EXHIBIT 10.5
SABRE Extension Program
Associate Distribution and Services Agreement
This Agreement is made as of the date set forth below between
AMERICAN AIRLINES, INC., a Delaware Corporation, having its principal
place of business at X.X. Xxx 000000, XXX Xxxxxxx, Xxxxx 00000-0000
("American") and the provider of goods or services identified on the
signature page of this Agreement ('Vendor').
RECITALS
A. American provides, through its SABRE Travel Information Network
Division ("S.T.I.N."), computerized reservations services with
related data processing activities;
B. Vendor provides the services and/or products defined on the
attached Schedule(s) ("Product"); and
C. The parties desire to enter into a co-marketing agreement mutually
beneficial to both parties, and provide for the optional sale of
the Vendors Product through the SABRE System.
NOW THEREFORE, in consideration of the mutual covenants set forth
below, the parties agree as follows:
Article 1
DEFINITIONS
For the purposes of this Agreement, the following words shall have
the meanings set forth below.
1.1 "AGREEMENT' shall mean this SABRE Extension Program Associate
Distribution and Services Agreement.
1.2 "APD" shall mean Asia Pacific Distribution, LTD., a SABRE
Licensee authorized to sell and service the SABRE System in
various areas of IATA Traffic Conference 3.
1.3 "ASSOCIATE SABRE EQUIPMENT LEASE AGREEMENT' shall mean an
agreement entered into by Vendor with American for use of SABRE
Equipment.
1.4 "BOOKING,, means, for each reservation, purchase or other
transaction that is created in or processed through SABRE, the
quantity of items or units of service specified in such
transaction, less cancellations made prior to the Activity Date.
1-5 "CANCELLATION" shall mean only those reservations, purchases or
other transactions that are canceled or processed through SABRE.
1.6 "CARIBBEAN" is defined as Puerto Rico, the US Virgin Islands,
and the Caribbean
Islands that compose the sub-area of IATA Tariff Conference 1 -
1.7 "COMMERCIAL SABRE" shall mean a user-friendly version of the
SABRE System primarily marketed to corporations.
1.8 "DRS" shall mean the Direct Reference System, which is a static
display contained in the SABRE System which Vendor uses to
communicate information to SABRE Users.
1.9 "EAASY SABRE" shall mean a user-friendly version of the SABRE
System, primarily marketed to individual travelers through
public data networks.
1.10 "EUROPE" is the sub-area as defined within IATA Tariff
Conference 2.
1.11 "FALCON" shall mean the name used by Gulf Air, a SABRE
Licensee, to describe the version of the SABRE System
distributed by Gulf Air in various sub-areas of IATA Tariff
Conference 2
1.12 "FANTASIA" shall mean the name used by APD to describe the
version of the SABRE System distributed by APD in various sub-
areas of IATA Tariff Conference 3.
1.13 "GDS RULES" shall mean rules and regulations established by
governmental entities for the operation of GDSs, including those
in effect in the United States, Canada, and the European
Community.
1.14 "GDS" shall mean a global distribution system (commonly
referred to as a computerized reservation system [CRS]). A GDS
collects, stores, processes, displays and distributes
information through computer terminals concerning air and ground
transportation, lodging and other travel related products and
services offered by travel suppliers and which enables users to:
(I) reserve or otherwise confirm the use of, or make
inquiries or obtain information in relation to, such products
and services; and/or
(ii) issue documents for the acquisition or use of such
products and services.
1. 15 "IATA:'shall be the International Air Transport Association,
Montreal, Canada.
1.16 "MARKET' shall mean the total locations within the defined
Territory which utilize the services of a GDS.
1.17 "NET' is defined as gross dollar sales without local
government or sales tax
1.18 "NON-STANDARD DEVICE" shall mean any computer hardware
equipment which Vendor desires to connect to the SABRE System
but for which American does not make maintenance services
available.
1.19 "NORTH AMERICA shall be defined as the following countries:
Bermuda, Canada, the United States of America, and the Caribbean
as defined within the Agreement
1.20 "OPTIONAL SERVICES" shall mean any service offered by American
other than the specific services referred to in this Agreement.
American may make available additional optional Services at any
time. Vendor may elect to purchase an Optional Service by
executing an addendum to this Agreement.
1.21 "PNR" shall mean a passenger name record created in the SABRE
System.
1.22 "PROFESSIONAL SABRE" shall mean a version of the SABRE System
primarily marketed to travel agencies and used by personnel of
American through the course of their employment.
1.23 "SABRE DATABASE" shall mean the information stored, displayed
and distributed through the SABRE System as maintained by S.T.I.N.
1.24 "SABRE EQUIPMENT' shall mean any computer hardware connected
to the SABRE System, and furnished to Vendor by American.
1.25 "SABRE LICENSEE" shall mean a person or entity licensed to
market the SABRE System in a designated area of the world.
