Southwest v.

Case 3:12-cv-00591-G Document 1
Filed 02/27/12
Page 1 of 29 PageID 1
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION SOUTHWEST AIRLINES CO., Plaintiff, v. JURY TRIAL DEMANDED SW SOFTWARE DEVELOPMENT, LLC, Defendant. ORIGINAL COMPLAINT Plaintiff Southwest Airlines Co. (Southwest) seeks injunctive relief and damages against Defendant SW Software Development, LLC (SW Software) under the laws of the United States and the State of Texas, and states as follows: Nature of the Action 1. Southwest provides online travel reservation services, online flight check-in, and CIVIL ACTION NO. 3:12-CV-591
related services through its website, Southwest.com. Southwest.com is one of the countrys most visited travel web sites, with millions of visits per month. Many of Southwest's bookings are made through Southwest.com, and a significant percentage of Southwest customers use Southwest.com for online flight check-in. The smooth and secure operation of the web site is vital to Southwest and to the people who rely on the airlines online service offerings. 2. Defendant owns and operates an unauthorized automatic flight check-in service
that is solely directed to Southwests customers, and uses an automated process to circumvent Southwests authorized online check-in procedures. Defendant profits from this unauthorized
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service by charging Southwests customers a fee for using Defendants software, at the expense of Southwest, and to the detriment of Southwests customers. 3. Southwest seeks injunctive relief and monetary damages against Defendant based
on Defendants unauthorized use of Southwests website in connection with Defendants software and unauthorized early check-in service. Defendant chose to ignore Southwests repeated requests to cease these wrongful activities, thus necessitating the present lawsuit. As a result, Southwest has suffered, is suffering, and unless preliminary and permanent relief is entered by this Court, will continue to suffer ongoing harm due to Defendants conduct. Parties 4. Plaintiff Southwest Airlines Co. is a Texas corporation with its principal place of
business in this District, at 2702 Love Field Drive, Dallas, Texas 75235. 5. Defendant SW Software Development, LLC is an Arizona corporation with its
principal place of business at 42043 W Anne Lane, Maricopa, Arizona 85138. Jurisdiction 6. This Court has subject matter jurisdiction over the federal statutory claim in this
action pursuant to 28 U.S.C. 1331. 7. This Court also has subject matter jurisdiction over the claims in this action
pursuant to 28 U.S.C. 1332 because there is complete diversity between the parties and the amount in controversy exceeds $75,000. 8. This Court has supplemental jurisdiction over the claims in this Complaint that
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arise under the laws of the State of Texas pursuant to 28 U.S.C. 1367(a), because the state law claims are so related to the federal claims that they form a part of the same case or controversy and derive from a common nucleus of operative facts. 9. This Court has personal jurisdiction over Defendant because it has purposefully
directed its unlawful acts to this forum, committed torts in this District, breached a contract entered into in this District, and violated Texas statutory law in this district. 10. Upon information and belief, Defendant has purposefully availed itself to the
forum by entering into one or more contracts with residents of the State of Texas, knowing that it would receive commercial gain through such contracts. 11. Upon information and belief, Texas consumers interact with Defendants
MySouthwestCheckIn.com website and have downloaded Defendants automatic flight check-in software. 12. Upon information and belief, Defendant collects personal and payment
information from Texas residents who purchase Defendants services. 13. Upon information and belief, Defendant directs its business activities to residents
of Texas knowing that it will receive commercial gain from selling its services to Texas residents. 14. Upon information and belief, Defendant knew that the injury from its unlawful
acts would be felt primarily by Southwest in this judicial district, where Southwest is incorporated and headquartered, and where it originates numerous flights every day for Texas residents. 15. Moreover, in order to perpetrate the wrongful acts alleged in this complaint,
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Defendant regularly accesses Southwests computer servers and websites, many of which are located in this judicial district. 16. Finally, the Terms and Conditions of Use governing the Southwest.com website
require Defendant to submit to the jurisdiction of the courts within Dallas, Texas for disputes relating to the Terms and Conditions of Use that are the subject of this lawsuit. Venue 17. Venue is proper in this Court pursuant to 28 U.S.C. 1391. The claims asserted in
this action arose in this District and a substantial part of the activities, conduct, and damages have occurred in Texas. 18. Venue is also proper in this Court because Defendant directs commercial activity
to residents of Texas, including residents of this District. Defendant intends to and will continue to market, advertise, and sell its unauthorized automatic check-in service to residents in this District. Facts Giving Rise to This Action A. Southwests Operations 19. Southwest is a commercial airline company that flies millions of passengers to
dozens of destinations nationwide every year. Since its first flight in 1971, Southwest has grown into one of the countrys best known and best-loved commercial airlines. 20. Southwest is headquartered in Dallas and conducts substantial business operations
throughout the state of Texas.

