Sabre TravelBase System Lease Agreement - Sabre Travel Information Network, American Airlines Inc. and Cheap Tickets Inc.
SABRE TRAVELBASE SYSTEM LEASE AGREEMENT
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The SABRE TravelBase System Lease Agreement (the "Agreement") is entered
into by and between the SABRE Travel Information Network, a division of American
Airlines, Inc. ("American") and the undersigned ("Customer"), as of the date
executed by American below ("Effective Date") regarding the provision of
products and services set forth herein.
Article 1 - Term
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1.1 The term of the SABRE TravelBase System shall commence on the completion
of data conversion (the "Effective Date") and shall continue in effect for the
number of months as stated on the Schedule ("Initial term") unless terminated as
provided herein. Any additional SABRE TravelBase System installed subsequent to
the date of execution of this Agreement by American shall be subject to the
terms and conditions of this Agreement and shall have a term as specified on the
Supplement ("Additional Term"), commencing on the date of installation. Upon
expiration of the applicable term, the Agreement for such SABRE TravelBase
System shall continue on a month-to-month basis until termination by either
party upon thirty days notice.
Article 2 - Definitions
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2.1 Agreement means this SABRE TravelBase System Lease Agreement, and all
Amendments, Schedules and Supplements made a part hereof.
2.2 Confidential Information means this Agreement, any and all applicable
rights to patents, copyrights, trademarks and trade secrets, proprietary and
confidential information of American or its affiliates, subsidiaries, successors
or assigns concerning their past, present or future research, development,
business activities or affairs, finances, properties, methods of operation,
processes and systems, agreements, related to the business of American.
2.3 Instructions means any and all manuals, operation procedures,
manufacturer's recommendations, rules and instructions delivered or made
available to Customer (either in hard copy, verbally or on-line) all of which
must be complied with by Customer. Such Instructions may be unilaterally
revised or amended by American at any time in its sole discretion.
2.4 SABRE TravelBase System means the Standard Equipment, SABRE TravelBase
System Components, Instructions and/or the SABRE TravelBase System Software as
identified on the Schedule and all Supplements.
2.5 SABRE TravelBase System Component means all memory, disk storage space,
ports, workstations, printers and any other element of the Standard Equipment.
2.6 SABRE TravelBase System Software means that Software delivered by
American to Customer as identified on the Schedule and all Supplements including
all upgrades, improvements, enhancements and modifications thereto.
2.7 Schedule means the document reflecting the Charges and term for the SABRE
TravelBase System.
2.8 Standard Equipment means the items of computer hardware leased to
Customer by American in accordance with this Agreement.
2.9 Supplement means the document reflecting any changes to the SABRE
TravelBase System, and/or charges or credits related thereto.
Article 3 - Charges and Payment
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3.1 Prepayment. Upon execution, Customer shall pay to American the
prepayment as shown on the Schedule. When the SABRE TravelBase System is
installed, the prepayment shall be credited against the Customer's first
Charges.
3.2 Charges. All amounts payable to American ("Charges") shall be due and
payable within fifteen days of the date of American's invoice, without set off
or counterclaim.
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3.3 Additional Charges. Customer agrees to pay to American an additional
charge at American's then prevailing rate for services and materials including
without limitation the following: (a) the installation or removal of Standard
Equipment; (b) excess cable or teflon coated cable required for installation;
(c) Standard Equipment relocation within the site; (d) additional support and
expenses outside of the scope of this Agreement.
3.4 Increases. American shall have the right to increase the Charges as
shown on the Schedule and any Supplements for the remaining term of this
Agreement upon thirty days written notice to the Customer. The total amount of
such increase shall not exceed ten percent of the Charges in any consecutive
twelve-month period. Hardware maintenance payments may be increased; however,
such increase may not be more than a rounded-up percentage equal to the
percentage of increase charged to American by its maintenance vendors.
3.5 Interest. Charges not paid when due shall accrue interest at the rate of
eighteen percent per annum or the highest rate permitted by Texas law, whichever
is less.