1.26 "SABRE NETWORK' shall mean the telecommunications network
utilized by SABRE Users to transmit data or information.
1.27 "SABRE SYSTEM "shall mean American's GDS which has electronic
facilities able to provide, store, communicate, distribute,
process and document such information as is from time to time
stored in the SABRE Database.
1.28 "SABRE USER" shall mean a person or entity that utilizes the
SABRE System to make reservations. The term "SABRE Use@' shall
include any person or entity making reservations through one of
the versions of SABRE, including, but not limited to, Professional
SABRE, Fantasia, Falcon, EAASY SABRE, Commercial SABRE, Multi-Host
partition or any other version of SABRE marketed by a SABRE
Licensee. ,
1.29 "TERRITORY' shall mean the assigned geographic region where
the Vendor distributes the Product.
1.30 "THIRD PARTY HARDWARE" shall mean hardware other than that
furnished by American pursuant to an Associate SABRE Equipment
Lease Agreement.
1.31 "TOTAL ACCESS" shall mean a group of Optional Services
providing premium connectivity between SABRE and the Vendors
system, including ANSWERBACK Direct Access, Multi Access and
Direct Connect (as defined in the Total Access addendum).
1.32 "TOUR RESERVATION" shall mean a reservation which may include
air, ground transportation, overnight accommodations, and other
travel features, for one or more nights, whether single or multi-
location, which is part of the ground portion of a tour package.
1.33 "UNIVERSAL STAR" shall mean a static informational display
within the SABRE System capable of storing up to one hundred
ninety (190) lines of information with each line capable of
storing up to fifty-seven (57) characters.
Article 2
OBJECTIVE
2.1 It is the intention of the parties to jointly market the
Product(s) to SABRE Users through the means set forth herein.
Article 3
EQUIPMENT
3.1 If Vendor is not on the date hereof a party to an agreement with
either American or a suitable third party, pursuant to which it can
receive data from and transmit data to the SABRE System, Vendor may
enter into such agreement in order to enable it to receive the
benefits of the SABRE System.
3.2 Vendor may elect to operate SABRE Equipment thereby affording
Vendor access to the SABRE System. In that event, Vendor may enter
into a separate Associate SABRE Equipment Lease Agreement with
American. American agrees that the SABRE Equipment and
access to the SABRE System will be afforded Vendor at American's
prevailing rates and charges. Vendor agrees that its use of the
SABRE Equipment and Its access to the SABRE System will be governed
by the terms and conditions defined in the Associate SABRE
Equipment Lease Agreement and that the SABRE Equipment will not be
used for developmental or testing purposes.
3.3 Vendor agrees to access the SABRE System only via SABRE
Equipment or devices and applications which have been certified or
approved by American. Vendor agrees to notify American in advance
of its intent to utilize any American certified device and
application.
3.4 Vendor may furnish its own computer hardware, provided that it
is approved in advance by American for use with the SABRE System.
Vendor acknowledges that any computer hardware it purchases from
another source may be subject to an existing security interest or
other ownership rights of American.
3.5 In the event Vendor desires to connect third party hardware to
the SABRE System, Vendor shall ascertain American's procedures and
fees for connecting such third party hardware. Any such third
party hardware used for connection to the SABRE System shall be
subject to Vendors execution of American's written agreement
covering such third party hardware.
3.6 Notwithstanding anything to the contrary contained either in
this Agreement or in the SABRE Associate Equipment Lease Agreement,
should either American or Vendor terminate this Agreement for any
reason, then the SABRE Associate Equipment Lease Agreement will be
deemed to have been terminated simultaneously.
Article 4
THE SABRE SYSTEM
4.1 American makes no representations or warranties as to the number
or identity of the parties having access to the SABRE System.
Vendor agrees that any SABRE User shall be entitled to use, reserve
or purchase Vendors travel services or products via the SABRE
System. Vendor authorizes the release of all data input into the
SABRE System to all SABRE Users for their information and use.
Vendor acknowledges that American has, and shall continue to have
the right, at any time, to contract with parties to constitute them
as SABRE Users, to terminate agreements with SABRE Users, and to
contract to provide the SABRE System to other parties, including
competitors of Vendor.
4.2 The SABRE System shall:
4.2.1 provide both Vendor and other SABRE Users with a
display of
descriptive data pertaining to Vendor and its Products;
4.2.2 transmit upon request from a SABRE User, a list of
Products
together with price and other relevant data; and
4.2.3 effect orders and cancellations of orders previously
made,
upon input by SABRE Users, and to transmit such orders or
cancellations to Vendor.
The list above is not exhaustive.
4.3 American retains the right, in its sole discretion, to modify or
alter the operation of the SABRE System at any time it deems such
modification or alteration to be desirable; provided, however, that
American shall use reasonable effort to give Vendor sixty (60) days
prior written notice of such modifications or alterations, other
than those corrective in nature, which would materially affect the
services provided to Vendor under this Agreement. Any and all
costs incurred by Vendor or any third party in connection with or
as a result of such alterations or modifications shall be borne by
Vendor or such other party as the case may be, provided that Vendor
elects to participate in such alterations or modifications.