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21.
In the highly competitive and sometimes tumultuous airline industry, Southwest
has been successful, due in large measure to Southwests commitment to customer service and consumer loyalty. 22. In the more than thirty years that Southwest has been offering air transportation
services, it has developed a substantial amount of goodwill with its customers by establishing itself as a customer-focused, low fare airline. B. Southwests Online Customer Service 23. In order to maintain its valuable reputation as a low-fare airline and to keep ticket
prices low for its customers, Southwest relies on the Internet to conduct a substantial portion of its business. In fact, Southwest was the first airline in the country to establish an informational and then interactive site on the World Wide Web accessible to the traveling public. 24. Since 1994, Southwest has developed and maintained a privately-owned computer
system located in this District, which includes the Southwest.com and SWABiz.com websites and numerous supporting servers, databases, routers, networks, bandwidth, cabling, appliances, switches, filers and firewalls (the Southwest Websites). Southwest has invested substantial time and money in developing, compiling and maintaining its proprietary computer system and website. 25. Southwest strives to provide its customers with the same friendly, unique
Southwest Experience on the Internet that it provides in all its operations, from the moment a customer accesses the Southwest Websites to the moment he or she leaves the airport at the end of a trip. Southwest strives to make the Southwest Websites user-friendly. To preserve its
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standards of customer service, reputation, and goodwill, Southwest has chosen the Southwest Websites as the only sites where Southwests customers can check-in for a flight, or purchase an automatic check-in service directly from Southwest. C. Southwest and the Terms & Conditions Governing Its Web site 26. In the current online environment, it is particularly important for businesses like
Southwest to ensure that their websites are secure. Numerous Internet scams, phishing schemes, breaches of financial databases, and harmful computer viruses have eroded consumer confidence in electronic commerce, which affects online businesses, including Southwest. 27. Southwest makes its computer system, websites, and the proprietary contents
thereof available to consumers subject to certain terms and conditions of use that make it clear that the systems and data displayed thereon is proprietary and owned by Southwest (the Use Agreement). The Use Agreement is referenced by interactive link on each page of the Southwest Websites. It provides the terms and conditions under which users may access and use the Southwest Websites. 28. The Use Agreement expressly prohibits the use of the Southwest Websites for
commercial purposes. It also prohibits using Southwests Websites for or in connection with offering any third party product or service not authorized or approved by Southwest. The Use Agreement specifically prohibits online check-in service providers that use Southwest web pages to check-in Southwests customers online, or attempt to obtain a boarding pass for a Southwest customer. 29. Southwests Use Agreement is available by clicking a clearly marked link that
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appears on the Southwest.com home page as well as on the internal pages of the website. 30. Exhibit A is a true and correct copy of the current Use Agreement for the
Southwest.com website. 31. Under the section entitled Limitations of Use, the Use Agreement states You
may not use Southwests sites for or in connection with offering any third party product or service not authorized or approved by Southwest. For example, online check-in service providers may not use Southwest web pages to check-in Customers online or attempt to obtain for them a boarding pass in any certain boarding group. 32. Under the section entitled Prohibited Activities, the Use Agreement states: a. You may not copy, derive, edit, translate, decompile, reverse engineer, modify, use, or reproduce any code or source relating to our sites, including without limitation, any service or product Southwest offers. b. You may not use any deep-link, page-scrape, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the Southwest Airlines sites or Company information. c. You may not use the Southwest Airlines sites in any way which depletes web infrastructural resources, slows the transferring or loading of any web page, or interferes with the normal operation of our site.
