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CONFIDENTIAL
THIS AGREEMENT HAS CONFIDENTIAL PORTIONS OMITTED, WHICH PORTIONS HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. OMITTED PORTIONS
ARE INDICATED IN THIS AGREEMENT WITH "[TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]."
AMENDED AND RESTATED INTELLECTUAL
PROPERTY AGREEMENT
In this Agreement, SABRE INC., a corporation organized and existing
under the laws of the State of Delaware and having a principal place of
business at Fort Worth, Texas (hereinafter "Sabre"), and Travelocity.com LP, a
limited partnership organized and existing under the laws of Delaware and
having a principal place of business at Fort Worth, Texas (hereinafter
"Travelocity"), agree as follows:
RECITAL:
This Agreement amends and restates, effective as of March 7, 2000,
the Intellectual Property Agreement, with an effective date of March 7, 2000,
between Sabre and Travelocity.
1. DEFINITIONS
1.1 "Common Internet Architecture" or "CIA" means existing and
future versions of the functional software module that
provides a common interface between Internet applications and
the Sabre host (i.e., the Sabre Table Builder (STB)).
1.2 "Effective Date" means March 7, 2000, at the time on such date
immediately after giving effect to the consummation of the
transaction described in that certain Bill of Contribution,
Assignment and Assumption Agreement, dated March 7, 2000,
between Sabre Inc. and
Travelocity.com LP.
1.3 "Existing Clone" means the product in existence and owned by
Travelocity as of the Effective Date of this Agreement that
Travelocity uses to distribute consumer-direct Internet travel
services and products.
1.4 "Existing Contract" means any contract or agreement between a
Party to this Agreement and a third party that was in
existence and enforceable on 3 October 1999.
1.5 "Existing IP" means all IP owned by a Party as of the
Effective Date of this Agreement.
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1.6 "Future Clone" means any new or updated version of the
Existing Clone, which new or updated version is created,
developed or acquired during the Pool Term.
1.7 "Intellectual Property" or "IP" means and includes (a)
inventions whether or not patented or patentable and all
worldwide patent rights to such inventions, (b) technical
information and knowhow, and (c) software and related
documentation and all worldwide copyrights therein. IP does
not include customer data, customer profiles, marketing plans,
market intelligence data and similar non-technical
information.
1.8 "Joint Interest IP" means IP made jointly by the Parties
pursuant to a joint development, funding or other similar
agreement between the Parties.
1.9 "Made IP" means all IP made or acquired by a Party during the
Pool Term without funding from the other Party.
1.10 "New Contract" means any new contract or agreement between a
Party to this Agreement and a third party that is entered into
after 3 October 1999 and any renewal or extension of an
Existing Contract that becomes effective after 3 October 1999.
1.11 "Non-Competition Agreement" means the agreement between the
Parties entitled "Non-Competition Agreement" having an
effective date of March 7, 2000.
1.12 "Party" means Sabre or Travelocity individually and "Parties"
means Sabre and Travelocity collectively.
1.13 "Pool IP" [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
1.14 "Pool Term" means the period from 3 October 1999 until the
fifteenth (15th) anniversary of the Effective Date of this
Agreement, unless the obligation to contribute to Pool IP is
earlier terminated pursuant to the terms of this Agreement.
1.15 "Premium IP" means IP made solely by one Party during the Pool
Term and paid for by the other Party at premium rates as
provided in the Technology Services Agreement.
1.16 "Sabre Direct Competitor" [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]
1.17 "Sabre Pool IP" [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]
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1.18 "Standard IP" means IP made solely by one Party during the
Pool Term and paid for by the other Party at standard rates as
provided in the Technology Services Agreement.
1.19 "Technology Services Agreement" means an agreement between the
Parties entitled "Information Technology Services Agreement"
having an effective date of March 7, 2000.
1.20 "Travelocity Direct Competitor" [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED]
1.21 "Travelocity Pool IP" [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]
2. OWNERSHIP, MAINTENANCE AND ENFORCEMENT OF IP
2.1 Each Party will retain all ownership interest in Existing IP
as it had as of the Effective Date.
