Exhibit 10(l)
CODE SHARING AGREEMENT
This non-exclusive Code Sharing Agreement dated this 26 day of November,
1996 (the "Agreement") and effective November 26, 1996 (the "Effective Date") is
entered into by and between HAWAIIAN AIRLINES, INC., a Hawaii corporation, whose
business and mailing address is X.X. Xxx 00000, Xxxxxxxx, Xxxxxx, 00000-0000
("Hawaiian") and RENO AIR, a Nevada corporation, whose business and mailing
address is P. O. Xxx 00000, Xxxx, Xxxxxx 00000-0000 ("Reno"). Hawaiian and Reno
are sometimes referred to in this Agreement individually as a "Party" or
"Carrier," or collectively as the "Parties" or "Carriers."
WITNESSETH:
WHEREAS, Hawaiian and Reno are each certified air carriers providing air
transportation services in their respective areas of operation; and
WHEREAS, Hawaiian and Reno desire to cooperate in the coordination of
schedules by allowing Hawaiian to place its designation code on certain Reno
flights as permitted under applicable law, regulations and policy; and
WHEREAS, Reno and Hawaiian are each willing to perform in the manner and
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and promises in
this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties hereto agree as
follows:
1. CODE SHARING LICENSE.
a. HA LICENSE.
(i) GRANT OF LICENSE. Subject to the terms and conditions of
this Agreement, Reno grants Hawaiian the right to market to the public
Hawaiian's designated schedule passenger service on any and all of Reno's
flights operated in the markets as set forth on Schedule 1 attached hereto (the
"HA Code Shared Segments"). To the extent such flights are booked under the HA
Code they are referred to herein as the HA Code Shared Segments. The HA Code
Shared Segments shall be marketed to the public using the HA designator. HA
shall at all times indicate Reno is the operator. The Parties shall cooperate
to ensure that reservations, sales and passenger handling services for
passengers connecting to or from flights on the HA Code Shared Segments are
provided in the most efficient manner that best meets the needs of all
passengers using flights on the HA Code Shared Segments. The Parties agree to
meet as necessary to discuss the appropriateness of expanding or contracting the
list of city pairs on Schedule 1.
(ii) CONTROL OF HA CODE SHARE SEGMENTS. Reno shall have the
sole responsibility for and control over, and Hawaiian shall have no
responsibility for, control over or obligations or duties with respect to, each
and every aspect of Reno's operations, including, without limitation,
scheduling, pricing, planning of flight itineraries and routings, reservations
control/yield management, dispatch, fueling, weight and balance, flight release,
maintenance, flight operations and compliance with applicable rules and
regulations. Notwithstanding anything else set forth in this Agreement, Reno
shall have the sole right to control Reno's inventory of seats on all flights,
including on HA Code Shared Flights, and Reno's pricing when travel is sold
using Reno's code, and Hawaiian shall have the sole right to control Hawaiian's
pricing when travel is sold using Hawaiian's code.
2. TERM OF AGREEMENT.
a. TERM. This Agreement shall commence on the Effective Date and
shall continue until December 31, 1997, unless sooner terminated by either
Party in accordance with this Agreement.
b. TERMINATION AS A RESULT OF CHANGES OF LAW. In the event there is
any change in treaties, statutes or regulations of air transportation that
materially affects the rights and/or obligations presently in force with respect
to the air transportation services of Hawaiian or Reno or both, relating to HA
Code Shared Segments, then the Carriers shall consult each other, within
thirty (30) days after any of the occurrences described herein, in order to
determine or seek mutual agreement as to what, if any changes to this Agreement
are necessary or appropriate, including but not limited to the early termination
of this Agreement.
c. OTHER TERMINATION RIGHTS. In addition to any other provisions of
this Agreement, this Agreement may be terminated, without liability, as follows:
(i) By either Party upon material default by the other Party
after having given seven (7) days advance written notice to cure such material
default, and the default having not been cured;
(ii) By either Party immediately on notice, if the other Party
shall be dissolved or shall fail to maintain its corporate existence in good
standing, or shall have its authority to operate as a scheduled airline
suspended or revoked, either in whole or with respect to HA Code Shared
Segments, or shall cease operations as a scheduled airline;
(iii) By either Party immediately on notice if the other Party
shall be cited by any government authority for any significant noncompliance
with a material law, rule or regulation with respect to the marketing or
operation of HA Code
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Shared Segments;
(iv) By either Party on thirty (30) days' prior written notice,
if a carrier, foreign or domestic, that competes with the terminating Party on a
material basis, acquires majority ownership of or substantial control over the
other Party;
(v) By either Party on thirty (30) days' prior written notice,
if the other Party ceases to be a member of the American Airlines
AAdvantage-Registered Trademark- Frequent Flyer program;
(vi) By Hawaiian immediately on notice if:
1. Reno shall fail to maintain any of its aircraft in an
airworthy condition and conduct its flight operations in accordance with the
standards, rules and regulations promulgated by any government authority; or
2. Reno shall have a completion factor of not less than
80% during any thirty (30) day period with respect to HA Code Shared Segments
(including in such calculations all flights canceled less than one (1) week
prior to the date of its scheduled operation and excluding flights not completed
due to weather conditions); or
3. Reno's operational performance adversely impacts HA's
passenger handling after written notice having been given to Reno two weeks
earlier; and
(vii) By Reno immediately on notice if:
1. Hawaiian shall fail to maintain any of its aircraft in
an airworthy condition and conduct its flight operations in accordance with the
standards, rules and regulations promulgated by any government authority; or
2. Hawaiian's operational performance adversely impacts
QQ's passenger handling after written notice having been given to Hawaiian two
weeks earlier.