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d. You may not engage in any conduct that is, or that Southwest Airlines deems to be, in violation of this Use Agreement. 33. The home page of the Southwest.com website as well as the Use Agreement
conspicuously state that use of the website constitutes acceptance of Southwests Use Agreement. D. Southwest's Check-in & Boarding Procedures 34. Southwest maintains certain policies regarding check-in and boarding for its
flights to promote a fair and expeditious seating process. 35. Southwest has an open seating policy whereby a passenger selects an available
seat upon boarding the plane, rather than having a seat pre-assigned by Southwest. 36. Beginning 24 hours prior to scheduled departure and up to one hour before
departure, customers with eligible reservations may check-in online for their flight from Southwests website, Southwest.com. 37. Customers are placed into the A, B, or C boarding groups based on the time of
check-in. In addition, customers are assigned a position within that group representing a reserved spot in the boarding group at the gate. 38. With limited exceptions, a customer who checks in at the earliest possible time
during the 24 hours prior to departure will be assigned a boarding position that allows that customer to board and select a seat prior to a customer who checked in later in the pre-departure period. 39. Customers who wish to have an option for an improved boarding position and/or
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automatic check-in may purchase such services from Southwest. E. Defendants Wrongful Conduct 40. Without Southwests authorization, Defendant provides an automatic check-in
service for Southwest flights. 41. 42. Defendants service is solely aimed at Southwests customers. Defendant, through its website MySouthwestCheckIn.com, does not offer an
automatic check-in service for any other airline carrier other than Southwest. 43. Defendant charges Southwests customers a fee for using Defendants
unauthorized automatic check-in service. 44. To provide the unauthorized automatic check-in service, Defendant provides a
software application that is aimed at manipulating and circumventing Southwests authorized check-in procedures. 45. Defendant maintains ownership of Defendants automatic check-in software
application, and licenses its use to Defendants clients. 46. When using Defendants automatic check-in service, Defendants clients do not
visit Southwest.com in their individual capacity as would a Southwest customer who visits the website to use Southwests authorized online check-in services. 47. Rather, Defendants clients register their information with Defendant, pay a fee
through Defendants website, MySouthwestCheckIn.com, and then Defendants software application accesses Southwest.com to check-in Defendants clients. 48. Before Defendants software application attempts the automated check-in process
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for one of Defendants clients, Defendants software application communicates with Defendants server to ensure that Defendants client has paid the fee through Defendants website, MySouthwestCheckIn.com. 49. Defendants software application facilitates access to Southwest.com by an
automatic device, program, algorithm or methodology that acquires information and generates a check-in procedure, as if the client had visited Southwest.com in person at the very beginning of the pre-departure check-in time window. 50. Thus, Defendants software application puts Defendants clients in front of
Southwests customers who check-in through Southwests authorized check-in procedures, despite the fact that Defendants clients never personally visit Southwest.com to check-in. 51. Customers who utilize Defendants service do not personally visit Southwest.com
to check-in online. 52. On information and belief, Defendants clients obtain their Southwest boarding
passes in emails sent by Defendant, though Defendants automatic check-in application. 53. Defendants service prevents Southwests customers from visiting
Southwest.com. 54. By preventing Southwests customers from visiting Southwest.com, Defendant
deprives Southwest of selling and advertising opportunities and interferes with the purchasing cycle of Southwests customers. 55. Defendant is also offering an unauthorized automatic check-in service that
competes with Southwests authorized automatic check-in service.

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56.