3.6 Taxes. Customer shall pay any taxes, or assessments including any
interest or penalty thereon levied as a result of this Agreement, excluding
taxes measured by the net income of American. Customer shall indemnify and hold
harmless American from all costs, fines and expenses (including reasonable legal
costs) incurred by American resulting from Customer's failure to pay taxes as
provided in this Article.
Article 4 - Installation and Delivery
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4.1 Delivery. American shall arrange for delivery of the SABRE TravelBase
System F. O. B. to the site, as identified on the Schedule and all Supplements
thereto.
4.2 Installation. Subject to Article 4.3, American shall install, or cause
to be installed, the SABRE TravelBase System at the site.
4.3 Customer's Obligations Prior to Installation. Customer, at its expense,
shall be responsible for preparing the site for SABRE TravelBase System in
accordance with the Instructions. If installation of the SABRE TravelBase
System is prevented or delayed because of Customer's failure to prepare the
site, American shall use reasonable efforts to install the SABRE TravelBase
System upon Customer's with this Article and upon payment of all reasonable
expenses incurred by American resulting from Customer's failure to prepare the
site. In the event installation of the SABRE TravelBase System is delayed as a
result of Customer's actions or failure to take action, American shall begin
invoicing Customer under Article 3 and the term of the Agreement shall commence.
Customer shall commence payments notwithstanding the fact that the SABRE
TravelBase System has not been installed. In addition, American shall
discontinue the installation process of the SABRE TravelBase System until all
applicable SABRE TravelBase hardware components have been installed, even though
American has begun the billing process. Once Customer complies with the
installation requirements, American shall proceed with the installation process.
4.4 Relocation and Possession. Customer shall at all times keep the SABRE
TravelBase System in its sole possession and control at the site. Customer
shall not move any part of the SABRE TravelBase System from or within the site
without first obtaining the written consent of American.
4.5 Communications Access. Customer shall provide at its own expense such
communication lines in accordance with the Instructions for access by American
or its designated third-party to the SABRE TravelBase System.
4.6 Non-Standard System. Customer shall not connect or use any hardware, or
firmware not acquired from American with the SABRE TravelBase System without
American's prior written consent, which shall be granted provided that such
hardware, or firmware is approved by American for use with SABRE TravelBase
System and Customer executes the Non-Standard System Amendment.
4.7 Acceptance of SABRE TravelBase System. Upon installation of the SABRE
TravelBase System, Customer shall be deemed to have accepted the SABRE
TravelBase System. Any use of the SABRE TravelBase System, and/or SABRE
TravelBase System Components or SABRE TravelBase System Software further
constitutes acceptance of the Agreement and applicable Amendments and
Supplements by the Customer.
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Article 5 - Repairs and Maintenance
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5.1 Repairs and Maintenance. Upon prompt notification from Customer,
American or its designated agent, shall repair and maintain the Standard
Equipment and shall keep it in good working order provided that the Standard
Equipment has been subject to reasonable operation. Customer shall not make any
modifications nor attempt to perform repairs or maintenance of any kind without
previous written permission from American. American or its designated agent,
shall have free access to the Standard Equipment at reasonable times during
normal business hours (9:00 a.m. to 5:00 p.m. local time, Monday through Friday,
excluding legal holidays) to provide such service. Damage resulting from
negligence, transport, repairs not done by American or its agents, will not be
covered.
5.2 Changes to Coverage. If Customer has title to hardware he may elect, at
any time during the term of the Agreement, to discontinue or change hardware
maintenance upon giving American ninety days written notice.
5.3 Limitations. Items consumed in the normal course of business, including
but not limited to printer ribbons and software media are excluded from
coverage. When in the course of normal usage and due to normal wear and tear, a
piece of Standard Equipment may no longer be maintained or repaired, it will be
the responsibility of the Customer to replace the Standard Equipment.
5.4 Charges. Repair or maintenance services on Standard Equipment during
normal business hours (9:00 a.m. to 5:00 p.m. local time, Monday through Friday,
excluding legal holidays) are included in the Charges, provided that the
Customer has not been negligent and the Standard Equipment has been subject to
reasonable operation; otherwise, Customer will be charged a service fee in
accordance with American's or its designated third-party's then prevailing
rates.