2.2 Each Party will own all right, title and interest in and to
all Made IP, Standard IP and Premium IP made or acquired by it
during the Pool Term.
2.3 Each Party will control and pay for necessary legal
protection, including patents and copyrights where
appropriate, for all IP solely owned by it during the term of
this Agreement, PROVIDED, HOWEVER, that no Party will have any
obligation to obtain or maintain any legal protection for IP,
owned solely by such Party.
2.4 Joint Interest IP will be jointly owned by the Parties in
accordance with the terms of the agreement pursuant to which
such Joint Interest IP was made ("Joint Development
Agreement"). Any rights or obligations with respect to
obtaining and maintaining legal protection for Joint Interest
IP will be allocated in accordance with the terms of the Joint
Development Agreement. Each Party will cooperate with the
other Party in any action brought by the other Party to
enforce Joint Interest IP.
2.5 No Party will have any obligation to enforce or defend any IP.
If one Party wishes to enforce any Pool IP against a third
party, the other Party will cooperate in such enforcement at
the one Party's expense.
3. POOL IP
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3.1 During the Pool Term, each Party will disclose to the other
Party all Pool IP within [TEXT OMITTED - CONFIDENTIAL
TREATMENT REQUESTED] after a prototype is made or acquired.
All software within Pool IP will be disclosed to the other
Party in executable and source code versions and such
disclosure will include all applicable documentation.
3.2 To the extent a Party considers any of its Pool IP to be
proprietary and confidential, the Party may disclose it to the
other Party in confidence. Such disclosure shall be in writing
or other tangible form that is marked as confidential and
proprietary to the disclosing Party. The other Party will
receive and maintain such Pool IP in confidence and will treat
it as it does its own proprietary information. Obligations of
confidentiality shall not apply to Pool IP that becomes part
of the public domain through no fault of the receiving Party,
that the receiving Party can show by documentary evidence was
in its possession prior to disclosure of such Pool IP, or that
was rightfully communicated to the receiving Party by a third
party free of any obligation of confidence owed by such third
party to the other Party.
3.3 [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
3.4 Each Party will be free to use and to fully exploit in its own
business throughout the world all Pool IP owned by it.
4. POOL IP LICENSE RIGHTS
4.1 Sabre may grant a license to any third party under any Sabre
Pool IP, except for Premium IP, to use and fully exploit such
Sabre Pool IP.
4.2 Sabre may grant a license under any Premium IP that is a part
of Sabre Pool IP to any third party who, at the time such
license is granted, is not a Travelocity Direct Competitor.
4.3 Travelocity may grant a license to any third party under any
Travelocity Pool IP, except for Premium IP, to use and fully
exploit such Travelocity Pool IP.
4.4 Travelocity may grant a license under Premium IP that is a
part of Travelocity Pool IP to any third party who, at the
time such license is granted, is not a Sabre Direct
Competitor.
4.5 [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
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4.6 Travelocity hereby grants to Sabre a perpetual, worldwide,
non-exclusive, royalty-free license to all Travelocity Pool IP
for the unrestricted use and exploitation by Sabre in its
business. Travelocity further grants to Sabre the right to
grant sublicenses under any Travelocity Pool IP (regardless of
which party paid for the IP or at what rate it was paid for)
to any third party who, at the time such sublicense is
granted, is not a Travelocity Direct Competitor.
4.7 Any software included in a Party's Pool IP shall include
applicable documentation and (a) shall be licensed to the
other Party in both source code and executable code, and (b)
may be licensed or sublicensed to third parties in executable
code only.
4.8 [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
5. THIRD PARTY CONTRACTS
5.1 Nothing in this Agreement will prevent a Party from complying
with any Existing Contract. If required by an Existing
Contract with a third party, a Party may grant a license under
Premium IP paid for by the other Party and a sublicense under
the other Party's Pool IP to the third party even if the third
party is or becomes a Direct Competitor of the other Party.
