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THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS
ARE INDICATED IN THIS AGREEMENT WITH "[TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]."
AMENDED AND RESTATED
INFORMATION TECHNOLOGY SERVICES AGREEMENT
BETWEEN
SABRE INC.
AND
TRAVELOCITY.COM LP
MARCH 7, 2000
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THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS
ARE INDICATED IN THIS AGREEMENT WITH "[TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]."
AMENDED AND RESTATED
INFORMATION TECHNOLOGY SERVICES AGREEMENT
THIS AMENDED AND RESTATED INFORMATION TECHNOLOGY SERVICES AGREEMENT
(this "Agreement"), dated as of March 7, 2000 (the "Effective Date"), is
between TRAVELOCITY.COM LP, a Delaware limited partnership ("Customer"), and
SABRE INC., a Delaware corporation ("Sabre").
BACKGROUND
Whereas, in order to support Customer's ongoing business operations,
Customer has requested that Sabre provide certain information technology
services to Customer; and
Whereas, on the terms and subject to the conditions described in this
Agreement, Sabre is willing to provide such services to Customer; and
Whereas, this Agreement amends and restates, effective as of March 7,
2000, the Information Technology Services Agreement, dated as of March 7,
2000, between Customer and Sabre.
ARTICLE I. RELATIONSHIP MANAGEMENT
1.1 SABRE ACCOUNT MANAGER. Sabre will appoint a Sabre Account Manager who
will be (a) primarily dedicated to Customer's account and serve as
Customer's primary contact, (b) responsible for managing and
coordinating delivery of Services, and (c) authorized to act for Sabre
in the ordinary course of administering this Agreement (subject to the
limits of authority in the Contract Administration Process).
1.2 CUSTOMER ACCOUNT MANAGER. Customer will appoint a Customer Account
Manager who will (a) serve as Sabre's primary contact, (b) have
overall responsibility for managing and coordinating the performance
of Customer's obligations, and (c) be authorized to act for Customer
in the ordinary course of administering this Agreement (subject to the
limits of authority in the Contract Administration Process).
1.3 RELIANCE ON INSTRUCTIONS. In performing this Agreement, a Party may
rely on written instructions, authorizations and other information
provided (a) by the other Party's Account Manager within his limits of
authority and (b) as to areas of competency, within limits of
authority and as specified in writing by the other Party's Account
Manager, by other specified personnel of the other Party. A Party
will incur no liability or responsibility in relying on or complying
with such written instructions, authorizations or other information.
1.4 MEETINGS. The Account Managers will meet at least monthly (and more
frequently as mutually agreed) to discuss the Parties' performance of
this Agreement and any relevant operational issues. The Account
Managers, along with other designated executives of the Parties, will
meet at least annually to discuss their strategic objectives for the
Base Services and any Variable Services, as well as long-range
planning.
ARTICLE II. SERVICES
2.1 BASE SERVICES. During the term of this Agreement as set forth in
SECTION 11.1, Sabre will be the sole provider to Customer of, and
Customer will obtain from Sabre all of its requirements for, the Base
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Services. The Base Services include only those services specifically
described in SCHEDULES 2.1, 2.2, 2.3 and 2.4.
2.2 VARIABLE SERVICES.
(a) EXCLUSIVE VARIABLE SERVICES. Sabre will be the sole provider
to Customer of, and Customer will obtain from Sabre all of its
requirements for, the Exclusive Variable Services. Except to
the extent that this Agreement specifically requires Sabre to
provide Exclusive Variable Services in certain circumstances,
Sabre will not begin performing any Exclusive Variable Service
until the Parties have completed and executed a Work Order for
such Exclusive Variable Service.
(b) NON-EXCLUSIVE VARIABLE SERVICES. Customer may obtain
Non-Exclusive Variable Services from any Third Party;
provided, however, that before entering into an agreement with
a Third Party, Customer will notify Sabre of Customer's intent
to enter into such agreement; and Customer shall comply with
its obligations contained in SECTION 2.8(a) and SECTION 5.2.
If Customer and Sabre agree that Sabre will provide
Non-Exclusive Variable Services to Customer, then (except to
the extent that this Agreement specifically requires Sabre to
provide Variable Services in certain circumstances) Sabre will
not begin performing such Non-Exclusive Variable Service until
the Parties have completed and executed a Work Order for such
Non-Exclusive Variable Service.
2.3 MIGRATION OF PREVIEW OPERATIONS.
(a) As of the Effective Date, the Base Services do not pertain to
the Preview Operations. Pursuant to the provisions of this
SECTION 2.3, if Customer solicits (on a bid, RFP or other
competitive basis) a bona fide offer to provide IT services,
then Customer will notify Sabre and allow Sabre a period of
time, consistent with the time afforded to Third Party
offerors, to submit a proposal to provide such IT services
with respect to the Preview Operations. In response to
Customer's solicitation, Sabre will submit a proposal to
provide Base Services with respect to the Preview Operations
and, if Customer accepts such proposal, will provide the Base
Services with respect to the Preview Operations. The expansion
of Base Services to include the Preview Operations will be a
Change subject to the Contract Administration Process.
(b) Within 180 days after the Effective Date, Customer will advise
Sabre if Customer desires Sabre to provide a Category of
Service with respect to the Preview Operations. Sabre will not
be required to provide Web Hosting Services with respect to
the Preview Operations, unless Sabre is also providing Data
and Voice Services with respect to the Preview Operations, and
vice versa. As soon as reasonably practicable following such
notice, Sabre will consult with Customer regarding, and
develop the Migration Plan for, such Category of Service.
During the Migration Period, Customer and any Third Party IT
Service Providers of Customer will continue to provide the
selected services with respect to the Preview Operations, and
Customer will obtain, at its expense, the assistance of such
Third Party IT Service Providers in connection with the
migration of such services to Sabre, all according to the
Migration Plan. Sabre's work in developing the Migration Plan,
and providing Migration Services, will be an Exclusive
Variable Service. During the Migration Period, Customer will
provide to Sabre the services of Customer's transition team,
and such other services as are required by the Migration Plan.
(c) Following the Migration Completion Date with respect to any
Category of Service selected by Customer, the "Base Services"
will include such Category of Service with respect to the
Preview Operations.
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(d) If Customer requests that Sabre provide Web Hosting Services
with respect to the Preview Operations, then such Services
will be provided at the Data Center at which Web Hosting
Services are then being provided by Sabre, unless otherwise
agreed by Sabre.
2.4 LOCATIONS. The Fees provided in SCHEDULE 8 are based on the assumption
that the Base Services will be provided at the Service Locations, and
that (to the extent that Access Locations are specifically described
in the description of Services) Customer will access certain Services
from the Access Locations. Customer may, by notice to Sabre, request
changes in the specified locations pursuant to the Contract
Administration Process.
2.5 WEB HOSTING SERVICES: SPECIAL PROVISIONS.
(a) Customer may, as a Change governed by the Contract
Administration Process, elect to have Sabre provide one or
more of the Optional Web Hosting Services identified in
SCHEDULE 2.3. To the extent that transition services are
necessary or appropriate in order to implement Sabre's
provision of Optional Web Hosting Services selected by
Customer, then Sabre's work in developing a transition plan
and providing related transition services will be an Exclusive
Variable Service, and Customer will provide to Sabre the
services of Customer's transition team and such other services
as are required by the transition plan. Upon such effective
date, the selected Optional Web Hosting Service(s) will become
part of the Web Hosting Services. Customer may terminate one
or more of the Optional Web Hosting Service(s) upon not less
than sixty (60) days notice to Sabre. If Customer elects to
terminate a particular service within a category (e.g.,
optional capacity planning services, system manager customer
interface, etc.) of Optional Web Hosting Services, then
Customer must terminate all services within such category. If
Customer has terminated such a category of Optional Web
Hosting Services, then it may not later elect to have Sabre
provide such category of service.
(b) Immediately following the termination of the Web Hosting
Services, Customer will (at Customer's sole cost and expense)
remove from the Tulsa Data Center, or any other Data Center at
which Sabre then provides the Web Hosting Services, Customer's
hardware, system software, and other Customer Assets
comprising the web hosting infrastructure then located at the
Tulsa Data Center or such other Data Center, as applicable. As
a Termination Assistance Service, Sabre will cooperate with
such removal. Customer will accomplish such removal in
accordance with the reasonable requirements of Sabre,
including those intended to avoid technical, operating or
security problems at the Tulsa Data Center or such other Data
Center, as applicable.
(c) Customer may (at its sole cost and expense) move its hardware,
system software and other Customer Assets comprising the web
hosting infrastructure from the Tulsa Data Center or any other
Data Center at which Sabre then provides the Web Hosting
Services to a Data Center located in the Dallas-Fort Worth
Metroplex area. Sabre will cooperate with such removal as a
Change to the Web Hosting Services subject to the Contract
Administration Process. Customer will accomplish such removal
in accordance with the reasonable requirements of Sabre,
including those intended to avoid technical, operating or
security problems at the Tulsa Data Center and such other Data
Centers.
(d) Sabre will establish and maintain safeguards against the
destruction, loss or alteration of Equipment in the possession
of Sabre at its Tulsa Data Center, which are no less rigorous
than those in effect at the Tulsa Data Center as of the
Effective Date. While such Equipment is in the possession of
Sabre, Sabre shall be responsible for Losses with respect to
such Equipment, except to the extent that any Losses are
caused by the actions or omissions of Customer. Sabre will
provide reasonable premises security procedures and reasonable
system security procedures at any place where Web Hosting
Services are
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performed by Sabre for Customer. Such procedures at the Tulsa
Data Center shall be no less rigorous than those in effect at
the Tulsa Data Center as of the Effective Date.
(e) Sabre's provision to Customer of the network portion of the
Web Hosting Services will be subject to the provisions of
SCHEDULE 16.
2.6 DEVELOPMENT SERVICES: SPECIAL PROVISIONS.
(a) In providing Development Services, Sabre will use design,
programming, testing and acceptance methodologies consistent
with Sabre's methodologies for modifications of CRS Software
initiated by Sabre itself.
(b) Sabre will provide Development Services requested by Customer
to the extent contemplated in the Development Services Budget.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(c) Customer may reprioritize projects or change projects upon
written request to Sabre. Customer acknowledges that if it
reprioritizes projects or changes projects from those
contemplated in the Development Services Budget, such
reprioritization or change may result in the need for
additional and/or fewer Development Resources (in the
aggregate and with respect to particular skill sets) to
perform the Development Services, and will be addressed by
SECTIONS 2.6(f) and (g). In particular, Customer acknowledges
that such reprioritization or change could require Development
Resources with different skills than those contemplated in the
Development Services Budget which could result in customer
incurring charges under both SECTIONS 2.6(f) and (g) even
though the net aggregate Development Resources is unchanged.
Initiation of a new Development Services project, not
contemplated by the Development Services Budget, constitutes a
Change to be processed under the Contract Administration
Process.
(d) The relative Intellectual Property Rights of Sabre and
Customer, with respect to CRS Developments, are defined in
SECTIONS 4.4 and 4.5 and may also be defined in the
Intellectual Property Agreement. If Sabre creates Premium IP
in performing Development Services for Customer, then the
incremental costs and expenses incurred by Sabre in complying
with such restriction will be negotiated between the Parties
prior to commencing the development activities for such
Premium IP; [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(e) The initial Development Services Budget, attached as SCHEDULE
9, will be effective for the twelve (12) month period
commencing with the month in which the Effective Date occurs.
Within thirty (30) days following the end of each Quarter
thereafter, the Parties will amend the then-current
Development Services Budget to include the Quarter that
immediately follows the last Quarter covered by the
then-current Development Services Budget. The Parties will act
in good faith to establish the Development Services Budget for
the new Quarter, in a manner consistent with the terms of this
Agreement. In establishing the Development Services Budget for
the new Quarter Sabre will be obligated to perform the
Development Services requested by Customer, provided that
unless Sabre otherwise agrees, Sabre will not be required to
provide Development Resources exceeding twenty-five percent
(25%) of the sum of the (i) Development Resources actually
provided during the Quarter most recently completed; plus (ii)
the Development Resources included in the Development Services
Budget for the three remaining Quarters of the then-current
Development Services Budget.
(f) If Sabre reasonably determines that the Development Resources
(in the aggregate and/or with respect to particular skill
sets) required to perform Development Services in a Quarter
would exceed the corresponding Development Resources
contemplated by the
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Development Services Budget for such Quarter, then Sabre will
so advise Customer and will use commercially reasonable
efforts to procure such additional Development Resources for
such Quarter. In such event, Customer will pay Sabre for such
additional Development Resources, at the times and rates
described in SCHEDULE 8.
(g) If Sabre reasonably determines that the Development Resources
(in the aggregate and/or with respect to particular skill
sets) required to perform Development Services in a Quarter
would be less than the corresponding Development Resources
scheduled to be provided during such Quarter pursuant to the
Development Services Budget, then Sabre will so advise
Customer, and will use reasonable efforts to reallocate to
non-Customer engagements the unneeded Development Resources
during such Quarter. If Sabre is successful in reallocating
all or part of the unneeded Development Resources, then Sabre
will provide to Customer a credit against amounts payable
pursuant to SCHEDULE 8, with respect to such Quarter, in an
amount equal to: (i) for Development Resources successfully
reallocated to Sabre's engagements with Third Party customers,
the amounts paid by such customers to Sabre with respect to
such re-allocated resources; and (ii) with respect to those
resources reallocated to internal development projects of
Sabre, Sabre's internal transfer rate; but such credit under
clause (i) or (ii) will not exceed the amount that would have
been paid to Sabre by Customer with respect to such
reallocated resources for such Quarter.
(h) Without duplicating credits provided under other provisions of
this Agreement, for any Quarter, Customer shall not be
obligated to pay for scheduled Development Resources which are
not actually used to provide Development Services as a result
of Sabre's failure to assign such Development Resources to
development projects according to priorities established in
the Development Services Budget.
2.7 DATA AND VOICE SERVICES: SPECIAL PROVISIONS. Sabre's provision to
Customer of the Data and Voice Services will be subject to the
provisions of SCHEDULE 16.
2.8 CERTAIN OTHER MUTUAL SERVICES.
(a) If either Party solicits (on a bid, RFP or other competitive
basis) a bona fide offer to provide Software application
development services, but excluding any Development Services
provided by Sabre under this Agreement, then that Party will
notify the other Party and allow the other Party a reasonable
period of time to submit a proposal to provide such
development services; provided, however, that Sabre's
obligation to notify Customer under this SECTION 2.8(a) is
limited to those application development services that fall
within the scope of Customer's core competency. The Party
soliciting offers may then, in its sole, reasonable
discretion, decide to accept the proposal submitted by the
other Party or accept a proposal from any Third Party. If the
Party soliciting an offer accepts the proposal submitted by
the other Party, then the Parties will execute a development
agreement identifying the nature and scope of the application
development services, the period of time during which such
services will be provided, and the basis upon which the Party
performing such services will be compensated therefor. Neither
Party will be obligated to perform any such services until the
Parties have executed a development agreement. [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED]
(b) In addition, either Party may, but is not obligated to, offer
the other Party the opportunity to participate in joint
development or co-funding on any Software application
development. To the extent that the Parties decide to jointly
develop or co-fund any such application development, the
Parties will agree upon a development process and ownership of
any resulting intellectual property in the Joint Development
Agreement.
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(c) The provisions of SECTIONS 2.8(a) and (b) shall continue as
long as Sabre is providing Development Services under this
Agreement. Except for the provisions expressly set forth in
this SECTION 2.8, the terms governing a Party's provision of
Software application development services to the other Party
under SECTION 2.8 shall be governed by the terms a separate
development agreement executed by the Parties with respect to
such development services, rather than the terms of this
Agreement. Notwithstanding the foregoing, except to the extent
that such rights may be modified by the terms of the
particular development agreement: (i) the terms of SECTIONS
4.4 and 4.5 shall apply to Standard IP, Premium IP and Joint
Interest IP made by a Party, or the Parties jointly, pursuant
to this Agreement and the separate development agreement;
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(d) In addition to (and separate from) Sabre's providing Services
to Customer under this Agreement, a Party may permit the other
Party to share Software and hardware resources (e.g., BTS
servers, and "Destination Guide") of the first Party. Any such
sharing of resources shall be pursuant to the mutual agreement
of the Parties, as evidenced by a separate agreement for such
sharing of resources and reflected in the Parties' separate
agreement. [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
Except for the expressed terms of this SECTION 2.8(d), the
terms governing the sharing of resources shall be those set
forth in such separate agreement, rather than the terms of
this Agreement.
ARTICLE III. SERVICE LEVELS
3.1 SERVICE LEVEL AGREEMENTS. Sabre will use commercially reasonable
efforts to provide the Base Services in accordance with the SLAs for
the Measured Services set forth in SCHEDULE 5.
3.2 SLA MONITORING; PERFORMANCE REVIEWS. Sabre will measure its
performance of Measured Services against the SLA Standards. If a
measurement is not the type of measurement performed by Sabre in the
ordinary course of its business either for Sabre's internal
operations or with respect to other Sabre customers, and requires
additional software, equipment or other measurement tools, then Sabre
will acquire and implement such tools (and perform such measurements)
once the Parties have agreed in writing on the resulting Change in
Base Fees. Sabre will provide Customer with the monthly performance
reports listed on SCHEDULE 6 in the manner described therein. If
Customer objects to a performance report, Customer will notify Sabre
of its specific objections (which notice must describe in detail
Customer's position) within thirty (30) Business Days of its receipt.
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ARTICLE IV. PROPRIETARY RIGHTS
4.1 OWNERSHIP OF SABRE IP. As between Customer and Sabre, Sabre retains
sole and exclusive ownership of all worldwide Intellectual Property
Rights in the Sabre IP, including any derivative work, modification,
update or enhancement. All rights in and to the Sabre IP not expressly
granted to Customer in this Agreement or in another written agreement
between the Parties are reserved by Sabre. Nothing in this Agreement
will be deemed to grant, by implication, estoppel or otherwise, a
license under any of Sabre's existing or future patents.
4.2 THIRD PARTY SOFTWARE. All Third Party Software will be and will remain
the property of the applicable Third Party vendor(s), and, as between
Sabre and Customer, any derivative work, modification, updates or
enhancements made by Sabre thereto will be owned by Sabre.
4.3 CUSTOMER ASSETS. All Customer Assets will be and will remain the
property of Customer or Customer's Third Party licensors (as
applicable), and, as between Customer and Sabre, any derivative work,
modification, updates or enhancements made by Sabre thereto will
(subject to SECTIONS 4.4 and 4.5) be owned by Customer.
4.4 OWNERSHIP OF DEVELOPED IP.
(a) Each Party will own all right, title and interest in and to
all Standard IP and Premium IP made by such Party pursuant to
this Agreement, and will control and pay for legal protection,
including patents and copyrights where appropriate, for all
such IP solely; provided, however, that such Party will have
no obligation to obtain or maintain any legal protection for
such IP. No Party will have any obligation to enforce or
defend any of its IP. If a Party wishes to enforce any of its
IP against a Third Party, the other Party will cooperate in
such enforcement at the enforcing Party's expense.
(b) Joint Interest IP will be jointly owned by the Parties in
accordance with the terms of the agreement pursuant to which
such Joint Interest IP was made ("Joint Development
Agreement"). Any rights or obligations with respect to
obtaining and maintaining legal protection for Joint Interest
IP will be allocated in accordance with the terms of the Joint
Development Agreement. Each Party will cooperate with the
other Party in any action brought by the other Party to
enforce Joint Interest IP.
4.5 LICENSE RIGHTS IN DEVELOPED IP.
(a) Sabre may grant a license to any Third Party under any of
Sabre's Standard IP to use and fully exploit such Standard IP.
(b) Sabre may grant a license under its Premium IP to any Third
Party who, at the time such license is granted, is not a
Customer Direct Competitor.
(c) Customer may grant a license to any Third Party under any of
Customer's Standard IP to use and fully exploit such Standard
IP.
(d) Customer may grant a license under its Premium IP to any Third
Party who, at the time such license is granted, is not a Sabre
Direct Competitor.
(e) Sabre hereby grants to Customer a perpetual, worldwide,
non-exclusive, royalty-free license in all of Sabre's Standard
IP and Premium IP for the unrestricted use and exploitation
(including the right to make derivative works of and make
modifications thereto) by Customer in its business. Sabre
further grants to Customer the right to grant sublicenses
under any of its Standard IP and Premium IP to any Third Party
who, at the time such sublicense is granted, is not a Sabre
Direct Competitor.
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(f) Customer hereby grants to Sabre a perpetual, worldwide,
non-exclusive, royalty-free license to all of Customer's
Standard IP and Premium IP for the unrestricted use and
exploitation (including the right to make derivative works of
and make modifications thereto) by Sabre in its business.
Customer further grants to Sabre the right to grant
sublicenses under any of its Standard IP and Premium IP to any
Third Party who, at the time such sublicense is granted, is
not a Customer Direct Competitor.
(g) Any Software included in a Party's Standard IP or Premium IP
(a) shall be licensed to the other Party in both source code
and executable code, and (b) may be licensed or sublicensed by
the other Party to Third Parties in executable code only.
(h) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
ARTICLE V. CONTRACT ADMINISTRATION
5.1 CONTRACT ADMINISTRATION PROCESS. The Contract Administration Process
describes and governs the process by which the Parties (a) propose or
request Changes, (b) implement and manage Changes agreed in writing by
the Parties, (c) resolve problems and issues with the Services and (d)
implement and manage any other item which this Agreement provides or
contemplates will be processed in accordance with the Contract
Administration Process.
5.2 TESTING OF THIRD PARTY SERVICES AND SYSTEMS. Sabre's acceptance,
installation, integration, implementation and operation of services,
software and technology provided by Third Parties or Customer is
subject to the Contract Administration Process. Sabre may test any such
services, software or technology (including changes to Customer's IT
environment) for compatibility with the Services, Sabre Software, and
other components of IT systems operated by Sabre. Sabre may refuse to
consent to, accept, install, integrate, implement or operate any
service, software or technology provided by a Third Party or Customer
(including any change to Customer's IT environment) if: (a) Sabre
reasonably believes that any such activity would likely (i) have a
material adverse impact on Services, Sabre Software, or other
components of IT systems operated by Sabre or Sabre's operations, or
(ii) cause a material increase in Sabre's costs to provide Services,
unless the Parties have agreed in writing to an associated increase in
Base Fees; or (b) Sabre is not provided, at Customer's expense, rights
to Access and use such service, software or technology on reasonable
terms (including requirements for firewalls, isolated access and
password access) if Sabre's Access to or use thereof is necessary to
perform Services. All Sabre activities in connection with this SECTION
5.2 are Exclusive Variable Services.