Defendant is well aware of the Terms & Conditions that govern the use of
Southwest.com and of Southwests objections to Defendants unauthorized automatic check-in service. 57. Defendant has refused to comply with Southwests repeated demands to
terminate its unauthorized automatic check-in service. 58. Upon information and belief, but for Defendants unauthorized automatic check-
in service, a significant number of Defendants clients would have visited Southwest.com to utilize Southwests authorized online check-in services or would have purchased Southwests automatic check-in services. 59. As such, Southwest has suffered and will continue to suffer irreparable harm and
economic injury as a result of Defendants wrongful activities. COUNT I Breach of Contract 60. 61. 62. 63. Southwest repeats and realleges the allegations in the preceding paragraphs. The Use Agreement is a valid and enforceable agreement binding on Defendant. Defendant has used the Southwest.com website. Upon Defendants use of the Southwest.com website, Defendant agreed to be
bound by the Use Agreement. 64. The Use Agreement clearly state that Defendant will not: a. use Southwests sites for or in connection with offering any third party product or service not authorized or approved by Southwest. For example, online check-in
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service providers may not use Southwest web pages to check-in Customers online or attempt to obtain for them a boarding pass in any certain boarding group; b. copy, derive, edit, translate, decompile, reverse engineer, modify, use, or reproduce any code or source relating to our sites, including without limitation, any service or product Southwest offers; c. use any deep-link, page-scrape, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the Southwest Airlines sites or Company information; d. use the Southwest Airlines sites in any way which depletes web infrastructural resources, slows the transferring or loading of any web page, or interferes with the normal operation of our site; and e. engage in any conduct that is, or that Southwest Airlines deems to be, in violation of this Use Agreement. 65. 66. Defendant has breached the Use Agreement. For example, Defendant breached the Use Agreement by providing an
unauthorized automatic check-in service that accesses Southwests website, and Defendant uses an automatic check-in software application for commercial purposes and gain, without authorization by Southwest.
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67.
Southwest has been and will continue to be damaged as the result of Defendants
breach of the Use Agreement. 68. In addition, Southwest has suffered and will continue to suffer irreparable harm
and its remedy at law is not itself adequate to compensate it for injuries inflicted by Defendant. Accordingly, Southwest is entitled to injunctive relief and damages. COUNT II Tortious Interference with Existing Contract 69. 70. users. 71. Defendant has knowledge of the Use Agreement and of the valid and existing Southwest repeats and realleges the allegations in the preceding paragraphs. The Use Agreement is a valid agreement between Southwest and Southwest.com
contract between Southwest and Southwest.com users created by the Use Agreement. 72. Defendant interfered with the Use Agreement between Southwest and
Southwest.com users, for example, by providing users with an automatic device, program, algorithm or methodology that acquires information from and generates a check-in procedure through Southwest.com in violation of the express terms of the Use Agreement. 73. Defendant intended to induce its clients, who are also users of Southwest.com, to
breach their contract with Southwest, and actively took steps to cause the breach. 74. Users who utilize Defendants automatic check-in services did in fact breach the
Use Agreement by using Defendants automatic check-in service. 75. These breaches of the Use Agreement were caused by Defendants unjustified
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and wrongful conduct. 76. Defendants conduct has damaged Southwest, and caused and continues to cause
irreparable harm and injury to Southwest. 77. Southwest is entitled to injunctive relief to prevent Defendant from continuing to
intentionally interfere with the existing contractual relations between Southwest and Southwest.com users, as well as damages. COUNT III Computer Fraud and Abuse in Violation of 18 U.S.C. 1030 78. 79. Southwest repeats and realleges the allegations in the preceding paragraphs. Southwest has suffered loss of at least five thousand dollars ($5,000) in value
during a one-year period. 80. Southwests computers, on which Southwest.com and Southwests online check-
in system reside, are involved in interstate commerce and communication, and are protected computers under 18 U.S.C. 1030(e)(2). 81. Upon information and belief, Defendant has intentionally accessed and continues