3. CONFIDENTIAL INFORMATION. Neither Hawaiian nor Reno shall disclose to
the other Party or be required to disclose by the other Party any information
relating to its scheduling (except as required in Section 7), pricing, inventory
control or flight profitability. Neither Hawaiian nor Reno shall disclose the
terms of this Agreement or any proprietary information with respect to the other
obtained as a result of this Agreement, either during the term hereof or
thereafter except as may be required by law or by any order of a court or
administrative agency, and then upon ten (10) days' notice to the other
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Party. Hawaiian and Reno recognize that, in the course of the performance of
each of the provisions hereof, each Party may be given and may have access to
confidential and proprietary information of the other Party, including proposed
schedule and fare changes, statistical data regarding load factors and fares,
sales and promotional programs and other operating and competitive information
(the "Confidential Information"). Hawaiian and Reno agree that each shall
preserve, and shall ensure that each of its officers, directors, agents,
attorneys, auditors, consultants and employees who receive Confidential
Information preserve the confidentiality of the other Party's Confidential
Information. This confidentiality obligation shall survive for two (2) years
after the termination of this Agreement.
4. COMPLIANCE WITH REGULATIONS. Hawaiian and Reno hereby represent,
warrant and agree that all services performed by them pursuant to this Agreement
shall be conducted and all of its personnel shall at all times meet and be in
full compliance with any and all applicable federal, state and local laws,
orders, rules and regulations of all governmental agencies having jurisdiction
over their operations, including but not limited to the Department of
Transportation ("DOT") and the Federal Aviation Administration ("FAA"). Each
Party agrees that in conducting flight operations under the designator code of
the other Party, it will employ prudent safety and loss prevention policies.
5. AUDIT. HAWAIIAN AUDIT. Hawaiian shall have the right, at its own
cost and upon adequate notice so as not to interfere with Reno's operations,
to inspect, review and observe Reno's operations of HA Code Shared Segments,
and/or to conduct a full safety and/or service audit of Reno's operations,
manuals and procedures reasonably related to HA Code Shared Segments, at such
intervals as Hawaiian shall reasonably request. In the exercise of such right,
Hawaiian does not undertake any responsibility for the performance of Reno's
operations. Hawaiian shall coordinate its safety and service audits with Reno so
as to avoid disruption of Reno's operations. Any audit may include, without
limitation, passenger statistics and passenger revenue accounting records and
procedures, maintenance and operation procedures, reservations, passenger and
baggage handling, and training records and manuals. This paragraph shall not
entitle Hawaiian access to Reno's records, documents or systems relating to its
pricing, inventory control or flight profitability.
6. IRREGULARITIES IN OPERATIONS. In the event of any irregularity in the
operations of HA Code Shared Segments, including without limitation, any event
causing damage to persons or property, Reno shall identify itself as being
operated independently of Hawaiian, and as being solely responsible for its
operations. Reno shall promptly notify Hawaiian of any and all irregularities
involving HA Code Shared Segments which may result in any damage to persons or
property as soon as such information is available and shall furnish to Hawaiian
as much details as practicable.
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7. FREQUENT FLYER PROGRAM.
a. Hawaiian shall have the right to provide its Hawaiian
Gold+Plus-Registered Trademark- members with mileage credit for the HA Code
Shared Segments.
b. Hawaiian shall have the right to issue, or cause to be issued,
frequent flyer award travel on the HA Code Shared Segments to members of
Hawaiian Gold+Plus.
c. Terms and conditions for accrual of frequent flyer mileage
credit, and acceptance of frequent flyer award tickets shall be governed by the
Frequent Flyer Agreement between the parties attached hereto as Schedule 3.
8. REPORTING OBLIGATIONS.
a. CHANGES IN SERVICE. Each Carrier shall give the other Carrier
sixty (60) days' advance notice (or notice as far in advance as possible if
sixty (60) days is impracticable) of any intended (i) changes to its operating
specifications, (ii) change to its operating flight schedule on any of the HA
Code Shared Segments or any Hawaiian segment connecting to an HA Code Shared
Segment or (iii) material changes to the manner of conducting its business or
the nature of its product.
b. CORRESPONDENCE FROM GOVERNMENTAL AUTHORITIES. Reno shall
immediately provide Hawaiian with copies of any correspondence received from a
government authority which, with respect to HA Code Shared Segments, references
(i) any alleged noncompliance with rules or regulations affecting air
transportation, or (ii) any investigation of Reno performed or proposed by any
government authority including without limitation, any communication issued by a
government authority concerning the airworthiness of Reno's aircraft, the
compliance of Reno's personnel with required operational or training procedures
or any other matter relating to the safe operation of Reno's aircraft. Reno
shall not be required to send Hawaiian routine correspondence of a type received
in the ordinary course of business.
Hawaiian shall immediately provide Reno with copies of any
correspondence received from a government authority which, with respect to HA
Code Shared Segments, references (i) any alleged noncompliance with rules or
regulations affecting air transportation, or (ii) any investigation of Hawaiian
performed or proposed by any government authority including without limitation,
any communication issued by a government authority concerning the airworthiness
of Hawaiian's aircraft, the compliance of Hawaiian's personnel with required
operational or training procedures or any other matter relating to the safe
operation of Hawaiian's aircraft. Hawaiian shall not be required to send Reno
routine correspondence of a type received in the ordinary course of business.