5.3 CHANGES IN DEMAND. Customer will give Sabre reasonable advance notice
of material changes in Customer's requirements for any Service.
Customer's failure to do so may adversely affect Services, SLAs and
Sabre's performance under this Agreement, and Sabre will not be liable
to Customer for such adverse effects. Subject to the Contract
Administration Process and Changes in writing agreed by the Parties,
Sabre will adjust resources in response to such changes in Customer's
requirements for Services.
ARTICLE VI. MANAGEMENT OF RESOURCES
6.1 MANAGEMENT OF RESOURCES.
(a) GENERAL. Sabre may reasonably (i) manage all resources used in
providing Services as Sabre deems appropriate, (ii) decide
which member of Sabre will perform any particular Service, and
(iii) modify, enhance, update, add to, eliminate or replace
any hardware, software, other technology, personnel or other
Sabre resource used to provide Services or
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any element of its IT systems (and/or change, consolidate,
eliminate or add locations from which it provides Services)
from time to time so long as such action does not materially
impair the functionality or performance of the Services.
(b) CUSTOMER ASSETS. Sabre will give Customer reasonable advance
notice of proposed material changes to, replacements for or
reallocations of Customer Assets. If such action would
constitute a Change, the Parties will process such proposals
pursuant to the Contract Administration Process. Subject to
SECTION 14.11, Customer may reasonably refuse such proposed
changes, replacements or reallocations.
6.2 ACCOUNT TEAM REVIEW. If Customer is reasonably dissatisfied with any
Sabre personnel providing services, then Customer will describe in
writing such dissatisfaction and the reasons therefor. Sabre shall use
commercially reasonable efforts to remedy the problem giving rise to
such dissatisfaction within thirty (30) days after receiving such
notice. If Customer remains dissatisfied for good reason with the Sabre
personnel in question after such thirty (30) day period, Sabre will
promptly replace such Sabre personnel.
6.3 USE OF SUBCONTRACTORS. Sabre may subcontract any portion of the
Services to any Sabre Subsidiary, Sabre Affiliate, and any Third
Parties; provided that Sabre will not (without Customer's prior
consent) subcontract Services to a Third Party which (at the time of
such subcontracting) competes with Customer's business. Sabre will not
disclose any Confidential Information of Customer to any subcontractor
unless it has agreed in writing to protect the confidentiality of such
Confidential Information in a manner no less restrictive than required
under SECTION 9.2, and to use such information only as needed to
perform subcontracted Services, and such disclosure shall be only to
the extent reasonably needed to perform subcontracted Services. Sabre
is responsible for Services performed by its subcontractors (excluding
subcontractors under Service Contracts or other agreements included
with the Customer Assets, whose performance is the responsibility of
Customer).
6.4 MANAGEMENT OF THIRD PARTY SERVICES. The Parties acknowledge that, to
the extent provided in the description of Services in SCHEDULES 2.1,
2.2 AND 2.3, certain of the Services include Sabre's management or
procurement of various services and products provided by Third Parties
at the request, or with the consent, of Customer (e.g., certain
telecommunications services). Customer agrees that this arrangement
does not constitute Sabre's subcontracting of Services for purposes of
this Agreement, and that Sabre is not responsible or liable for the
performance, inadequate performance or non-performance of such Third
Party services or products. The remedies for any such Third Party
service or product problems to the extent attributable to
nonperformance or inadequate performance by any such Third Party
provider or nonconformance of any such Third Party product will be the
remedies set forth in the applicable agreement with the provider of
such Third Party service or product. Nonetheless, if Customer expresses
any concerns to Sabre about any such Third Party services or products,
Sabre will use commercially reasonable efforts to manage relationships
and to minimize difficulties with providers of such Third Party
services or products.
ARTICLE VII. CUSTOMER'S OBLIGATIONS
7.1 RESTRICTIONS ON USE.
(a) GENERAL. Customer will restrict access to and use of the
Services, Sabre Software and other components of IT systems
owned or licensed by Sabre and utilized by Sabre to perform
Services to Customer's own employees and individual
independent contractors who require such access and use
in performing their duties. Customer may not, without
Sabre's consent, which may be withheld in Sabre's sole
discretion: (i) access or use Services, Sabre Software
or other components of IT systems owned or licensed by
Sabre and utilized by Sabre to perform Services for any
purpose other than for Customer's internal operations or
(to the extent that the description of Services
specifies the Access
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Locations from which Services may be Accessed) from any
location other than the Access Locations (except that Customer
employees whose workplace is an Access Location may remotely
access Services and Sabre Software when away from their
workplace); or (ii) permit any Third Party to access or use
Services, Sabre Software or other components of IT systems
owned or licensed by Sabre and utilized by Sabre to perform
Services. Customer's access or use thereof for outsourcing,
service bureau or similar purposes, or for the benefit of any
Third Party, is prohibited. Notwithstanding the foregoing,
Customer shall have the Intellectual Property Rights provided
for in SECTIONS 4.4 and 4.5; and Customer may provide its
customers with customary access to Customer web sites hosted
by Sabre.
(b) PERMITTED THIRD PARTY USE. Notwithstanding the foregoing,
Customer may permit Third Party IT Service Providers and their
employees to access and use, solely for the purpose of their
performing services for Customer, the Services, Sabre Software
and other components of IT systems owned or licensed by Sabre
and utilized by Sabre to perform Services, provided that such
Third Party IT Service Providers will be subject to the
obligations of this Agreement including, but not limited to,
the confidentiality obligations set forth in SECTION 9.2.
Customer will notify Sabre of, and is responsible and liable
for, such access and use.
7.2 CUSTOMER FACILITIES AND RELATED SERVICES. Customer will provide to
Sabre, and its employees, subcontractors and agents, Access to
Customer's facilities, including all Access Locations, twenty-four (24)
hours a day, seven (7) days a week, as needed to perform the Services.
Customer will also provide, at Customer's expense, such resources and
services at Customer's facilities (including Access Locations), as are
necessary for Sabre to provide the Services. All space provided to
Sabre at Customer's facilities will remain free of health and safety
hazards and in compliance with applicable Environmental Laws. Sabre
personnel shall comply with the customary rules of Customer (which
shall not unreasonably impede Sabre in the performance of Services)
with respect to Access to Customer's facilities and Access Locations.
7.3 ASSISTANCE, CONSENTS AND GOVERNMENTAL APPROVALS.
(a) CUSTOMER COOPERATION AND PROVISION OF RESOURCES. Customer will
cooperate with, support and participate in Sabre's efforts to
provide Services and punctually accomplish its obligations
under this Agreement. Without limiting the generality of the
foregoing, Customer will, at Customer's expense: (i) promptly
provide Sabre with all resources, information, advice,
authorizations, instructions, decisions, approvals, signatures
and other assistance Sabre may reasonably request in
connection with the Services; and (ii) make available
appropriate employees and contractors of Customer for such
purposes. In addition, Customer will provide written evidence
of Sabre's agency authority as Sabre may reasonably request in
order to provide the Services contemplated by this Agreement.
Customer's management authority shall include all "ordinary
course of business" functions related to management of
Customer Assets. Sabre shall consult with Customer prior to
taking any material actions (e.g., the institution of, or
settlement of, litigation or enforcement actions) with respect
to Customer Assets.
(b) OBTAINING REQUIRED CONSENTS. Customer will use commercially
reasonable efforts to obtain all Required Consents (to the
extent related to the Customer Assets, or required under
contracts to which Customer is a party or Laws binding upon
Customer) as promptly as possible and will pay all fees,
royalties, costs, expenses and other charges now or hereafter
properly payable to any Third Party in order to obtain and
maintain such Required Consents. Customer will provide Sabre
with written evidence of such Required Consents upon
Customer's receipt thereof. Unless and until a Required
Consent is obtained, Customer will adopt such alternative
approaches as are necessary for Sabre to
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perform all obligations and enjoy the benefits (economic,
operational or otherwise) arising under of in connection with
this Agreement without such Required Consent.
7.4 CUSTOMER ASSETS.
(a) GENERAL. Customer will provide Sabre Access to and use of the
Customer Assets, on terms and conditions acceptable to Sabre,
for use by Sabre and its subcontractors and agents in
performing the Services, and will act as Sabre's agent, to the
maximum extent permitted by law, to obtain the full benefits
of the Customer Assets for Sabre as needed to provide Services
under this Agreement. Customer will pay all fees, royalties,
costs, expenses and other charges now or hereafter properly
payable to any Third Party in connection with, or under
agreements relating to, the Customer Assets or arising from
Sabre's Access thereto or proper use thereof. Without limiting
the foregoing, (I) while Sabre is providing Web Hosting
Services to Customer, Customer shall retain all financial
responsibility for the servers, network equipment and other
Customer Assets furnished by Customer and operated and
monitored by Sabre in connection with the Web Hosting
Services; (ii) while Sabre is providing Desktop Services to
Customer, Customer shall retain all financial responsibility
for equipment, devices and software with respect to which
Sabre provides the Desktop Services.
(b) INTELLECTUAL PROPERTY RIGHTS. Sabre's rights under this
SECTION 7.4 include royalty-free rights for Sabre and its
subcontractors and agents to use, reproduce, create derivative
works from and sublicense all Customer Owned Systems, Customer
Licensed Systems, Customer Owned Intellectual Property Rights
and Customer Third Party Intellectual Property Rights solely
for the purpose of performing (and as needed to perform) the
Services. Customer will provide to Sabre copies of software
included in the Customer Assets in object code and source code
formats, and in a form and on media compatible with the
equipment that Sabre is then operating on Customer's behalf,
together with all related documentation. To the extent that
Sabre makes any modifications or enhancements to Customer
Owned Systems, Customer Licensed Systems, Customer Owned
Intellectual Property Rights or Customer Third Party
Intellectual Property Rights under this Agreement, Sabre will
provide Customer, upon expiration or termination of this
Agreement for any reason or upon Customer's reasonable
request, with sufficient documentation and source code to
fully utilize such modifications and enhancements.
(c) AMENDMENT, MODIFICATION OR TERMINATION. Customer will use
commercially reasonable efforts to notify Sabre prior to
Customer's extending the term of, modifying, or terminating
any Equipment Lease, System License Agreement, Intellectual
Property License Agreement, Real Property Lease, Service
Contract, Authorization or Other Contract included within the
Customer Assets. If such extension, modification or
termination would prevent or interfere with Sabre's compliance
with its obligations under this Agreement, or satisfying an
applicable SLA, then such action will be processed as a Change
pursuant to the Contract Administration Process. If such
action would increase the costs or expenses incurred Sabre in
providing Services under this Agreement, or in satisfying
applicable SLAs, then, following Sabre's notice to Customer of
such increase and delivery to Customer of appropriate
information evidencing such increase, Customer shall reimburse
Sabre for such increased costs and expenses.
7.5 CUSTOMER'S IT ENVIRONMENT.
(a) GENERAL. Customer will not make any Change to Customer's IT
environment (including Customer's desktop environment, and
including Changes to personal computers, hardware, software,
network configuration or telecommunications network) without
(i) conforming to Sabre's reasonable standards and
requirements for Customer's IT environment and (ii) complying
with the Contract Administration Process. Customer will
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not permit installation on, or use with, personal computers or
other elements of Customer's IT environment or software which
has not been validly licensed or sublicensed to Customer by
Third Parties or Sabre.
(b) SABRE RECOMMENDATIONS. Sabre may from time to time recommend
changes in Customer's IT environment. The Parties will process
such recommendations as Changes subject to the Contract
Administration Process. Subject to SECTION 14.11, Customer may
reasonably refuse such recommendations.
7.6 CUSTOMER DATA. Customer will be solely responsible for the accuracy of
Customer Data and the timely inputting of such Customer Data and any
changes thereto.
ARTICLE VIII. WARRANTIES AND ADDITIONAL COVENANTS
8.1 WARRANTIES AND ADDITIONAL COVENANTS.
(a) QUALIFIED WORK FORCE. Sabre represents and warrants that its
personnel possess the proper skill, training, experience and
background to perform the Services in a professional and
workmanlike manner.
(b) YEAR 2000. Sabre represents and warrants that the Sabre
Software specified in SCHEDULE 10 as of the Effective Date
will be Year 2000 Compliant when running on computers and
operating systems selected, supplied or certified by Sabre and
when used in accordance with Sabre's documentation for such
systems. If any such Sabre Software is found not to be Year
2000 Compliant, Sabre will cause such non-conforming system to
be Year 2000 Compliant, at no additional cost to Customer, as
soon as reasonably practicable. Notwithstanding the foregoing,
Sabre will not be responsible for a failure of any Sabre
Software to be Year 2000 Compliant to the extent such failure
is the direct result of (A) the receipt of data in incorrect
formats, (B) the interoperation with machines, software or
tools of Customer or any other Third Parties that are not Year
2000 Compliant, and (C) any modifications made by Customer or
any other Third Parties to the Sabre Software, unless such
modifications were approved or authorized by Sabre. The remedy
provided in this SECTION 8.1(b) is the sole and exclusive
remedy available to Customer, and the sole and exclusive
obligation of Sabre, for a breach of this SECTION 8.1(b). The
Services do not include, and Sabre will not be responsible or
liable for, any changes, modifications, updates or
Enhancements to any Assets or Third Party hardware, software,
equipment or other items which may be necessary so that such
items are Year 2000 Compliant.
(c) PASS-THROUGH WARRANTIES AND INDEMNITIES. Each Party, to the
extent permissible, will pass through to the other Party any
rights it obtains under warranties and indemnities given by
its Third Party licensors, subcontractors or suppliers in
connection with any services, telecommunications networks,
software, equipment or other assets provided by such Party
pursuant to this Agreement. In the event of a Third Party
Software or equipment nonconformance, or nonperformance or
inadequate performance by any Third Party vendor, Sabre will
coordinate with, and be the point of contact for resolution of
the problem through, the applicable vendor. Upon becoming
aware of a problem, Sabre will notify such vendor and will use
commercially reasonable efforts to cause such vendor to
promptly repair or replace the nonconforming item or remedy
the nonperformance or inadequate performance in accordance
with such vendor's obligations. If any warranties or
indemnities may not be passed through, the Party providing
such services, software, equipment or other assets agrees that
it will, upon request of the other Party, take commercially
reasonable action to enforce any applicable warranty or
indemnity which is enforceable by such Party in its own name.
Neither Party, however, is obligated to resort to litigation
or other formal dispute resolution procedures to enforce any
such warranty or indemnity unless the other Party agrees to
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reimburse such Party for all costs and expenses incurred in
connection therewith, including reasonable attorneys' fees and
expenses.
(d) CORPORATE MATTERS. Each Party represents and warrants that as
of the Effective Date: (i) it is a corporation or partnership
duly organized and validly existing and in good standing under
the Laws of its jurisdiction of formation and has the
authority to carry on its business as now conducted and to
own, lease and operate its assets; (ii) it has the power,
authority and legal rights to execute, deliver and perform its
obligations under this Agreement and to contemplate the
transactions contemplated hereby; (iii) the execution,
delivery and performance of its obligations under this
Agreement and the transactions contemplated hereby have been
duly authorized by all necessary corporate or partnership
action; and (iv) this Agreement has been duly executed and
delivered by duly authorized officers of such Party and this
Agreement constitutes a legal, valid and binding obligation
enforceable against it in accordance with its terms.
(e) VALIDITY OF CONTEMPLATED TRANSACTIONS. Each Party represents
and warrants that as of the Effective Date neither the
execution and delivery of this Agreement, the performance of
any of its obligations hereunder, nor the consummation of any
of the transactions contemplated herein will violate, conflict
with or result in a breach of or default under any terms,
conditions or provisions of (i) any existing Law to which it
or its assets is subject, (ii) any judgment, order, writ,
injunction, decree or award of any Governmental Authority
which is applicable to it or its assets, (iii) any provision
of its organizational documents or other document of formation
or governance to which it is a Party or by which any of its
assets are bound, (iv) any mortgage, indenture, agreement,
contract, commitment, lease, plan, Authorization or other
instrument, document or understanding, oral or written, to
which it is a Party.
(g) REQUIRED CONSENTS. Each Party represents and warrants that as
of the Effective Date it has duly obtained all Required
Consents of, and duly made all required registrations,
declarations or filings with, any Governmental Authority which
are required on its part as a condition to the execution,
delivery and performance of this Agreement. Customer
represents and warrants as of the Effective Date that SCHEDULE
11 sets forth a list of Required Consents (to the extent
related to the Customer Assets, or required under contracts to
which Customer is a party or Laws binding upon Customer) that
have not been obtained as of that date, and that such list is
accurate and complete in all material respects.
8.2 DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN
THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE
MERCHANTABILITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE
OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE, OF ANY SERVICE,
SOFTWARE, HARDWARE OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT.
ARTICLE IX. DATA, CONFIDENTIALITY AND AUDIT RIGHTS
9.1 CUSTOMER DATA.
(a) OWNERSHIP. All Customer Data will remain the sole property of
Customer. Sabre may Access and use Customer Data as needed to
perform its obligations hereunder. Upon expiration or
termination of this Agreement, Sabre will, at Customer's
expense, return to Customer, in Sabre's then-existing,
machine-readable format and media, all Customer Data
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in Sabre's possession. Sabre will not use Customer Data for
any purpose other than providing Services.
(b) SAFEGUARDING. Sabre will employ substantially the same
safeguards it uses for data of its other customers of similar
services, but not less than reasonable safeguards, in
protecting Customer Data against accidental or unauthorized
deletion, destruction or alteration. Sabre personnel having
Access to Customer Data will be informed of their duties to
maintain its confidentiality and to use it only for purposes
permitted hereunder. Customer may establish backup security
for Customer Data and retain backup data files if it so
chooses. Sabre will have Access to such backup data files as
is reasonably required by Sabre.
(c) USE IN SABRE CRS. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement will not apply to
or govern Customer Data that is processed by or stored in the
Sabre CRS. All rights and obligations with respect to Customer
Data that is processed by or stored in the Sabre CRS will be
governed by the Access Agreement.
9.2 CONFIDENTIALITY.
(a) OWNERSHIP; SCOPE OF OBLIGATION. As between the Parties, the
Confidential Information of each Party will remain its sole
property. Confidential Information will be used by the
recipient Party only for purposes of this Agreement. Each
Party will hold the Confidential Information of the other
Party in strict confidence and protect such Confidential
Information from disclosure using the same care it uses to
protect is own confidential information of like importance,
but not less than reasonable care. No Confidential Information
will be disclosed by the recipient Party without the prior
written consent of the other Party, except that each Party may
disclose this Agreement and the other Party's Confidential
Information to its directors, employees, attorneys, agents,
auditors, insurers and subcontractors who require access to
such information in connection with their employment or
engagement and who are obligated to keep such information
confidential in a manner no less restrictive than set forth in
this SECTION 9.2. The Party employing or engaging such Persons
is responsible and liable for their compliance with such
confidentiality obligations.
(b) EXCEPTIONS. This Agreement does not prevent or restrict use or
disclosure by the recipient Party of Confidential Information
of the disclosing Party that (i) was in the public domain when
communicated to the recipient Party, (ii) enters the public
domain through no fault of the recipient Party, (iii) was in
recipient Party's possession free of any obligation of
confidence when communicated to the recipient Party or (iv)
was rightfully communicated to the recipient Party by a Third
Party free of any obligation of confidence to the disclosing
Party. If Confidential Information is required to be disclosed
by law or a Governmental Authority, including pursuant to a
subpoena or court order, such Confidential Information may be
disclosed, provided that the Party required to disclose the
Confidential Information (x) promptly notifies the disclosing
Party of the disclosure requirement, (y) cooperates with the
disclosing Party's reasonable efforts to resist or narrow the
disclosure and to obtain an order or other reliable assurance
that confidential treatment will be accorded the disclosing
Party's Confidential Information, and (z) furnishes only
Confidential Information that the Party is legally compelled
to disclose according to advice of its legal counsel. Upon
written request at the expiration or termination of this
Agreement, all documented Confidential Information (and all
copies thereof) owned by the requesting Party will be returned
to it or destroyed by the recipient Party, with written
certification thereof.
(c) RESIDUAL KNOWLEDGE. Each Party acknowledges that the other
may, as a result of its receipt of or exposure to the other
Party's Confidential Information, increase or enhance the
knowledge and experience retained in the unaided memories of
its directors,
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employees, agents or contractors. Notwithstanding anything to
the contrary in this Agreement, a Party and its directors,
employees, agents or contractors may use and disclose such
knowledge and experience in such Party's business, so long as
such use or disclosure does not involve specific Confidential
Information received from the other Party. The disclosing
Party will not have rights in such knowledge and experience
acquired by the recipient Party, nor rights in any business
endeavors of the recipient Party which may use such knowledge
and experience, nor rights to compensation related to the
recipient Party's use of such knowledge and experience.
9.3 AUDIT RIGHTS.
(a) GENERAL. Auditors designated by Customer, and who agree in
writing to the security and confidentiality obligations and
procedures required by Sabre, will be provided with reasonable
access to locations from which Sabre provides Services to
enable them to audit (at Customer's expense, subject to
SECTION 9.3(e)) Sabre's activities under this Agreement,
including verifying that Services are being provided in
accordance with this Agreement and applicable SLAs. The
auditors must be nationally recognized firms and Customer may
not designate any auditor who, in Sabre's reasonable opinion,
is a competitor of, or affiliated with a competitor of, Sabre
or its Subsidiaries.
(b) PROCEDURES. Such audits may be conducted once a year during
reasonable business hours. Customer will provide Sabre with at
least thirty (30) days prior written notice of an audit. Sabre
will cooperate with the audit, will make the information
reasonably required to conduct the audit available on a timely
basis and will assist the designated employees of Customer's
auditors as reasonably necessary. If Sabre requires resources
in addition to those required in the ordinary course of its
delivery of the Services to satisfy its obligations under this
SECTION 9.3(b), such additional resources will be charged as
Variable Services. Sabre will not be required to provide
access to the proprietary data of Sabre or other Sabre
customers. All information pertaining to Sabre (including the
IP, business, properties or Services of Sabre) learned or
exchanged in connection with the conduct of an audit, as well
as the results of any audit, is Confidential Information of
Sabre.
