the parities prior to the effective date of the Agreement and this
Amendment which relate to the maintenance or use of the Sabre System or any
portion thereof shall be deemed terminated upon execution of the Agreement and
this Amendment.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year written below.
CUSTOMER SABRE, INC.
By: By:
-------------------------------- ---------------------------------------
(Signature) (Signature)
Name: Xxxxx Xxxxxx Name: Xxxxx Xxxxx
---------------- ------------------------
(Print Name) (Print Name)
Title: CEO Title: VP - Southern Division
------------------------- ------------
Date: 12/14/00 Date: 12/21/00
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PCC: B8T3, I944, AQ09,
AQ29, 91X2
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