Article 6 - Title and Ownership of SABRE TravelBase System
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6.1 Title and Ownership of SABRE TravelBase Standard Equipment. The SABRE
TravelBase System leased hardware hereunder shall remain the property of
American. Customer shall not in any other manner dispose of the SABRE
TravelBase System or any part thereof or suffer any lien or legal process to be
incurred or levied on the SABRE TravelBase System.
6.2 Risk of Loss. Risk of loss for and damage to the SABRE TravelBase System
shall pass to the Customer upon delivery of the SABRE TravelBase System to the
site.
Article 7 - Insurance
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7.1 General. Upon delivery of any part of the SABRE TravelBase System to the
site, Customer shall maintain Comprehensive General Liability (including bodily
injury, product liability, property damage and contractual liability) and All
Risk Property Insurance.
7.2 Comprehensive General Liability. The Comprehensive General Liability
coverage shall be in the amount not less than one million dollars combined
single limit. The coverage shall include the following special provisions:
(a) American, its officers, agents and employees, shall be named as additional
insureds; (b) The policy(ies) shall specifically insure the indemnification
provision included in this Agreement; (c) Such insurance shall be primary
without any right of contribution from any insurance maintained by the
additional insureds; and (d) Insurers will provide American with thirty days'
prior written notice of any cancellation or material change.
7.3 All Risk Property. The All Risk Property insurance shall be in an amount
to cover the replacement value of the Standard Equipment as set forth in the
Schedule and all Supplements. Such policy shall: (a) name American as
additional insured; (b) name American as the sole loss payee for loss of the
Standard Equipment; (c) be primary without right of contribution from any
insurance carried by American; and (e) provide that American will b e given
thirty days' prior written notice of any cancellation or material change of such
policy.
7.4 Certificates. Customer will provide to American, on or before delivery
of any part of the SABRE TravelBase System to the site, a Certificate issued by
its insurer(s), evidencing the insurance coverage required by this Article. If
American does not receive such Certificates of insurance prior to delivery of
the SABRE TravelBase System, American may obtain insurance and Customer shall
reimburse American for all amounts paid by American to obtain such insurance.
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Article 8 - Confidential Information
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8.1 The Confidential Information shall remain American's property.
8.2 Customer shall maintain in perpetuity the confidentiality of the
Confidential Information using the highest degree of care. Customer shall not
use, sell, sublicense, transfer, publish, disclose, display, or otherwise make
available to others, except as authorized in this Agreement, the Confidential
Information or any other material relating to the Confidential Information at
any time before or after the termination of this Agreement nor shall Customer
permit its officers, employees, agents, contractors or subcontractors to divulge
the Confidential Information without prior written consent of American.
Article 9 - SABRE TravelBase System Software License
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9.1 Ownership of SABRE TravelBase System Software. Customer acknowledges
that American or the original manufacturer of the SABRE TravelBase System
Software, as applicable, owns or has licensed from the owner, copyrights in the
respective SABRE TravelBase System Software and that ownership and title are
retained by the manufacturer or its licensor. All applicable rights to patents,
copyrights, trademarks, and trade secrets inherent in the SABRE TravelBase
System Software and pertinent thereto are and shall remain American's or the
original manufacturer's sole and exclusive property. Any copy of such Software
must incorporate any copyright, trade secret, or trademark notices or legends
appearing in the original version delivered to Customer.
9.2 Grant of License. Subject to the provisions of this Agreement and for
the term specified on the Schedule, either American or the original manufacturer
grants to Customer a non-transferable, non-exclusive, limited license to use the
SABRE TravelBase System Software subject to the following restrictions: (a)
Customer shall use the SABRE TravelBase System Software only to process data
related to Customer's own travel agency business transactions, (b) Customer must
do business as a bona fide travel agency, (c) the SABRE TravelBase System
Software shall be used and installed solely at the site and solely used on the
Standard Equipment, or other equipment authorized by American, (d) the SABRE
TravelBase System Software shall be used solely for internal purposes and only
in the ordinary course of business; (e) Customer shall not reserve engineer,
compile, reverse compile, decompile, disassemble, or reverse assemble the SABRE
TravelBase System Software or any portion thereof, (f) the SABRE TravelBase
System Software shall not be copied or reprinted in whole or in part except (i)
a reasonable number of copies of each program may be made in machine readable
form for reasonable archival or backup purposes, or (ii) when American as
granted permission to do so, and (g) Customer shall not lease, sell, license,
sublicense or otherwise transfer the SABRE TravelBase System Software to any
other party. Nothing in this Agreement shall convey title to the SABRE
TravelBase System Software to Customer.