(c) RESULTS. Customer will provide Sabre copies and results of
each audit. The Parties will review the results of an audit,
will identify all relevant audit issues and will determine (i)
what, if any, actions will be taken in response to such audit
issues, and (ii) which Party will be responsible for the cost
of taking the actions necessary to resolve such issues.
(d) RECORDS RETENTION. Sabre will retain books and records that
are reasonably required to verify that Services are being
provided in accordance with this Agreement and applicable SLAs
for a period of [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after their creation.
(e) COSTS OF AUDIT. In the event an audit conducted pursuant to
this SECTION 9.3 reveals that Sabre has overcharged Customer
by an amount in excess of [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] during a period of at least [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED], then Sabre will pay or
reimburse Customer for the reasonable costs of such audit that
are attributable to that portion of the auditor's fees charged
Customer for auditing amounts charged by Sabre under the
Agreement.
ARTICLE X. PAYMENTS
10.1 FEES FOR BASE SERVICES. In consideration for the performance of the
Base Services, Customer will pay to Sabre the Fees set forth in
SCHEDULE 8. Pursuant to the Contract Administration Process, the
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Fees for Base Services will increase following the Migration Completion
Date for any Base Services provided with respect to the Preview
Operations, and the effective date of implementing any Optional Web
Hosting Services.
10.2 FEES FOR VARIABLE SERVICES. In consideration for any agreement by Sabre
to provide Variable Services, Customer will pay to Sabre the Fees set
forth in SCHEDULE 8.
10.3 THIRD PARTY FEES. Customer will pay all fees, royalties, costs,
expenses and other charges now or hereafter payable to any Third Party
in connection with or related to Third Party Software, Customer Assets
or data used by Sabre in performing the Services or Accessed or used by
Customer (or permitted Third Parties).
10.4 EXPENSES. Customer will reimburse Sabre for all reasonable travel,
travel-related (including food, lodging and incidental) and
out-of-pocket expenses incurred by Sabre, its subcontractors or agents
in performing Services under this Agreement. Sabre has provided
Customer with written reimbursement guidelines as in effect on the
Effective Date, and will forward to Customer written copies of each
amendment thereto.
10.5 MANNER OF PAYMENT. All payments will be made by wire transfer to a bank
account designated by Sabre or through such other means as the Parties
agree. If a Subsidiary or Affiliate of Sabre provides Services, Sabre
may opt for such Subsidiary or Affiliate to invoice Customer for
Services it provides, in which case Customer will pay that entity
directly.
10.6 INVOICING AND TIME OF PAYMENT. SCHEDULE 8 sets forth procedures by
which Fees are invoiced by Sabre and dates by which Fees are due and
payable by Customer. Each invoice will itemize the Fees contained
therein, and will be accompanied by reasonable detail in accordance
with Sabre's customary billing practices. Sabre will provide Customer
additional information about invoices as Customer reasonably requests
and as Sabre customarily provides.
10.7 TAXES. Customer will be responsible for and will pay for any Taxes that
are imposed on or determined by reference to (a) services or property
provided under this Agreement, (b) the payments due to Sabre pursuant
to this Agreement, including (i) payments for the sale, delivery or
furnishing of any property or services (including the Services or
access to or use of Sabre Software) hereunder and (ii) Taxes arising
from the payments under this SECTION 10.7 and SECTION 10.8 below, or
(c) the execution, delivery, notarization, recordation or other similar
action with respect to, this Agreement; provided, however, that
Customer will not be responsible for Taxes imposed on the net income of
Sabre.
10.8 NET PAYMENTS. All payments due to Sabre under this Agreement will be
made free and clear of any withholdings for present or future Taxes. If
Customer is required by law to make any deduction or withholding of
Taxes from any payment due to Sabre, then: (a) Customer will effect
such deduction or withholding, and remit such Taxes to the appropriate
taxing authorities; (b) the amount payable to Sabre upon which such
deduction or withholding is based will be increased to the extent
necessary to ensure that after such deduction or withholding Sabre is
paid a net amount equal to the amount Sabre would have been paid in the
absence of such deduction or withholding; (c) if requirements of Law or
any reason indicated in this SECTION 10.8 cause any further deduction
or withholding of Taxes, the amount payable to Sabre will be further
increased to the extent necessary to ensure that after such deduction
or withholding, Sabre is paid a net amount equal to the amount Sabre
would have been paid in the absence of such further deductions or
withholdings; and (d) Customer will provide Sabre with the original
receipt, a duplicate original receipt, or a duly certified or
authenticated copy of the receipt, and copies of cancelled checks, for
any Taxes deducted or withheld and remitted to the appropriate taxing
authorities under this SECTION 10.8. Such receipts or copies will be
provided to Sabre within sixty (60) days following the date of
deduction or withholding.
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10.9 INTEREST. If Customer fails to pay any amount when properly due, the
past-due amount will bear interest, until paid, at a rate of [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] or the maximum rate allowed
by law, whichever is less. Such interest will be payable as it accrues,
upon demand.
ARTICLE XI. TERM AND TERMINATION
11.1 TERM. The term of this Agreement will begin on the Effective Date and,
unless terminated earlier under SECTION 11.2, will remain in [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] Subject to SECTION 11.2,
the period of time during which Sabre will provide each of the
following Categories of Service will be as follows:
(a) DATA AND VOICE SERVICES: Three (3) years from the Effective
Date.
(b) WEB HOSTING SERVICES: Six (6) months from the Effective Date;
PROVIDED, HOWEVER, that unless Customer notifies Sabre to the
contrary at least sixty (60) days prior to the end of the
initial six-month period, the initial term will be extended
for one additional six (6) month period, and Customer may
terminate the Web Hosting Services during such renewal
six-month period at any time upon not less than sixty (60)
days written notice to Sabre. [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]
(c) DEVELOPMENT SERVICES: Fifteen (15) years.
(d) DESKTOP SERVICES: through August 31, 2000.
11.2 TERMINATION.
(a) If a Party commits a Material Breach, the other Party may
terminate this Agreement by notifying the breaching Party;
provided, however, that if a Material Breach pertains to only
one Category of Services then the other Party may terminate
this Agreement only with respect to the Category of Service to
which the Material Breach pertains.
(b) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
11.3 EFFECT OF EXPIRATION OR TERMINATION.
(a) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(b) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
(c) TERMINATION ASSISTANCE. If this Agreement expires under
SECTION 11.1 or is terminated by Customer under SECTION 11.2,
Sabre will provide Termination Assistance Services during a
period of time ("TERMINATION ASSISTANCE PERIOD") beginning on
the earlier of: (a) the date of expiration or termination of a
Category of Services under the Agreement and (b) a date (not
more than [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
prior to then-scheduled expiration of the Term) specified by
Customer in a written notice to Sabre; and ending that number
of days following the commencement of the Termination
Assistance Period, for each of the following Categories of
Service as follows: (i) Data and Voice Services: [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESTED]; (ii) Development
Services: [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED];
(iii) Web Hosting Services: [TEXT OMITTED - CONFIDENTIAL
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TREATMENT REQUESTED]; (iv) Desktop Services: [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED]. Customer will continue to
pay all Fees during such period. This Agreement remains in
effect during the Termination Assistance Period and applies to
the Termination Assistance Services. Customer will cooperate
in good faith with Sabre in connection with Sabre's
obligations under this SECTION 11.3(c), and will perform its
obligations under the Termination Assistance Plan. Sabre is
not required to provide Termination Assistance Services if it
terminates this Agreement under SECTION 11.2(a), and is not
required to begin new Development Services projects following
the termination of this Agreement with respect to Development
Services.
(d) DISCLOSURE OF INFORMATION. Sabre is not required to disclose
Sabre's Confidential Information to any successor Third Party
IT service provider except to the extent that Customer is
entitled thereto. Customer will cause any such Third Party IT
service provider to agree in writing on terms acceptable to
Sabre to maintain the confidentiality of all Sabre
Confidential Information and to use such information only for
purposes authorized under this Agreement. Customer will use
commercially reasonable efforts to assure such Third Party's
compliance with such confidentiality obligation.
(e) TERMINATION OF CATEGORY OF SERVICES. To the extent that this
Agreement is terminated with respect to a particular Category
of Services, and not in its entirety, then the provisions of
this SECTION 11.3 shall apply to the Category of Services with
respect of which this Agreement has been terminated. Further,
to the extent that a particular Category of Services is
terminated, the obligations with respect to associated
Exclusive Variable Services will also terminate.
ARTICLE XII. INDEMNITIES AND LIABILITY
12.1 INDEMNITIES.
(a) TAXES. Each Party will indemnify, defend and hold harmless the
other Party and its Affiliates from and against all Losses
arising out of, under or in connection with any claim for
Taxes for which the indemnitor is financially responsible
under this Agreement.
(b) PERSONAL INJURY AND PROPERTY DAMAGE. Each Party will
indemnify, defend and hold harmless the other Party and its
Affiliates from and against all Losses arising out of, under
or in connection with (i) bodily or other personal injury to,
or death of, any Person or (ii) damage to or destruction of
any tangible property, in each case resulting from, or arising
out of, under or in connection with, the gross negligence or
willful misconduct of the indemnitor or any of its
Subsidiaries; provided that Sabre will have no indemnification
obligation in respect of Losses arising out of, under or in
connection with any incident for which it is entitled to
indemnification under SECTIONS 12.1(d) and 12.1(g).
(c) INFRINGEMENT.
(i) GENERAL. Sabre will indemnify, defend and hold
harmless Customer and its Affiliates against any
action or cause of action based on a claim that any
Sabre IP (excluding portions owned by Third Parties
or Customer Assets) (A) infringes a copyright, (B)
infringes a patent granted under United States law
(C) infringes a trademark granted under United States
law, or (D) constitutes an unlawful disclosure, use
or misappropriation of a Third Party's Trade Secrets.
Customer will indemnify, defend and hold harmless
Sabre and its Affiliates against any action or cause
of action based on a claim that any Customer IP
(excluding portions owned by Third Parties) or Owned
Systems or Owned Intellectual Property Rights (W)
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infringes a copyright, (X) infringes a patent granted
under United States law, (Y) infringes a trademark
granted under United States law, or (Z) constitutes
an unlawful disclosure, use or misappropriation of a
Third Party's Trade Secrets. The indemnitor will bear
the expense of such defense and pay any damages and
attorneys' fees that are attributable to such claim
finally awarded by a court of competent jurisdiction.
Notwithstanding the foregoing, neither Party will be
liable to the other for claims of indirect or
contributory infringement, including claims based on
use of Intellectual Property Rights with equipment or
software not agreed by the indemnitor or in a manner
for which such rights are not designed or
indemnitee's modifications to Intellectual Property
Rights (other than those made at the indemnitor's
request).
(ii) ADDITIONAL REMEDY. If Sabre IP or Customer IP (or
Owned Systems or Owned Intellectual Property Rights)
becomes the subject of a claim under this SECTION
12.1(c), or in the indemnitor's reasonable opinion is
likely to become the subject of such a claim, then,
in addition to defending the claim and paying any
damages and attorneys' fees as required above, the
indemnitor will use commercially reasonable efforts
to either (A) replace or modify the Sabre IP or
Customer IP (or Owned Systems or Owned Intellectual
Property Rights), as applicable, to make it
noninfringing or cure any claimed misuse of a Third
Party's Trade Secret or (B) procure for the
indemnitee the right to continue using the Sabre IP
or Customer IP (or Owned Systems or Owned
Intellectual Property Rights), as applicable. Any
costs associated with either alternative will be
borne by the indemnitor. If neither option is
available to the indemnitor through the use of
commercially reasonable efforts, (X) the indemnitee
will return such Sabre IP or Customer IP (or Owned
Systems or Owned Intellectual Property Rights), as
applicable, to the indemnitor and (Y) if requested by
the indemnitee in good faith, the Parties will
negotiate, pursuant to SCHEDULE 13, but subject to
SECTION 12.2, to reach a written agreement on what,
if any, monetary damages (in addition to the
indemnitor's obligations under this SECTION 12.1(c))
are reasonably owed by the indemnitor to the
indemnitee.
(d) PROVISION OF SERVICES. Customer will indemnify, defend and
hold harmless Sabre and its Affiliates from and against all
Losses arising out of or in connection with (i) Customer's
improper use of the Services, (ii) the failure of any
equipment, products or services provided by Customer,
including, without limitation, the Customer Assets, (iii) any
act or omission of any Third Party furnishing products,
equipment, software or any other items or services which are
required by Customer to use the Services, (iv) unauthorized
modifications, alterations, tampering, adjustment or repair of
the Services, Applications or other components of the IT
systems operated by Sabre to perform the Services caused by
Customer or any Third Party permitted access to or use thereof
by Customer; (v) the distribution, display or publication of
any material delivered by or through Customer (other than
material provided by Sabre) over or using the internet,
including with respect to such information: (A) content
whether editorial, advertising, or otherwise, (B) copyright
infringement, libel, indecency, misrepresentation, invasion of
privacy, or (C) statements for other materials made or made
available by readers of the content or by persons to whom the
content is linked at the request of Customer; and (vi)
Customer's use of the Data and Voice Services provided by
Sabre including (A) the abuse or fraudulent use of the Data
and Voice Services (or the voice or data networks to which the
Data and Voice Services pertain), (B) any information, data,
or message transmitted over the network by Customer that
constitutes libel, slander, infringement of copyright,
invasion of privacy, violation of trans-border data flow
regulations, or alterations of private records or data, or (C)
Customer's failure to comply with the provisions of SCHEDULE
16.
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(e) EMPLOYEES. Each Party will indemnify, defend and hold harmless
the other Party and its Affiliates from and against all Losses
arising out of, under or in connection with an act or omission
of the indemnitor in its capacity as an employer of a Person
and arising out of or relating to (i) federal, state or other
Laws or regulations for the protection of Persons who are
members of a protected class or category of Persons, (ii)
sexual discrimination or harassment, (iii) accrued employee
benefits not expressly assumed by the indemnitee and (iv) any
other aspect of the employment relationship or its termination
(including claims for breach of an express or implied contract
of employment) and which, with respect to each of clauses (i)
through (iv), arose when the Person asserting the claim,
demand, charge, actions, cause of action or other proceeding
was or purported to be an employee of the indemnitor. Customer
acknowledges and agrees that its employee indemnity obligation
set forth above includes Losses for severance benefits.
(f) REQUIRED CONSENTS. Customer will indemnify, defend and hold
harmless Sabre and its Affiliates from and against all Losses
arising out of, under or in connection with Customer's failure
or inability to obtain any Required Consents (to the extent
related to the Customer Assets, or required under contracts to
which Customer is a party or Laws binding upon Customer).
Sabre will indemnify, defend and hold harmless Customer and
its Affiliates from and against all Losses arising out of,
under or in connection with Sabre's failure or inability to
obtain any Required Consents (except for Required Consents
related to the Customer Assets, or required under contracts to
which Customer is a party or Laws binding upon Customer).
(g) CUSTOMER'S END USERS. The Parties acknowledge that by entering
into this Agreement, Sabre shall not assume and should not be
exposed to the business and operational risks associated with
Customer's business. Customer therefore shall indemnify,
defend and hold harmless Sabre and its Affiliates from and
against all Losses arising out of or in connection with any
claim by any customer or end user of Customer, or of any of
the customers or end users of any such customer or end user.
(h) PROCEDURES FOR THIRD PARTY CLAIMS. Notwithstanding any
provision to the contrary, the indemnification obligations set
forth in this SECTION 12.1 for Losses arising out of, under or
in connection with Third Party claims, actions or causes of
action will not apply unless the Party claiming
indemnification:
(i) promptly notifies the other Party of any matters to
which the indemnity may apply and of which the
notifying Party has knowledge in order to allow the
indemnitor an opportunity to investigate and defend
the matter; provided that the failure to so notify
will only relieve the indemnitor of its obligations
if and to the extent that the indemnitor is
prejudiced thereby; and
(ii) gives the other Party full opportunity to control the
response thereto and the defense thereof, including
any agreement relating to the settlement thereof;
provided that the indemnitee will have the right to
participate in any legal proceeding or audit to
contest and defend a claim for indemnification
involving a Third Party and to be represented by
legal counsel of its choosing, all at the
indemnitee's cost and expense. If the indemnitor
fails to promptly assume the defense of the claim,
the Party entitled to indemnification may assume the
defense at the indemnitor's cost and expense.
The indemnitor will not be responsible or liable for any
settlement or compromise made without its consent, unless the
indemnitee has tendered notice and the indemnitor has then
refused to assume and defend the claim and it is later
determined that the indemnitor was liable to assume and defend
the claim. The indemnitee agrees to cooperate in good faith
with the indemnitor at the request and expense of the
indemnitor.
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(i) NEGLIGENCE. THE ORDINARY, BUT NOT GROSS, NEGLIGENCE OF ANY
INDEMNITEE OR THE JOINT OR CONCURRENT ORDINARY, BUT NOT GROSS,
NEGLIGENCE OF TWO OR MORE INDEMNITEES WILL NOT PRECLUDE SUCH
INDEMNITEE(S) FROM RECEIVING THE BENEFITS OF INDEMNIFICATION
UNDER THIS SECTION 12.1.
12.2 LIABILITY.
(a) GENERAL LIMITATION. The liability of Sabre to Customer for all
damages and other Losses arising out of or related to this
Agreement for all claims, actions and causes of action of
every kind and nature that arise or accrue during any calendar
year, regardless of the form of action that imposes liability,
whether in contract, equity, negligence, intended conduct,
tort or otherwise, will be limited to and will not exceed
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]. Also,
without increasing the aggregate amount described in the
preceding sentence, with respect to the nonperformance or
inadequate performance of any particular Service, the
liability of Sabre to Customer for all damages and other
Losses arising out of or related to this Agreement for all
claims, actions and causes of action of every kind and nature
that arise or accrue during any calendar year as a result of
the nonperformance or inadequate performance of such
particular Service, regardless of the form of action that
imposes liability, whether in contract, equity, negligence,
intended conduct, tort or otherwise, will be limited to and
will not exceed [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED].
(b) [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
(c) EXCEPTIONS TO LIMITATIONS. The limitations, waivers and
disclaimers set forth in SECTIONS 12.2(a) and 12.2(b) do not
apply to the liability of either Party resulting from: (i)
that Party's nonperformance of its payment obligations to the
other expressly set forth in this Agreement; (ii) that Party's
breach of its obligations under SECTIONS 7.1 or 9.2(a); or
(iii) that Party's indemnification obligations under SECTION
12.1 in respect of Losses arising out of, under, or in
connection with Third Party claims, actions or causes of
action.
(d) CONTRACTUAL STATUTE OF LIMITATIONS. No demand for mediation or
arbitration or cause of action which arose out of an event or
events which occurred more than two (2) years prior to the
filing of a demand for mediation or arbitration or suit
alleging a claim or cause of action may be asserted by either
Party against the other.
(e) INJUNCTIVE RELIEF. Each of the Parties acknowledges that, in
the event a Party breaches its obligations under SECTIONS 4.1,
7.1 or 9.2(a), the non-breaching Party may be irreparably
harmed. In such a circumstance, the non-breaching Party may
proceed directly to court.
(f) EXCLUSIVE AND NON-CUMULATIVE REMEDIES. The rights and remedies
of a Party specified in this Agreement for any breach or event
constitute the exclusive rights and remedies of a Party for
that breach or event, except: (i) for injunctive relief to
which Party is entitled as a matter of law or equity; and (ii)
that exercising the right to terminate this Agreement entirely
or with respect to a Category of Services, following a breach
of this Agreement, does not constitute the exclusive remedy
for the breach upon which such termination is based.
(g) ACKNOWLEDGMENT. The Parties expressly acknowledge that the
limitations, waivers, disclaimers and exclusions set forth in
this SECTION 12.2 have been actively and completely negotiated
by the Parties and represent the Parties' agreement taking
into account each Party's level of risk associated with the
performance or nonperformance of its obligations under this
Agreement and the payments and other benefits to be derived by
each Party pursuant to this Agreement.
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ARTICLE XIII. INSURANCE
13.1 GENERAL. Each Party will have and maintain in force insurance coverage,
including worker's compensation insurance and general liability
insurance, adequate for it to perform its obligations under this
Agreement.
13.2 RISK OF LOSS. Each Party will be responsible for risk of loss of, and
damage to, any equipment, software or other materials in its possession
or under its control.
ARTICLE XIV. MISCELLANEOUS
14.1 RIGHT TO ENGAGE IN OTHER ACTIVITIES. Customer acknowledges and agrees
that Sabre and its Affiliates may provide data processing and other
information technology services for Third Parties at any Sabre facility
that Sabre uses to perform Services. Nothing in this Agreement will
impair Sabre's right to acquire, license, market, distribute, develop
for itself or others or have others develop for Sabre similar
technology performing the same or similar functions as the technology
and Services contemplated by this Agreement.
14.2 INDEPENDENT CONTRACTORS. The Parties are independent contractors, and
this Agreement will not be construed as constituting either Party as
partner, joint venturer or fiduciary of the other or to create any
other form of legal association that would impose liability on one
Party for the act or failure to act of the other or as providing either
Party with the right, power or authority (express or implied) to create
any duty or obligation of the other. Except as otherwise expressly
provided in this Agreement, each Party has the sole right and
obligation to supervise, manage, contract, direct, procure, perform or
cause to be performed all obligations to be performed by it pursuant to
this Agreement.
14.3 ENTIRE AGREEMENT; SURVIVAL. This Agreement (including the Schedules
attached hereto and all Work Orders and SLAs entered into by the
Parties in connection herewith, each of which is incorporated into this
Agreement by this reference) constitutes the full and complete
statement of the agreement of the Parties with respect to the subject
matter hereof and supersedes any previous agreements, understandings or
communications, whether written or oral, relating to such subject
matter. This Agreement does not supersede the other agreements being
executed by the Parties contemporaneously with the execution of this
Agreement, including the Sabre Access Agreement, Noncompetition
Agreement, and Intellectual Property Agreement. Any provision of this
Agreement which contemplates performance or observance subsequent to
any termination or expiration of this Agreement will survive any
termination or expiration of this Agreement and continue in full force
and effect. Such provisions will include ARTICLE IV, SECTION 8.2,
SECTION 9.1, SECTION 9.2, SECTION 10.7, SECTION 10.8, ARTICLE XII,
ARTICLE XIV, and obligations to make payments that remain due and
payable under this Agreement.