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c. NOTICE OF COMPLAINTS. Once a month the Parties' customer
relations departments shall discuss any received complaints, notices or
violations, requests to cease activities or similar correspondence which
reasonably relates to HA Code Shared Segments and which are received by the
Parties during the prior month from passengers, any government authorities or
other parties.
9. FLIGHT DISPLAY.
a. All HA Code Shared Segments shall be included in the availability
and fare displays of all computerized reservations systems in which Hawaiian and
Reno participate, the Official Airline Guide ("OAG"), time tables of both
Parties and Hawaiian's and Reno's internal reservation systems, using the HA
designator, to the extent reasonably possible. Hawaiian and Reno shall take all
necessary measures to ensure the display of HA Code Shared Segments in
accordance with the preceding sentence.
b. Hawaiian and Reno shall disclose and identify the HA Code Shared
Segments to the public as actually being a flight of and operated by the
operating Carrier, in at least the following ways:
i. a symbol will be used in timetables and computer reservation
systems indicating that HA Code Shared Segments are actually operated by Reno;
ii. to the extent reasonable, messages on airport flight
information displays will identify the operator of flights shown as HA Code
Shared Segments unless otherwise stated in this document;
iii. Hawaiian and Reno advertising concerning HA Code Shared
Segments and Hawaiian and Reno reservationists will disclose the operator of
each flight; and
iv. in any other manner prescribed by law.
10. TERMS AND CONDITIONS OF CARRIAGE AND CLAIMS PROCEDURES.
a. In all cases, the contract of carriage between a passenger and a
Carrier will be that of the operating Carrier. Both Carriers will work jointly
together to modify their terms of contract of carriage to maintain consistency.
b. Hawaiian shall invoice Reno an administrative fee for each
passenger boarded on HA Code Shared Segments, as set forth on Schedule 2
attached
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hereto.
c. Baggage handling and settlement of baggage claims shall be in
accordance with each operating Carrier's existing tariffs and the Trade Practice
Manual of the Air Transport Association or the IATA Resolutions and Recommended
Practices Manual, whichever applies.
11. BILLING AND PAYMENT.
a. All xxxxxxxx and payments shall take place via the ACH in
accordance with the ACH Manual of Procedures. Items specified in paragraphs
10.b. and 10.c. herein shall be processed as non-transport charges.
b. In the event either Hawaiian or Reno no longer participates in
the ACH, invoicing and payment will take place directly between the Parties.
Invoices shall be presented no later than the 18th calendar day of the month
following the month in which the passenger traveled. Payments shall be due no
later than the 30th day of the month following the month in which the passenger
travel occurred. Interest on all such unpaid amounts shall accrue at the rate
of one and one-half percent (1.5%) per month.
Invoices shall be delivered to:
Hawaiian: Interline Payables
Hawaiian Airlines, Inc.
X.X. Xxx 00000
Xxxxxxxx, XX 00000
Reno: Reno Air, Inc.
Interline accounting
X.X. Xxx 00000
Xxxx, Xxxxxx 00000
Attn: Supervisor Lifts
Payment shall be remitted to:
Hawaiian: Accounts Receivable
Hawaiian Airlines, Inc.
X.X. Xxx 00000
Xxxxxxxx, XX 00000
Reno: Reno Air, Inc.
P. O. Xxx 00000
Xxxx, Xxxxxx 00000
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Attn: Accounts Receivable Supervisor
12. IRREGULARITY HANDLING.
a. Both Parties agree to cooperate to accommodate passengers
experiencing flight irregularities that affect HA Code Shared Segments and not
to forebear from providing assistance because the other Party may have been
responsible for the flight irregularity. In the event of a flight irregularity,
the Party causing or experiencing the irregularity shall bear all related costs
associated with accommodating the passengers who have been affected.
13. AIRPORT OPERATIONAL ASSISTANCE. Both Parties shall reasonably
cooperate to coordinate and maintain their schedules to minimize passenger
waiting time and to maximize the convenience of passengers who are connecting
between Hawaiian and Reno for the HA Code Shared Segments.
14. PRORATION OF FARES. Proration of fares for the HA Code Shared
Segments shall be governed by the bilateral prorate agreement between both
Parties.
15. HAWAIIAN'S REPRESENTATIONS AND WARRANTIES. To induce Reno to enter
into this Agreement, and any documents contemplated hereby, Hawaiian makes the
following representations and warranties, each of which shall survive the
execution and delivery of this Agreement.
a. Hawaiian is a corporation duly incorporated under the laws of the
Territory of Hawaii and is validly existing in good standing under the laws of
the State of Hawaii and has its chief executive office in Honolulu, Hawaii;
b. Hawaiian is a duly certificated air carrier under 14 C.F.R.
Part 121; and
c. all services performed by Hawaiian pursuant to this Agreement
shall be conducted and all of its personnel shall at all times meet and be in
full compliance with any and all applicable federal, state and local laws,
orders, rules and regulations of all governmental agencies having jurisdiction
over its operations, including but not limited to the DOT and the FAA.