9.3 Modification Rights. Customer shall not modify the SABRE TravelBase
System Software or merge such software into other programs or create derivates
works based on such software.
9.4 Upgrades and Modifications. All tangible objects containing or relating
to the SABRE TravelBase System Software are the sole and exclusive property of
American or the manufacturer. In the event American, in its sole discretion,
modifies the SABRE TravelBase System Software, it may deliver such modified
SABRE TravelBase System Software to Customer at its then current charge, if any,
and Customer shall promptly return to American any and all tangible objects
relating to the SABRE TravelBase System Software as provided in Article 15.7.
Customer shall install all such modifications within ninety days of receipt of
the new revision of SABRE TravelBase System Software. Customer shall be solely
responsible for protecting all software not obtained from American hereunder and
the data related thereto in the event of a software upgrade. Customer, in order
to receive an upgraded or updated program, shall comply with any and all terms
and conditions and Instructions imposed by American.
9.5 Processing Units. The SABRE TravelBase System Software resided solely on
the processing units (the "Fileserver" and "Database server"). In the event a
Fileserver or Database server is upgraded, replaced or moved, Customer shall be
solely responsible for moving and protecting all software not obtained from
American and the data related thereto.
9.6 Operating Program.
9.6.1 Customer acknowledges that the SABRE TravelBase System Software
incorporates, in part, copyrighted materials pertinent to the Operating Program
as identified on the Schedule. Customer agrees that such copyrighted portions
shall be subject to the Operating Program copyright and license.
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9.6.2 Customer will look only to American and not to the manufacturer for any
support, maintenance, assistance and upgrades and the like with respect to the
Operating Program and the manufacturer shall have no liability to Customer in
relation to this program.
9.6.3 No action, regardless of form, arising out the license of the Operating
Program may be brought more than two years after the cause of action has arisen.
9.6.4 THE LICENSE OF THE OPERATING PROGRAM, IF MANUFACTURED BY IBM, SHALL BE
CONSTRUED AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND THE UNITED
STATES OF AMERICA NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT.
9.7 SABRE TravelBase System Software.
9.7.1 Customer acknowledges and agrees that Customer is not entitled to any
greater warranty with respect to the SABRE TravelBase System Software than the
warranty received by American from its supplier of the respective SABRE
TravelBase System Software.
9.7.2 EXCEPT AS SPECIFICALLY PROVIDED BELOW, THE SABRE TRAVELBASE SYSTEM
SOFTWARE IS PROVIDED TO CUSTOMER AS IS AND WITH ALL ITS FAULTS WITHOUT ANY
WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR
THOSE IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF
DEALING, USAGE OF TRADE OR ANY OTHER WARRANTY. THE ENTIRE RISK AS TO THE
QUALITY AND PERFORMANCE OF THE SABRE TRAVELBASE SYSTEM SOFTWARE IS WITH THE
CUSTOMER. SHOULD THE SABRE TRAVELBASE SYSTEM SOFTWARE PROVE DEFECTIVE, CUSTOMER
SHALL ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE
EXCLUSION MAY NOT APPLY TO CUSTOMER. THIS WARRANTY GIVES THE CUSTOMER SPECIFIC
LEGAL RIGHTS AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO
STATE. ADDITIONALLY, CUSTOMER ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE
SABRE TRAVELBASE SYSTEM SOFTWARE TO ACHIEVE CUSTOMER'S INTENDED RESULTS, AND FOR
THE INSTALLATION AND USE OF THE RESULTS OBTAINED FROM THE SABRE TRAVELBASE
SYSTEM SOFTWARE.
