PRE PAID CONTENT DISTRIBUTION AGREEMENT

 

                                                                   EXHIBIT 10.22

 

 

 

 

 

                     PRE PAID CONTENT DISTRIBUTION AGREEMENT

 

This Agreement is made as of this 14th day of July 2004 ("Effective Date")

between Sabre EMEA Marketing Limited ("Sabre"), a company incorporated in

England having it's principal place of business at 23-59 Staines Road, Hounslow,

Middlesex, TW3 3HE and Onelink4travel Limited ("Onelink4travel"), a company

incorporated in England having it's principal place of business at 1210

Parkview, Arlington Business Park, Reading RG7 4TY

 

                                  INTRODUCTION

 

A.    Sabre is a leading provider of information-technology solutions to the

     travel industry.

 

B.    Onelink4travel aims to distribute and provide a settlement service for

     pre-paid travel content online to travel agents.

 

C.    The parties desire to enter into an agreement to allow access and

     reservation of pre-paid content held within the Sabre System from

     Participants that have a contractual agreement with Onelink4travel which

     allows Onelink4travel to distribute such content ("Permitted Content").

 

In consideration of the mutual covenants contained below, the parties agree as

follows:

 

1.    DEFINITIONS

 

For the purposes of this Agreement, the following words have the meanings

contained below:

 

 

1.1   "Affiliates" shall mean, with respect to a Party, any entity at any time

     Controlling, Controlled by or under common Control with such Party.

 

1.2   "Agreement" shall mean this Pre Paid Content Distribution Agreement.

 

1.3   "Control, Controlling or Controlled" shall mean possessing directly or

     indirectly, the power to direct or cause the direction of the management

     and policies of an entity, whether through ownership of voting securities,

     by contract or otherwise.

 

1.4   "Distribution Phase" will mean the period commencing on the date of the

     First Release.

 

1.5   "Distribution Tool" will mean the internet-based tool specifically

     configured to allow Onelink4travel customers to book the Permitted Content.

 

1.6   "First Release" means the first live commercial transaction carried out

     using the Distribution Tool

 

1.7   "GDS" will mean a global distribution system (commonly referred to as a

     computerised reservation system). A GDS collects, stores, processes,

     displays and distributes information through computer terminals concerning

     air and ground transportation, lodging and other travel related products

     and services offered by travel suppliers and which enables Sabre

     Subscribers to (i) reserve or otherwise confirm the use of, or make

     inquiries or obtain information in relation to, such products and services

     and/or (ii) issue tickets for the acquisition or use of such products and

     services.

 

1.8   "Participant" means any vendor of travel related products, information or

     services which has an agreement with Sabre or an affiliate of Sabre for the

     display of information regarding its products or services in the Sabre

     System.

 

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1.9   "Party" shall mean Sabre and Onelink4travel as detailed on the initial page

     of this Agreement.

 

1.10 "Permitted Content" shall have that meaning set out in paragraph C of the

     Introduction above. As at the date of this Agreement, the parties agree

     that the Permitted Content shall be limited to car and hotel content. The

     parties may extend Permitted Content by mutual written agreement.

 

1.11 "Sabre Booking" shall mean a travel Segment against which Sabre or an

     affiliate of Sabre receives a booking fee from the Travel Service Provider

     and that is created in or processed through the Sabre System via the

     Distribution Tool.

 

1.12 "Sabre Exclusives" shall mean Sabre exclusive content contained in the

     Sabre System. As at the date of this Agreement, Sabre Exclusives do not

     form part of the Permitted Content. The parties may extend Permitted

     Content to include Sabre Exclusives by mutual written agreement.

 

1.10 "Sabre Subscriber" shall mean a person or entity, other than a Travel

     Service Provider using the Sabre System as its internal reservations

     system, which utilises the Sabre System to make reservations.

 

1.11 "Sabre System" shall mean the Sabre GDS which has electronic facilities

     able to provide, store, communicate, distribute, process and document such

     information as is from time to time stored in the data base created and

     maintained for the Sabre System.