Article 5
START-UP
5.1 Upon completion of all programming and performance of such
verifications and tests as American deems necessary, American shall
give Vendor notice that the SABRE System is operational for the
purposes of this Agreement.
Article 6
CONFIDENTIALITY
6.1 Each Party acknowledges that some material that the other deems
confidential or proprietary may come into its possession in
connection with this Agreement, the disclosure of which
confidential or proprietary information to third parties will be
damaging. Each party agrees, therefore, to hold such information
that the other deems
confidential or proprietary in strict confidence and agrees that it
will not disclose it to any third party or make use of it other
than for the performance of this Agreement. Any information or
data shall be considered confidential or proprietary if R is not
generally known regardless of whether such information or data is
or may be copyrighted or characterized as trade secret. The
obligations set forth herein shall not apply, however, to I)
information that is or becomes, through no fault of the receiving
party, publicly available; ii) information that is already or
becomes known by the receiving party; iii) information that is
furnished to either party hereto by a third party without the
breach of any obligation of confidentiality or the theft or
misappropriation or any trade secret; or iv) information that is
developed separately by the recipient without breach of this
Agreement, as can be established through documentation.
6.2 In the event confidential or proprietary information is validly
subpoenaed or otherwise requested or demanded by any court or
governmental authority, the party to which such subpoena, request,
or demand is directed shall give the other party prompt notice
prior to responding and shall exercise its best efforts, in
cooperation with the other party, to quash or limit such subpoena,
request, or demand. Upon the termination of this
Agreement, each party shall promptly deliver to the other party any
confidential or proprietary materials or information provided by
the other party pursuant to this Agreement. The terms of this
paragraph shall survive the termination of this Agreement
Article 7
RESPONSIBILITY OF AMERICAN
7.1 American will use its reasonable efforts to assist Vendor in
promoting and marketing the Product. American, using such means as
it determines in its sole discretion, will inform SABRE Users that
may be affected or that may find the Product useful of the
availability of the Product from Vendor. American may choose to
make known the availability of the Product by promoting the SABRE
Extension Program through the following means, which list is not
exhaustive:
7.1.1 direct contact by representatives of American;
7.1-2 information made available through SABRE Subscriber
Conferences including the ability to participate in trade
show activities based upon availability of space and subject
to payment of registration fees at SABRE Subscriber
Conferences and regional SABRE Subscriber Conferences that
American may sponsor,
7.1.3 direct mailing to SABRE Users; and
7.1.4 D.R.S. via the SABRE System.
7.1.4.1 American shall enter the text of Vendors D.R.S.
into the SABRE System, as provided by Vendor. American
will not be required to verify the accuracy of the text of
the D.R.S., as submitted by Vendor to American. However,
American agrees to incorporate accurately the text of the
D.R.S., as submitted by Vendor, into the SABRE System;
provided however that American's sole liability for
failure to incorporate Vendor's text accurately shall be
to correct any
inaccuracy as soon as reasonably possible after written
notice from
Vendor stating the necessary correction.
7.1.4.2 Vendor acknowledges and agrees that
American will
not undertake to perform any verification of any sort of
the text submitted to American by Vendor for input into
the SABRE System and that American's function hereunder is
solely to perform the services set forth within this
Agreement. American makes no representation whatsoever to
Vendor or any third party as to the accuracy of the text
submitted by Vendor for input by American into the SABRE
System.
7.1.4.3 Notwithstanding section 7.1.4.2 above,
American
retains the right to review the text pertaining to the
Product and Vendor agrees to provide American, on request,
all data pertaining to the Product that supports the
accuracy or veracity of the text regarding the Product
American may, in its sole discretion, after review of the
data, approve or disapprove the input of such data into
the SABRE System.
7.1.4.4 American shall provide one free update to the
D.R.S. upon participation in the program. In addition,
American will continue to provide one free update each
annual renewal for the length of the contract. The charge
for updates to Vendor's D.R.S. in excess of the one free
update every year shall be American's prevailing charge at
the time of the update.
7.2 American makes no warranty or representation as to the number or
identity of SABRE
Users that will be informed of the Product via the D.R.S.
7.3 In promoting and marketing the product, American will, at a
minimum, perform the
following:
7.3.1 provide Vendor with sales leads of which American becomes
aware;
7.3.2 distribute Vendor's product information material to all
S.T.I.N. Divisional offices in the United States.