to access Southwests computers without authorization or in excess of authorized access, and through interstate communication, obtained information from Southwests computers in violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. 1030(a)(2)(C). 82. Defendants unauthorized access of a protected computer has caused damage and
is continuing to cause damage to Southwest, including loss arising from the cost of responding to and investigating Defendants unauthorized access, which has amounted in an aggregated loss of
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at least $5,000 during a one-year period. 83. Defendants conduct has harmed and will continue to harm Southwest. As a
result, Southwest has suffered and will continue to suffer losses and irreparable injury, in amounts not yet ascertained. 84. Southwests remedy at law is not itself adequate to compensate it for injuries
inflicted by Defendant. 85. Under 18 U.S.C. 1030(g), Southwest is entitled to compensatory damages and
injunctive or other equitable relief. COUNT IV Violation of Texas Penal Code 33.02 86. 87. Southwest repeats and realleges the allegations in the preceding paragraphs. Defendant knowingly, and without Southwests effective consent, accessed and
continues to access Southwests computers, computer network or computer system. 88. Southwest, and its property, have been and will continue to be damaged as the
result of Defendants violation of the Texas Penal Code. 89. Pursuant to 143.001 of the Texas Civil Practice and Remedies Code,
Defendants knowing and intentional violation of Texas Penal Code 33.02 makes Defendant liable for the harmful access of the Southwest website, Southwest.com. 90. Southwest has suffered and will continue to suffer irreparable harm, and its
remedy at law is not itself adequate to compensate it for injuries inflicted by Southwest. Accordingly, Southwest is entitled to injunctive relief and damages.
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COUNT V Trespass 91. 92. Southwest repeats and realleges the allegations in the preceding paragraphs. Defendant has intentionally, and without authorization, accessed the Southwest
website, Southwest.com. Access to Southwest.com and its proprietary information is granted only to those users who abide by the Terms and Conditions of Use Agreement. By disregarding the Agreement, Defendant has unlawfully gained access to and interfered with Southwests private property. 93. Defendant has used the Southwest website capacity without permission to enrich
its business, depriving Southwest of its own resources. If not stopped, Defendant will continue and potentially increase its activities and perpetuate the risk that Southwest.com will experience malfunctions and be unable to properly provide service to legitimate customers of Southwest. 94. Defendants intentional and unauthorized access of the Southwest website has
injured or interfered with Southwests possession of its personal property. 95. Southwest has suffered and will continue to suffer irreparable harm, and its
remedy at law is not itself adequate to compensate it for injuries inflicted by Defendant. Accordingly, Southwest is entitled to injunctive relief. COUNT VI Unjust Enrichment 96. 97. Southwest repeats and realleges the material facts in the preceding paragraphs. In the alternative to Southwests First Cause of Action, Southwest alleges that
Defendant has been unjustly enriched by its actions.

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98.
Defendant has benefited from Southwest through its unlawful activities, as alleged
elsewhere in this complaint, by profiting from Southwests customers and using Southwests website, Southwest.com. 99. Southwest has been and continues to be injured by Defendants unlawful acts and
is entitled to damages. 100. Southwest has suffered and will continue to suffer irreparable harm, and its
remedy at law is not itself adequate to compensate it for injuries inflicted by Defendant. Accordingly, Southwest is entitled to injunctive relief. Attorneys Fees 101. Southwest has been required to retain the services of the undersigned attorneys in
the prosecution of this claim. Pursuant to at least 38.001 and 143.002 of the Texas Civil Practice and Remedies Code, Southwest seeks to recover its reasonable attorneys fees and costs necessarily expended in prosecuting this matter. Exemplary Damages 102. Defendants misconduct, described above, has been willful, intentional, and
malicious, and Southwest seeks exemplary damages. Prayer for Relief For these reasons, Southwest respectfully requests that this Court grant the following relief: a. Adjudge that Defendant has breached the express terms of Southwests Use