14.4 AMENDMENTS; WAIVER. Changes or modifications to this Agreement, Work
Orders and SLAs may not be made orally, but only by a written amendment
or revision signed by both Parties. Any terms and conditions varying
from this Agreement on any order, invoice or other notification from
either Party are not binding on the other unless specifically accepted
in writing by the other. Unless otherwise expressly provided in this
Agreement, a delay or omission by either Party to exercise any right or
power under this Agreement will not be construed to be a waiver
thereof. No waiver of any breach of any provision of this Agreement
will constitute a waiver of any prior, concurrent or subsequent breach
of the same or any other provision hereof.
14.5 BINDING NATURE; ASSIGNMENT. This Agreement will be binding on the
Parties and their successors and permitted assigns (it being understood
and agreed that nothing contained in this Agreement is intended to
confer upon any other Person any rights, benefits or remedies of any
kind or character
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whatsoever under or by reason of this Agreement). Except as otherwise
expressly provided in SECTION 6.3, neither Party may, nor will it have
the power to, assign this Agreement, or any part hereof, without the
prior written consent of the other, provided, that Sabre may assign its
rights and delegate its duties and obligations without the prior
written consent of Customer to any Subsidiary or Affiliate of Sabre as
necessary in order for such Subsidiary or Affiliate to provide all or
part of the Services. The Parties acknowledge that either Party might
become a party to one or more transactions in the form of a merger,
consolidation, reorganization, stock sale or exchange, sale of any
substantial portion of such Party's assets or similar transaction. Any
such transaction involving a Party (and whether or not it is the
surviving entity) will be deemed to be an assignment of this Agreement
by that Party requiring the consent of the other Party if in Sabre's
reasonable opinion: (a) in the case of Sabre being involved in such a
transaction, the transaction materially and adversely affects Sabre's
ability to continue to perform the Services in accordance with this
Agreement; or (b) in the case of Customer being involved in such a
transaction, the transaction (i) causes a material increase in Sabre's
costs to provide Services, unless the Parties have agreed in writing to
an associated increase in Base Fees, (ii) impairs Sabre's ability to
meet SLAs or SLA Standards, unless the Parties have agreed in writing
to amendments thereto that remove such impairment, or (iii) impairs
Customer's ability to meet its financial obligations hereunder.
14.6 THIRD PARTY BENEFICIARIES. Except as provided in this Agreement, this
Agreement is entered into solely between, and may be enforced only by,
Sabre and Customer, and this Agreement will not be deemed to create any
rights in Third Parties, including suppliers and customers of a Party,
or to create any obligations of a Party to any such Third Parties.
14.7 DISPUTE RESOLUTION. All Disputes arising out of the transactions
contemplated by this Agreement (including any Disputes governed but not
resolved under the Contract Administration Process) will be resolved in
accordance with the Dispute resolution procedures set forth in SCHEDULE
13.
14.8 EXPORT REGULATIONS. This Agreement is expressly made subject to any
United States government Laws or other restrictions regarding export
from the United States of computer hardware, software, technical data
or derivatives of such hardware, software or technical data.
Notwithstanding anything to the contrary in this Agreement, Customer
will not directly or indirectly export (or re-export) any computer
hardware, software, technical data or derivatives of such hardware,
software or technical data, or permit the shipment of same: (a) into
(or to a national or resident of) any country to which the United
States has embargoed goods; (b) to anyone on the U.S. Treasury
Department's List of Specially Designated Nationals, List of Specially
Designated Terrorists or List of Specially Designated Narcotics
Traffickers, or the U.S. Commerce Department's Denied Parties List; or
(c) to any country or destination for which the United States
government or a United States governmental agency requires an export
license or other approval for export without first having obtained such
license or other approval. Each Party will reasonably cooperate with
the other and will provide to the other promptly upon request any
end-user certificates, affidavits regarding re-export or other
certificates or documents as are reasonably requested to obtain
approvals, consents, licenses and/or permits required for any payment
or any export or import of products or services under this Agreement.
14.9 APPROVALS AND SIMILAR ACTIONS. Except as otherwise expressly provided
in this Agreement, where agreement, approval, acceptance, consent or
similar action is required of either Party by any provision of this
Agreement, such action will not be unreasonably withheld or delayed. An
approval or consent given by a Party under this Agreement will not
relieve the other Party from responsibility for complying with the
requirements of this Agreement, nor will it be construed as a waiver of
any rights under this Agreement, except as and to the extent otherwise
expressly provided in such approval or consent.
14.10 NOTICES. All notices under this Agreement will be in writing and will
be deemed to have been duly given if delivered personally or by a
nationally recognized courier service, faxed, electronically mailed or
mailed by registered or certified mail, return receipt requested,
postage prepaid, to the
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Parties at the addresses set forth in SCHEDULE 14. All notices under
this Agreement that are addressed as provided in this SECTION 14.10,
(a) if delivered personally or by a nationally recognized courier
service, will be deemed given upon delivery, (b) if delivered by
facsimile or electronic mail, will be deemed given when confirmed and
(c) if delivered by mail in the manner described above, will be deemed
given on the fifth (5th) Business Day after the day it is deposited in
a regular depository of the United States mail. Either Party from time
to time may change its address or designee for notification purposes by
giving the other Party notice of the new address or designee and the
date upon which such change will become effective.
14.11 EXCUSED PERFORMANCE.
(a) CERTAIN EVENTS.
(i) If any of the items, events, conditions, acts or
omissions described in clause (ii) below:
(A) causes, results in or contributes to any
impairment of functionality or performance
of any Service (or any component of IT
systems operated by Sabre to perform
Services): (1) Sabre will not be responsible
or liable for such impairment and will be
excused, to the extent of such impairment,
from performing (x) impacted Measured
Services in accordance with the SLAs and SLA
Standards therefor until such impairment is
cured or the Parties agree on revised SLAs
and SLA Standards therefor and (y) impacted
Services in accordance with the terms of
this Agreement until such impairment is
cured; (2) except in the instance of acts or
omissions by Customer that constitute a
breach of this Agreement, Sabre will use
commercially reasonable efforts, at
Customer's expense and as Variable Services,
to mitigate such impairment; and (3)
pursuant to the Contract Administration
Process, Sabre and Customer will modify,
amend or, in certain circumstances,
terminate Services, SLAs, SLA Standards and
other non-monetary obligations of the
Parties, in each case as appropriate in
light of such impairment; or
(B) causes, results in or contributes to a
material increase in Sabre's cost to provide
the Services, Sabre will reasonably
determine the resulting increase in Base
Fees.
(ii) The following items, events, conditions, acts or
omissions are subject to this SECTION 14.11(a): (A)
Customer's purchase or use of Third Party IT
Services; (B) the failure of any equipment, products
or services provided by Customer, including the
Customer Assets; (C) performance, nonperformance or
inadequate performance by any Third Party IT Service
Provider; (D) unauthorized modifications,
alterations, tampering, adjustment or repair of the
Services, Applications or other components of the IT
systems operated by Sabre to perform the Services
caused by Customer or a Third Party permitted access
to or use thereof by Customer; (E) the failure of any
item to be Year 2000 Compliant (except for items
warranted by Sabre in SECTION 8.1(c)); (F) changes
made by Customer to Customer Assets, Customer's IT
environment, or IT services performed by Customer, or
Customer's refusal to implement changes to,
replacements for or reallocations of Customer Assets,
Customer's IT environment or IT services performed by
Customer that are recommended by Sabre; (G)
inaccuracies of Customer Data; (H) any failure or
inability by Customer to obtain any Required Consent
under this Agreement; or (I) any other act or
omission by Customer, any Third Party that is a party
to any agreement included within the
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Customer Assets (when acting in that capacity) or any
other Third Party over which Sabre has no reasonable
control.
(iii) The rights of Sabre set forth in this SECTION
14.11(a) are in addition to, and not in limitation
of, the rights afforded Sabre under SECTION 14.11(b).
(b) FORCE MAJEURE.
(i) Except for the obligations to make payments due
hereunder, each Party will be relieved of its
obligations under this Agreement to the extent that
performance is delayed or prevented by a Force
Majeure Event.
(ii) In such event the non-performing Party will be
excused from further performance or observance of the
obligation(s) so affected for as long as such
circumstances prevail and such Party continues to use
commercially reasonable efforts to recommence
performance or observance whenever and to whatever
extent possible without delay.
(iii) If any such Force Majeure Event substantially
prevents, hinders, or delays performance of Services
necessary for the performance of mission critical
Customer functions for more than [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED], then Customer, at
its expense, may procure such Services from an
alternate source until such time as Sabre is able to
recommence performance of such Services.
(iv) If a Force Majeure Event that substantially prevents,
hinders, or delays performance of Services necessary
for the performance of mission critical Customer
functions continues for [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED], then either Party will have the
right to terminate this Agreement upon notice to the
other Party.
(v) The Party suspending or delaying performance will
notify the other Party promptly upon learning of the
occurrence of the Force Majeure Event.
14.12 PRESS RELEASES. All press releases, public announcements or similar
public disclosure by either Party relating to this Agreement or its
subject matter, including promotional or marketing material, will be
coordinated with and approved by the other Party prior to release.
Notwithstanding the foregoing: Sabre will have the right to make
general references to Customer and the type of services being provided
by Sabre to Customer under this Agreement in Sabre's promotional and
marketing materials as well as in Sabre's presentations to prospects;
and Customer will have the right to make general references to Sabre
and the type of services provided by Sabre to Customer under this
Agreement in Customer's promotional and marketing materials. This
provision does not alter the restrictions on the disclosure of
Confidential Information set forth in SECTION 9.2 and, subject to
SECTION 9.2, will not be construed so as to delay or restrict either
Party from disclosing any information required to be disclosed in order
to comply with any applicable law, rule or regulation.
14.13 CONSTRUCTION RULES. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions will not in any way be
affected or impaired, and such provision will be deemed to be restated
to reflect the original intentions of the Parties as nearly as possible
in accordance with applicable law. The Parties agree that this
Agreement is an executory contract as contemplated by 11 U.S.C. Section
365. In performing its obligations under this Agreement, neither Party
will be required to undertake any activity that would conflict with the
requirements of any applicable law, rule, regulation, interpretation,
judgment, order or injunction of any Governmental Authority. This
Agreement may be executed in multiple counterparts, each of which will
be deemed an original and all of which taken together will constitute
one instrument. The
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Parties acknowledge and agree that each has been represented by legal
counsel of its choice throughout the negotiation and drafting of this
Agreement, that each has participated in the drafting hereof and that
this Agreement will not be construed in favor of or against either
Party solely on the basis of a Party's drafting or participation in the
drafting of any portion of this Agreement.
14.14 FURTHER ASSURANCES. The Parties will execute and deliver such other
instruments and documents, and take such other actions, as either Party
reasonably requests to evidence or effect the transactions contemplated
by this Agreement.
14.15 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the substantive Laws of the State of Texas, without
giving effect to any choice-of-law rules that may require the
application of the Laws of another jurisdiction.
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IN WITNESS WHEREOF, the Parties have duly executed and delivered this Agreement
as of the Effective Date.
TRAVELOCITY.COM LP SABRE INC.
By: TRAVELOCITY HOLDINGS, INC., By: /s/ Jeffrey M. Jackson
its general partner ---------------------------
Title: Sr. V.P. and CFO
------------------------
By: /s/ Jeffrey M. Jackson Date: March 7, 2000
--------------------------------- -------------------------
Title: Sr. V.P. and CFO
------------------------------
Date: March 7, 2000
-------------------------------
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LIST OF SCHEDULES
Schedule 2.1 Desktop Services
Schedule 2.2 Data and Voice Services
Schedule 2.3 Web-hosting Services
Schedule 2.4 Development Services
Schedule 3 Exclusive Variable Services
Schedule 4 Measured Services
Schedule 5 Service Level Agreements
Schedule 6 Performance Reports
Schedule 7 Contract Administration Process
Schedule 8 Fees
Schedule 9 Development Services Budget
Schedule 10 Sabre Software
Schedule 11 Required Consents
Schedule 12 Customer Assets
Schedule 13 Dispute Resolution Procedures
Schedule 14 Notices
Schedule 15 Termination Assistance
Schedule 16 Telecommunications Provisions
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APPENDIX A
TO
INFORMATION TECHNOLOGY SERVICES AGREEMENT
BETWEEN
SABRE INC.
AND
TRAVELOCITY.COM, L.P.
GLOSSARY
1. RULES OF INTERPRETATION. The following rules of interpretation apply to
the Agreement (and are by this reference incorporated into the
Agreement):
(a) the word "or" is not exclusive and the words "including" or
"include" are not limiting;
(b) the words "hereby," "herein," "hereof," "hereunder" or other
words of similar meaning refer to the entire document in which
it is contained;
(c) a reference to any agreement or other contract includes
permitted supplements, amendments and restatements;
(d) a reference to a law includes any amendment or modification to
such law and any rules or regulations promulgated thereunder
or any law enacted in substitution or replacement therefor;
(e) a reference to singular includes plural and vice-versa and
each gender includes the other;
(f) a reference to days, months, or years refers to calendar days,
months, and years, unless Business Days are specified;
(g) Article and Section headings and table of contents are only
for reference and are not to be considered in interpreting the
agreement;
(h) a reference to an Article, Section, Appendix, Exhibit or
Schedule which does not specify a particular document is to
the relevant Article, Section Appendix, Exhibit or Schedule of
the document containing the reference;
(i) a reference to an Article includes all Sections and
subsections contained in such Article, and a reference to a
Section or subsection includes all Subsections of such Section
or subsection;
(j) if an ambiguity arises in an Article's, Section's or
subsection's cross-reference to another Article, Section or
subsection, the cross-referenced heading controls over the
cross-referenced Article, Section or subsection number;
(k) All terms not otherwise defined herein shall have the meaning
commonly ascribed thereto in the information technology
industry; and
(l) "$" refers to United States dollars.
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2. DEFINITIONS. As used in the Agreement, the following terms will have
the following meanings:
"ACCESS" means the enjoyment of physical and legal use and operation of a
specific item of property in order for Sabre to perform the Services.
"ACCESS AGREEMENT" means that certain agreement allowing Customer to access
the Sabre CRS and executed by the Parties as of the Effective Date.
"ACCESS LOCATIONS" means (to the extent that the description of Services
specifies the facilities or locations from which Services may be Accessed)
the Customer facilities and other locations specified in the description of
Services, as the same may be changed from time to time in accordance with the
Contract Administration Process.
"ACCOUNT MANAGERS" means the Sabre Account Manager and Customer Account
Manager.
"AFFILIATE" means, with respect to any Person at any time, any other Person
that controls, is controlled by or is under common control with the first
mentioned Person.
"AGREEMENT" means the Amended and Restated Information Technology Services
Agreement between Sabre and Customer.
"ANTITRUST LAWS" means any Law which relates to unlawful restraints on trade
and commerce, price discriminations, price fixing, monopolies or interference
with competition.
"AUTHORIZATIONS" means any franchises, licenses, permits, easements, rights,
applications, filings, registrations and other authorizations required or
useful in connection with the ownership or use of any Customer Asset.
"BASE FEE" means, for each calendar month, the amount that Customer is
obligated to pay to Sabre pursuant to SCHEDULE 8 of the Agreement in
connection with Base Services provided in that month.
"BASE SERVICES" means the Web Hosting Services, Data and Voice Services,
Development Services and Desktop Services provided by Sabre under the
Agreement.
"BUSINESS DAY" means usual days that the Parties conduct business.
"CATEGORY OF SERVICE" means each of the following major categories of the
Base Services: Web Hosting Services, Data and Voice Services, Desktop
Services, and Development Services.
"CHANGE" means: (a) any amendment, modification, addition or deletion
proposed by any Party to the Agreement, any Work Order, any SLA, any Service,
the Service Locations, the Access Locations or any Fees; (b) Customer's
request that Sabre perform any Variable Service or that any Third Party
provide any Non Exclusive Variable Service (including provision of Third
Party Software or other technology); (c) any amendment, modification,
addition or deletion proposed by Customer to any component of the IT systems
operated by Sabre to perform the Services; (d) Customer's request to move its
web hosting infrastructure, as described in Section 2.5(c); (e) Customer's
request that Sabre perform any Optional Web Hosting Service; or (f) any
amendment, modification, addition or deletion proposed by Customer to the
type (as opposed to a change in the model only) of Customer Assets with
respect to which Sabre provides Desktop Services or which constitute the web
hosting infrastructure managed and operated by Sabre in providing Web Hosting
Services; or (g) the inclusion of Preview Operations within the scope of Base
Services.
"CIA" has the meaning given in SECTION 4.5(h).
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"CONFIDENTIAL INFORMATION" means (i) all information identified by a Party as
confidential to which the other Party has access in connection with the
Services, whether before or after the Effective Date, (ii) the Agreement and
the Parties' rights and obligations thereunder, (iii) in the case of Sabre,
all Sabre IP, (iv) in the case of Customer, all Customer IP, and (v) the
terms of this Agreement; but in all cases excluding information and
Intellectual Property Rights independently developed by or on behalf of the
recipient Party without use of or reference to the disclosing Party's
Confidential Information.
"CONTRACT ADMINISTRATION PROCESS" means the process described in SCHEDULE 7
of the Agreement.
"CRS COMMUNICATIONS SYSTEMS" [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
"CRS DEVELOPMENT" means a development to or modification of the CRS Software,
created using the Development Services.
"CRS SOFTWARE" [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
"CUSTOMER ACCOUNT MANAGER" means the individual, and any successor
individual, who is a senior level individual within Customer's organization
and who is designated in writing by Customer from time to time.
"CUSTOMER ASSETS" means all Owned Systems, Licensed Systems, Systems License
Agreements, Owned Intellectual Property Rights, Third Party Intellectual
Property Rights, Intellectual Property License Agreements, Third Party IT
Services, Service Contracts, Equipment, Leased Equipment, Equipment Leases,
Real Property, Leased Real Property, Real Property Leases, Authorizations,
Other Contract Benefits, Other Contracts and Other Assets that are: (a) used
by or for the benefit of Customer, or that are necessary, to perform or
manage the Services, including without limitation the assets described in
SCHEDULE 12 of the Agreement, or (b) acquired by Customer after the Effective
Date and the Access by Sabre of which is necessary for Sabre to perform
Services.
"CUSTOMER DATA" means the following data, whether provided or produced
before, on or after the Effective Date: (a) all information relating to
Customer's business, financial condition or operations provided by Customer
to Sabre in connection with the Services; (b) all data that is provided by or
on behalf of Customer to Sabre in order for Sabre to perform the Services;
(c) all data that is produced in the Services using data described in clauses
(a) and (b); but in all cases excluding any Sabre IP.
"CUSTOMER DIRECT COMPETITOR" [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED
"CUSTOMER EMPLOYEE(S)" means all employees of Customer who are engaged in, or
are related to, performing or managing the Services.
"CUSTOMER IP" means the Intellectual Property Rights of Customer, including
all Customer Systems.
"CUSTOMER SYSTEMS" means the Owned Systems and the Licensed Systems.
"DATA CENTER" means any computer data processing facility operated by Sabre.
"DATA AND VOICE SERVICES" means the Services described in SCHEDULE 2.2.
"DESKTOP SERVICES" means the Services described in SCHEDULE 2.1.
"DEVELOPMENT RESOURCES" means the personnel resources (expressed as FTE's)
used by Sabre in providing Development Services.
"DEVELOPED IP" means IP made by our Party, or jointly by the Parties,
pursuant to this Agreement.
"DEVELOPMENT SERVICES" means the Services described in SCHEDULE 2.4.
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"DEVELOPMENT SERVICES BUDGET" means a budget of Development Resources to be
provided by Sabre during the twelve (12) calendar months specified in such
budget, and a description of development projects which will be the subject
of Development Services during such period, including whether a project is to
be performed at Premium Rates.
"DISPUTE" means any dispute, claim or controversy of any kind or nature
arising under or in connection with the Services, Agreement and any related
agreements between any of the Parties (including disputes as to the Services,
billing, or the creation, validity, interpretation, breach or termination of
the Agreement).
"EFFECTIVE DATE" means March 7, 2000, at the time on such date immediately
after giving effect to the consummation of the transactions described in the
Bill of Contribution, Assignment and Assumption Agreement, dated March 7,
2000, between Sabre Inc. and Travelocity.com LP.
"EMPLOYEE BENEFIT LAW" means any Law that relates to Employee Benefit Plans
or the payment of salary, wages or commissions.
"ENVIRONMENTAL LAWS" means all Laws relating to pollution or protection of
human health, safety or the environment (including ambient air, surface or
subsurface water, land surface or subsurface strata).
"EQUIPMENT" means all equipment owned by Customer on or after the Effective
Date.
"EQUIPMENT LEASES" means all leases of Leased Equipment to which Customer is
a party that are effective on, or entered into after, the Effective Date.
"EXCLUSIVE VARIABLE SERVICES" means the Exclusive Variable Services described
in SCHEDULE 3 of the Agreement.
"FEES" means all fees, Fees, expenses and other amounts payable by Customer
to or at the direction of Sabre under or in connection with the Agreement.
"FTE" means a full time equivalent person, computed on the basis of an
average of 1,777 working days in a calendar year.
"FORCE MAJEURE EVENT" means any cause beyond a Party's reasonable control,
including but not limited to failures attributable to any action or failure
to act of any Governmental Authority; or as the result of strikes, lockouts
or other labor difficulties; riot, insurrection, protest, security breaches
or other hostilities; boycott, embargo, blockade, fuel or energy shortages;
fire, flood, cyclone, earthquake or other natural disasters; or acts of God
or other supreme beings; wrecks, transportation delays or telecommunication,
electrical or other utility system limitations or outages; or the inability
to obtain necessary labor, materials, or utilities from usual sources.
"GOVERNMENTAL AUTHORITY" means any nation or government, any federal, state,
province, territory, city, town, municipality, county, local or other
political subdivision thereof or thereto, any quasi-governmental authority,
and any court, tribunal, arbitral body, department, commission, board,
bureau, agency, instrumentality thereof or thereto or otherwise which
exercises executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"HAZARDOUS MATERIAL" means any chemical, substance, waste, material,
pollutant, contaminant, equipment or fixture defined as or deemed hazardous
or toxic or otherwise regulated under any Environmental Law.