7.3.3 inform S.T.I.N. sales and account representatives of the
availability of the Product using the means American normally
uses for dissemination of information to its S.T. I. N. sales
and account representatives;
7.3.4 provide periodic electronic messages to SABRE Users advising
them of the SABRE Extension Program and directing them to view
the SABRE Extension Program D. R. S. information, the frequency
of which messages and the number and identity of such SABRE
Users to be determined by American in its sole discretion; and
7.3.5 provide promotional material and a letter informing of
Vendors participation in the SABRE Extension Program for a
direct mailing to SABRE Users the number and identity of which
to be determined by American in its sole discretion; provided
however that Vendor shall be responsible for all costs of the
promotional materials and all mailing and postage expenses.
7.4 If appropriate, American shall supply Vendor with a single
vendor code under this Agreement to be used to represent Vendor.
Any additional vendor code requests will require an amendment to
this Agreement, and Vendor shall be responsible for any and all
costs associated with such additional code at American's prevailing
rate at the time of the request.
7.5 If Vendors executes an Associate SABRE Equipment Lease
Agreement, American shall provide access to the DRS to Vendor for
use in describing the Products that are the subject of this
Agreement. American may, at any time and in its sole discretion,
require Vendor to remove any part of its DRS text that American
believes is inappropriate for display to SABRE Users, in American's
sole discretion. American reserves the right to limit the number
of DRS pages available to Vendor.
7.6 American shall provide the Vendor with training for one
individual and/or one set of training materials as may be required
to implement and access D.R.S.
7.7 American shall provide to Vendor initial training required to
operate the SABRE Equipment and maintain data provided by Vendor
for its Product. Additional training at Vendors request above and
beyond American's normal and customary training, as determined by
American in its sole -discretion, will be charged to the Vendor at
American's prevailing rate.
7.8 American shall provide Vendor with written copies of its
procedures and changes thereto pertaining to the operation of the
SABRE System by an Associate, and Vendor shall fully comply with
such procedures.
7.9 American shall maintain a help desk facility for the purpose of
answering Vendors questions regarding the operation of the SABRE
System and data within the SABRE System.
Article 8
RESPONSIBILITIES OF VENDOR
8.1 Vendor will not discriminate in any manner, whatsoever, against
any SABRE User on account of the SABRE Users selection,
possession, or use of the SABRE System.
8.2 Vendor agrees to guarantee to SABRE Users and clients of SABRE
Users the accuracy of Vendors policies, rates, and availability
data as displayed in the SABRE System. Vendor will be responsible
directly to SABRE Users and clients of SABRE Users for providing
Vendors services as displayed in the SABRE System. Vendor shall,
on request, certify the accuracy of all data pertaining to it or
its operations which has been supplied to American for input into
the SABRE System or been otherwise distributed pursuant to or in
connection with this Agreement.
8.3 Vendor will use reasonable effort to provide through the SABRE
System all rates which are offered by the Vendor. In no event
shall Vendor make available rates through any other GDS that are
not made available through the SABRE System.
8.4 Vendor represents that there are no restrictions or
limitations imposed on the availability of the Product.
8.5 Vendor agrees to return confirmation to, or respond to all
requests received from, the SABRE User within 24 hours or next
day of business from the time of such request
8.6 The Product shall be consistent with American's quality, as
determined by American, in its sole discretion.
8.7 Vendor agrees to pay American as per the terms identified on the
attached schedules(s)[including the definition of Marketing Fee].
8.8 Vendor agrees to provide customer support services as outlined on
the attached schedules(s).
8.9 Vendor agrees to minimum payments per the attached schedules(s).
8.10 If the number of telephone calls by Product users exceeds 250
calls to the SABRE Help Desk (American's SABRE Users' help line)
during the 6-month period commencing with the effective date of
this Agreement or during the successive 6-month periods
thereafter, Vendor shall pay American $3 per call for each call in
excess of 250. Vendor shall pay American the amount due hereunder
within fifteen (1 5) days of American's notice to Vendor of any
amount due.
8.11 Vendor shall maintain complete and accurate records of its
sales of the Product to SABRE Users. Vendor will make available
to American monthly reports of the sales of the Product to SABRE
Users. During the term of this Agreement and for one year
following its termination for any reason, at American's request,
Vendor will make available to American or its designated
representative Vendor's books and records such that American or
its designated representative may conduct an audit, at American's
own expense, to determine that it has received all Marketing Fees
to which it is entitled. Any adjustments necessary as a result of
the audit will occur within fifteen (15) days after notice has
been given of the necessity for an adjustment.
8.12 The Vendor shall be responsible for the contents of all text
given to American Airlines for input into the SABRE System, and
shall prepare and maintain the text in accordance
with American's guidelines for data format, layout and
organization. Failure to comply with these guidelines will result
in the immediate removal of the information from the
SABRE System.
8.13 The Vendor shall ensure that the content of the information
and the description and
offering of the Product therein shall be in compliance with all
local, state/province, and
federal laws.
8.14 The rights and benefits hereunder shall not extend to any
product or service not listed on the attached schedules(s)
hereto unless Vendor has obtained the prior written consent of
American.