 

1.12 "Segment" shall mean (1) for hotel bookings, each separate reservation that

     is processed through the Sabre System with an action status code of HK, KK

     or KL regardless of the number of rooms, suites or other accommodations or

     the number of persons or the duration of the stay; (2) for car rental

     bookings, each separate reservation that is processed through the Sabre

     System with an action status code of HK, KK or KL regardless of the number

     of vehicles or persons or the duration of the rental;

 

1.13 "Transaction" shall mean a grouping of characters transmitted to the Sabre

     System whether such transmission is made in the Sabre System manually or

     automated. Each transmission to the Sabre System from Onelink4travel

     constitutes one Transaction. Transactions will be priced differently

     depending upon the resource impact to the Sabre System. Sabre may change,

     delete or add to Transaction categories at any time with thirty (30) days

     advance notice to Onelink4travel.

 

1.14 "Travel Service Provider" shall mean a provider of travel-related services,

     including but not limited to, airlines, hotels and car-rental companies.

 

1.15 "Withholding Taxes" shall mean foreign, federal, and state and local taxes,

     fees, or charges which are imposed on or by reference to gross or net

     income or gross or net receipts and are required under applicable law to be

     withheld by Sabre from payments made to Onelink4travel under this Agreement

     (including any related penalties and interest thereon).

 

2.    TERM

 

     This Agreement shall commence on the Effective Date and shall continue for

     a minimum period of 3 (three) years (the "Minimum Period") from either the

     date of First Release of the Distribution Tool or the first anniversary of

     the Effective Date, whichever is earlier. At the end of the Minimum Period,

     and on each subsequent anniversary the Agreement shall continue for further

     periods of 12 months unless either party gives 6 months notice in writing

     to terminate the Agreement, such notice not to expire before the end of the

     Minimum Period or each such extended period. ("Term").

 

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3.    DISTRIBUTION TOOL

 

3.1   Onelink4travel shall develop the Distribution Tool and shall be responsible

     for and bear all costs relating to the development of the same.

 

3.2   In order for the Distribution Tool to access the Permitted Content,

     Onelink4travel and/or their technology partner shall maintain an internet

     connection to the Sabre System at all times using a Cisco router. This

     shall be achieved through use of Sabre's XML Power Tool Kit software,

     licensed to Onelink4travel in accordance with clause 5. This connection

     will be updated to a Web Services connection as part of Sabre's migration

     to that technical standard.

 

3.3   Onelink4travel's access to the Sabre System during development of the

     Distribution Tool shall be governed by a Developer Access Agreement in the

     form attached at Annex A, which Onelink4travel shall complete and return to

     Sabre prior to development of the Distribution Tool. The terms of the

     Developer Access Agreement shall further govern any access to the Sabre

     System that Onelink4travel may maintain pursuant to Clause 3.2 above,

     notwithstanding that the Developer Access Agreement may have expired

     provided that during the Distribution Phase: (i) the provisions of Clauses

     5.1b, 6.1, 9.1 and 9.2 of the Developer Access Agreement shall cease to

     apply; (ii) Clause 2.2 of the Developer Access Agreement shall be amended

     so that Sabre may revoke all access rights to the Sabre System only in the

     event of misuse of the Sabre System or harm arising to the Sabre System as

     a result of Onelink4travel's acts or omissions; (iii) Clause 2.4 of the

     Developer Access Agreement shall be amended by the deletion of the last

     sentence of the same; and (iv) the definition of `Sabre System' contained

     in the Developer Access Agreement shall be replaced with the definition of

     `Sabre System' as appears in Clause 1 of this Agreement.

 

3.4   Until such time as Sabre agrees otherwise in writing, Onelink4travel shall

     not permit any travel agent based outside of Europe or in Cyprus to access

     the Permitted Content through the Distribution Tool.

 

3.5   Prior to First Release, Onelink4travel shall arrange for a presentation of

     and demonstration of the Distribution Tool to Sabre. The display of any

     reference to Sabre or to any Sabre logo within the Distribution tool shall

     be subject to Sabre's written approval.

 

3.6   Onelink4travel will not discriminate against content from Sabre within

     their portal where content is sourced from multiple sources.