"INTELLECTUAL PROPERTY AGREEMENT" means the Intellectual Property Agreement
between Sabre and Customer of even date herewith.
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"INTELLECTUAL PROPERTY LICENSE AGREEMENTS" means all license agreements for
Third Party Intellectual Property Rights to which Customer is a party that
are effective on, or entered into after, the Effective Date.
"INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property rights,
including (i) any patent, patent application, trademark (whether registered
or unregistered), trademark application, trade name, service mark (whether
registered or unregistered), service mark application, copyright (whether
registered or unregistered), copyright application, Trade Secret,
Confidential Information, know-how, process, technology, development tool,
ideas, concepts, design right, moral right, data base right, methodology,
algorithm or invention, (ii) any right to use or exploit any of the
foregoing, and (iii) any other proprietary right or intangible asset
(including Software).
"IT" means information technology.
"JOINT DEVELOPMENT AGREEMENT" has the meaning given in SECTION 4.4(b).
"JOINT INTEREST IP" means IP made jointly by the Parties pursuant to a joint
development or funding agreement between the Parties, as contemplated by
SECTION 2.8(b).
"LAWS" means any applicable code, statute, law (including common law),
ordinance, regulation, order, directive, rule or requirement of any
Governmental Authority, including Environmental Laws, Antitrust Laws and
Employee Benefit Laws.
"LEASED EQUIPMENT" means all Equipment leased by Customer pursuant to
Equipment Leases.
"LEASED REAL PROPERTY" means all real property leased by Customer pursuant to
Real Property Leases.
"LIABILITIES" means any direct or indirect indebtedness, guaranty,
endorsement, claim, loss, damages, deficiency, assessment, cost, expense,
obligation, disgorgement or responsibility, fixed or unfixed, known or
unknown, asserted or unasserted, liquidated or unliquidated, secured or
unsecured.
"LICENSED SYSTEMS" means all Software systems and/or components thereof
(including applications and operating systems) licensed to Customer by Third
Parties pursuant to Systems License Agreements.
"LIEN" means any conditional sale agreement, default of title, easement,
encroachment, encumbrance, hypothecation, infringement, lien, mortgage,
pledge, reservation, restriction, security interest, title retention or other
security arrangement, or any adverse right or interest, charge, or claim of
any nature whatsoever of, on, or with respect to any Asset.
"LOSSES" means all Liabilities, judgments, claims, settlements, losses,
damages, fees, Liens, Taxes, penalties, obligations and expenses (including
reasonable attorneys' fees).
"MARKET RATE" means, for a particular type of Service, the market rate
charged by Sabre for such type of Service, as reasonably determined by Sabre.
Market Rates for Development Services will be comparable to those charged to
future contractual customers of Sabre. With respect to Standard IP developed
by Customer for Sabre pursuant to SECTION 2.8(a), "Market Rate" means the
Market Rate that would have been charged by Sabre for a similar development
service.
"MATERIAL BREACH" means:
(a) The occurrence or existence of any of the following events,
circumstances or conditions will constitute, and be deemed to
constitute, a Material Breach by Sabre:
(i) a material failure or a series of material failures
by Sabre to meet SLA Standards, which failure or
series of failures has a material adverse effect on
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Customer, unless Sabre cures such failures [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] of
receiving notice thereof;
(ii) Sabre breaches SECTION 9.2(a) of the Agreement, such
breach has a material adverse affect on Customer, and
such breach is not cured [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after Sabre's receiving notice
thereof;
(iii) Sabre breaches the anti-assignment provisions of
SECTION 14.5 of the Agreement;
(iv) Sabre becomes or is declared insolvent or bankrupt,
is the subject of any proceedings relating to its
liquidation, bankruptcy, insolvency or for the
appointment of a receiver or similar officer for it,
makes an assignment for the benefit of all or
substantially all of its creditors or enters into an
agreement for the composition, extension or
readjustment of all or substantially all of its
obligations, provided that no such Material Breach
will be deemed to have occurred if the events of this
paragraph are involuntary and such state of events no
longer exists [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] of the original occurrence thereof; or
(v) a material failure or a series of material failures
by Sabre to perform its Development Services
obligations, which failure or series of failures has
a material adverse effect on Customer, unless Sabre
cures such failures [TEXT OMITTED CONFIDENTIAL
TREATMENT REQUESTED] of receiving notice thereof.
(b) The occurrence or existence of any of the following events,
circumstances or conditions, will constitute, and be deemed to
constitute, a Material Breach by Customer:
(i) Customer defaults in the payment when due of any
undisputed amount [TEXT OMITTED CONFIDENTIAL
TREATMENT REQUESTED] properly due to Sabre pursuant
to the Agreement and such default is not cured [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after
Customer's receiving notice thereof;
(ii) Customer breaches its obligations under ARTICLE II of
the Agreement to obtain all of its requirements for
Base and Exclusive Variable Services from Sabre and
such breach is not cured [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after Customer's receiving
notice thereof;
(iii) Customer breaches SECTION 9.2(a) of the Agreement,
such breach has a material adverse affect upon Sabre,
and such breach is not cured [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after Customer's
receiving notice thereof;
(iv) Customer breaches the anti-assignment provisions of
SECTION 14.5 of the Agreement; or
(v) Customer becomes or is declared insolvent or
bankrupt, is the subject of any proceedings relating
to its liquidation, bankruptcy, insolvency or for the
appointment of a receiver or similar officer for it,
makes an assignment for the benefit of all or
substantially all of its creditors or enters into an
agreement for the composition, extension or
readjustment of all or substantially all of its
obligations, provided that no such Material Breach
shall be deemed to have occurred if the events of
this paragraph are involuntary and such state of
events
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no longer exists [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] of the original occurrence
thereof.
"MEASURED SERVICES" means those Services listed in SCHEDULE 4 of the Agreement.
"MIGRATION COMPLETION DATE" shall mean, for any Category of Service which
Customer elects to have Sabre provide with respect to the Preview Operations,
the date upon which the migration contemplated by the applicable Migration
Plan shall have been completed, and Sabre shall have begun performing the
selected Base Services on a regular basis with respect to the Preview
Operations.
"MIGRATION PERIOD" means the period during which Migration Services are to be
performed, and concluding on the Migration Completion Date.
"MIGRATION PLAN" means a written plan which shall describe the tasks to be
performed by Sabre, Customer, and any Third Party IT Service Provider of
Customer with respect to the Preview Operations, in connection with the
migration of the selected Category of Services to Sabre under SECTION 2.3.
"MIGRATION SERVICES" means services to be provided by Sabre pursuant to a
Migration Plan.
"NON-EXCLUSIVE VARIABLE SERVICES" means IT services other than Base Services
or Exclusive Variable Services.
"OPTIONAL WEB HOSTING SERVICES" are described in SCHEDULE 3.
"OTHER ASSETS" means all assets, to which Customer has rights on or after the
Effective Date, other than Owned Systems, Licensed Systems, Systems License
Agreements, Owned Intellectual Property Rights, Third Party Intellectual
Property Rights, Intellectual Property License Agreements, Third Party IT
Services, Service Contracts, Equipment, Leased Equipment, Equipment Leases,
Real Property, Leased Real Property, Real Property Leases, Authorizations,
Other Contract Benefits and Other Contracts.
"OTHER CONTRACT BENEFITS" means all benefits, entitlements, rights and
interests of Customer arising under or in connection with the Other Contracts.
"OTHER CONTRACTS" means all contracts in effect on, or entered into after,
the Effective Date to which Customer is a party, other than Systems License
Agreements, Intellectual Property License Agreements, Service Contracts,
Equipment Leases, Real Property Leases and Authorizations.
"OWNED INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property Rights
owned by Customer on or after the Effective Date.
"OWNED SYSTEMS" means all Software systems and/or components thereof
(including applications and operating systems) owned by Customer on or after
the Effective Date.
"PARTY" means each of the signatories to the Agreement and their successors
and assigns as permitted by the Agreement.
"PERSON" means an individual, corporation, limited liability company,
partnership, trust, association, joint venture, unincorporated organization
or entity of any kind or nature, or a Governmental Authority.
"PREMIUM IP" means IP made solely by one Party pursuant to this Agreement and
paid for by the other Party at Premium Rates.
"PREMIUM RATES " means, for Development Services, the "Premium Rate" provided
in SCHEDULE 2.8. With respect to Premium IP developed by Customer for Sabre
pursuant to SECTION 2.8(a), [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
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"PREVIEW " means Preview Travel, Inc., a Delaware corporation.
"PREVIEW OPERATIONS" means the web hosting and network, and operations of
Preview which support Preview's online travel services business.
"QUARTER" means each three-calendar-month period ending during the term of
this Agreement.
"QUARTERLY AMOUNT" is described in SCHEDULE 8.
"REAL PROPERTY" means all real property owned by Customer on or after the
Effective Date.
"REAL PROPERTY LEASES" means all leases for Leased Real Property to which
Customer is a party and that are effective on, or entered into after, the
Effective Date.
"REQUIRED CONSENTS" means those authorizations, consents, orders and
approvals of Persons necessary or appropriate (a) for the execution and
delivery of the Agreement, (b) to effectuate or permit the sale, transfer,
assignment, lease, sublease, license, sublicense or provision of access to
any Customer Assets, (c) for performance by Sabre of the Services or (d) to
otherwise consummate or effectuate the transactions contemplated by the
Agreement.
"SABRE ACCOUNT MANAGER" means an individual, and any successor individual, so
designated in writing by Sabre from time to time.
"SABRE CRS" means a system providing any of the following products or
services, using CRS Software and CRS Communications Systems: (a) publication
and distribution of consumer travel-related information from computerized
data bases; (b) processing of passenger travel-related reservations and
transactions; (c) marketing and sales of passenger travel-related products
and services and related electronic transactions; or (d) publication and
distribution of passenger travel-related documents (including tickets).
"SABRE DIRECT COMPETITOR [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
"SABRE GROUP" means, severally and collectively, Sabre and any Subsidiary of
Sabre that Sabre designates in writing as being a member of the Sabre Group.
"SABRE IP" means Intellectual Property Rights of Sabre, including all Sabre
Software.
"SABRE SOFTWARE" means all Software which is owned or developed by Sabre, or
in which Sabre otherwise holds Intellectual Property Rights.
"SERVICES" means the Base Services, Variable Services and Termination
Assistance Services performed by Sabre under the Agreement.
"SERVICE CONTRACTS" means all agreements, contracts or other arrangements
effective on, or entered into after, the Effective Date to which Customer is
a party and pursuant to which Third Party IT Service Providers provide Third
Party IT Services to Customer.
"SERVICE LOCATIONS" means the following locations at or for which SABRE
provides Base Services: [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
"SLA" OR "SERVICE LEVEL AGREEMENT" means each of the written statements of
performance levels for Measured Services that are described in SCHEDULE 5.
"SLA STANDARD" means the acceptable level of performance for a Measured
Service specified in the applicable SLA.
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"SOFTWARE" or "software" means any computer programming code consisting of
instructions or statements in a form readable by individuals (source code) or
machines (object code), and documentation and supporting materials therefor,
in any form or medium, including electronic media.
"STANDARD IP" means IP made solely by one Party pursuant to this Agreement
and paid for by the other Party at Market Rates.
"SUBSIDIARY" means, as to any Person, any other Person of which more than
fifty percent (50%) (in number of votes) of the issued and outstanding
securities having ordinary voting power for the election of at least a
majority of the directors is owned or controlled, directly or indirectly, by
that Person.
"SYSTEM LICENSE AGREEMENTS" means all license agreements for Licensed Systems
to which Customer is a party and that are effective on, or entered into
after, the Effective Date.
"TAX RETURNS" means all tax returns, reports, statements and other similar
filings with respect to any Taxes.
"TAXES" means any present or future taxes (including taxes denominated as
income taxes, franchise taxes, corporation taxes, withholding taxes, gross
receipts taxes, excise taxes (including federal excise taxes), doing business
taxes, capital taxes, net worth taxes, asset taxes, social security or social
contribution taxes, stamp taxes, transaction taxes, transfer taxes,
telecommunications taxes and assessments, exchange taxes, documentary taxes,
sales taxes, use taxes, or value added taxes), levies, imposts, duties, fees,
assessments or other Fees, and all interest, penalties or similar liabilities
with respect thereto, of whatever nature now or hereafter imposed by any
jurisdiction or any Governmental Authority.
"TERM" means the initial term and each renewal period of the Agreement, which
is subject to expiration in accordance under SECTION 11.1 thereof, or earlier
termination in accordance with SECTION 11.2 or 14.12 thereof.
"TERMINATION ASSISTANCE PERIOD" has the meaning given in SECTION 11.3(c).
"TERMINATION ASSISTANCE PLAN" means a plan to govern the migration/conversion
from Services to IT services, software and other resources to be provided by
Customer or a successor Third Party IT Service Provider. The Termination
Assistance Plan is a Work Order the production of which will be governed by
the Contract Administration Process.
"TERMINATION ASSISTANCE SERVICES" means the Services determined by the
Parties pursuant to the Contract Administration Process consistent with the
principles outlined in SCHEDULE 15 of the Agreement, and to be provided
pursuant to the Termination Assistance Plan.
"THIRD PARTY" means a Person excluding any Party or, with respect to Sabre,
another member of the Sabre Group.
"THIRD PARTY INTELLECTUAL PROPERTY RIGHTS" means all Intellectual Property
Rights licensed to Customer from Third Parties pursuant to Intellectual
Property License Agreements.
"THIRD PARTY IT SERVICE PROVIDERS" means all Third Parties that provide IT
services to Customer pursuant to Service Contracts.
"THIRD PARTY IT SERVICES" means all IT services provided to Customer pursuant
to Service Contracts.
"THIRD PARTY SOFTWARE" means any Software owned by or licensed from a Third
Party vendor.
"TRADE SECRETS" means information related to a Person (a) which derives
economic value, actual or potential, from not being generally known to or
readily ascertainable by other Persons who can obtain
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CONFIDENTIAL
economic value from its disclosure or use, and (b) which is the subject of
efforts by said Person that are reasonable under the circumstances to
maintain its secrecy.
"TULSA DATA CENTER" means the existing underground computer data processing
facility operated by Sabre in Tulsa, Oklahoma; provided that Sabre may elect
to use another principal data center of Sabre so long as such use does not
materially and adversely affect the Services or increase the Fees to Customer.
"VARIABLE FEE" means, for each calendar month, the amount that Customer is
obligated to pay to Sabre pursuant to SCHEDULE 8 of the Agreement in
connection with Variable Services provided in that month.
"VARIABLE SERVICES" means the Exclusive Variable Services and Non Exclusive
Variable Services performed by Sabre.
"WEB HOSTING SERVICES" means the Services described in SCHEDULE 2.3.
"WORK ORDER" means an agreement or other document signed by the Parties
pursuant to the Contract Administration Process to describe Services or to
implement an approved Request.
"YEAR 2000 COMPLIANT" means that the software program or computer system (a)
will operate and produce data before, on or after January 1, 2000 (including
taking into effect that such year is a leap year), accurately and without
delay, interruption or error relating to the fact that the time at which and
the date on which such items are operating is on or after 12:00 a.m. on
January 1, 2000; or (b) will accept, calculate, process, maintain, write and
output, accurately and without delay, interruption, or error any function
referencing a time or date on or after 12:00 a.m. January 1, 2000 or both,
whether before, on or after 12:00 a.m. on January 1, 2000, and any time
period determined or to be determined based on any such times or date, or
both.
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SCHEDULE 2.1: DESKTOP SERVICES
Desktop Services refers to the Desktop LAN Services described below. Other
hardware, software and devices may be added to the Standard Desktop Environment
as a Change governed by the Contract Administration Process.
1. DESKTOP LAN MANAGEMENT.
- Sabre will monitor LAN availability and security.
- Sabre will provide LAN configuration management.
- Sabre will provide fix/break support for the Desktop LAN.
- Sabre will perform on-site technical troubleshooting and problem
resolution at Service Locations.
2. EXCLUSIONS. The following services are not considered Desktop Services,
and are Customer's responsibility, but can be provided by Sabre as
Non-Exclusive Variable Services:
a. FACILITY ENGINEERING.
- Consulting related to the design of TI rooms and wiring
closets, and power systems supporting computer
workstations and information systems, including
dimensions, materials, room layout, and design/location of
communication equipment racks/rails.
- Consulting on TI room mechanical requirements, including
air conditioning, ventilation and fire suppression
systems.
- Consulting on TI room electrical requirements, including
UPS, surge suppression, emergency generators, voltage
regulators, transformers, panelboards, branch circuitry,
receptacles, grounding, lighting, and alarm systems.
- Consulting on the routing of cabling through conduit, and
cable tray and conduit sizing.
b. PHYSICAL SITE PREPARATION. All work related to preparing and
maintaining floors, walls, ceilings, counters, cubicles and
similar facilities.
c. ADDRESS PROBLEMS. Resolving address problems which occur as a
direct result of an end user using devices not included in the
Standard Desktop Environment.
d. NON-STANDARD SUPPORT. Supporting hardware, software and other
devices not included in the Standard Desktop Environment or
not certified through Sabre's Integration Lab, and supporting
trouble calls arising from Customer attaching or loading
hardware, software or other devices to the LAN that are not
included in the Standard Desktop Environment.
e. CUSTOMER MOVES, ADDS, INSTALLS OR CHANGES. Customer moving,
installing, changing or de-installing its own devices and
contacting Sabre for the connection or to correct improper
work.
f. NEW TECHNOLOGIES. Consulting related to assessing new
technologies.
g. BACKUP SERVICES. Backing up, restoring and reloading Customer
files and infrastructure fileservers where an appropriate
backup solution has been acquired by Customer.
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SCHEDULE 2.2: DATA AND VOICE SERVICES
Data and Voice Services refers to the following services:
1. DATA SERVICES.
a. DATA NETWORK SERVICES. Sabre will arrange for and manage the
following Third Party data network services:
- X.25/SDLC/ACL/SDN Service. Low-speed connections providing
data communication service between any two locations in
which Sabre's Third Party vendors have a presence.
Customer can request Sabre to arrange for remote areas to
be covered using Third Party satellite services.
- Frame Relay Service. High-speed direct access to the
packet switched data network and bandwidth management
providing "bandwidth on demand" and "bursty traffic
requirements" capabilities by use of a high bandwidth
path, called a Permanent Virtual Circuit ("PVC"), between
two networks. Customer shall subscribe to an allocated
level of bandwidth over the PVC, called the Committed
Information Rate ("CIR"), to obtain throughput at a
certain speed.
- Circuit, Data Port and Router Installation. Sabre will
validate order information, oversee the installation
services provided by Third Parties, and initiate and
manage problem resolution on behalf of Customer with such
Third Party providers. Sabre will also provide on-site
support for installations at the Service Locations
utilizing Sabre personnel or Third Party vendors. Customer
remains responsible for ensuring that Customer's
facilities can accommodate any such installations.
b. ROUTER SERVICE. Sabre will arrange for and manage routers.
Sabre will arrange for an manage router hardware and software
as part of this managed service. Sabre will arrange for and
manage router hardware and software maintenance services
provided by Third Party vendors selected by Sabre. The Account
Managers shall determine the level of maintenance support
provided by such Third Party vendors at the various Service
Locations by selecting among the following three levels of
service:
- Monday through Friday, 9 a.m. to 5 p.m., with a [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] response time;
- 7x24, with a [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] response time; and
- 7x24, with a [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] response time.
All of the foregoing levels of maintenance include parts,
labor and travel expenses. Sabre will arrange for hardware and
software upgrades for technology refreshes that are performed
at Sabre's discretion. A technology refresh is the process of
upgrading router hardware or software components to install
the next generation or version of the existing resource. From
time to time Customer may request changes in the technology
configuration utilized by Sabre, provided Customer is
responsible for all costs and expenses incurred by Sabre in
implementing such changes. A technology change is the process
of altering the configuration of router hardware or software
components (e.g. introducing high capacity routers to
accommodate additional Customer requirements).
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c. LOCAL CHANNEL DIAL BACKUP SERVICE. Sabre will arrange for
Third Party vendors to provide dial backup services enabling
network redundancy and recovery capability. This service
provides service protection from the digital service unit to
the network frame relay port at any Service Location with a
Sabre-provided data port. The service bypasses the local
circuit in the event of failure and connects via analog or
ISDN service from the digital service unit to the frame relay
provider's local point of presence. The service automatically
executes dial back-up on detection of local channel failure
and disconnects when service is again recognized.
d. MANAGEMENT SERVICES. In managing the data network services
described in paragraph 1 of this SCHEDULE 2.2, Sabre will
provide the following administrative services:
- NETWORK DESIGN. Sabre will define data parameters, perform
a customer needs analysis, provide a cost analysis and
deliver a solution recommendation. Sabre will create the
network design and specifications package and will oversee
those Third Parties that implement the agreed solution.
- ENGINEERING. Sabre will provide traffic engineering and
network capacity planning to maximize circuit usage,
assess host connectivity, and install technologies that
the parties determine best meets Customer's specific usage
requirements. Such technologies include, without
limitation, ALC, X.25, Frame Relay, and TCP/IP.
- NEW COMPONENT TESTING. Sabre will test new network
components before adding them to the existing network.
- APPLICATIONS SUPPORT. Sabre will provide consulting
support on customer applications to provide for compatible
interface and transmission protocols with the wide area
network.
- NETWORK OPERATIONS CENTER. Sabre will monitor the
reliability of Third Party service providers.
- HELP DESK. Sabre will provide a 7x24 help desk for
coordinating problem resolution services. Customer's
service representative will initiate such services by
contacting the help desk to log details associated with
the problem. If Sabre determines the problem relates to
products or services provided by Sabre, the help desk
representative will refer the problem to Sabre's
designated subject matter expert ("SME") for resolution.
If Sabre determines the problem relates to products or
services provided by Third Party vendors and arranged for
by Sabre, Sabre will request the appropriate Third Party
vendor to resolve the problem. A Sabre representative will
work with such Third Party vendor to monitor problem
resolution and follow-up with Customer to close out open
logged problems.
- PLANNING. Sabre will analyze and communicate to Customer
changes in related technology, marketplaces, and
regulatory treatments.
- CONTRACT ADMINISTRATION. Sabre will provide contract
administration services related to those contracts with
Third Party service providers, including tariff analysis,
contract management, and interfacing with vendors to
resolve performance or other contractual issues on behalf
of Customer.