16. RENO'S REPRESENTATIONS AND WARRANTIES. To induce Hawaiian to enter
into this Agreement, and any documents contemplated hereby, Reno makes the
following representations and warranties, each of which shall survive the
execution and delivery of this Agreement.
x. Xxxx is a corporation duly incorporated and is validly
existing
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in good standing under the laws of the State of Nevada and has its
chief executive office in Reno, Nevada;
x. Xxxx is a duly certificated air carrier under 14 C.F.R. Part
121;
c. all services performed by Reno pursuant to this Agreement shall
be conducted and all of its personnel shall at all times meet and be in full
compliance with any and all applicable federal, state and local laws, orders,
rules and regulations of all governmental agencies having jurisdiction over its
operations, including but not limited to the DOT and the FAA; and
x. Xxxx has received all necessary consents required to enter into
this Agreement.
17. INDEPENDENT PARTIES.
a. INDEPENDENT CONTRACTOR. It is expressly recognized and agreed
that each Carrier, in its performance and otherwise in this Agreement, is and
shall be engaged and acting as an independent contractor and in its own
independent and separate business; that each Carrier shall retain complete and
exclusive control over its staff and operations and the conduct of its business;
and that each Carrier shall bear and pay all expenses, costs, risk and
responsibilities incurred by it in connection with its obligations under this
Agreement. Neither Party nor any of its officers, directors, employees,
representatives or agents shall in any manner, directly or indirectly, expressly
or by implication, be deemed to be, or make any representation or take any
action which may give rise to the existence of any employment, agent,
partnership, or other like relationship as between Hawaiian and Reno but each
Carrier's relationship with respect to the other Carrier in connection with this
Agreement is and shall always be that of an independent contractor.
b. STATUS OF EMPLOYEES. The employees, agents and/or independent
contractors of Hawaiian shall be employees, agents and/or independent
contractors of Hawaiian for all purposes and under no circumstances shall be
deemed to be employees, agents and/or independent contractors of Reno. The
employees, agents and/or independent contractors of Reno shall be employees,
agents and/or independent contractors of Reno for all purposes and under no
circumstances shall be deemed to be employees, agents and/or independent
contractors of Hawaiian. Neither Party shall have any supervisory power or
control over any employees, agents and/or independent contractors employed by
the other Party at any time.
c. LIABILITY FOR EMPLOYEE COSTS. Each Carrier, with respect to
its own employees (hired directly or through a third party), accepts full and
exclusive liability
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for the payment of workers' compensation and/or employer's liability (including
insurance premiums where required by law) and for the payment of all taxes,
contributions or other payments for unemployment compensation, vacations, or old
age benefits, pensions and all other benefits now imposed upon employers with
respect to its employees by any government or agency thereof or any other third
party (whether measured by the wages, salaries, compensation or other
remuneration paid to such employees or otherwise) and each Carrier further
agrees to make such payment and to make and file all reports and returns, and to
do everything necessary to comply with the laws imposing such taxes,
contributions or other payments.
18. INDEMNIFICATION AND INSURANCE.
a. INDEMNIFICATION.
(i) Hawaiian hereby assumes liability for, and shall indemnify,
defend, protect, save and hold harmless Reno, its officers, directors, agents
and employees from and against any and all liabilities, claims, judgments,
damages and losses, including but not limited to, all costs, attorneys' fees
and expenses incidental thereto, of every type and nature whatsoever, including
without limitation those involving (a) death of or injury to any person
including, but not limited to, Hawaiian's officers, directors, employees and
agents, (b) loss of, damage to, or destruction of any property whatsoever,
including any loss of use therefor, and (c) trademark, servicemark or tradename
infringement, provided that such liabilities, claims, judgments, damages or
losses are caused by or arise out of any alleged acts or omissions of Hawaiian
or its officers, directors, employees or agents which are in any way connected
to the services contemplated by this Agreement. Reno shall give Hawaiian prompt
notice of any claim made or suit instituted against Reno which, if successful,
would result in indemnification of Reno hereunder, and Reno shall have the right
to compromise or participate in the defense of same to the extent of its own
interest.
(ii) Reno hereby assumes liability for, and shall indemnify,
defend, protect, save and hold harmless Hawaiian, its officers, directors,
agents and employees from and against any and all liabilities, claims,
judgments, damages and losses, including, but not limited to, all costs,
attorneys' fees and expenses incidental thereto, of every type and nature
whatsoever, including without limitation those involving (a) death of or injury
to any person including, but not limited to, Reno's officers, directors,
employees and agents, and (b) loss of, damage to, or destruction of any property
whatsoever, including any loss of use therefor, and (c) trademark, servicemark
or tradename infringement, provided that such liabilities, claims, judgments,
damages or losses are caused by or arise out of any alleged acts or omissions of
Reno or its officers, directors, employees or agents which are in any way
connected to the services contemplated by this Agreement. Hawaiian shall give
Reno prompt notice of any claim made or suit instituted against Hawaiian which,
if successful, would result in
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indemnification of Hawaiian hereunder, and Hawaiian shall have the right to
compromise or participate in the defense of same to the extent of its own
interest.
b. INSURANCE COVERAGE. Each Carrier shall, at all times during
the term of this Agreement, maintain in full force and effect, policies of
insurance as follows:
(i) Comprehensive Airline Liability insurance, including
Aircraft Third Party, Passenger, including passenger's baggage and personal
effect, Cargo and Mail Legal Liability and Premises Liability for a combined
single limit of not less than US$500,000,000 per occurrence per aircraft. In
respect of personal injury, the minimum limit shall be US $25,000,000 per
occurrence and in the aggregate.
(ii) Worker's Compensation and Occupations Disease insurance
subject to the laws of the state wherein this Agreement is being performed, with
statutory limits of liability. Such coverage shall include Employers Liability
for a combined single limit of not less than US$1,000,000.