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Agreement regarding use of Southwest.com; b. Adjudge that Defendant has induced other users to breach their contract with Southwest for use of Southwest.com; c. Adjudge that Defendant has violated 18 U.S.C. 1030; d. Adjudge that Defendant has intentionally violated 33.02 of the Texas Penal Code, rendering them liable under 143.001 of the Texas Civil Practice and Remedies Code; e. Adjudge that Defendant has committed a trespass to the Southwest Websites; f. Adjudge that Defendant has been unjustly enriched from its unlawful acts with respect to Southwest; g. Issue preliminary and permanent injunctive relief against Defendant, that it and its officers, agents, representative, servants, employees, attorneys, successors, assigns, and any and all others in active concert or participating with it, be enjoined from: i. using Southwest.com or any Southwest website for the purpose of checking in Southwest customers and obtaining boarding passes for Southwest customers; ii. accessing Southwests computer system in violation of 18 U.S.C. 8 1030; iii. breaching or inducing others to breach of any of the Terms and Conditions of use of Southwest.com or any other website owned, operated by, or affiliated with Southwest;
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iv. accessing, without effective consent, Southwests computer network or system in violation of 4 33.02 of the Texas Penal Code; and v. assisting, aiding, or abetting any other person or business entity in engaging in or performing any of the activities referred to in subparagraphs (i) through (iv) above. h. Award Southwest damages as a result of Defendant breaching its contract with Southwest for use of Southwest.com; i. Award Southwest damages as a result of Defendant inducing other users to breach their contract with Southwest for use of Southwest.com; j. Award Southwest damages as a result of Defendants unauthorized access of Southwests computer system in violation of 18 U. S.C. 1030 k. Award Southwest damages as a result of Defendants violation(s) of 33.02 of the Texas Penal Code; l. Award Southwest damages and Defendants profits pursuant to Texas common law for breach of contract; m. Award Southwest damages in an amount adequate to compensate Southwest for Defendants illegal conduct; n. Award Southwest both the costs of this action and the reasonably attorneys fees incurred by it in prosecuting this action; and o. Award such other relief as the Court may deem appropriate and just under the circumstances.
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February 27, 2012
Respectfully submitted, /s/ Max Ciccarelli Max Ciccarelli (Attorney-in-Charge) State Bar No. 00787242 Max.Ciccarelli@tklaw.com Adrienne E. Dominguez State Bar No. 00793630 Adrienne.Dominguez@tklaw.com Justin S. Cohen State Bar No. 24078356 Justin.Cohen@tklaw.com THOMPSON & KNIGHT, LLP One Arts Plaza 1722 Routh Street, Suite 1500 Dallas, Texas 75201 Phone: 214.969.1700 Fax: 214.969.1751 ATTORNEYS FOR PLAINTIFF SOUTHWEST AIRLINES CO.
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EXHIBIT A
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Terms & Conditions

Thanks for visiting Southwest Airlines' web sites, www.southwest.com and www.swabiz.com (collectively, the "sites"). Southwest believes that you will find these sites informative and easy to navigate, and we hope that you will visit regularly. Your use of this site and the information, content, and services available through the site are subject to the following Terms & Conditions ("Terms"), which may be updated by us from time to time without notice to you. You can review the most current version of the Terms & Conditions agreement at any time at http://www.southwest.com/html/about-southwest/terms-and-conditions/index.html. If you do not agree to any of these Terms, please do not use our sites. Transportation of passengers, baggage, and cargo by Southwest Airlines and its affiliates is subject to the Terms & Conditions contained in Southwest's Contract of Carriage, in addition to any Terms & Conditions specified on any Southwest web site, printed on or in a ticket jacket, e-Ticket receipt, or in any published schedule. By purchasing a ticket and accepting transportation, the passenger agrees to be bound by such Terms & Conditions.
Ownership of Company Information

Information concerning Southwest and its services, including flight schedules, routes, fares, text, graphics, button icons, audio and video clips, digital downloads, data compilations (including Customer and Rapid Rewards information), logos and information regarding the status of Southwest flights, etc. is referred to as "Company Information." Southwest owns all copyrights, trademarks, service marks, and trade names related to our Company Information. All Company Information is proprietary to Southwest Airlines.