8.15 Vendor agrees to cooperate with American during the term of
this Agreement to continue to perfect the SABRE System's
operation, and to further extend the benefits of automation to
the field of travel service reservations.
8.16 American retains the right to change the Vendor code
assigned to a Vendor due to operational necessities. American
may withdraw Vendors right to use either or both its two-letter
or three-letter alpha code upon ten (1 0) days' prior written -
notice to Vendor. Vendor agrees that American shall not be
liable to Vendor for any costs or expenses incurred by Vendor as
a result of the change in such alpha codes.
Article 9
PROMOTION
9.1 The promotion of the Product(s) to the SABRE Users is solely the
responsibility of the Vendor except as specifically set forth
herein.
9.2 At its own cost and expense, Vendor may communicate with the
SABRE Users in such manner as it deems appropriate to draw
attention to the availability of the Product(s).
9.3 At its own cost, expense, and discretion, American may
communicate with the SABRE Users, to draw attention to the
availability of the Product, to encourage the SABRE Users to refer
to the SABRE System regarding Product information, and generally to
promote the Product through the SABRE System.
9.4 Vendor shall obtain prior approval from American with respect to
any promotional communications that use any of American's
registered service marks or trademarks or that undertake to
instruct the SABRE Users on the use of the SABRE System.
Similarly, American shall obtain the prior approval from Vendor to
use any of the Vendors registered service marks or trademarks in
any promotional communications undertaken by American. Such
approval shall not be unreasonably withheld or delayed by either
party.
9.5 Failure to obtain prior approval from American shall result in
a $5,000 penalty payable by vendor to American within 15 days of
receipt of notification for each occurrence.
9.6 In the event that the Vendor shall publish any promotional
announcement and literature generally describing GDS services, such
general announcements and literature shall include references to
the SABRE System, and Vendor shall at all times comply with section
9.4 herein.
Article 1 0
OPTIONAL SERVICES
10.1 Vendor may elect at anytime to participate in any Optional
Service(s) offered by American. Unless otherwise specified in an
Addendum hereto, all terms and conditions
of this Agreement will apply to the Optional Services selected by
Vendor. Fees for Optional Services are subject to change upon thirty
(30) days' prior written notice from American. If Vendor does not
agree to pay any such revised fee, it may terminate the Optional
Services Addendum(s) by giving written notice to American at least
five (5) days prior to the effective date of the price change.
American reserves the right to change Optional Service offerings from
time to time.
Article 1 1
TERM
1 1. 1 Except as otherwise stated herein, the initial term of-this
Agreement shall be for 2 years, commencing on the execution of
this Agreement ("Initial Term"). This Agreement shall
automatically renew for successive 1 year periods unless
otherwise terminated pursuant to the terms of this Agreement.
Article 12
PAYMENT
12.1 Vendor shall pay American the following fees and charges
without any right to set-off or deduction except as specifically
provided herein:
12.1.1 Deposit Fee. The sum of $3,000.00 USD payable by way of
a certified check accompanying this Agreement, which fee
shall be held by American. American may, at its option,
apply any portion or all of this fee towards any balance due
American by Vendor for fees as set forth herein or for SABRE
Equipment
monthly lease fees. This deposit does not eliminate Vendors
payment obligation as set forth herein. American agrees to
return the $3,000.00 USD deposit, or balance, if any, without
interest, to Vendor upon termination of this agreement
provided that Vendors payments and monthly SABRE Equipment
fees have been current for the duration of this agreement.
12.1.2 Implementation Fee. Vendor agrees to pay to American a
non-refundable fee of $1,000.00 USD. This fee shall be paid
upon execution of this Agreement by way of a certified check.
12.1.3 Processing (Product Specific) Fee/s. Vendor shall pay to
American a base processing (Product Specific) Fee/s or Annual
Minimums as defined on the attached schedule/s, whichever is
greater.
12.2 American may increase the Processing Fees and/or the Annual
Minimums at any time after the first 12 months of this Agreement.
Such increases will be effective upon thirty
(30) days' written notice to Vendor and will not exceed or fifteen
percent (15%), in any twelve (1 2) month period.
12.3 Vendor shall send to American on a monthly basis, within thirty
(30) days of the end of each month, a single report for billing
purposes, setting forth sales for all of Vendors Products for the
month, computed in accordance with this Agreement.
12.4 Vendor shall remit to American payments required pursuant to
this Agreement on a monthly basis within thirty (30) days after
receipt of invoice. Any disputes arising from such invoice shall
not delay payment as described hereto. Time being of the essence,
such payments should be forwarded directly to:
American Airlines, Inc.
Associate Receivables
X.X. Xxx 000000
Xxxxxx, XX 00000-0000
12.5 All fees not paid when due shall-accrue interest at the rate
of ten percent (10.0%) per annum or the highest amount permitted
by law, whichever is less, commencing on the 31st day after
Vendors receipt of invoice.