(iii) Subject to Section 15.b.(i) above, each Carrier,
as appropriate, shall cause the policies of insurance described therein to be
duly and properly endorsed by that Carrier's insurance underwriters as follows:
(a) As to policies of insurance described in paragraphs
b.(i) and b.(ii) above:
(1) to provide that any waiver of rights of
subrogation against other parties by one party will not affect the coverage
provided thereunder with respect to the other party;
(2) to provide that the each Party's underwriters
shall waive any and all subrogation rights against the other Party, its
directors, officers, agents, employees and other authorized representatives,
except for gross negligence or willful misconduct, with regard to any breach of
warranty on the part of the other party or to provide other evidence of such
waiver or recourse against the other Party, its directors, officers, agents,
employees and other authorized representatives;
(3) to provide that each Party, its directors,
officers, agents, employees and other authorized representatives shall be
endorsed as additional insured parties thereunder, except for gross negligence
or willful misconduct; and
(4) to provide that such insurance shall be
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the primary insurance and to acknowledge that any other insurance policy or
policies of each Party shall be secondary or excess insurance.
(b) As to policies of insurance described in
paragraph b.(i) above to provide a breach of warranty clause to said policies
and
(iv) Each Party shall cause each of the insurance policies
referred to in Section 15.b.(i) to be duly and properly endorsed to provide that
said policy or policies or any part or parts thereof shall not be canceled,
terminated or materially altered, changed or amended without thirty (30) days'
prior written notice the other Party.
(v) Simultaneously with the commencement of this Agreement,
and from time to time thereafter upon request by either Party, the other Party
shall furnish to the requesting Party evidence reasonably satisfactory to the
requesting Party of the aforesaid insurance coverage and endorsements, including
certificates certifying that the aforesaid insurance and endorsements are in
full force and effect. Initially, this evidence shall be a certificate of
insurance required hereunder, each Party naming the other Party as additional
insured.
(vi) In the event either Party fail to maintain in full force
and effect any of the insurance and endorsements required in terms of these
sections, the other Party shall have the right (but not the obligation) to
procure and maintain such insurance or any part thereof. The cost of such
insurance shall be payable by the first Party to the other Party upon demand of
the other Party. The procurement of such insurance or any part thereof by the
other Party shall not discharge or excuse the first Party's obligations to
comply with the provisions of Sections 15.b.(i) and 15.b.(ii).
c. SURVIVAL RIGHTS AND OBLIGATIONS. The rights and obligations of
Section 1.a. shall survive the expiration or termination of this Agreement.
19. INFLIGHT ANNOUNCEMENTS. The operating Carrier shall make appropriate
inflight announcements to all passengers on the HA Code Shared Segments to
promote the cooperative service. Such announcements shall be jointly developed
between the Parties and approved in writing prior to their use.
20. NOTICES AND REQUESTS. Unless another address is specified in writing,
all notices and requests in connection with this Agreement shall be given in
writing and delivered at the address specified below, by certified U.S. mail,
postage prepaid, return receipt requested, and by facsimile.
If to Hawaiian: Hawaiian Airlines, Inc.
Attn: Senior Vice President-Sales & Marketing
0000 Xxxxxxx Xxxxxx, Xxxxx X-000
00
Xxxxxxxx, Xxxxxx 00000
Telephone: 808/000-0000
Facsimile: 808/838-6738
with a copy to: Hawaiian Airlines, Inc.
Attn: General Counsel
0000 Xxxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxxx, Xxxxxx 00000
Telephone: 808/000-0000
Facsimile: 808/835-3690
If to Reno: Reno Air, Inc.
Attn: Xxxxx Xxxxxx
Vice President Marketing and Sales
000 Xxxxxx Xxx
Xxxx, Xxxxxx 00000
Telephone:702/000-0000
Facsimile:702/829-5754
with a copy to: Reno Air, Inc.
Attn: Xxxxxx X. Xxxxx
Vice President and General Counsel
000 Xxxxxx Xxx
Xxxx, Xxxxxx 00000
Telephone: 702/000-0000
Facsimile: 702/686-3875
21. BANKRUPTCY. In the event either party shall (i) file a voluntary
petition in bankruptcy, (ii) make an assignment for the benefit of creditors of
all or substantially all of its assets, or (iii) fail to secure dismissal of an
involuntary petition or bankruptcy filed against it within sixty (60) days after
the filing thereof, then upon the occurrence of any of the said events, the
other party may immediately terminate this Agreement.
22. ASSIGNMENT.
This Agreement may not be assigned by either party without the prior
written consent of the other Party. Any attempt to do so shall render this
Agreement null and void.
23. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Nevada.
24. DISPUTES.
Any dispute, controversy or claim arising out of or relating to this
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Agreement, or the breach thereof, shall be settled by binding arbitration in
accordance with the Arbitration Rules of the American Arbitration Association.
The Arbitrators shall be knowledge in the airline industry, and shall interpret
the agreement in accordance with the laws of the State of Nevada and the
arbitration shall take place in Los Angeles. Judgment upon any arbitral award
contemplated above may be entered in any court having jurisdiction.
25. ATTORNEYS FEES.
In the event an action (including arbitration) is brought to enforce
or construe the provisions of this agreement, the prevailing party in such
action shall be awarded reasonable costs and attorneys' fees as part of the
judgment in such action.