 

3.7   Onelink4travel shall be solely responsible for ensuring it has secured

     consent from Participants whose Permitted Content it is accessing via the

     Sabre System. Where requested, Onelink4travel shall provide prompt evidence

     of the same to Sabre.

 

3.8   Onelink4travel shall be responsible for settlement of all payments due to a

     Participant resulting from a Sabre Booking made through the Distribution

     Tool or otherwise due to the Participant as a result of Onelink4travel's

     use of or access to the Permitted Content. Sabre shall have no

     responsibility or involvement in the same.

 

3.9   Onelink4travel access to the Sabre System shall be limited to the Permitted

     Content. Onelink4travel agrees that it shall only access and make

     available, via the Distribution Tool, the Permitted Content. Onelink4travel

     shall promptly notify Sabre of and make no use of the same any access it

     has to content within the Sabre System other than the Permitted Content.

 

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4.    SABRE RIGHTS

 

     In the event that Onelink4travel intends to sell all or any part of its

     intellectual property rights relating to the distribution tool

     Onelink4travel shall notify Sabre who shall be entitled to make an offer to

     purchase such intellectual property rights.

 

5.    XML POWER TOOLKIT

 

     Subject to clause 6, Sabre shall license it's XML Power Toolkit software

     ("XML PTK") to Onelink4travel for the Term of this Agreement under those

     terms attached at Annex B.

 

6.    PAYMENTS AND SABRE HOTEL AND CAR CONTENT BOOKINGS

 

     6.1 Onelink4travel agrees to provide Sabre with 2,500 Sabre Bookings or, if

     available, 100 sales of Sabre Exclusives content via the Distribution Tool

     during the first year as measured from the date of release of the

     Distribution Tool ("First Year of Release"). In the event that these

     targets or greater are achieved during the First Year of Release, Sabre

     agrees to waive (i) the annual maintenance fee for it's XML PTK and

     connection provided to Onelink4travel in accordance with Clause 5 and (ii)

     any fee for migration of XML PTK to Sabre's Web Services product, which

     Sabre is developing to replace XML PTK. For the avoidance of doubt the

     initial installation charges and the user configuration charges have been

     waived.

 

6.2   In the event that Onelink4travel does not provide 2,500 Sabre Bookings in

     the First Year of Release but does provide Sabre with 1,500 or more Sabre

     Bookings or, if available, 75 sales of Sabre Exclusives via the

     Distribution Tool in the First Year of Release, Onelink4travel agrees to

     pay Sabre EUR 4,800 (four thousand eight hundred Euros) for the annual

     maintenance fee for it's XML PTK and connection provided to Onelink4travel

     under Clause 5 and Sabre agrees to waive any fee for migration of XML PTK

     to Sabre's Web Services product.

 

6.3   In the event that Onelink4travel does not provide 1,500 Sabre Bookings or,

     if available, 75 sales of Sabre Exclusives in the First Year of Release,

     Onelink4travel agrees to pay Sabre (i) EUR 4,800 (four thousand eight

     hundred Euros) for the annual maintenance fee for Sabre's XML PTK and

     connection provided to Onelink4travel under Clause 5 and (ii) any fee

     payable for migration of XML PTK to Sabre's Web Services product.

 

6.4   Onelink4travel shall issue a report detailing all Sabre Bookings made via

     the Distribution Tool to Sabre in each quarter during the Term. Unless

     otherwise stated in the Agreement, Sabre shall invoice Onelink4travel

     quarterly for all sums due to it from the preceding quarter. All payments

     shall be made in Euros or Great British Pounds and shall be due within 30

     days of the date of Sabre's invoice for the same. Where amounts payable are

     quoted in USD (United States Dollars) the parties shall use the applicable

     Euro or Great British Pound exchange rate of HSBC bank, London, on the date

     of invoice to determine the Euro or Great British Pound amount payable. All

     payments to Sabre are exclusive of VAT.

 

6.5   Sabre shall have the right upon reasonable written notice to audit those

     parts of the Onelink4travel system and records that are relevant to

     bookings via Sabre to determine the accuracy of the booking reports sent to

     Sabre in accordance with Clause 6.4, including those of Onelink4travel

     technology partners. Any information gained by Sabre during such an audit,

     that does not relate to Sabre bookings, will be confidential.