5.2 Any New Contract with a third party will be subject to the
provisions and restrictions of Article 4 of this Agreement
relating to Direct Competitors of the other Party. In the
event such a third party becomes a Direct Competitor after any
such New Contract has been executed, (a) the third party will
be permitted to use whatever IP was originally the subject of
the New Contract in accordance with the terms of that
contract, and (b) each party acknowledges that thereafter it
can not grant to such third party additional rights or
extension of rights under any Pool IP that is subject to the
Direct Competitor provisions and restrictions outlined in
Section 4 of this Agreement.
6. ROYALTY AND LICENSE FEE
6.1 Except as provided in this Article 6 of this Agreement, no
Party will be obligated to pay to the other Party any fee,
royalty or any form of monetary consideration for use,
exploitation or sublicensing of Pool IP.
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6.2 Travelocity hereby grants to Sabre the right and license to
use the Existing Clone in its business and grants to Sabre the
right to grant sublicenses to third parties who are not
Travelocity Direct Competitors.
6.3 [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED]
6.4 Upon request by Sabre, Travelocity will deliver to Sabre any
Future Clone and will grant to Sabre a license to use any
Future Clone in its business and to grant sublicenses to third
parties who are not Travelocity Direct Competitors.
6.5 If, after the Effective Date of this Agreement, Sabre grants a
sublicense to a third party to use any Future Clone, Sabre
will notify Travelocity of the sublicense within [TEXT OMITTED
- CONFIDENTIAL TREATMENT REQUESED] after execution thereof and
will pay to Travelocity [TEXT OMITTED - CONFIDENTIAL TREATMENT
REQUESTED]
7. TERM AND TERMINATION
7.1 All rights granted to and restrictions imposed on a Party
pursuant to this Agreement with respect to any Pool IP will
continue in perpetuity. Termination of this Agreement for any
reason will not affect rights granted or obligations assumed
prior to the date of such termination.
7.2 If Sabre either: (a) materially breaches the Noncompetition
Agreement, during the term thereof; or (b), after expiration
of the non-competition restriction provided in the
Noncompetition Agreement, Sabre commences a business that
would have been subject to the non-competition restriction, or
acquires Control (as defined in the Non-Competition Agreement)
of such a business; then, in either such event, Travelocity,
by [TEXT OMITTED - CONFIDENTIAL TREATMENT REQUESTED] advance
written notice to Sabre, may terminate the portion of this
Agreement that obligates both parties to contribute to Pool
IP.
7.3 If at any time Travelocity commences (or acquires Control of)
a business of distribution (a) of travel inventory directly to
travel agents or corporations, or (b) of travel technology to
any travel industry suppliers (e.g., airlines, car companies,
hotels, cruise lines and tour companies), then Sabre, by [TEXT
OMITTED - CONFIDENTIAL TREATMENT REQUESTED] advance written
notice to Travelocity, may terminate the portion of this
Agreement that obligates both parties to contribute to Pool
IP.
7.4 The obligation of each party to contribute to Pool IP will
automatically terminate in the event Sabre no longer controls
Travelocity. Sabre shall be considered to have "control" of
Travelocity.com so long as Sabre has (a) direct or indirect
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ownership of, or the unrestricted right to acquire such
ownership of, at least 20% of the limited partnership units or
other ownership interests in Travelocity, and (b) effective
control, by contract or otherwise, of the management,
governance and activities of Travelocity.
7.5 Either Party may terminate the portion of this Agreement that
obligates both parties to contribute to Pool IP upon written
notice to the other Party in the event the other Party becomes
insolvent, makes a general assignment for the benefit of
creditors, suffers or permits the appointment of a receiver
for its business or assets, becomes subject to any proceeding
under any bankruptcy or insolvency law whether domestic or
foreign, or has wound up or liquidated, voluntarily or
otherwise.
7.6 Termination as provided herein will not be a Party's sole
remedy, and each Party hereby reserves all rights and remedies
at law or in equity for any breach by the other Party of any
term of this Agreement.