12.6 Upon termination of this Agreement for any reason whatsoever,
all unpaid charges owed by Vendor shall become immediately due and
payable, and Vendor shall forthwith remit payment thereof with no
right of set off or deduction whatsoever.
Article 13
NOTICES
13.1 Any notices or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given
when delivered personally, when received via messenger or by express
delivery service, or when deposited in a regularly maintained
receptacle for the United States Postal Service, postage prepaid, and
addressed as follows or as the parties may from time to time designate
in writing:
If to American: If to Vendor:
American Airlines, Inc.
Corporate Travel Link, Inc.
SABRE Travel Information Network
X.X. Xxx 0000
X.X. Xxx 000000 XX 0000
Xxxxxx, Xxx Xxxxxx 00000
XXX Xxxxxxx, XX 00000-0000
XXX
XXX
Teletype: HDQAJAA
Teletype:
Facsimile: 000-000-0000
Facsimile: 000-000-0000
Delivery: 0000 Xxxxxxxx Xxxxxxxxx
Delivery: 00 Xxxxxxx Xxxxx Xx
Xx. Xxxxx XX 00000
S. Xxxxxx XX 00000
XXX XXX
ATTN: Vice President ATTN: Xxxxxx Xxxxxxx
Associate & Strategic Distribution
President
Article 14
TAXES
14.1 Vendor shall pay all taxes (including without limitation,
sales, use, and personal property taxes) fees, licenses, and
assessments imposed by any federal, state, or local authority and
required to be paid by either American or Vendor as a result of
the services or products to be provided pursuant to this
Agreement, except for taxes based upon or measured by American's
net income.
Article 15
INDEMNITY
15.1 Vendor agrees to defend, indemnify, and hold American
harmless against all liabilities, damages, losses, claims,
fines, penalties, and judgments, including all costs and
expenses incidental thereto, which may be charged to or
recoverable from American by reason of any loss, damage, or
injury, directly or indirectly, arising out of or in connection
with the Product or Vendors failure to perform its obligations
pursuant to this Agreement. In the event of Vendor's failure to
defend under this provision, American may, at its own option,
defend as it sees fit in either Vendor's or American's name as
appropriate, and American may settle any claim or take any such
action as may be necessary or advisable and any expense of
defense or negotiation of such settlement, including but not
limited to the amount of any judgment, fines, costs, interests,
bond, or other expense shall be payable by Vendor. The
settlement sum and reasonable attorneys' fees shall be added to
the amount owing American and shall be payable by Vendor on
American's demand. This provision shall survive the termination
of-this Agreement.
Article 16
PATENT INFRINGEMENT CLAIMS
16.1 American will defend, at its own expense, any action brought
against Vendor to the extent that it is based on-,a claim that the
SABRE System or associated hardware or software provided to Vendor
by American infringes a patent, trademark, or copyright of the
United State only, and American will pay those costs and damages
finally awarded against Vendor in any such action that are
attributable to any such claim, provided however, such defense and
payment are conditioned on all of the following:
16.1.1 that American will be notified promptly in writing by
Vendor of any notice of such claim;
16.1.2 that American will have control of the defense in any
action on such claim and all negotiations for its settlement
or compromise;
16.1.3 that no unauthorized changes of any kind whatsoever have
been made to the SABRE System or associated hardware or
software; and
16.1.4 should the SABRE System or associated hardware or
software become or, in American's opinion, be likely to
become the subject of a claim of infringement of a United
States patent, Vendor permits American to replace or modify
the same
so that it become non-infringing or make other arrangements, as
American deems fit in its sole discretion, to allow for
continued use of the SABRE System or associated hardware or
software.
16.2 Vendor will defend at its own expense any action brought
against American to the extent that it is based on a claim that
Vendors Product, system or associated hardware or software
provided by Vendor infringes a patent, trademark, or copyright of
the United States only, and Vendor will pay those costs and
damages finally awarded against American in any such action which
are attributable to any such claim, provided however, such defense
and payment are conditioned on all of the following:
16.2.1 the Vendor will be notified promptly in writing by
American of any notice of such
claim;
16.2.2 that Vendor will have control of the defense in any
action on such claim and all negotiations for its settlement
and compromise;
16.2.3 that American has made no unauthorized changes of any
kind whatsoever to Vendor's Product, System, or associated
hardware or software; and
16.2.4 should Vendors system or associated hardware or software
become or, in Vendors opinion, be likely to become the
subject of a claim of infringement of a United States
patent, American permits Vendor to replace or modify the
same so that it becomes not infringing or make other
arrangements, as Vendor deems fit, to allow for continued
use of Vendors Product, system or associated hardware or
software.