26. SEVERABILITY.
In case any one or more of the provisions contained herein shall, for
any reason, be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall be construed as if such
invalid, illegal or unenforceable provision or provisions had never been
contained herein unless the deletion of such provision or provisions would
result in such a material change as to cause the agreements contemplated herein
to be unreasonable.
27. FORCE MAJEURE.
Neither Party shall be liable for delays or failure in performance in
whole or in part hereunder to the extent that such delay or failure of
performance is not the result of that party's lack of reasonable diligence, if
caused by any act of God, war, strike, lockout, labor dispute, fire, act of
government, hurricane, or any other cause, whether similar or dissimilar, beyond
the control of that Party. However, the Party relying upon this provision shall
give prompt notice to the other Party of the occurrence of any event which will
result in a failure or delay in performance and such other Party may terminate
this Agreement upon five (5) days' advance notice if such delay is expected to
exceed seven (7) days.
28. TITLES AND HEADINGS.
The titles and headings of this Agreement are included for convenience
only and shall not be deemed to constitute part of this Agreement or to affect
the construction or interpretation hereof.
29. ENTIRE AGREEMENT; AMENDMENTS; WAIVER.
This Agreement constitutes the full and complete agreement of the
Parties and supersedes any other agreement, understanding or representation,
whether verbal or in writing by or between the Parties pertaining to reduced
rate shipping and reduced rate transportation. Any changes, amendments or other
modifications to this Agreement shall be in writing and executed by both Parties
hereto. The failure of any
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Party hereto to enforce at any time any provision of this Agreement shall not be
construed to be a waiver of such provision, nor in any way affect to validity of
this Agreement or any part hereof or the right of such party thereafter to
enforce each and every provision. No waiver of any breach of this Agreement
shall be held to constitute a waiver of any other subsequent breach.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed in their name and on their behalf as of the Effective Date.
HAWAIIAN AIRLINES, INC. RENO AIR, INC.
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxx Scimer
------------------------------------- -------------------------------
Xxxxx X. Xxxxxxx
Its Senior Vice President Its Vice President-Marketing
Marketing & Sales
By /s/ Xxxxxxxx X. Xxxxx By
------------------------------------- -------------------------------
Xxxxxxxx X. Xxxxx
Its Vice President-Finance Its
15
SCHEDULE 1
MARKETS OPERATED BY RENO
TO BE PUBLISHED WITH HA CODE
RNO TO HNL
----------
RNO-LAX
LAX-RNO
ABQ TO HNL
----------
ABQ-LAX
LAX-ABQ
TUS TO HNL
----------
TUS-LAX
LAX-TUS
COS TO HNL
----------
COS-LAS
LAS-COS
SJC TO HNL
----------
SJC-LAX
LAX-SJC
16
SCHEDULE 2
ADMINISTRATIVE FEES
As reimbursement for administrative costs incurred pursuant to this
Agreement, Hawaiian shall invoice Reno the following administrative fee per
passenger boarded on each HA Code Shared Segment. This administrative fee is
intended to reimburse Hawaiian for administrative costs such as CRS booking
fees, ARC processing fees, Tariff filing fees and reservations costs.
1. FEE AMOUNT.
"Portions of this document have been omitted pursuant to a confidential
treatment request filed with the Securities and Exchange Commission. Such
portions have been provided separately to the Commission."
This amount will be calculated by applying the rate per passenger
boarded to the number of passengers boarded on each HA Code Shared Segment.
17
SCHEDULE 3
HAWAIIAN AIRLINES/RENO AIR FREQUENT FLYER AGREEMENT
I. TERM OF AGREEMENT.
A. EARLY TERMINATION. Notwithstanding the termination language in the
Code Share Agreement, both parties must give 6 months written notice to the
other Party hereto (the "Early Termination Date") to change mileage accrual or
frequent flyer award terms.
B. AWARD ACCEPTANCE. Awards issued prior to the Early Termination Date
shall be accepted by Reno under the terms of this agreement for a period of one
year from date of issue.
II. FREQUENT FLYER MILEAGE ACCRUAL
A. HAWAIIAN GOLD+PLUS. Hawaiian Gold+Plus members shall be able to
earn Hawaiian Gold+Plus miles on Hawaiian designated flights operated by Reno
at the base rate of "Portions of this document have been omitted pursuant to
a confidential treatment request filed with the Securities and Exchange
Commission. Such portions have been provided separately to the Commission."
per mile flown. First Class passengers shall earn "Portions of this document
have been omitted pursuant to a confidential treatment request filed with the
Securities and Exchange Commission. Such portions have been provided
separately to the Commission." per mile flown.
B. AMERICAN AIRLINES AADVANTAGE. American Airlines AAdvantage members
shall be able to earn AAdvantage miles on Hawaiian designated flights
operated by Reno at the base rate of "Portions of this document have been
omitted pursuant to a confidential treatment request filed with the
Securities and Exchange Commission. Such portions have been provided
separately to the Commission." per mile flown. First Class passengers shall
earn "Portions of this document have been omitted pursuant to a confidential
treatment request filed with the Securities and Exchange Commission. Such
portions have been provided separately to the Commission." per mile flown.
C. BONUS MILES. Reno shall at its discretion be able to offer bonus
miles in the Hawaiian Gold+Plus or AAdvantage programs alone or in conjunction
with Hawaiian's bonus miles promotions.
III. FREQUENT FLYER AWARDS.
A. HAWAIIAN GOLD+PLUS. Hawaiian Gold+Plus members shall be able to
redeem round trip awards on any Hawaiian designated flight operated by Reno.