 

6.6   Onelink4travel agrees to work with Sabre to reduce the number of

     Transactions per Sabre Booking made. In any event, Onelink4travel agrees to

     pay to Sabre an additional charge at Sabre's then prevailing rate for

     processing Transactions that exceed the level of one hundred and five (105)

     Transactions per Sabre Booking. Sabre's prevailing rates for Transactions

     are available on request.

 

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7.    TRAINING

 

     Sabre shall provide, and Onelink4travel shall ensure suitable

     Onelink4travel employees (or employees of Onelink4travel's technology

     partner) attend, Sabre System and XML PTK training at times and locations

     to be agreed.

 

8.    MARKETING

 

     Sabre will not actively market the Onelink4travel or the Distribution Tool

     to either travel agencies or content suppliers.

 

9.    TAXES

 

 

9.1   Any charges paid hereunder in exchange for products or services provided by

     Onelink4travel are exclusive of any taxes, duties, fees or similar charges,

     however designated, imposed upon or made payable and arising out of sales

     under this Agreement. Sabre shall pay all such taxes now or hereafter due

     and owing, including but not limited to sales, use, value added, or similar

     taxes assessable against the provision of the products or services under

     this Agreement. In the event any such taxes are imposed upon and paid by

     Onelink4travel, Sabre shall promptly reimburse Onelink4travel upon receipt

     of an invoice. However, Sabre shall not be liable for the payment or

     reimbursement to Onelink4travel of 1) any franchise taxes or fees, or any

     taxes measured by or against Onelink4travel's income or property, 2) any

     taxes that arise as a result of Onelink4travel's non-compliance with local

     law, or 3) any value added taxes imposed upon Onelink4travel unless

     Onelink4travel delivers to Sabre an original customs document or value

     added tax invoice showing value added taxes imposed upon Sabre or its

     Affiliates. Upon Sabre's request, Onelink4travel shall invoice and accept

     payment by Sabre or its Affiliates on a local country basis in local

     currency outside of the United States. Onelink4travel shall honor any tax

     exempt certificates provided by Sabre and shall work with Sabre to maximize

     recovery of value added tax (VAT), goods and services tax (GST) and similar

     value added taxes and otherwise reduce taxes under this Agreement.

 

9.2   If Sabre (i) receives notice or other instructions from a taxing authority

     that Sabre is required to withhold Withholding Taxes or (ii) otherwise

     reasonably believes that it is required under applicable law to withhold

     Withholding Taxes from payments to Onelink4travel or any Affiliate of

     Onelink4travel, Sabre (or such Sabre Affiliate) may withhold Withholding

     Taxes from such payments, in which case it will timely remit such

     Withholding Taxes to the appropriate taxing authority. Onelink4travel may

     provide to Sabre an exemption certificate acceptable to Sabre and to the

     relevant taxing authority, in which case Sabre will not withhold the

     Withholding Taxes covered by such certificate. Onelink4travel acknowledges

     that it will be responsible for all Withholding Taxes.

 

 

10.   EXCLUSIVITY

 

10.1 Save as provided in Clause 10.2 below, this Agreement is non-exclusive and

     both parties are free to contract with other parties for the services

     detailed in this Agreement.

 

 

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10.2 Onelink4travel agrees that it shall not contract with any other provider of

     a GDS that competes with Sabre or a Sabre affiliated company in the

     provision of GDS services, to allow such Sabre competitor to access the

     Permitted Content via the Distribution Tool.

 

11.   RESERVATION SUPPORT

 

     Onelink4travel shall provide all support to all Sabre Subscribers and

     Participants in relation to the Distribution Tool. Sabre shall provide

     reasonable support to Onelink4travel in relation to queries or problems

     raised by Sabre Subscribers and Participants to Onelink4travel so far as

     the same affect the Sabre System. For the avoidance of doubt Sabre will not

     provide direct support to agencies or suppliers looking to use any part of

     the Onelink4travel system.