Article 17
FAILURE OR DELAY OF SERVICE
17.1 Except for Vendors obligations to make payments hereunder,
neither party shall be deemed in default under the Agreement as a
result of a failure to perform its obligations under this
Agreement if such failure is caused by acts of God, war or the
public enemy, strike, labor stoppage, fire, flood, weather,
mechanical difficulty, power shortage, or any other cause beyond
the reasonable control of that party. The party unable to perform
for such reason shall notify the other party without delay.
Article 18
DISCLAIMER
18.1 AMERICAN DISCLAIMS AND VENDOR HEREBY WAIVES ALL WARRANTIES
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR INTENDED USE OR A PARTICULAR
PURPOSE OF ANY EQUIPMENT, DATA, OR SERVICES FURNISHED HEREUNDER OR
ANY LIABILITY IN CONTRACT, TORT, OR STRICT LIABILITY (EXCEPT FOR
GROSS NEGLIGENCE OR WILFUL MISCONDUCT) WITH RESPECT TO THE
EQUIPMENT, DATA OR SERVICES FURNISHED HEREUNDER. AMERICAN'S
LIABILITY HEREUNDER FOR BREACH OF CONTRACT, TORT, OR UNDER ANY
THEORY WHATSOEVER SHALL BE LIMITED TO THE COMPENSATION AMERICAN
HAS RECEIVED PURSUANT TO THIS AGREEMENT DURING THE THREE YEARS
IMMEDIATELY PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO
AMERICAN'S LIABILITY.
VENDOR AGREES THAT AMERICAN SHALL NOT BE LIABLE TO IT FOR ANY
SPECIAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES UNDER ANY
CIRCUMSTANCES WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY
OF RECOVERY.
Article 19
TITLE
19.1 Title and full and complete ownership rights to all American-
owned or developed software used in the performance of this
Agreement shall remain with American. Vendor acknowledges and
agrees that the SABRE System is American's proprietary information
and trade secret, whether or not any portion thereof is or may be
validly copyrighted or patented. Any manuals and other
documentation in any form and any and all copies thereof, and any
and all parts or abstracts thereof, are for the exclusive use of
American, and are subject to the confidentiality provisions set
out herein.
Article 20
ASSIGNMENT
20.1 Neither party shall transfer or assign this Agreement, or any
right or obligation under it, by operation of law or otherwise,
without the prior written consent of the other party, except that
American may assign this Agreement to any affiliate or to any
other entity which succeeds to all or part ownership or operation
of the SABRE System without such consent.
Article 21
- EXCLUSIVITY AND RIGHTS REGARDING OTHER PRODUCTS
21.1 This is a non-exclusive Agreement and similar agreements may
be entered into by American or Vendor with any other party.
21.2 Vendor agrees that during the term of this Agreement it will
not enter into a co-marketing agreement for the Product with any
other GDS that is more favorable to the GDS than
that offered to American. In the event Vendor enters into such a
co-marketing agreement with another GDS on more favorable terms,
Vendor will immediately make available to American such more favorable terms,
effective as of the date of the agreement with the other GDS.
Article 22
TERMINATION
22.1 American shall be entitled to terminate this Agreement
immediately upon any of the following events:
22.1.1 In the event Vendor becomes insolvent; makes any
assignment for the benefit of creditors; calls a meeting of
creditors; offers a composition or extension to creditors;
suspends payment; consents to or suffers the appointment of
a receiver, a trustee, a committee of creditors, or a
liquidation agent; files or has filed against it a petition
in bankruptcy seeking reorganization, arrangement, or
readjustment of its debts, or its dissolution, or
liquidation; or requests any other relief under any
bankruptcy or insolvency law; or
22.1.2 In the event Vendor has entered against it any judgment
or decree for its dissolution which remains undismissed or
undischarged or unbonded for a period of thirty (30) days; or
22.1.3 Vendor fails to make any payment required by this
Agreement when due and Vendor fails to cure such breach
within fifteen (1 5) days after receipt of written notice
thereof from American.
22.2 Vendor shall be entitled to immediately terminate this
Agreement upon any of the following events:
22.2.1 American breaches any term of this Agreement, which
breach continues uncured for fifteen (1 5) days after receipt
of written notice thereof from Vendor,
22.2.2 American becomes insolvent, makes any assignment for the
benefit of the creditors; calls a meeting of creditors;
offers a composition or extension to creditors; suspends
payments; consents to or suffers the appointment of a
receiver, a trustee, a committee of creditors or a
liquidating agent; files or has filed against it a petition
in bankruptcy seeking reorganization, arrangement, or
readjustment of its debts, or its dissolution or liquidation,
or for any other relief under any bankruptcy or insolvency
law or has entered against it any judgement or decree for its
dissolution which remains undismissed, undischarged or
unbonded for a period of thirty (30) days; then Vendor may
cancel this Agreement effective on five (5) days written
notice.