Redemption and ticketing shall be administered by Hawaiian's Airport and City
Ticket Offices. Reno shall accept the Hawaiian Gold+Plus Award ticket for
travel.
B. AMERICAN AIRLINES AADVANTAGE. Hawaiian and Reno agree that AAdvantage
members will not be able to claim AAdvantage awards on Hawaiian flights operated
by Reno.
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IV. FEES.
A. HAWAIIAN GOLD+PLUS MILES. Reno shall report each month Gold+Plus
miles earned on Hawaiian designated flights operated by Reno. Initially
there shall be no charge for miles with the exception that bonus miles
offered by Reno to stimulate Gold+Plus member traffic shall be billed at
"Portions of this document have been omitted pursuant to a confidential
treatment request filed with the Securities and Exchange Commission. Such
portions have been provided separately to the Commission." per mile.
B. HAWAIIAN GOLD+PLUS RETRO CREDIT. Hawaiian Gold+Plus Service Center
shall be responsible for verifying that a customer claiming Hawaiian Gold+Plus
miles on a Hawaiian flight operated by Reno is eligible for the miles. Retro
credit will be manually input and billed monthly by Hawaiian to Reno at the
standard rate per mile.
C. AADVANTAGE MILES. Reno shall capture, report, credit and pay for all
AAdvantage miles earned on Hawaiian flights operated by Reno. Hawaiian
Reservations will collect AAdvantage numbers for segments operated by Reno and
those numbers will be passed to Reno for reporting. They will however, be
treated as AAdvantage miles earned on Reno, not on Hawaiian.
D. AADVANTAGE RETRO CREDIT. AAdvantage Customer Service Center shall be
responsible for verifying that a customer claiming AAdvantage miles on a
Hawaiian flight operated by Reno is eligible for the miles and will xxxx Xxxx at
Reno's contract cost per mile.
E. HAWAIIAN GOLD+PLUS AWARDS. Hawaiian shall be able to book
Gold+Plus Award segments on the routes specified in Attachment B. Initially
there shall be "Portions of this document have been omitted pursuant to a
confidential treatment request filed with the Securities and Exchange
Commission. Such portions have been provided separately to the Commission."
for award segments with the exception that bonus awards on Reno offered by
Hawaiian to stimulate Gold+Plus member awards shall be billed at the Code
Share agreed prorate as if they were paid segments.
F. RATE ADJUSTMENT. Initially Reno shall not pay for Gold+Plus miles
earned on Reno flights, and Hawaiian shall not pay for Gold+Plus awards on Reno.
It is the intention of both parties to track accrual of miles and redemption of
awards monthly and to institute accrual and redemption charges or to take
balancing actions if either party at any time feels that the relationship of
accrual to redemption is unfairly out of balance. Both parties agree to
negotiate mutually acceptable accrual and redemption rates or balancing actions
within 30 days of notice by either party that the initial fee structure is not
acceptable.
V. ADMINISTRATION.
A. FREQUENT FLYER DATA COLLECTION. Hawaiian Gold+Plus and AAdvantage
members flying on Hawaiian designated flights operated by Reno shall be able to
give their frequent flyer numbers to a Hawaiian Reservation agent or to a Reno
check-in agent
19
for credit. Reno shall collect the frequent flyer numbers electronically
without requiring the member to fill out or submit any form of paper.
B. ACTIVITY REPORT. By the 12th and 26th of each month, Reno shall send
to Hawaiian a list of all members earning Hawaiian Gold+Plus miles on Hawaiian
designated flights operated by Reno. The activity report shall be submitted on
diskette or transmitted electronically as a space delimited text file with the
following fields for each segment collected:
First Name 17 char alpha
Last Name 17 char alpha
Frequent Flyer ID number 7 char alphanumeric
Flight Date 6 char numeric, (YYMMDD)
HA code share flight number 4 char numeric
Hawaiian Airlines Data Processing Xxxxxx
Xxxx Xxxxxx Xxx 00000
Xxxxxxxx, Xxxxxx 00000
C. DISKETTE/TAPE MARKING. The diskette/tape shall be clearly marked with
Reno's name and "Frequent Flyer Mileage Accrual" written on the diskette/tape.
D. ACCOUNT UPDATES. Hawaiian shall timely update Hawaiian Gold+Plus
members' accounts with information sent from Reno upon Hawaiian's receipt of
such information.
E. CUSTOMER SERVICE. Hawaiian Gold+Plus Service Center shall be
responsible for resolving credit discrepancies and customer service issues for
Hawaiian Gold+Plus and for communicating with AAdvantage to resolve their
customer service issues.
F. BILLING & PAYMENT. On a monthly basis, Hawaiian shall xxxx Xxxx for
all bonus miles offered by Reno to stimulate Gold+Plus member traffic on Reno
and Reno shall xxxx Hawaiian for all bonus award tickets offered by Hawaiian.
Payment fees shall be as detailed in Section IV.
VI. USE OF NAME AND/OR LOGO.
A. PROMOTIONAL MATERIAL. Both Reno and Hawaiian must approve promotional
material prior to release to the public. Aadvantage must approve promotional
material referencing their program.
B. LOGO LICENSE. Hawaiian grants Reno a non-exclusive, non-transferable,
20
limited license to use Hawaiian's trademarks, servicemarks and trade names, but
solely in connection with the terms and obligations of this Agreement. Except
as specifically provided in Attachment C to Schedule 3, nothing herein grants
Hawaiian any right, title or interest in any trademarks of Reno Air. Hawaiian
acknowledges and agrees that the names, tradenames, trademarks, logos and other
similar marks used by Reno Air (including without limitation, the names "Reno
Air" and "Quick Escapes") are the sole property of Reno Air, and that Hawaiian
does not gain any right or interest in such names by virtue of this license.