- AUDITING SERVICES. Sabre will review invoices submitted by
Third Party service providers to assess the accuracy of
such invoices.
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- CUSTOMER REPORTS. Sabre will provide billing, volume,
usage trends and analysis reports describing Customer's
utilization of its data network.
- EVALUATION OF NEW TECHNOLOGY. Sabre will research new and
emerging telecommunications technology features and
enhancements that may provide cost reductions while
improving overall service capabilities.
- IP ADDRESS MANAGEMENT. Sabre will manage Customer's IP
addresses.
e. ON-SITE SUPPORT. Sabre can send personnel at the request of
Customer to provide on-site support for problem management or
resolution, as applicable, provided Customer is responsible
for paying or reimbursing Sabre for all costs and expenses
related to sending personnel to such sites.
2. REMOTE CONNECTIVITY.
a. MANAGED DIAL SERVICES. Sabre will arrange for and manage Third
Party remote dial services allowing Customer to remote access
its LAN infrastructure without requiring a dedicated
communications line by using point to point protocol to
provide remote access to Internet protocol hosts. ISDN may be
available to Customer if ISDN services are offered by the
Third Party provider in the area from which the user attempts
to remote access the network.
b. MANAGEMENT SERVICES. In managing the managed dial services
described in paragraph 2(a) of this SCHEDULE 2.2, Sabre will
provide the following administrative services:
- ENGINEERING. Sabre will provide traffic engineering and
network capacity planning to maximize circuit usage,
assess host connectivity, and install technologies that
the parties determine best meets Customer's specific usage
requirements. Such technologies include, without
limitation, X.28 dial, PPP, TCP/IP, and VPN.
- PROVISIONING. Sabre will set up and monitor Customer user
accounts, as well as order, oversee delivery of and test
the managed dial services.
- APPLICATIONS SUPPORT. Sabre will provide consulting
support on customer applications to provide for compatible
interface and transmission protocols with the network.
- NETWORK OPERATIONS CENTER. Sabre will monitor the
reliability of Third Party service providers.
- HELP DESK. Sabre will provide a 7x24 help desk for
coordinating problem resolution services. Customer's
service representative will initiate such services by
contacting the help desk to log details associated with
the problem. If Sabre determines the problem relates to
products or services provided by Sabre, the help desk
representative will refer the problem to Sabre's
designated subject matter expert ("SME") for resolution.
If Sabre determines the problem relates to products or
services provided by Third Party vendors and arranged for
by Sabre, Sabre will request the appropriate Third Party
vendor to resolve the problem. A Sabre representative will
work with such Third Party vendor to monitor problem
resolution and follow-up with Customer to close out open
logged problems.
- PLANNING. Sabre will analyze and communicate to Customer
changes in related technology, marketplaces, and
regulatory treatments.
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- AUDITING SERVICES. Sabre will review invoices submitted by
Third Party service providers to assess the accuracy of
such invoices.
- CUSTOMER REPORTS. Sabre will provide billing, volume,
usage trends and analysis reports describing Customer's
utilization of the managed dial services.
- EVALUATION OF NEW TECHNOLOGY. Sabre will research new and
emerging telecommunications technology features and
enhancements that may provide cost reductions while
improving overall service capabilities.
- USER MANUALS. Sabre will develop and coordinate
distribution of user manuals.
3. VOICE SERVICES.
a. VOICE NETWORK SERVICES. Sabre will arrange for and manage
Customer's voice network for inbound and outbound calls across
multi-vendor networks. Such Third Party provided services
include inbound 800 services, outbound long distance services,
and calling card services, and related provisioning,
engineering, consulting, operation and management services.
b. MANAGEMENT SERVICES. In managing the voice services described
in paragraph 3 of this SCHEDULE 2.2, Sabre will provide the
following administrative services:
- ENGINEERING. Sabre will provide traffic engineering and
network capacity planning to maximize circuit usage. Sabre
will manage the traffic across all network trunks
including trunk analysis and optimization, traffic routing
based on Customer's requirement profiles including,
without limitation, time of day routing, geographical
routing or traffic load routing based on the volume of
traffic at any given time.
- PROVISIONING. Sabre will order, oversee delivery of and
test the voice services.
- NETWORK OPERATIONS CENTER. Sabre will monitor the
reliability of Third Party service providers.
- HELP DESK. Sabre will provide a 7x24 help desk for
coordinating problem resolution services. Sabre will take
calls into the help desk between the hours of 8 am to 5 pm
and then via pager after hours. Customer's service
representative will initiate such services by contacting
the help desk to log details associated with the problem.
If Sabre determines the problem relates to products or
services provided by Sabre, the help desk representative
will refer the problem to Sabre's designated subject
matter expert ("SME") for resolution. If Sabre determines
the problem relates to products or services provided by
Third Party vendors and arranged for by Sabre, Sabre will
request the appropriate Third Party vendor to resolve the
problem. A Sabre representative will work with such Third
Party vendor to monitor problem resolution and follow-up
with Customer to close out open logged problems.
- PLANNING. Sabre will analyze and communicate to Customer
changes in related technology, marketplaces, and
regulatory treatments.
- CONTRACT ADMINISTRATION. Sabre will provide contract
administration services related to those contracts with
Third Party service providers, including tariff analysis,
contract management, and interfacing with vendors to
resolve performance or other contractual issues on behalf
of Customer.
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- AUDITING SERVICES. Sabre will review invoices submitted by
Third Party service providers to assess the accuracy of
such invoices.
- CUSTOMER REPORTS. Sabre will provide billing, volume,
usage trends and analysis reports describing Customer's
utilization of the voice services.
- EVALUATION OF NEW TECHNOLOGY. Sabre will research new and
emerging telecommunications technology features and
enhancements that may provide cost reductions while
improving overall service capabilities.
- AUTHORIZATION CODE MANAGEMENT. Sabre will manage long
distance dialing codes to monitor and track abuse of long
distance voice services by Customer's employees.
4. VOICEMAIL.
a. VOICE MESSAGING SERVICES. Sabre will arrange for and manage
voice messaging services that include message storage and
retrieval, network messaging, dial-by-name capabilities, and
creation and deletion of voice mailbox for users. Sabre may,
at Sabre's sole discretion, later outsource the voice
messaging services to a Third Party provider. Customer may
select among the classes of service indicated below. Customer
will make such selection according to its requirements for
each Customer employee and at the time it adds a mailbox.
Customer may then change the selection it made at any time
following the month in which Customer initiated the service.
- Service Level 1 - Voice Box: [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] messages retained for up to [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] days
- Service Level 2 - Message Lite: Adds more memory and
outcall/pager in addition to voice box.
- Service Level 3 - Answer Box: Adds telephone answering in
addition to voice box and message lite.
- Service Level 4 - Remote Box: Adds remote answering in
addition to voice box, message lite and answer box.
- Service Level 6 - Advanced: Adds additional memory in
addition to voice box, message lite, answer box and remote
box.
- Service Level 7 - Advanced Custom: Unlimited message
retention in addition to voice box, message lite, answer
box, remote box and advanced.
b. MANAGEMENT SERVICES. In providing the voice messaging services
described in paragraph 4 of this SCHEDULE 2.2, Sabre will also
provide the following administrative services:
- ENGINEERING. Sabre will provide traffic engineering and
capacity planning to maximize circuit usage. Voice mail
engineers will ensure that the Voice Mail systems
integrate with the premise switch and the traffic to the
voicemail system is received over optimized trunks so that
voicemail does not give a busy signal to the Customer.
- PROVISIONING. Sabre will set up and maintain Customer user
accounts, as well as order, deliver and test the voice
messaging services.
- OPERATIONS. Sabre will monitor the reliability of Third
Party service providers.
- HELP DESK. Sabre will provide a 7x24 help desk for
coordinating problem resolution services. Sabre will take
calls into the help desk between the hours of 8 am to 5 pm
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and then via pager after hours. Customer's service
representative will initiate such services by contacting
the help desk to log details associated with the problem.
If Sabre determines the problem relates to products or
services provided by Sabre, the help desk representative
will refer the problem to Sabre's designated subject
matter expert ("SME") for resolution. If Sabre determines
the problem relates to products or services provided by
Third Party vendors and arranged for by Sabre, Sabre will
request the appropriate Third Party vendor to resolve the
problem. A Sabre representative will work with such Third
Party vendor to monitor problem resolution and follow-up
with Customer to close out open logged problems.
- PLANNING. Sabre will analyze and communicate to Customer
changes in related technology, marketplaces, and
regulatory treatments.
- CUSTOMER REPORTS. Sabre will provide billing, volume,
usage trends and analysis reports describing Customer's
utilization of the managed dial services.
- EVALUATION OF NEW TECHNOLOGY. Sabre will research new and
emerging telecommunications technology features and
enhancements that may provide cost reductions while
improving overall service capabilities.
- USER TRAINING AND MANUALS. Sabre will provide user
training classes at the Service Locations and will develop
and coordinate distribution of user manuals.
5. CAMPUS TELEPHONE. Sabre will manage campus telephone lines and manage,
plan, design and engineer the infrastructure of telephone systems at
the Service Locations. Telephone lines managed by Sabre include Private
Branch Exchanges (PBX), Centrex Service and Automatic Call Distributors
(ACD's), and large telephone key systems for large business
applications. Sabre will recommend telephone system modifications based
on changing Customer requirements and negotiate service contracts such
as rate stabilization contracts, maintenance contracts and local
trunking contracts with Third Party providers. Sabre provides for the
Install/Move/Add/Change ("IMAC") activity for Customer.
a. Add: Any activity related to adding a new device. An add will
increase the count of the inventory database.
b. Change: Changing a device configuration or peripheral
component. Includes installing, deinstalling, or changing
software on the device. This activity does not alter the
number of devices on the inventory database.
c. Move: Relocation of an existing device. Equipment-funding
document is not required. A move will not alter the number of
devices on the inventory database.
Sabre will provide a 7x24 help desk for coordinating problem resolution
services. Sabre will take calls into the help desk between the hours of
8 am to 5 pm and then via pager after hours. Customer's service
representative will initiate such services by contacting the help desk
to log details associated with the problem. If Sabre determines the
problem relates to products or services provided by Sabre, the help
desk representative will refer the problem to Sabre's designated
subject matter expert ("SME") for resolution. If Sabre determines the
problem relates to products or services provided by Third Party vendors
and arranged for by Sabre, Sabre will request the appropriate Third
Party vendor to resolve the problem. A Sabre representative will work
with such Third Party vendor to monitor problem resolution and
follow-up with Customer to close out open logged problems.
6. INTERNET ACCESS.
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a. HOST LINK. Sabre will arrange for a Third Party Internet
service provider to provide a host link enabling Customer's
employees to access standard business oriented Internet
information services on the World Wide Web at the following
Customer sites: Centreport I, Centreport II, Centreport IV,
Centreport V, Trinity and Solana. Users are able to browse the
World Wide Web and utilize those resources of the Internet
permitted under Customer's Internet usage policies. Internet
access is integrated into the user's desktop and allows
seamless access to both the corporate Intranet sites and to
Internet sites. Netscape Communicator 4.5 will be provided to
Customer. Setup instructions for Microsoft Internet Explorer
will be made available if Customer does not desire to use
Netscape Communicator 4.5.
b. SCOPE OF SERVICES.
- HTTP Proxy - Browser access to the World Wide Web
- Telnet Proxy - Command Line Telnet
- FTP Proxy - File Transfer Protocol for uploading or
downloading files
- Newsgroups - Access to USENET News Services
- Real Audio - Streaming Audio and Video
- AOL Instant Messenger - Online Chat service
- Pointcast - Push News service
- NTP - Time Services to set computer with Atomic clock
- SOCKS Services - Multi-purpose Internet Access
c. ATTRIBUTES OF INTERNET SERVICES.
- Integrated into Customer desktop
- Includes Netscape Communicator 4.5
- Setup instructions for Microsoft Internet Explorer
will be made available
- Does not require external modem or dial connection
- Utilizes existing desktop LAN infrastructure
- Performance
- Connection speeds of up to 10Mbps
- Utilizes fully redundant dedicated ISP connections
- Dedicated connection - no dial connect time delay
- Availability
- Never a busy signal delay
- Available 7x24 (seven days a week, 24 hours per day)
- Security
- Firewall protection of workstation and internal
network
- User Authentication
- Enforcement of Customer's Internet usage policies
- Monitoring of access to inappropriate sites
- List of 200 banned words/sites
- Reports sent to human resources for employees
violating policy
- Availability of full access logs and audit trail
- Query function available to human resources'
representative
- Filtered newsgroups
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- Customer Support
- Sabre will provide a 7x24 help desk for coordinating
problem resolution services. Sabre will take calls
into the help desk between the hours of 8 am to 5 pm
and then via pager after hours. Customer's service
representative will initiate such services by
contacting the help desk to log details associated
with the problem. If Sabre determines the problem
relates to products or services provided by Sabre,
the help desk representative will refer the problem
to Sabre's designated subject matter expert ("SME")
for resolution. If Sabre determines the problem
relates to products or services provided by Third
Party vendors and arranged for by Sabre, Sabre will
request the appropriate Third Party vendor to resolve
the problem. A Sabre representative will work with
such Third Party vendor to monitor problem resolution
and follow-up with Customer to close out open logged
problems.
- Browser software upgrades to Sabre-certified Netscape
Communicator Software. Sabre can perform upgrades or
change browsers at Customer's request, provided
Customer pays or reimburses Sabre for all costs and
expenses incurred by Sabre relating to such upgrades
or changes.
- User documentation is available on line
7. INITIAL CONFIGURATION. For purposes of delivering the Data and Voice
Services, the initial configuration is set forth in EXHIBIT A to this
SCHEDULE 2.2. Any modifications to such initial configuration shall be
considered a Change governed by the Contract Administration Process.
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[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
SCHEDULE 2.3: WEB HOSTING SERVICES
Web Hosting Services refers to the services described below:
1. TULSA DATA CENTER: PREMISES AND SECURITY.
a. TULSA DATA CENTER PREMISES. In connection with providing the
Web Hosting Services described below, Sabre will provide and
maintain the Tulsa Data Center as follows:
- RESTRICTED ACCESS. Sabre will provide secure key card
restricted access to the Tulsa Data Center. Sabre will
provide controlled access to Third Party vendors from whom
Customer acquired hardware for use in the Tulsa Data
Center to enable hardware maintenance to be performed. In
providing such access, appropriate Sabre personnel will
accompany Third Party personnel while they perform such
maintenance services at the Tulsa Data Center.
- RAISED FLOOR. Sabre will provide for a raised floor at the
Tulsa Data Center to enable cable clearance for housing
Customer's servers.
- POWER HEAT AND COOLING. Sabre will provide environmentally
controlled conditions through the use of water powered
heating and cooling systems. Fire suppression equipment
consisting of dry pipe and deluge sprinklers, and inert
gas and limited applications, is also present in the Tulsa
Data Center.
- UNINTERRUPTED POWER SUPPLY ("UPS"). Sabre will provide UPS
to back up all power supplies at the Tulsa Data Center.
These battery systems provide gault tolerance and provide
sufficient power to operate the Tulsa Data Center for at
least fifteen (15) minutes. In addition, diesel generators
automatically start in the event of a power outage. These
generators supply all of the power necessary for the Tulsa
Data Center, and can be refueled to power the facility
indefinitely. Sufficient fuel is stored on premise to
supply three days of operation, and fuel delivery
contracts are in place with multiple local diesel fuel
suppliers.
b. TULSA DATA CENTER SECURITY. In connection with providing the
Web Hosting Services described below, Sabre will provide
facility and resource security services at the Tulsa Data
Center as follows:
- FACILITY SECURITY SERVICES. Sabre will provide physical
security for the Tulsa Data Center at commercially
reasonable levels, and in such a manner as to reasonably
satisfy Customer's external audit and risk management
insurance requirements. Multi-layered electronic access
control, 24x7 on-site security guards and video
surveillance equipment also are utilized to provide
additional protection.
- RESOURCE SECURITY SERVICES. Sabre will provide perimeter
infrastructure security around infrastructure system and
network resources. Sabre retains control and sole
responsibility for creating system security policies for
all Sabre infrastructure system and network resources.
Sabre will also be responsible for user account
maintenance, including adding, changing, and deleting user
accounts, issuing passwords, and tracking user access.
Customer will be responsible for creating system security
policies for Sabre managed Customer resources, approving
user accounts, and performing security audits within Sabre
managed Customer servers and Customer firewalls.
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2. SERVER MONITORING: HARDWARE AND OPERATING SYSTEM.
a. MONITORING. Sabre will monitor the operability and performance
of Sun, SGI, Windows NT, NCR and IBM hardware and related
operating systems at the Tulsa Data Center.
b. SERVICES. Sabre will perform the following services with
respect to the hardware and operating system software
monitored by Sabre at the Tulsa Data Center:
- Installation and testing of operating system and layered
products.
- Installation of software licenses.
- Upgrade operating system as provided by Customer.
- Evaluation of operating system and layered products.
- Apply provided software patches.
c. OPERATING SYSTEM MONITORING METHODOLOGY. Sabre will monitor
the systems identified in paragraph 2(a) of this SCHEDULE 2.3
on a 24x7 basis with respect to:
- Swap.
- Memory Utilization.
d. HARDWARE MONITORING METHODOLOGY. Sabre will provide 24x7
re-boot services, and monitor the hardware identified in
paragraph 2(a) of this SCHEDULE 2.3 on a 24x7 basis with
respect to:
- CPU Utilization.
- Disk Space.
- Network Pinging.
e. LIMITED APPLICATION MONITORING. Sabre will provide 24x7
automated monitoring of Customer applications. Sabre and
Customer will establish reasonable levels of monitoring with
respect to:
- Application Error and Performance (response time).
- URL Monitoring.
f. NOTIFICATION AND ESCALATION PROCEDURES. Sabre and Customer
will establish reasonable notification and escalation
procedures with respect to each of the performance criteria
monitored under paragraphs 2(a), (c), and (d) above. The
procedures will include notification and escalation thresholds
appropriate for Customer's business operations.
g. MAINTENANCE SERVICES. Sabre shall initiate problem resolution
services in response to problems in operating system or
hardware performance identified by Sabre under paragraphs 2(c)
and 2(d) of this SCHEDULE 2.3. Unless otherwise agreed by
Sabre and Customer, the resolution of operating system and
hardware problems will be performed by Third Party vendors,
selected by Customer and reasonably approved by Sabre,
pursuant to maintenance contracts between Customer and such
Third Party vendors.
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Sabre and Customer shall establish, by mutual agreement,
reasonable levels of problem resolution initiation
communication between Sabre and such Third Party vendors.
h. EXCLUSIONS. Customer will be responsible for the following:
- Problem resolution relating to any failure of application
software monitored by Sabre at the Tulsa Data Center.
Sabre's only obligations with respect to problem
resolution of application software problems are to monitor
problems experienced in the production environment as
specified in paragraph 2(e) of this SCHEDULE 2.3, and
notify Customer of such problems pursuant to paragraph
2(f) of this SCHEDULE 2.3.
- All obligations and liabilities related to temporary root
passwords.
- Implementing software applications hosted on servers
located in the Tulsa Data Center and monitoring the
operability and performance of such software applications.
i. CUSTOMER NOTIFICATION. Customer will notify Sabre of any
changes in monitored operating systems, resulting from
temporary root password functions in Customer's
possession/control.
3. SERVER MONITORING: DATABASE.
a. MONITORING. Sabre will monitor the operability and performance
of [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
b. DATABASE MONITORING METHODOLOGY. Sabre will monitor the
databases identified in paragraph 3(a) of this SCHEDULE 2.3 on
a 24x7 basis with respect to:
- CPU Utilization.
- Disk Space.
- Extents Monitoring.
- Memory Utilization.
- Disk Failure Notification.
- DB Processes.
- DB Parameters.
c. EXCLUSIONS. Customer will be responsible for problem
resolution relating to any failure of the databases monitored
by Sabre to perform in accordance with their specifications or
the Service Levels set forth in SCHEDULE 5, unless Customer
obtains such service from Sabre as an Optional Web Hosting
Service.
4. NETWORK SERVICES.
a. NETWORK. Sabre will arrange for and manage the communications
lines, network devices and related telecommunications
infrastructure used by Sabre in the Tulsa Data Center to
connect Customer's servers to the Internet, including LAN
connectivity, load balancers, cache, and switch/router
administration. From time to time, Customer may request Sabre
to install at the Tulsa Data Center additional network devices
such as switches, routers,
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load balancers and firewalls purchased by Customer from Third
Party vendors pre-approved by Sabre, and Sabre will use
commercially reasonable efforts to provide such installation
services within a reasonable period of time from Customer's
request.
b. NETWORK SUPPORT. Sabre will provide the following support
services relating to the communications lines, network devices
and related telecommunications infrastructure used by Sabre in
the Tulsa Data Center:
- Install network device software as Third Party vendors
issue new releases;
- Install, monitor and maintain network device software for
system connectivity;
- Maintain network equipment;
- Troubleshoot and repair network devices;
- Plan installation of network and environmental equipment
at the Tulsa Data Center;
- Initiate and manage problem resolution with Third Party
hardware vendors in order to resolve hardware problems;
- Order and schedule installation of network hardware with
Third Party vendors; and
- Initiate and manage problem resolution with Third Party
maintenance providers in order to resolve network device
and software problems.
c. MANAGEMENT SERVICES. Sabre will provide the following
administrative services with respect to the communications
lines, network devices and related telecommunications
infrastructure used by Sabre in the Tulsa Data Center:
- DESIGN. Sabre will provide network design and engineering
services.
- CONFIGURATION. Sabre will configure and test network
equipment.
- INSTALLATION SUPPORT. Sabre will provide network
installation support for adding devices, upgrading
systems, and replacing devices during the implementation
window.
- TUNING. Sabre will analyze the network and provide
performance tuning.
- SECURITY. Sabre will monitor network systems for misuse
and unauthorized access.
- SECURITY CONSULTING. Sabre will provide network security
consulting services.
- ON-CALL SUPPORT. Sabre will provide 24x7 on-call
engineering support.
- NETWORK CONSULTING. Sabre will provide network consulting
services.
- STANDARD CAPACITY PLANNING. Sabre will provide capacity
planning and forecasting services.
- PLANNED CHANGES. Sabre will assess planned changes to the
network.