Use Agreement
Southwest offers the services available on our sites conditioned upon your acceptance of all the limitations of use and prohibited activities set forth below (collectively, the "Use Agreement"). By using the Southwest sites in any manner, you accept and agree to be bound by this Use Agreement. Your continued use of Southwest's web sites is your acceptance of the changed or modified Use Agreement. Limitations of Use Southwest's sites and any Company information provided thereon is available to you only for non-commercial uses to determine the availability of goods and services offered on our sites and to transact business with Southwest and/or our marketing partners. Unless you are an authorized Southwest travel agent, you may not use the information provided on this site for any commercial use of other purpose.
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You may not use Southwest's sites to make any speculative, fraudulent, or false reservation or any reservation in anticipation of demand. If you have made multiple reservations to one or more destinations on or about the same date, Southwest reserves the right to cancel all such reservations without notice. You may not use Southwest's sites for or in connection with offering any third party product or service not authorized or approved by Southwest. For example, online check-in service providers may not use Southwest web pages to check-in Customers online or attempt to obtain for them a boarding pass in any certain boarding group. Southwest is not liable for information that is inaccurate due to technical defects in software used on our web sites, whether induced by our systems or by software provided by third parties. If Southwest Airlines notifies you that the manner in which you are using one of the Southwest Airlines sites is prohibited or unauthorized, you may no longer use the site for that particular purpose. Prohibited Activities You may not copy, display, distribute, download, license, modify, publish, re-post, reproduce, reuse, sell, transmit, use to create a derivative work, or otherwise use the content of this site for public or commercial purposes without our express written permission. Nothing on this site shall be construed to confer any grant or license of any intellectual property rights, whether by estoppel, by implication, or otherwise. You may not modify, re-render, frame, mirror, truncate, add to, inject, filter or change the order of the information contained on any page of the Southwest Airlines sites, including, without limitation, by any way of reproducing Southwest Airlines or SWABiz web pages or Company information on any other web site without our express written permission. You may not copy, derive, edit, translate, decompile, reverse engineer, modify, use, or reproduce any code or source relating to our sites, including without limitation, any service or product Southwest offers. You may not cause to appear any pop-up, pop-under, exit windows, expanding buttons, banners advertisement, or anything else which minimizes, covers, or otherwise inhibits the full display of the Southwest Airlines sites. You may not use any deep-link, page-scrape, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate
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searches, or monitor any portion of the Southwest Airlines sites or Company information. You may not use the Southwest Airlines sites in any way which depletes web infrastructural resources, slows the transferring or loading of any web page, or interferes with the normal operation of our site. You may not upload or transmit to the Southwest Airlines sites any device, software, program, or file that may damage the operation of any computer or the Southwest Airlines sites, including without limitation, viruses or corrupt files. You may not disguise the origin of information transmitted to, from, or through the Southwest Airlines sites. You may not circumvent any measures implemented by Southwest Airlines aimed at preventing violations of the Use Agreement. You may not violate the restrictions in any robot exclusion header. When you use the Southwest Airlines sites or Company information for an authorized purpose, you must include all proprietary notices without changing, hiding or deleting them. You may not engage in any conduct that is, or that Southwest Airlines deems to be, in violation of this Use Agreement.
Southwest Travel Guide

Reviews, Comments, and Other Submissions We appreciate hearing from you and encourage our Customers to submit relevant information based on their travel experiences to our Travel Guide Site. Our Travel Guide Site is available through southwest.com and allows you to do things such as post comments, submit travel journal entries, participate in forums, review, and rate travel-related products and services (such as hotels and car rentals), post photos and videos from recent trips, and invite friends to view the site. Please be aware that by submitting content to this web site by e-mail, posting information to the web site or otherwise, including, but not limited to any hotel reviews, ratings, photos, video, questions, comments, suggestions, ideas or the like contained in any submissions (collectively, "Submissions"), you grant Southwest and its affiliates a nonexclusive , royalty-free, perpetual, transferable, irrevocable and fully sublicensable right to (a) use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display such Submissions throughout the world in any media , now known or hereafter devised; and (b) use the screen name that you submit in connection with such Submission. You acknowledge that Southwest may choose to provide attribution of your comments or reviews (for example, listing your name and/or screen name and hometown on a hotel review that you submit) at our discretion, and that such Submissions may be shared with our supplier partners.