Hawaiian shall not use the name Reno Air or any other Reno Air xxxx in
advertising or promotions without Reno Air's advance consent after review of the
specific advertisement or promotion.
C. LOGO USE AGREEMENT. Reno shall be required to execute the "Limited
Use of Hawaiian's Name and/or Logo" form ("Logo Use Form") attached hereto as
Attachment "A" prior to Hawaiian providing Reno with Hawaiian's logo. Failure
to timely provide Hawaiian with the executed Logo Use Form by Reno shall be
construed as a material breach of this Agreement.
D. THIRD PARTY LOGO USE. Third Party Vendors shall be required to
execute the Logo Use Form attached hereto as Attachment "A" prior to Reno
providing the Third Party Vendor with Hawaiian's logo. Failure to timely
provide Hawaiian with the executed Logo Use Form by the Third Party Vendor shall
be construed as a material breach of this Agreement. Reno shall inform
Hawaiian's Marketing Department with a list of Third Party Vendors who possess
Hawaiian's logo for reproduction and who have properly executed the Logo Use
Form.
VII. NOTICES AND REQUESTS. Unless another address is specified in writing, all
notices and requests specifically related to frequent flyer programs shall be
given in writing and delivered at the address specified in the Code Share
Agreement and copied to the below address, by certified U.S. mail, postage
prepaid, return receipt requested.
Hawaiian Airlines, Inc.
Attn: Marketing Programs
Xxx 00000
Xxxxxxxx, Xxxxxx 00000-0000
Telephone: 808/000-0000
Facsimile: 808/838-6746
21
SCHEDULE 3 - ATTACHMENT A
LIMITED USE OF HAWAIIAN'S NAME AND/OR LOGO
Hawaiian Airlines, Inc., a Hawaii corporation ("Hawaiian") grants RENO
AIR, INC., a Nevada corporation ("Reno") a non-exclusive, non-transferable,
limited license to use Hawaiian's trademarks, servicemarks and trade names, but
solely in connection with these agreed upon terms and obligations. Hawaiian's
Marketing Department shall provide Reno with the necessary artwork to effect
this contract.
Hawaiian shall have the right to review and approve or disapprove, prior to
printing, the portion of any and all artwork generated by Reno (or at its
direction or authorization) that uses any trademark, servicemark or trade name
of Hawaiian. Reno shall provide the printed materials to Hawaiian in a timely
manner and Hawaiian's Marketing Department shall review and approve or
disapprove such materials in writing.
Upon completion of the production of the materials, Reno shall destroy any
and all screens and/or films developed for the assignment, unless otherwise
instructed by Hawaiian.
GOVERNING LAW AND DISPUTES. This agreement shall be governed by and
construed in accordance with the laws of the State of Nevada. Any dispute,
controversy or claim arising out of or relating to this agreement, or the breach
thereof, shall be settled by immediate binding arbitration in accordance with
the Arbitration Rules of the American Arbitration Association. The Arbitrators
shall interpret the agreement in accordance with the laws of the State of
Nevada.
Reno agrees to the terms and conditions stated above.
By
------------------------------ -----------------------------
Date
Its
By
------------------------------ -----------------------------
Date
Its
22
SCHEDULE 3 - ATTACHMENT B
HAWAIIAN GOLD+PLUS AWARDS ON RENO AIR
RNO TO HNL
----------
RNO-LAX
LAX-RNO
ABQ TO HNL
----------
ABQ-LAX
LAX-ABQ
TUS TO HNL
----------
TUS-LAX
LAX-TUS
COS TO HNL
----------
COS-LAS
LAS-COS
SJC TO HNL
----------
SJC-LAX
LAX-SJC
23
SCHEDULE 3 - ATTACHMENT C
LIMITED USE OF RENO'S NAME AND/OR LOGO
Reno Air, Inc., a Nevada corporation ("Reno") grants Hawaiian Airlines,
Inc., a Hawaii corporation ("Hawaii") a non-exclusive, non-transferable, limited
license to use Reno's trademarks, servicemarks and trade names, but solely in
connection with these agreed upon terms and obligations. Reno's Marketing
Department shall provide Hawaiian with the necessary artwork to effect this
contract.
Reno shall have the right to review and approve or disapprove, prior to
printing, the portion of any and all artwork generated by Hawaiian (or at its
direction or authorization) that uses any trademark, servicemark or trade name
of Reno. Hawaiian shall provide the printed materials to Reno in a timely
manner and Reno's Marketing Department shall review and approve or disapprove
such materials in writing.
Upon completion of the production of the materials, Hawaiian shall destroy
any and all screens and/or films developed for the assignment, unless otherwise
instructed by Reno.
GOVERNING LAW AND DISPUTES. This agreement shall be governed by and
construed in accordance with the laws of the State of Nevada. Any dispute,
controversy or claim arising out of or relating to this agreement, or the breach
thereof, shall be settled by immediate binding arbitration in accordance with
the Arbitration Rules of the American Arbitration Association. The Arbitrators
shall interpret the agreement in accordance with the laws of the State of
Nevada.
Hawaiian agrees to the terms and conditions stated above.
By
----------------------------- ----------------------------
Date
Its
By
----------------------------- ----------------------------
Date
Its
24