9.7.3 Notwithstanding the above, the media on which the SABRE TravelBase
System Software is encoded is warranted to the Customer against defects in
material or workmanship for a period of three months from the receipt of
original purchase by Customer. If during such period, Customer discovers any
defect in the media, Customer may return the media to American and American
shall, as Customer's sole and exclusive remedy, repair, or replace the defective
media.
Article 10 - Documentation and Training
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10.1 Documentation. For each SABRE TravelBase System purchased hereunder,
American will provide at the time of delivery of the SABRE TravelBase System,
one copy of all such manuals as may be relative to the installation and
operation of the SABRE TravelBase System and all such on-line documentation as
may be available to enable a Customer's personnel to use and understand the
operation thereof. Additional copies may be purchased at American's then
prevailing rate.
10.2 Training. For each SABRE TravelBase System purchased, American shall
provide to Customer prior to installation of the Standard Equipment, training
for a specific number of Customer employees an the basic use and operation of
the SABRE TravelBase System Software as described an the schedule. This
training must be completed prior to the installation of the SABRE TravelBase
System. Additional classes may be offered on more advanced modules of the
software as then may be available to the Customer. Some modules have a
mandatory training requirement prior to the implementation of those modules.
10.2.1 Training for additional employees will be offered subject to
availability and at American's then prevailing rate per person, per class. The
additional training charge will be assessed on Customer's monthly invoice. A
prepayment may be necessary to secure a place in the class.
10.2.2 The training described in Article 10.2 shall be performed at a
location designated by American.
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10.2.3 In addition to the charge for training, American reserves the right to
charge all costs incidental to such training, including transportation, meals,
and lodging.
10.2.4 Except as otherwise provided herein, Customer is responsible for all
training of all its employees in the proper use of SABRE TravelBase. American
has the right to require further training at the Customer's expense before
adding or changing levels of software support or adding additional software
options.
10.2.5 In addition to the training described in Article 10.2, American may
offer to Customer supplemental training programs at a local Level. Such
training may consist of, but not limited to, workshops, seminars, and individual
consultations. These will be made available at American's then prevailing rate.
10.2.6 Customer and its trainees agree to comply with all training procedures
and rules established by American, and American reserves the right to remove any
Customer trainee from the training program if such trainee fails to comply with
such procedures and rules.
10.2.7 American may at its discretion, monitor or test Customer's employee's
training levels. If American determines the training level to be insufficient,
the Customer will institute such additional training, at its own expense
(including, if necessary, additional training by American at American's then
prevailing rate) as may be necessary to bring Customer's employees to the level
of training required by American.
Article 11 - Software Support
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11.1 Software Support. American agrees to provide software support to assist
the Customer's personnel of an understanding of the use of SABRE TravelBase.
Such support will be in the form of a Help Desk available at specified times and
hours via telephone. Support will be limited to the SABRE TravelBase System
Software provided by American and the formation of files by SABRE TravelBase
System Software prior to transfer or export. The hours of support offered will
be 7:00 a.m. to 9:00 p.m. Central time, Monday through Friday and 8.00 a.m. to
3:00 p.m. Central time on Saturdays excluding legal holidays which am subject to
change. Unless otherwise specified, support will be limited to the Customer
officer who signs this Agreement, or with whom Customer officer designates by
providing the Help Desk telephone number.
11.2 Support Levels. American will provide ninety days of unlimited support
from the Effective Date. Thereafter, the support level elected by the Customer
shall be provided at American's then prevailing rate. Customer may elect any
level as described in the Article 11.2.2 for the Initial Term. With thirty days
written notice, Customer may upgrade the service level at any time during the
contract term. With thirty days written notice, Customer may reduce the service
level at the end of each twelve month period.
11.2.1 Definition of Call Type
(i) Billable Calls. Customer will be charged for these calls. Calls
include, but are not limited to operator knowledge for which information is
available in a manual or accessible on-line, accounting knowledge relating to
the procedures and processing of tickets, and ARC/BSP documents, other
vendor/suppliers relating to questions that should be directed to CRS vendors,
forms or suppliers, hardware and software not sold or supported by American.