- PRODUCT EVALUATION. Sabre will evaluate new network
products.
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d. FIREWALL. Sabre will provide firewall infrastructure devices
at the Tulsa Data Center comprised of redundant enterprise
class [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] and
stateful inspection firewalls to form a multi-layered switched
and routed network infrastructure providing [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] access speeds with stateful
packet inspection technology and intrusion detection. This
architecture comprises full backup power systems and redundant
network connectivity.
e. LOAD BALANCING SERVICE. Sabre will arrange for a Third Party
vendor to provide load balancing services within the Tulsa
Data Center firewall architecture in order to split data
transmission into two or more routes among the web and
application servers located within Customer's server
architecture.
5. BACKUP SERVICES.
a. TAPE BACKUP. Sabre will offer daily incremental backups on
tape, and weekly full system backups on tape. Customer will
notify Sabre of each database instance or server for which
Customer desires Sabre to produce tape backups, and Sabre will
perform such service accordingly.
b. BACKUP PROCESS STOPS AND RESTARTS. Sabre will monitor the
backup process and stop and restart the backup process in the
event of any problem.
c. VERIFICATION AND LOG REPORTING. Sabre will verify that each
backup is completed and that the data has been copied in the
appropriate format for reinstallation, and create management
log reports cataloging the location of data on the tapes.
d. NOTIFICATION. Sabre will notify Customer via e-mail of any
problem conditions during the backup process.
e. STORAGE. Sabre will provide off-site storage of backup tape.
f. CUSTOMER'S OBLIGATION. Customer shall be responsible for all
purchases of tape.
6. STANDARD CAPACITY PLANNING. Sabre will monitor and provide Customer
with monthly written reports identifying CPU and memory utilization,
booking information, number of hits and page views, and Internet
utilization.
7. INTERNET SERVICE PROVIDER (ISP) ACCESS. Sabre will arrange for and
manage Third Party provided links between the Tulsa Data Center and
the Internet. The links between Sabre and the ISP's are comprised of
fully redundant routers with [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] speed connections that currently are connected to two
providers. The ISP's utilize a full transit, route optimized TCP/IP
connectivity linked directly to major Internet communication backbone
lines. These ISP's provide 24x7 circuit monitoring, outage reporting
and troubleshooting from their network operating centers, or their
equivalent.
8. DOCUMENTATION. Customer will provide all existing documentation to
include Customer application internals, flows or connectivities on or
before the Effective Date. Sabre will assist Customer in developing
documentation that is either non-existent or inadequate. Sabre
expects, without limitation, the following:
a. Application description, diagrams, connectivity;
b. Monitor console message descriptions and actions required;
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c. Hardware specifications;
d. Customer contacts;
e. Support contacts, if in addition to those contracts with Third
Party providers managed by Sabre pursuant to this Agreement;
f. Special backup requirements;
g. Application procedures; and
h. Operations procedures.
Sabre will maintain these documents during the term of this Agreement.
9. OPTIONAL WEB HOSTING SERVICES.
a. OPTIONAL CAPACITY PLANNING SERVICES. Sabre can provide the
following capacity planning services:
- Utilize Sabre-proprietary methods and models to forecast
infrastructure needs and measure end-to-end response time
performance.
- Provide rolling hardware purchasing forecasts in the
monthly written reports submitted to Customer.
- Provide infrastructure growth and performance enhancement
recommendations.
- Meet with Customer monthly and consult with Customer to
develop custom recommendations, modeling and trending
analysis.
b. SYSTEM MANAGER CUSTOMER INTERFACE. Sabre can provide a
dedicated, on-site resource to serve as a single point of
contact for Customer who will perform event management for
existing systems, identify and enlist necessary resource group
participation, and track and drive problem resolution,
including action items and their ownership.
c. ASSET MANAGEMENT. Sabre can provide web hosting asset
management services, including warranty contract negotiation,
software licensing and contract renewal negotiation, hardware
and software purchase negotiation, and hardware tagging and
tracking.
d. TECHNICAL CONSULTING. Sabre can provide technical consulting
services including, but not limited to, UNIX and database
engineering, database management, network connectivity,
hardware and application restoration and fixes, and disaster
recovery planning and validation.
e. DATABASE PROBLEM RESOLUTION. Sabre can provide problem
resolution services for any failure of the databases monitored
by Sabre to perform in accordance with their specifications or
the Service Levels set forth in SCHEDULE 5.
f. CHANGE MANAGEMENT SERVICES. Sabre can provide the following
change management services:
- Issue, track and manage change records.
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- Identify and coordinate the approval and notification
process for all implementations.
- Execute implementation policy for normal and exception
change records.
- Send out notification on change records that were created
after the implementation takes place ("after the fact"
records).
- Investigate "after the fact" change requests for status.
- Schedule and coordinate all implementations, with
communication through daily Internet implementation
meetings.
10. REPORTS. Sabre will provide to Customer the following written reports
at the times indicated below:
a. Daily INET availability;
b. Daily keynote performance;
c. Monthly capacity of the hardware monitored under paragraph
2(a) of this SCHEDULE 2.3;
d. Monthly performance of Customer's applications monitored under
paragraph 2(d) of this SCHEDULE 2.3; and
e. Monthly Internet utilization, capacity and performance.
11. CUSTOMER'S OBLIGATION TO REFRESH HARDWARE AND OPERATING SYSTEM.
Customer will upgrade and/or refresh the hardware and related
operating systems identified in paragraph 2(a) of this SCHEDULE 2.3
which Sabre monitors as part of the Web Hosting Services no less than
every two (2) years in order to maintain a level of technology
comparable to the level of technology generally adopted from time to
time by Web hosting service providers. In the event Customer does not
upgrade or refresh such hardware and related operating systems
pursuant to this paragraph 10, the affected SLAs will be
appropriately adjusted by Sabre.
12. INITIAL CONFIGURATION. For purposes of delivering the Web Hosting
Services, the initial configuration is set forth in EXHIBIT A to this
SCHEDULE 2.3. Any modifications to such initial configuration shall be
considered a Change governed by the Contract Administration Process.
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[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 2.4: DEVELOPMENT SERVICES
Applications development services with respect to CRS Software; provided that
Sabre has the legal and contractual right to perform such development
services; and provided further that Sabre may refuse to perform a development
service if, in Sabre's reasonable business judgment, performing such
development service would jeopardize the security, integrity or viability of
the CRS Software or the Sabre CRS.
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SCHEDULE 3: EXCLUSIVE VARIABLE SERVICES
1. NETWORK SERVICES. The following Network Services are Exclusive
Variable Services:
- [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 4: MEASURED SERVICES
1. MID RANGE SERVER AVAILABILITY. Mid range server availability measures
the uptime and downtime of mid range servers managed by Sabre at the
Data Center in order to gauge the performance, reliability and
accessibility of such servers and related infrastructure.
a. MAXIMUM AVAILABILITY. "Maximum Availability" is the maximum
amount of time each month during which the system shall be
operable. Maximum Availability is computed by multiplying the
number of days in a given month by the number of minutes in
each such day (1440), and subtracting from that the total
minutes of the Scheduled Outages.
(i) SCHEDULED OUTAGES. "Scheduled Outages" are those
periods of time during which Sabre takes the
server(s) off-line in order to perform the following
pre-approved functions during the times and days
indicated below and are not considered Downtime
(defined below):
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
In addition, if Customer requests Sabre to take any
of the servers off-line, then the period of time
during which the server(s) remain off-line shall be
considered a Scheduled Outage.
(ii) IMPACT EVENTS. "Impact Events" are situations where
one or more functions of the system are inoperable
for a period of time but are not considered
Unscheduled Outages, and will not be included in the
availability calculation, unless otherwise noted.
Impact Events may be reported separately from SLA
performance. Impact Events may include any of the
following occurrences:
(A) Failures of an Internet Service Provider
(ISP) connectivity or network services that
are provided by Third Parties; as long as it
does not result in an Unscheduled Outage;
(B) Farewatcher failure;
(C) Email failure;
(D) BTS Seatmaps failure;
(E) Weather failure;
(F) Unscheduled Outages caused by any failure or
changes in Customer's proprietary
applications hosted on the servers;
(G) Failure in LAN components managed by Sabre
including, without limitation, routers and
switches; as long as it does not result in
an Unscheduled Outage;
(H) Sabre DNS failure in which the duration is
less than [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]. Once the duration of
the DNS failure exceeds [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED], then it
is considered an Unscheduled Outage;
(I) Unscheduled Outages caused by any failure of
the Open Front End Processor or Sabre's PSS
or FPC mainframe system;
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(J) Any system failure that does not result in
an Unscheduled Outage but negatively impacts
Customer's users' ability to access
Customer's product; or
(K) When the peak response time for Customer's
applications is [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] times the "normal."
(average of peak response times, measured
Monday through Friday). Sabre will
periodically benchmark the "normal" response
time as described below in paragraph 1(c) of
this SCHEDULE 4.
b. UNSCHEDULED OUTAGE. "Unscheduled Outage" measures those
periods of time during which the system is completely
inoperable. An Unscheduled Outage is measured from the point
in time in which the problem begins due to the occurrence of
one of the events listed below to the point in time in which
such problem is resolved (problem ticket is closed). However,
Unscheduled Outages that are attributed to Customer negligence
or Customer software failure are considered an Impact Event.
For Unscheduled Outages that are attributed to Customer
negligence or Customer software failure, Sabre will only be
responsible from the time that the Unscheduled Outage began
until the time in which the Unscheduled Outage is reported
according to agreed upon problem escalation procedures.
Customer may request a correction of the Unscheduled Outage
period by submitting evidence to the Account Managers that the
problem began or got resolved at a time different than what
was reported in the problem ticket. Upon review of the
evidence, if the Account Managers agree that the problem
ticket did not accurately reflect the Unscheduled Outage
period and the difference is greater than [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED], the problem ticket will be
corrected.
Unscheduled Outages include any of the following occurrences:
(i) Inoperability of all application servers;
(ii) Inoperability of all homepage servers;
(iii) Inoperability of all content servers;
(iv) Inoperability of the profile or content database;
(v) When the number of concurrent users in a [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] period
decreases by [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] or more from the previous [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] period and the
cause of the decrease is determined to be the result
of Sabre support activity; or
(vi) When the number of passenger bookings in a [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] period
decreases by [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] or more from the previous [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] and the cause of
the decrease is determined to be the result of Sabre
support activity.
c. [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
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SCHEDULE 5: SERVICE LEVEL AGREEMENTS
1. MID RANGE SERVER AVAILABILITY. The mid-range server availability SLA
Standard shall equal [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED], calculated on a monthly basis as follows:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 6: PERFORMANCE REPORTS
1. OVERVIEW.
The monthly performance reports for the SLAs will be released and viewable
online at a URL address that will be disseminated to Customer no later than June
30, 2000 (the "SLA PERFORMANCE DATABASE WEBSITE"). The SLA Performance Database
Website will enable recording, tracking, reporting, and storing of the Measured
Services. These performance data and metrics will be secured to serve only
designated and approved employees of Sabre and Customer.
As the monitoring/reporting cycle begins anew each consecutive calendar month,
the following steps are performed:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
2. ACCESS.
Users of the SLA Performance Database Website access the reports via a PC
running a minimum operating system of DOS 3.1 or WIN95 and a minimum browser of
Netscape browser (version 3.0 or 4.0, with 4.0 preferred), or Internet Explorer
3.0 and Sabre's Intranet/Internet.
The SLA Performance Database Website has restricted read and write access:
- Update access is granted only to support personnel such as Sabre Reporters
who actually gather measurement data required for each SLA;
- one of the Sabre SLA Performance Report Coordinators, who also serves as a
database administrator; and
- Read access is furnished on a "need-to-know" basis, including Sabre support
personnel, Sabre Account Management teams, and the specific individuals
identified by Customer's management.
3. REPORT TYPES.
The reports are generated and viewable online and will appear as follows:
(a) TABLE OF CONTENTS.
Lists all the summary reports as well as reports on individual
SLA environments.
(b) EXECUTIVE SUMMARY REPORT.
Recaps performance each month, alphabetically listing data by
category and SLA, and displaying availability/prime hours,
number of green days, and red days.
(c) MONTHLY PERFORMANCE.
Summarizes performance for 13 months, alphabetically listing
data by SLA, risk level, and metric description. Color and
symbols are combined as green (up) arrows, yellow (horizontal)
arrows, and red (down) arrows to indicate acceptable,
marginally acceptable, and unacceptable performance,
respectively. Diamonds indicate that tolerances for
performance have not yet been set. Clicking on the symbol
links to the full document.
(d) DAILY PERFORMANCE.
Summarizes daily performance each month alphabetically by SLA.
Color and symbols are combined as green (up) arrows, yellow
(horizontal) arrows, and red (down) arrows to indicate
acceptable, marginally acceptable, and unacceptable
performance, respectively.
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Diamonds indicate that tolerances for performance have not yet
been set. Clicking on the symbol links to the full document.
(e) PROBLEM/STATUS INFORMATION.
Lists monthly Outages, providing date, time of day, duration,
and textual descriptions of the problem and its explanation.
(f) PROBLEM EXPLANATION.
Sabre will provide explanations of any incident where
availability fails to meet standard.
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SCHEDULE 7: CONTRACT ADMINISTRATION PROCESS
1. OVERVIEW.
This Contract Administration Process outlines procedures by which the Parties
(i) propose or request Changes, (ii) implement and manage Changes agreed in
writing by the Parties, and (iii) resolve problems and Issues.
2. CERTAIN DEFINITIONS.
This Section 2 sets forth certain definitions used in this Contract
Administration Process. Other capitalized terms used but not defined herein have
the meanings ascribed to them in the Agreement.
IMPACT ANALYSIS
The Impact Analysis is the document analyzing the (a) cost, scope, timeline, and
technological and business risks, (b) impacts on other Customer or Sabre
departments, products, projects or customers, and/or (c) other impacts, in each
case resulting from implementation, or lack thereof, of a Change.
ISSUE
An Issue constitutes a question, concern or request which, in the opinion of
either Customer or Sabre, has not been, or may not be, efficiently or
effectively resolved and which may have an impact on the cost, scope, timeline,
objectives, deliverables or performance of the Base Services or Variable
Services, other than any question, concern or request that either Account
Manager has notified the other Account Manager and the Project Office that he
believes constitutes a Dispute.
ISSUE ANALYSIS
The Issue Analysis is the document analyzing the (a) cost, scope, timeline, and
technological and business risks, (b) impacts on other Customer or Sabre
departments, products, projects or customers, and/or (c) other impacts, in each
case resulting from resolution, or lack thereof, of an Issue.
OWNER
The individual responsible for evaluating the impact of a Change or Issue,
developing the Impact or Issue Analysis and facilitating implementation of the
solution when approved.
ORIGINATOR
The individual from either Customer or Sabre who initiates the Request.
- [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
PROJECT OFFICE
The centralized management office where Changes, Issues and plans are
maintained, logged, tracked and reported, and where other central customer
service functions are located.
REQUEST
A request to resolve an Issue or implement a Change submitted by either Customer
or Sabre.
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STEERING COMMITTEE
The Steering Committee is a management body comprised of designated senior
management from each Party. The Steering Committee functions as the approving
body for all Requests that (a) involve (i) [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] in capital, or (ii) require [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] of labor, and/or (iii) require an amendment of this
Agreement, other than a Change in the Services to be provided by Sabre or
within the Account Managers' authority, or (b) are within the authority of,
but not approved by, the Account Mangers. The Steering Committee may delegate
authority to the Account Managers to manage recurring Requests such as
capacity upgrades. In addition, the Steering Committee functions as the forum
in which the Parties negotiate resolution of Disputes that (a) involve (i)
[TEXT OMITTED -CONFIDENTIAL TREATMENT REQUESTED] in capital obligations under
this Agreement, or (ii) involve [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] of labor, or (iii) would materially affect the rights (including
Intellectual Property Rights) of either Party, or (b) are within the authority
of, but not resolved by, the Account Managers.
STATUS CODES
Status codes are used by the Project Office to track and report Changes and/or
Issues.
<TABLE>
<CAPTION>
<S> <C> <C>
------------- ------------------------------------- ------------------------------------------------------------
Code Short Description Description
------------- ------------------------------------- ------------------------------------------------------------
OPN Open Request New Request logged by Project Office. Owner not assigned.
------------- ------------------------------------- ------------------------------------------------------------
EST Prepare Analysis Estimate Request assigned to the Owner for the sole purpose of
preparing an estimate to perform Impact or Issue Analysis.
------------- ------------------------------------- ------------------------------------------------------------
ANL In Analysis Request currently being analyzed.
------------- ------------------------------------- ------------------------------------------------------------
REV1 Account Management Review Request is waiting for Account Management action.
------------- ------------------------------------- ------------------------------------------------------------
REV2 Steering Committee Review Request is waiting for Steering Committee action.
------------- ------------------------------------- ------------------------------------------------------------
MOD Modifications Requested Open Request initial analysis completed and presented.
Modifications requested by Account Management or Steering
Committee.
------------- ------------------------------------- ------------------------------------------------------------
APR Approved Request approved or approved with modifications by Account
Management and/or Steering Committee.
------------- ------------------------------------- ------------------------------------------------------------
DEF Defer Request will be considered.
------------- ------------------------------------- ------------------------------------------------------------
REJ Rejected Request not approved, will not be revisited.
------------- ------------------------------------- ------------------------------------------------------------
CLS Closed Request Approved and incorporated into applicable
documentation.
------------- ------------------------------------- ------------------------------------------------------------
</TABLE>
WORK ORDER
An agreement or other document signed by both Parties pursuant to this Contract
Administration Process that sets forth the terms and conditions pursuant to
which the Parties agree that a Change is to be implemented or an Issue or
Dispute resolved.
3. CONTRACT ADMINISTRATION PROCESS FOR REQUESTS TO IMPLEMENT CHANGES AND
RESOLVE ISSUES.
(a) SUBMIT REQUEST.
The Originator will complete the Request and submit it to
either Account Manager or to the Project Office. If a Request
is submitted to an Account Manager, he will forward the
Request to the Project Office, with a copy to the other
Account Manager.
If at any time during the process set forth in this Section
3(a), either Account Manager determines that funding for a
Request will not be approved, the Request will be immediately
rejected.
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If at any time during the process set forth in this Section
3(a), either Account Manager determines that a question,
concern or request characterized as an Issue constitutes, or
has evolved into, a Dispute that should be resolved under the
process set forth in SCHEDULE 13, he shall so notify the other
Account Manager and the Project Office. From and after such
notification, such question, concern or request shall be
processed as a Dispute under the Dispute Resolution Process
set forth in SCHEDULE 13 to the Agreement.
(b) LOG REQUEST.
The Project Office will assign a number to the Request, create
a brief description for reporting purposes, and log the
Request into the tracking system.
(c) ASSIGN RESPONSIBILITY FOR IMPACT OR ISSUE ANALYSIS.
The Project Office will assign an Owner and forward the
Request to the Owner for preparation of an Impact or Issue
Analysis. The Account Managers must approve the initiation of
the research and preparation for an Impact or Issue Analysis.
Labor and other costs incurred by Sabre in connection with
researching and preparing Impact and Issue Analyses (including
revisions or additions) will be charged to Customer as
Exclusive Variable Services.
(d) PREPARE IMPACT OR ISSUE ANALYSIS.
When researching and preparing an Impact or Issue Analysis,
the Owner shall solicit input from all impacted project team
members. An Impact or Issue Analysis shall include at least
one recommended solution from the Owner. Upon completion, the
Owner shall forward the Impact or Issue Analysis to the
Project Office.
(e) REVIEW AND DECIDE.
The Project Office will hold regular meetings to perform a
preliminary review and summary of all Requests and Impact or
Issue Analyses. The Account Managers and other appropriate
personnel will attend the regular meetings. The Account
Managers will have the authority to approve all Requests that
(a) involve less than [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] in capital, (b) require less than [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] of labor, and (c) do not
require an amendment to this Agreement other than as a result
of the foregoing (other than an amendment of the description
of Services to be provided by Sabre under this Agreement.) In
addition, the Account Managers will have the authority to
negotiate resolution of Disputes that (a) involve less than
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] in capital
obligations under this Agreement, (b) involve less than [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] of labor and (c)
would not materially affect the rights (including Intellectual
Property Rights) of either Party. The Account Managers may, at
their election, require revisions to, or additional research
or information not included in, an Impact or Issue Analysis in
connection with their analysis of a Request and related Impact
or Issue Analysis.
(i) If the Request is within the authority of the Account
Managers, the Account Managers will approve or reject
the Request.
If the Account Managers approve the Request, the
approval and reasons therefor shall be documented, a
copy retained by the Account Managers and the Project
Office, a copy forwarded to the Owner and Originator,
and the Request shall be
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implemented commencing upon completion and execution
by both Parties of the applicable Work Order(s).
If the Account Managers reject the Request, the
rejection and reasons therefor shall be documented, a
copy retained by the Account Managers and Project
Office, a copy forwarded to the Owner and Originator,
and the Request will not be implemented.
If the Account Managers cannot agree whether to
approve or reject the Request, the disagreement and
reasons therefor shall be documented, a copy retained
by the Account Managers and Project Office, a copy
forwarded to the Owner and Originator, and the
Request and related documentation shall be forwarded
to the Steering Committee for their review and
decision.
(ii) If the Request is not within the authority of the
Account Managers, the Account Managers will (1)
summarize the Request and Impact or Issue Analysis,
(2) determine and document their recommended solution
in respect of the Request (or, if they cannot agree
on a recommended solution, the Account Mangers will
document such disagreement and reasons therefor), (3)
prepare a written summary outlining any aspects of
the Agreement, including Fees, requiring revision as
a result of their recommended solution, and (4)
forward the Request and related documentation to the
Steering Committee for their review and decision.
(iii) Upon receipt of a Request and requisite related
documentation from the Account Managers, the Steering
Committee will approve or reject the Request.
If the Steering Committee approves the Request, the
approval and reasons therefor shall be documented, a
copy retained by the Account Managers, a copy
forwarded to the Project Office, the Owner and
Originator, and the Request shall be implemented
commencing upon completion and execution by both
Parties of the applicable Work Order(s).
If the Steering Committee rejects the Request, the
rejection and reasons therefor shall be documented, a
copy retained by the Account Managers, a copy
forwarded to the Project Office, Owner and
Originator, and the Request will not be implemented.