7.7 Termination of the obligation to contribute to Pool IP shall
not affect the rights of either party to Pool IP in existence
before the date of such termination. All rights and
obligations that accrued prior to termination of the
obligation to contribute to Pool IP will continue in full
force and effect.
8. ASSIGNMENT
Neither this Agreement, nor any rights granted or obligations imposed
hereby, may be assigned or encumbered by either party without the
prior written consent of the other party.
9. MISCELLANEOUS
9.1 A waiver of any breach of any provision of this Agreement
shall not be construed as a continuing waiver of other
breaches of the same or other provisions of this Agreement.
9.2 Nothing herein shall be deemed to create an agency, joint
venture or partnership relation between the parties hereto.
9.3 This Agreement constitutes the entire agreement and
understanding of the Parties with regard to the IP that is the
subject matter hereof and merges and supersedes all prior
discussions, negotiations, understandings and agreements
between the parties concerning the subject matter hereof. This
Agreement does not supersede the other agreements being
executed by the Parties contemporaneously with the execution
of this Agreement, including the Sabre Access Agreement,
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Noncompetition Agreement, and Information Services Technology
Agreement. Neither party shall be bound by any definition,
condition, warranty, right, duty or covenant other than as
expressly stated in this Agreement or as subsequently set
forth in a written document signed by both parties. Each party
expressly waives any implied right or obligation regarding the
subject matter hereof.
9.4 This Agreement shall be interpreted and construed, and the
legal relations created herein shall be determined, in
accordance with the laws of the State of Texas (excluding
conflicts of laws) and of the United States.
9.5 This Agreement may be amended only by a written document
signed by authorized representatives of both Parties.
9.6 Each party hereto agrees to execute, acknowledge and deliver
all such further instruments, and to do all such further acts,
as may be necessary or appropriate to carry out the intent and
purposes of this Agreement.
9.7 Should any part or provision of this Agreement be held
unenforceable or in conflict with the law of any jurisdiction,
the validity of the remaining parts or provisions shall not be
affected by such holding. In the event a part or provision of
this Agreement held unenforceable or in conflict with law
affects consideration to either Party, the Parties agree to
negotiate in good faith amendment of such part or provision in
a manner consistent with the intention of the Parties as
expressed in this Agreement.
9.8 Neither Party shall be responsible or liable to the other
Party for nonperformance or delay in performance of any terms
or conditions of this Agreement due to acts or occurrences
beyond the control of the non-performing or delayed Party,
including but not limited to, acts of God, acts of government,
wars, riots, strikes or other labor disputes, shortages of
labor or materials, fires and floods, provided the
nonperforming or delayed Party provides to the other Party
written notice of the existence and the reason for such
nonperformance or delay.
9.9 (a) Any and all notices or other communications required or
permitted by this Agreement or by law to be served on or given
to either party hereto by the other party shall be in writing
and delivered or sent to:
To Sabre:
Sabre Inc.
MD 4204
4255 Amon Carter Blvd.
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CONFIDENTIAL
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
To Travelocity:
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
Each party may change its address for purposes of this
Agreement by written notice to the other party.
(b) All notices or other communications shall be deemed duly
served and given on the date when personally delivered to the
party to whom it is directed, when transmitted electronically
by telex or facsimile, or when deposited in the United States
mail, first class, postage prepaid, and addressed to the party
at the address in Paragraph 9.9(a).
9.10 This Agreement shall be executed by each Party in duplicate
originals, each of which shall be deemed an original, but both
originals together shall constitute only one and the same
instrument.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of
the Effective Date.
SABRE INC.
/s/ Jeffrey M. Jackson
-------------------------------
Signature
Jeffrey M. Jackson
-------------------------------
Name
Sr. V.P. and CFO
-------------------------------
Title
March 7, 2000
-------------------------------
Date
TRAVELOCITY.COM LP
/s/ Andrew B. Steinberg
-------------------------------
Signature
Andrew B. Steinberg
-------------------------------
Name
Sr. Vice President, General
Counsel and Corporate Secretary
of Travelocity Holdings, Inc.,
its general partner
-------------------------------
Title
March 7, 2000
-------------------------------
Date
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