(ii) Non-Billable Calls. Customer will not be charged for these calls.
Calls include, but are not limited to Hardware Maintenance where a vendor is
dispatched.
11.2.2 Definition of Support Levels.
(i) Level I. Customer may call for support as desired and required.
Customer must pay for each Billable Call at the rate specified on the Schedule
and any Supplements. Such Charges will appear an the monthly invoice.
(ii) Level II. Customer may call for support as desired and required.
Customer will be allocated, at no charge, a limited number of Billable Calls per
month as specified on the Schedule and any Supplements. All Billable Calls over
that number will be charged at the rate specified on the Schedule and any
Supplements.
(iii) Level III. Customer may call for support as desired and required. There
will be no charge for the Billable Calls at this level. Customer shall be
billed a monthly flat rate for this support option.
<PAGE>
Article 12 - Warranty, and Limitation of Warranty, Liability and Remedy
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12.1 Standard Equipment. The Standard Equipment shall be delivered and
installed in good working order.
12.2 SABRE TravelBase System Software. The SABRE TravelBase System Software
provided will be in good working order when installed. SABRE TravelBase System
Software and any additions, changes, improvements, and enhancements provided the
Customer hereunder shall conform to any applicable requirements or rules of the
Airline Reporting Corporation ("ARC"), Bank Settlement Plan ("BSP") or the
International Air Transport Association ("IATA") as approved by the Department
of Transportation ("DOT")
12.3 Limitation of Warranty. THE LIMITED EXPRESSED WARRANTIES SPECIFIED
HEREIN ARE THE ONLY WARRANTIES MADE BY AMERICAN AND THE MANUFACTURER AND THERE
ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE OF
SABRE TRAVELBASE OR THE SABRE TRAVELBASE SYSTEM OR ANY LIMITATION STATEMENTS
REGARDING CAPACITY. SUITABILITY FOR USE, OR PERFORMANCE OF THE SABRE TRAVELBASE
SYSTEM OR ANY COMPONENTS THEREOF, WHETHER MADE BY AMERICAN OR OTHERWISE, WHICH
IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY FOR ANY
PURPOSE OR GIVE RISE TO ANY LIABILITY OF AMERICAN OR THE MANUFACTURER.
12.4 Limitation of Remedies. In the event of a material malfunction or
defect in an unaltered component of the SABRE TravelBase System that can be
reproduced by American, American will provide reasonable services to correct
such malfunction or defect. Customer will supply American with such input files
and other materials as may be necessary to enable American to diagnose and
correct the malfunction or defect. THE FORGOING SHALL BE CUSTOMER'S SOLE AND
EXCLUSIVE PRIMARY REMEDY FOR ANY MALFUNCTION OR DEFECT IN THE SABRE TRAVELBASE
SYSTEM. IF SUCH MALFUNCTION OR DEFECT MATERIALLY IMPAIRS CUSTOMER'S USE OF THE
SABRE TRAVELBASE SYSTEM AND CANNOT BE CURED AS PROVIDED IN THIS PARAGRAPH, THEN
CUSTOMER'S ALTERNATE SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE THIS
AGREEMENT WITHOUT FURTHER LIABILITY TO AMERICAN FOR DAMAGES HEREUNDER.
12.5 Limitation of Liability. CUSTOMER WAIVES ALL LIABILITY IN TORT, OF
AMERICAN AND THE RESPECTIVE MANUFACTURER INCLUDING WITHOUT LIMITATION ANY
LIABILITY ARISING FROM NEGLIGENCE. NOTWITHSTANDING THE FOREGOING, AMERICAN'S
LIABILITY TO CUSTOMER HEREUNDER SHALL BE LIMITED TO THE TOTAL AMOUNT OF CHARGES
ACTUALLY PAID BY CUSTOMER TO AMERICAN PURSUANT TO THIS AGREEMENT. NEITHER
AMERICAN NOR ANY MANUFACTURER SHALL BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO
LOST PROFITS, REVENUE OR SAVINGS, OR THE LOSS OF USE OF ANY DATA, EVEN IF
AMERICAN OR THE MANUFACTURER HAS BEEN ADVISED OF, KNOWN, OR SHOULD HAVE KNOWN,
OF THE POSSIBILITY THEREOF.