If the Steering Committee cannot agree whether to
approve or reject the Request, the disagreement and
reasons therefor shall be documented, a copy retained
by the Account Managers, and a copy forwarded to the
Project Office, the Owner and Originator. In
addition, the disagreement shall, at the written
request of either Party, be submitted to mediation in
accordance with the Dispute Resolution procedures set
forth in SCHEDULE 13 to the Agreement.
(f) IMPLEMENT APPROVED REQUESTS.
Upon approval of a Request, the Account Managers, working in
conjunction with the Project Office and the affected areas,
shall coordinate and supervise the preparation of appropriate
Work Order(s) to implement the approved Change or the
resolution of the resolved Issue.
Work Orders include documentation of: (a) amendments,
modifications, additions or deletions to the Agreement, any
Work Order, any Base Services, Variable Service, or any Fees
that are the subject of the approved Request; (b) resolution
of problems and Issues that
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are the subject of the approved Request; and/or (c) any
modifications to projects, timelines, plans, budgets, other
affected documents, departments or positions that are the
subject of the approved Request.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED].
Upon completion of the applicable Work Order(s) and their
execution by both Parties, the approved Change or resolution
of the resolved Issue will be implemented in accordance with
the terms and conditions of the Work Order(s) and the
Agreement.
(g) CLOSE REQUESTS.
Upon completion of the applicable Work Order(s) and their
execution by both Parties for approved Requests, or upon
rejection by the Account Managers or Steering Committee, as
applicable, of a Request, the Project Office shall close the
Request.
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SCHEDULE 8: FEES
Customer shall pay to Sabre Fees for the Services, computed as described in this
SCHEDULE 8. Sabre shall invoice Customer for such fees, computed for each month
ending after the Effective Date. Customer shall pay invoiced amounts within
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after receipt of the invoice.
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
For purposes of this paragraph 1, the following definitions will apply:
a. "Device" means a piece of equipment or mechanism that is
linked by a network system to facilitate data communications
between two end points. The Device count will be based on
Customer Devices that reside or are located within the
dedicated Customer network structure, and will not include any
shared Devices which Customer utilizes in association with or
in conjunction with other customers of Sabre.
b. "Mission Critical" means those Servers whose outage or
performance degradation would cause substantial impact to
Customer's business.
c. "Non-Mission Critical" means those Servers whose outage or
performance degradation would not cause substantial impact to
Customer's business.
d. "Port" means a network access point for data entry or exit
through the firewall.
e. "Server" means a logical server, evidenced by each instance of
a unique operating system that resides on either shared or
distinct computing machinery.
2. CHARGES FOR DATA AND VOICE SERVICES.
a. MANAGED NETWORK CHARGES. For each of the following types of
Data and Voice Services, Customer shall pay the charges
assessed to Sabre by the applicable Third Party communications
provider, together with the monthly management fee described
below:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
b. DIRECT SERVICES. For each of the following Data and Voice
Services provided by Sabre, Customer shall pay the monthly
charge described below:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
B. EXCLUSIVE VARIABLE SERVICES.
1. [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] The charges
for the following categories (which are not intended to be
exclusive) of Exclusive Variable Services shall be as follows:
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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Schedule 9: Development Services Budget
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 10: SABRE SOFTWARE
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 11: REQUIRED CONSENTS
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 12: CUSTOMER ASSETS
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
TRAVELOCITY SOFTWARE
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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SCHEDULE 13: DISPUTE RESOLUTION PROCEDURES
1. CERTAIN DEFINITIONS
This Section 1 sets forth certain definitions used in this Dispute Resolution
Process. Other capitalized terms used but not defined here in have the meanings
ascribed to them in the Agreement.
ARBITRATION RULES
The rules of the American Arbitration Association ("AAA") in effect on the date
of the commencement of the arbitration.
CONTRACT ADMINISTRATION PROCESS
The Contract Administration Process is the process set forth on SCHEDULE 7 to
the Agreement.
QUALIFICATIONS
Having extensive knowledge or experience, or both, regarding information
technology services similar to the Base Services or the Variable Services that
are the subject of the Dispute, and fluent in English.
2. DISPUTE RESOLUTION PROCEDURE.
(a) GENERAL PROCEDURE.
The Parties shall resolve all Disputes in accordance with this
procedure:
(i) Disputes shall first be submitted to the Account
Managers or the Steering Committee as indicated in
Section 3 of this Schedule.
(ii) If a Dispute is not resolved by the Account Managers
or the Steering Committee, then either Party may
submit the Dispute to mediation as outlined in
Section 4 of this Schedule.
(iii) If a Dispute is not resolved by mediation, then
either Party may submit the Dispute to binding
arbitration in accordance with Section 5 of this
Schedule.
A referral under either Section 2(a)(ii) and/or 2(a)(iii) of
this Schedule shall be made by written notice to the Account
Managers. That notice shall be in a form mutually agreed to by
the Account Managers or an electronic mail message and
addressed to each Account Manager at his or her office address
or electronic mail address; each notice shall be given and
effective upon actual receipt.
3. DISPUTE RESOLUTION.
(a) ACCOUNT MANAGEMENT ACTION.
If the Dispute (a) involves less than [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] in capital, (b) involves
less than [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED],
and (c) does not require an amendment to the Base Services,
the Variable Services, Fees or any other material term of the
Agreement, the Account Mangers will discuss the Dispute in
good faith in an attempt to resolve the Dispute to the mutual
satisfaction of both Parties. If the Account Managers are
unable to resolve the Dispute to the mutual satisfaction of
both Parties within [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after receipt of written notice by one Party from
the other that a Dispute exists, the Dispute shall be referred
to the Steering Committee.
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(b) STEERING COMMITTEE ACTION.
If the Dispute (a) involves (i) [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] in capital, (ii) requires [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] of labor or more, and/or
(ii) requires an amendment to the Base Services, the Variable
Services, Fees or any other material term of the Agreement, or
(b) is within the authority of, but not resolved by, the
Account Managers, then the Steering Committee will discuss the
Dispute in good faith in an attempt to resolve the Dispute to
the mutual satisfaction of both Parties. If the Steering
Committee is unable to resolve the Dispute to the mutual
satisfaction of both Parties within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after receipt of written
notice by one Party from the other that a Dispute exists,
the Dispute shall, at the written request of either Party,
be submitted to mediation as outlined in Section 4 of this
Schedule.
4. MEDIATION.
The mediation of an unresolved Dispute shall be conducted in this manner:
(a) Either Party may submit the Dispute to mediation by giving
notice of mediation to the other Party. The Parties shall
attempt to agree promptly after that notice is given upon and
appoint a sole mediator who has the Qualifications.
(b) If the Parties are unable to agree upon a mediator within
[TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the
date the Dispute is submitted to mediation, either Party may
request the Dallas, Texas office of the AAA to appoint a
mediator who has the Qualifications. The mediator so appointed
shall be deemed to have the Qualifications and to be accepted
by the Parties.
(c) The mediation shall be conducted in Dallas, Texas at a place
and a time agreed by the Parties with the mediator, or if the
Parties cannot agree, as designated by the mediator. The
mediation shall be held within [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after the mediator is appointed.
(d) If either Party has substantial need for information from the
other Party in order to prepare for the mediation, the Parties
shall attempt to agree on procedures for the formal exchange
of information; if the Parties cannot agree, the mediator's
determination shall be effective.
(e) Each Party shall be represented in the mediation by a natural
person with authority to settle the Dispute on behalf of that
Party and, if desired by that Party, by counsel for that
Party. The Parties' representatives in the mediation shall
continue with the mediation as long as the mediator requests.
(f) Unless otherwise agreed by the Parties, each Party shall pay
one-half of the mediator's fees and expenses and shall bear
all of its own expenses in connection with the mediation.
Neither Party may employ or use the mediator as a witness,
consultant, expert, or counsel regarding the Dispute or any
related matters.
5. ARBITRATION.
The arbitration of an unresolved Dispute shall be conducted in this manner:
(a) Either Party may begin arbitration by filing a demand for
arbitration in accordance with the Arbitration Rules. The
Parties shall attempt to agree upon and appoint a panel of
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three (3) arbitrators promptly after that demand is filed.
Each of those arbitrators must have the Qualifications unless
otherwise agreed by both Parties.
(b) If the Parties are unable to agree upon any or all of the
arbitrators within [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED] after the demand for arbitration was filed (and do
not agree to an extension of that [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]), then each Party shall designate one
arbitrator with Qualifications and the AAA shall designate a
third, if possible, with Qualifications; nevertheless, such
arbitrator so appointed shall be deemed to have the
Qualifications and to be accepted by the Parties as part of
the panel.
(c) The arbitration shall be conducted in Dallas, Texas at a place
and a time agreed by the Parties with the panel, or if the
Parties cannot agree, as designated by the panel. The panel
may, however, call and conduct hearings and meetings at such
other places as the Parties may agree or as the panel may, on
the motion of one Party, determine to be necessary to obtain
significant testimony or evidence.
(d) The Parties shall attempt to agree upon the scope and nature
of any discovery for the arbitration. If the Parties do not
agree, the panel may authorize any and all forms of discovery,
including depositions, interrogatories, and document
production, upon a showing of particularized need that the
requested discovery is likely to lead to material evidence
needed to resolve the Dispute and is not excessive in scope,
timing, or cost.
(e) The arbitration shall be subject to the Federal Arbitration
Act and conducted in accordance with the Arbitration Rules to
the extent they do not conflict with this Section 5. The
Parties and the panel may, however, agree to vary the
provisions of this Section 5 or the matters otherwise governed
by the Arbitration Rules.
(f) The panel has no power to:
(i) rule upon or grant any extension, renewal, or
continuance of the Agreement;
(ii) award remedies or relief either expressly prohibited
by the Agreement or under circumstances not permitted
by the Agreement; or
(iii) grant provisional or temporary injunctive relief
before rendering the final decision or award.
(g) Unless the Parties otherwise agree, all Disputes regarding or
related to the same topic or event that are subject to
arbitration at one time shall be consolidated in a single
arbitration proceeding.
(h) A Party or other person involved in an arbitration under this
Section 5 may join in that arbitration any person other than a
Party if:
(i) the person to be joined agrees to resolve the
particular dispute or controversy in accordance with
this Section 5 and the other provisions of this
Schedule applicable to arbitration; and
(ii) the panel determines, upon application of the person
seeking joinder, that the joinder of that other
person will promote the efficiency, expedition, and
consistency of the result of the arbitration and will
not unfairly prejudice any other Party to the
arbitration.
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(i) The arbitration hearing shall be held within [TEXT OMITTED -
CONFIDENTIAL TREATMENT REQUESTED] after the appointment of the
panel. Upon request of either Party, the panel shall arrange
for a transcribed record of the arbitration hearing, to be
made available to both Parties.
(j) The panel's final decision or award shall be made within [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] after the hearing.
That final decision or award shall be made by unanimous or
majority vote or consent of the arbitrators constituting the
panel, shall be deemed issued at the place of arbitration and
shall be made in U.S. dollars. The panel shall issue a
reasoned written final decision or award based on the
Agreement and Texas law; the panel may not act according to
equity and conscience or as an amicable compounder or apply
the law merchant.
(k) The panel's final decision or award may include:
(i) recovery of general damages to the extent permitted
by the Agreement (but not consequential, exemplary or
punitive damages); or
(ii) injunctive relief in response to any actual or
threatened breach of the Agreement or any other
actual or threatened action or omission of a Party
under or in connection with the Agreement.
(l) The panel's final decision or award shall be final and binding
upon the Parties, and judgment upon that decision or award may
be entered in any court having jurisdiction over either or
both of the Parties or their respective assets. The Parties
specifically waive any right they may have to apply or appeal
to any court for relief from the preceding sentence or from
any decision of the panel made, or any question of law
arising, before the final decision or award; and the Parties
shall not dispute nor question the validity of such award
before any regulator or other authority in any jurisdiction
where enforcement action is taken by the Party or Parties in
whose favor the award was rendered. If any decision by the
panel is vacated for any reason, the Parties shall submit that
Dispute to a new arbitration in accordance with this Section
5.
(m) Each Party shall pay one-half of the arbitrators' fees and
expenses, and shall bear all of its own expenses in connection
with the arbitration. The panel has the authority, however, to
award recovery of all costs and fees (including attorneys'
fees, administrative fees and the panel's fees and expenses)
to the prevailing Party in the arbitration.
6. RECOURSE TO COURTS.
Nothing in this Schedule limits the right of either Party to apply to a court
or other tribunal having jurisdiction to:
(a) enforce this Schedule, including the agreement to arbitrate in
this Schedule;
(b) seek provisional or temporary injunctive relief, in response
to an actual or impending breach of Sections 4.1, 7.1 and 9.2
of the Agreement or otherwise so as to avoid irreparable
damage or maintain the status quo, until a final arbitration
decision or award is rendered or the Dispute is otherwise
resolved; or
(c) challenge or vacate any final arbitration decision or award
that does not comport with Section 5 of this Schedule.
7. SUBMISSION TO JURISDICTION.
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Each Party irrevocably submits to the jurisdiction of the federal courts of
the United States and the state courts of Texas located in Fort Worth. Each
Party waives any defense or challenge to that jurisdiction based on lack of
personal jurisdiction, improper venue, or inconvenience of forum.
8. CONFIDENTIALITY.
The proceedings of all negotiations, mediations, and arbitrations shall be
privately conducted. The Parties shall keep confidential all conduct,
negotiations, documents, decisions, and awards in connection with those
proceedings under this Schedule.
9. EXCLUSIVE REMEDY.
Other than those matters involving injunctive or other extraordinary relief or
any action necessary to enforce the award of the arbitrator, the Parties agree
that the provisions of this Schedule are a complete defense to any suit,
action or other proceeding instituted in any court or before any
administrative tribunal with respect to any Dispute or the provision of the
Base Services or Variable Services by Sabre. Nothing in this Schedule prevents
the Parties from exercising their rights to terminate the Agreement in
accordance with Section 11.2 of the Agreement.
10. CONTINUED PERFORMANCE; ESCROW ACCOUNT.
Unless (a) Sabre has commenced a proceeding or has presented a claim for
nonpayment by Customer of amounts due under the Agreement, and Customer does
not promptly pay all amounts in dispute into the escrow account referred to
below, or (b) the Agreement has been terminated in accordance with Section
11.2, Sabre will continue to provide the Base Services and Variable Services
during any dispute resolution proceedings (whether informal or formal)
commenced pursuant to this Schedule and Customer will continue to perform its
obligations (including the making of payments to Sabre) in accordance with the
Agreement. Up to the maximum amount in dispute, any disputed payment will be
paid pending resolution of the Dispute into an escrow account that is
structured by agreement of the Parties or, if agreement cannot be reached, as
directed by the mediator or arbitrator, as the case may be, engaged in
accordance with this Schedule. Any such escrow account will provide for the
payment of interest on the amounts deposited therein, and the Parties (if the
Dispute is resolved informally) or the mediator or arbitrator, as the case may
be (if the Dispute is resolved formally), will make the determination
regarding distribution of such deposited amounts plus interest. If Customer
fails to escrow disputed payments as required by the Agreement, Sabre may
apply to any court of competent jurisdiction to seek injunctive relief for
such failure and will have the right to terminate the Agreement in accordance
with Section 11.2(a) of the Agreement.
11. OTHER.
(a) U.N. CONVENTION.
The enforcement of any arbitral award will be in accordance
with and governed by the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral Awards.
(b) LANGUAGE.
Negotiations, mediations and arbitrations will be conducted in
the English language.
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SCHEDULE 14: NOTICES
If to Sabre:
Sabre Inc.
MD 4204
4255 Amon Carter Blvd.
Fort Worth, TX 76155
Fax: (817) 967-1215
Attention: President
With a copy to:
Sabre Inc.
MD 4204
4255 Amon Carter Blvd.
Fort Worth, TX 76155
Fax: (817) 967-1215
Attention: General Counsel
If to Customer:
Travelocity.com LP
4200 Buckingham Road, MD 1400
Fort Worth, Texas 76155
Fax: (817) 963-8869
Attention: President
With a copy to:
Travelocity.com LP
4200 Buckingham Road, MD 1400
Fort Worth, Texas 76155
Fax: (817) 963-8869
Attention: General Counsel
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SCHEDULE 15: TERMINATION ASSISTANCE
Sabre will provide the following Termination Assistance Services:
1. Sabre will continue to perform, during the specified Termination
Assistance Period, any or all of the Services then being performed by
Sabre.
2. Sabre will develop, with the assistance of Customer, a plan for the
transition of Services from Sabre to Customer or Customer's designee.
3. Sabre will provide training to Customer personnel in the performance
of the Services then being performed by Sabre.
4. Sabre will make available to Customer, pursuant to mutually agreeable
terms and conditions, any Third Party IT Services obtained by Sabre
that are then dedicated solely to the performance of Services
hereunder, which terms and conditions permit Customer to assume
Sabre's rights and obligations with respect to any such Third Party IT
Services.
5. Sabre will provide to Customer copies of documentation and procedures
then in existence that are necessary to provide the Services.
Documentation and procedures located on magnetic media will be
delivered on magnetic media; those contained on other media (such as
paper) will be duplicated and delivered at Customer's expense.
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SCHEDULE 16: TELECOMMUNICATIONS PROVISIONS
1. AGENCY. Customer will if requested by Sabre provide a letter of agency
in form and substance reasonably satisfactory to Sabre and the vendors
designating Sabre to act as agent for Customer with respect to all
matters related to obtaining the telecommunications services from the
vendors. Customer shall do, or cause to be done, all such further acts
and to execute, acknowledge, and deliver, or cause to be executed,
acknowledged, and delivered, all such further documentation (including
billing transfer letters) as Sabre may reasonably request in
connection with Customer's use of the Data and Voice Services and the
network portion of the Web Hosting Services. Customer acknowledges
that Sabre's performance of its obligations under this Agreement, and
the timing of such performance, depend upon Sabre's ability to
acquire the telecommunications services from the vendors on terms
that will allow the telecommunications services to be managed for
Customer in the manner contemplated hereby.
2. USE OF THE DATA AND VOICE SERVICES AND THE WEB HOSTING SERVICES.
Customer will be responsible for all use (whether authorized and
unauthorized) of the Data and Voice Services and the Web Hosting
Services, and for complying with all obligations that are applicable
to Customer as set forth in this Agreement or in any tariff,
regulation, or agreement with the vendors. In particular, Customer
will be responsible for the protection of all transmission facilities
from unauthorized access, for the selection of the appropriate access
control products or services, and for the proper use of such products
or services.
Customer will not: (i) use the Data and Voice Services or the Web
Hosting Services (including related networks and circuits) made
available by Sabre under this Agreement for purposes other than for
which they are designed, which are lawful, and which are intended by
this Agreement; (ii) perform or attempt any alteration of or tampering
with the networks or circuits provided as part of the Data and Voice
Services or the Web Hosting Services; (iii) use the Data and Voice
Services or the Web Hosting Services in a manner which interferes with
the use by any Authorized Sabre User (defined below); or (iv) use the
Data and Voice Services or the Web Hosting Services for any purpose or
in any manner directly or indirectly in violation of the law or in aid
of any unlawful act or undertaking. As used in this Agreement,
"AUTHORIZED SABRE USER" means any person or entity authorized by Sabre
to use any Data and Voice Services or any Web Hosting Services managed
by Sabre, including the Data and Voice Services and the Web Hosting
Services. Sabre will have no liability whatsoever to Customer arising
out of or relating to the illegal or fraudulent use of the Data and
Voice Services or the Web Hosting Services by any Third Party.
3. TELECOMMUNICATIONS EQUIPMENT. Other than the Wide Area Network
Routers, Customer will provide all telecommunications equipment and
related services that are required at all Customer locations to which
the Data and Voice Services and the network portion of the Web
Hosting Services will be provided (the "TELECOMMUNICATIONS
EQUIPMENT"). Customer will be responsible for the operation and
maintenance of the Telecommunications Equipment, including any
transfers, modifications, or adjustments of the Telecommunications
Equipment or any configurations thereof. In addition, Customer will
be responsible for any termination or other liabilities under any
supplier contracts the services under which will be replaced by the
Data and Voice Services or the network portion of the Web Hosting
Services, as well as for any deinstallation activities that are
required before performance of the Data and Voice Services or the
network portion of the Web Hosting Services can begin.
4. REGULATORY REQUIREMENTS.
(a) The parties expressly acknowledge that this SCHEDULE 16 has
been negotiated, and the Data and Voice Services and Web
Hosting Services have been uniquely customized, to satisfy the
special requirements of Customer. The Data and Voice Services
and Web Hosting Services are private services and are not
common carrier services.
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(b) If a vendor amends or obtains revisions to, or withdraws, any
tariff covering the Data and Voice Services or the Web Hosting
Services and that action materially impairs Sabre's ability to
provide the Data and Voice Services or the Web Hosting
Services, Sabre may, in its sole discretion, (i) negotiate
modifications to this Agreement with Customer, or (ii) without
any liability whatsoever, terminate the affected Data and
Voice Services or the affected Web Hosting Services, in whole
or in part, by giving Customer at least 30 days' prior notice
of the nature and effective date of such termination and
provide to Customer a pro-rata refund of any prepaid charges,
subject to any limitations set forth in this Agreement. In no
event will Sabre be considered in breach or default as a
result of the occurrence of any of the preceding
circumstances.
(c) In no event will Sabre have any liability to Customer as a
result of (i) any regulatory requirements imposed by any
agency of the United States or Customer jurisdiction
government, state, or local governments or applicable foreign
government on a vendor or (ii) any independent actions that a
vendor may undertake which alter the terms, conditions, or
methodology for providing the Data and Voice Services or the
Web Hosting Services, or render the provision of the Data and
Voice Services or the Web Hosting Services unlawful.
(d) If, at any time, the prices charged under a tariff by a vendor
to Sabre for the transmission of data over a network or
circuit increases or decreases, then Sabre may, if an increase
(and will if a decrease) by written notice to Customer (which
notice will be sent by Sabre within 30 days following when
Sabre learns that the tariff prices have changed), increase or
decrease, as the case may be, Sabre's fees by a percentage
equal to the percentage increase, or decrease, by which such
new tariff prices are higher or lower, than the prices
previously charged under tariff by the vendor to Sabre. Such
recalculated fees will remain in effect unless and until Sabre
adjusts the same pursuant to this paragraph.
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