22.3 If any portion of this Agreement is declared or found to be
illegal, unlawful, unenforceable or void under any statute,
regulation, or executive order of the federal government or any
state or local authority, both parties shall be relieved of all
obligations arising out of such provision; but, if capable of
performance, the remainder of this Agreement shall not be
affected.
22.4 American and Vendor each shall have the right to terminate
this Agreement at any time with or without cause after the initial
term of this Agreement upon not less than thirty
(30) days written notification, and the parties shall have no
further obligations hereunder except as stated in Articles 6,
15, 16, 18, and 19 herein and as otherwise provided herein.
22.5 Notwithstanding any other provision of this Agreement, if the
quality of the Product or Vendors services fall below American's
standards of quality, as determined by American in its sole
discretion, and Vendor fails to meet or exceed American's
standards of quality within fifteen (1 5) days notice thereof from
American, American may terminate this Agreement immediately, with
no liability to Vendor.
22.6 Notwithstanding any other provision herein, upon termination
for any reason whatsoever of this Agreement, Vendor shall remain
liable for the payment of any fees then payable or that become
payable in the future pursuant to Article 8 herein for the
Product that is sold prior to the termination of this Agreement,
regardless of whether or not the fee for such Product is
collected prior to the termination of this Agreement, and Vendor
shall be liable for a pro rata share of any Minimum Payment due
pursuant to Article 8 herein.
Article 23
INDEPENDENT CONTRACTORS
23.1 American and Vendor acknowledge that each party is an
independent contractor. Nothing in this Agreement is intended nor
shall be construed to create an agency, partnership, or joint
venture relationship between the two parties.
23.2 American shall have the right to market the Product as one
provided by a third-party company, and American may include such
disclaimers as it deems necessary, in its sole discretion,
Including without limitation, the following:
This product is provided by a third-party company, and is
intended to enhance the services you offer your clients.
Support and service of the product is the sole responsibility
of the third-party company. American Airlines, Inc. makes no
representations or warranties, expressed or implied, about such
product.
Article 24
GOVERNING LAW
24.1 This Agreement and any disputes arising hereunder shall be
governed by the laws of the United States and the State of Texas
without regard to its conflict of laws rules. Each party hereby
consents to the non-exclusive jurisdiction of the courts of the
State of Texas and the United States District Court for the
Northern District of Texas in any
dispute arising out of this Agreement. The United Nations
Convention on the International Sales of Goods is specifically
excluded from this Agreement.
Article 25
WAIVER
25.1 No waiver of any breach of any provision of this Agreement by
either party shall constitute a waiver of any subsequent breach of
the same or any other provision hereof and no waiver shall be
effective unless made in writing.
Article 26
GDS RULES
26.1 In the event the terms of this Agreement become inconsistent
with any applicable GDS Rules, at American's option, this
Agreement shall either, I) terminate upon written notice
from American, or ii) be modified to be consistent with the GDS
Rules, provided that such modification does not materially
diminish Vendors rights and hereunder.
Article 27
ATTORNEYS FEES
27.1 In the event that any legal proceeding at law or in equity
arises hereunder or in connection herewith (including any
appellate proceedings or bankruptcy proceedings), the prevailing
party shall be awarded costs, reasonable expert witness fees, and
reasonable attorneys' fees incurred in connection with such legal
proceedings.
Article 28
HEADINGS
28.1 The headings to this Agreement are for convenience only and
shall not affect the meaning or constructions of any paragraphs.
Article 29
ENTIRE AGREEMENT
29.1 This Agreement is the entire Agreement of the parties and
shall supersede any previously executed agreements or oral
understandings between the parties which relate to the subject
matter of this Agreement. This Agreement may not be amended or
modified except in writing and signed by the parties.
In consideration of the foregoing, both parties agree to the terms and
conditions of this
Agreement on the date set forth below.
I --
The parties have executed this Agreement as of this 22nd day of June,
19995.
Corporate Travel Link, Inc. American Airlines, Inc.
By:____________________ By:____________________
(Signature) (Signature)
Xxxxxx Xxxxxxx Xxxxx X. Xxxx
President Manager,
Leisure & Third Party
Distribution
June 22, 1995
(Date) (Date)
SCHEDULE A
to SABRE Extension Program, Associate Distribution and Service
Agreement between Vendor and American (the 'Agreement.')
1. VENDOR'S NAME'. Corporate Travel Link, Inc.
II. FEES:
A. implementation Fee - $1,000.00
B. Annual Minimum Fee - $24,000.00
- Payment of
$6,000.00 each qtr
C. Processing Fee for $2.00
each Product Sold
D. Deposit Fee - $3,000.00
E. Equipment Fees
Monthly fee for
two SABRE TAs @
$75.00 each $150.00
Monthly SABRE
Data Line $420.00
Ill. Territory: Distribution is available
to all SABRE Users
IV. Product or Service: Provider of automated limousine
reservations to SABRE Subscribers.
V. Support Services:
A. Hours of Operation: 24 Hours