Article 13 - Indemnification
----------------------------
Customer and American hereby agree to indemnify and hold each other, their
affiliates, subsidiaries, successors and assigns and their officers, directors,
agents, and employees ("Indemnitees") harmless from and against third-party
liabilities, including, but not limited to, attorney's fees, and other expenses
incident thereto, which may be threatened against, or recoverable from the
Indemnitees by reason of any injuries to or death of persons or loss of, damage
to, or destruction of property arising out of or in connection with any act, or
omission of Customer or American, including without limitation any act, or
omission constituting negligence.
Article 14 - Assignment
-----------------------
14.1 Assignment Or Sublease By Customer. CUSTOMER SHALL NOT SUBLEASE,
TRANSFER OR ASSIGN THIS AGREEMENT OR ANY PORTION THEREOF, OR ANY RIGHT OR
OBLIGATION HEREUNDER, UNLESS CUSTOMER HAS OBTAINED THE PRIOR WRITTEN CONSENT OF
AMERICAN. ANY ATTEMPTED ASSIGNMENT IN VIOLATION OF THIS ARTICLE SHALL BE VOID.
<PAGE>
14.2 Assignment by American. American shall have the right to sell,
transfer, assign or delegate its interests, rights and/or obligations, without
the prior consent of Customer, and, provided that such transferee or assignee
assumes all of American's obligations, American shall be released of all
obligations after the effective date of such sale, transfer, delegation or
assignment.
Article 15 - Termination and Default
------------------------------------
15.1 Default by Customer. The occurrence of any one of the following events
shall constitute a non-exclusive event of default (the "Event of Default")
pursuant to the terms of this Agreement.
15.1.1 Customer fails to pay any amount when due;
15.1.2 Customer ceases to be a bona fide travel agency;
15.1.3 Any representation by Customer is discovered to be materially
misleading or inaccurate, or Customer fails to perform any material covenant,
agreement, obligation, term or condition contained herein;
15.1.4 Customer ceases to do business as a going concern, makes an assignment
for the benefit of creditors, admits in writing its inability to pay debts as
they become due, acquiesces in the appointment of a trustee, receiver or
liquidator for it or any substantial part of its assets or properties. Sells,
or executes an agreement to sell all or substantially all of its assets without
the consent of American.
15.1.5 Events of Default described in 15.1.1, 15.1.3 and 15.1.4 shall not be
cause for termination if Customer cures such failure within fifteen days after
date or written notice from American. If Customer cures its failure as provided
in this provision, said failure shall not be considered to be an Event of
Default for the purposes of Article 15.2.
15.2 American's Rights Upon Termination. Upon the occurrence of an Event of
Default and subject to Article 15.1.6, American shall have the right to any one
or more of the following remedies: (i) terminate this Agreement; (ii) seek all
legal and equitable remedies to which it is entitled and; (iii) retake immediate
possession of the SABRE TravelBase System. If Customer's Event of Default
results in termination Customer agrees to pay to American, in full settlement of
the damages American will suffer as a result of such Event of Default, an amount
calculated to estimate American's damages as liquidated damages as follows:
15.2.1 the applicable charge to disconnect the Standard Equipment; plus
15.2.2 the applicable costs, expenses and damages which American may sustain
by reason of the default, including, without limitation, reasonable legal fees
incurred by American; plus
15.2.3 the sum of the remaining monthly payments discounted to the then
present value at an eight percent per annum rate.
15.3 Termination by Customer. In the event that American breaches any
material term of this Agreement, which breach continues for a period of fifteen
days after date of written notice from Customer, then Customer may terminate
this Agreement immediately upon written notice to American. Except as limited
by this Agreement, upon termination, Customer may seek all legal and equitable
remedies to which it is entitled. Customer may not otherwise cancel, terminate,
modify, repudiate, excuse or substitute this Agreement without American's prior
written consent, which American may withhold in its absolute discretion.