 

12.   TERMINATION

 

12.1 Either party may terminate this Agreement upon 6 months written notice to

     the other (not to expire prior to the Minimum Period).

 

12.2 In addition, either party may terminate this Agreement with immediate

     effect by written notice to the other in the event that:

 

     12.2.1 the other commits a material breach of this Agreement and, if

            capable of remedy, fails to remedy such breach within thirty (30)

            days of receipt of such notice; or

 

     12.2.2 the other 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 or sells or executes an

            agreement to sell all or substantially all of its assets without the

            consent of Sabre or Onelink4travel as applicable.

 

13.   INDEMNIFICATION

 

     Each party will defend, indemnify, and hold the other party, its affiliated

     companies and their respective officers, directors, employees and agents,

      harmless from any and all liabilities, damages and claims (including

     litigation costs, expenses, and attorney's fees) which may be suffered by,

     accrued against, charged to, or recoverable from the other party, its

     affiliated companies or their respective officers, directors, employees, or

     agents, by reason of that party's performance, non-performance, or improper

     performance of the provisions of this Agreement save to the extent any such

     liability, damage and/or claims arise as a result of that party's own act

     or omission, negligence or other default.

 

14.   LIMITATION OF LIABILITY

 

14.1 Nothing in this Agreement shall exclude or limit either party's liability

     for death or personal injury arising from negligence.

 

14.2 Neither Sabre or Onelink4travel shall be liable to the other for any lost

     profits, revenue or savings, or any incidental or consequential damages,

     under any circumstances including, but not limited to the loss of use of

     any data even if either Sabre or Onelink4travel has been advised of or knew

     or should have known of the possibility of such loss.

 

14.3 Notwithstanding the foregoing and subject to Clause 14.4, each party's

     liability to the other party under this Agreement shall be limited to the

     total amount paid to the other within the 6 month preceding the event

     giving rise to the liability, pursuant to this Agreement.

 

 

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14.4 Each party's liability under Clauses 3.7, 3.8, 3.9, 6.2, 6.3, 9 and 11 as

     well as under the Developer Access Agreement and XML PTK license terms

     attached at Annex B shall not be limited by the provisions of Clause 14.3.

 

15.   NOTICES

 

     Notices given or required under this Agreement must be in writing and shall

     be deemed delivered upon receipt through recorded delivery:

 

     to Sabre at the following address:

 

                  Sabre EMEA Marketing Limited

                  23-59 Staines Road

                  Hounslow

                  Middlesex

                  TW3 3HE

 

                  (marked for the attention of: Vice President Marketing)

 

                  with a copy to:

 

                  Sabre Europe Management Services Limited

                   23-59 Staines Road

                  Hounslow

                  Middlesex

                  TW3 3HE

 

                  (marked for the attention of: Vice President Legal Services)

 

 

     to Onelink4travel at the following address:

 

                   1210 Parkview

                  Arlington Business Park

                  Reading

                  RG7 4TY

 

16.   FORCE MAJEURE

 

     Both parties shall be relieved of their obligations under this Agreement in

     the event and to the extent that performance is delayed or prevented by any

     cause reasonably beyond their control including, but not limited to,

     natural disaster, public enemies, war, civil disorder, fire, flood,

     explosion, labour disputes or strikes, or any acts or orders of any

     governmental authority, inability to obtain supplies and materials or any

     delay or deficiency caused by the electrical or telephone line suppliers or

     other third parties.

 

17.   NO PARTNERSHIP/AGENCY

 

     Nothing in this Agreement is intended to or shall operate to create a

     partnership or joint venture of any kind between Sabre and Onelink4travel,

     or to authorise either Sabre or Onelink4travel to act as agent for the

     other, and neither Sabre or Onelink4travel shall have authority to act in

     the name or on behalf of or otherwise to bind the other in any way

     (including, without limitation, the making of any representation or

     warranty, the assumption of any obligation or liability and the exercise of

     any right or power).

 

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18.   ASSIGNMENT AND SUBCONTRACTING

 

     Neither party will assign, transfer, license, franchise nor otherwise

     convey this Agreement or any rights or servic