Article 16 - Miscellaneous
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16.1 Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF TEXAS AND THE UNITED STATES OF AMERICA. CUSTOMER HEREBY SUBMITS AND
CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS AND THE COURTS OF THE STATE OF TEXAS IN ANY
DISPUTE ARISING OUT OF THIS AGREEMENT AND AGREES THAT SERVICE OF PROCESS SHALL
BE SUFFICIENT IF MADE ON THE SECRETARY OF STATE OF THE STATE OF TEXAS WITH A
COPY TO BE SENT, REGISTERED MAIL TO THE CUSTOMER AT THE ADDRESS SET FORTH IN THE
SCHEDULE OR SUCH OTHER ADDRESS AS CUSTOMER MAY LATER SPECIFY BY WRITTEN NOTICE
TO AMERICAN.
<PAGE>
16.2 Binding Effect. Except as otherwise provided, the Agreement shall inure
to the benefit of and bind the successors and assigns of the parties hereto.
16.3 Entire Agreement. This Agreement and the Instructions constitute the
entire agreement of the parties as to the matters set forth herein and shall
supersede any previous understandings, agreements, representations, statements,
negotiations and undertakings, whether written or oral, between the parties
relating to the matters set forth herein. Any Amendment to this Agreement must
be in writing and signed by the authorized representatives of both parties.
16.4 Force Majeure. American shall be relieved of its obligations hereunder
in the event and to the extent that performance is delayed or prevented by any
cause reasonably beyond its control, including, but not limited to acts of God,
public enemies, war, civil disorder, fire, flood, explosion, labor dispute or
strikes, or any acts or orders of any governmental authority, inability to
obtain supplies and materials (including and without limitation computer
hardware) or any delay of deficiency caused by the electrical or telephone line
suppliers or other third parties.
16.5 Notices. Unless otherwise stated, notices given or required under this
Agreement must be in writing and shall be deemed delivered (i) upon deposit
through the United States Mail, to American at P.O. Box 619616, MD _____,
Dallas Fort Worth Airport, Texas 75261-9616 (to be sent to the attention of
SABRE Travel Information Network, Financial Services) or to the Customer at the
address set forth in the Schedule, or (ii) upon dispatch, if sent by SABRE as
follows: If to American: QP/_____ and if to Customer: to the Pseudo City Code
as set forth in the Schedule or Supplement.
16.6 Return of SABRE TravelBase System. Upon the termination of this
Agreement for any reason, Customer, at its sole cost and expense, shall return
all Confidential Information as requested by American, in good condition, less
normal wear and tear.
16.7 Modifications. American retains the right to modify the SABRE
TravelBase System, at its discretion at any time during the term of this
Agreement. However, such modifications will not materially impair Customer's
ability to access and use SABRE TravelBase in the manner expressly permitted in
this Agreement. During the term hereof, American shall make additions, changes,
improvements or enhancements in the SABRE TravelBase System Software necessary
to enable Customer to comply with applicable requirements or rules of ARC, BSP
or IATA, as approved by DOT.
16.8 Severability. Any provision of this Agreement which may be determined
by a court or other competent governmental authority to be prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent such prohibition or unenforceability, without invalidating
the remaining provisions thereof, unless said prohibition or unenforceability
materially alters the rights or obligations of either party.
16.9 Surviving Sections. If the term of the Agreement expires or is
otherwise terminated for any reason before Customer has paid to American all
of the sums due, the Agreement, the Schedule, and all Supplements shall survive
such expiration or termination to the extent necessary to protect American's
rights until all sums owed to American have been paid. Notwithstanding anything
to the contrary referenced herein Articles 6, 8, 11 and 12 shall survive the
termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set
forth below.
Customer American Airlines, Inc.
By: /s/ Michael J. Hartley By:
------------------------- -------------------------
(Signature) (Signature)
Name: Name:
------------------------- -----------------------
(Print Name) (Print Name)
Title: Title: Manager - Financial Services
------------------------- SABRE TravelBase Network
Date: Date:
------------------------- -------------------------
Agency Name: PCC
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