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You further grant Southwest the right to pursue at law any person or entity that violates your or Southwest's rights in the Submissions by a breach of this agreement. You acknowledge and agree that Submissions are not confidential. We have no obligation to post your comments or any other content you submit to us; we reserve the right in our absolute discretion to determine which comments are published on the southwest.com web site. Please see our Posting Guidelines for additional information. You are fully responsible for the content of your Submissions, (specifically including, but not limited to, reviews, photos, and comments posted to this web site). We take no responsibility and assume no liability for any Submissions posted or submitted by our Travel Guide members. Prohibited Acts With respect to Submissions and the Southwest Travel Guide section of our site, you agree you will not: (i) post Submissions that are copyrighted, protected by trade secret or otherwise subject to any third party Intellectual Property Rights or propriety rights, including any privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner of such rights to post such Submissions and to grant Southwest all of the license rights and other rights granted herein; (ii) upload, post, e-mail or otherwise transmit any Submissions or other content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (iii) use the site to harm minors in any way; (iv) impersonate any person or entity, including but not limited to, a representative of Southwest, or falsely state or otherwise misrepresent your affiliation with a person or entity; (v) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Submissions or other content transmitted to or through the site; (vi) upload, post, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail", "spam", "chain letters", "pyramid schemes" or any other form of solicitation; (vii) upload, post, e-mail or otherwise transmit any Submissions or other content that contains computer viruses or any other computer code, files or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (viii) intentionally or unintentionally violate any applicable local, state, national or international law and any regulations having the force of law; and (ix) collect or store personal data about other users. You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of content to this web site. You acknowledge that Southwest may exercise its rights (e.g. use, publish, delete) to any content you submit without notice to you.
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Intellectual Property Rights Southwest respects the intellectual property of others, and we ask our users to do the same. It is our policy, in appropriate circumstances and at our discretion, to disable and/or terminate the accounts of users of the Southwest Travel Guide Site who may infringe or repeatedly infringe the copyrights or other intellectual property rights of Southwest.com and/or others. Southwest's policies with respect to claims by third parties that the content of the Travel Guide Site, including the content of any Submissions, infringes the copyrights owned by said third parties can be found in our Copyright Complaint Policy.
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Your privacy is important to us. Our Privacy Policy is incorporated in this Agreement and subject to these Terms and Conditions. The Privacy Policy is available through the following link and from our home page. Consistent with the Southwest Airlines Privacy Policy, we ask you to provide us with information when you use certain personalized services. You agree that when you provide such information, the information will be accurate. Under no circumstances will you provide false or misleading information. We agree to use this information in a manner consistent with our Privacy Policy. IN NO EVENT SHALL Southwest Airlines OR ITS AFFILIATED COMPANIES BE LIABLE FOR ANY DAMAGES (WHETHER CONSEQUENTIAL, DIRECT, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR OTHERWISE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, A THIRD PARTY'S UNAUTHORIZED ACCESS TO YOUR INFORMATION, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, STRICT LIABILITY, TORT, OR OTHER THEORIES OF LIABILITY, AND ALSO REGARDLESS OF WHETHER SOUTHWEST AIRLINES WAS GIVEN ACTUAL OR CONSTRUCTIVE NOTICE THAT DAMAGES WERE POSSIBLE. Some jurisdictions do not allow the exclusion of consequential or incidental damages, so portions of the above exclusions may not apply to you.
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Southwest uses Network Security Services (NSS) to protect your billing information. Secure Sockets Layer (SSL) is the industry standard tool that encrypts information and keeps the data private and confidential as it is transferred between your machine and Southwest Airlines. This technology makes it safe to transmit your credit card number over the Internet. Network Security Services (NSS) works with most web browsers. If you are a Prodigy, America Online, or CompuServe subscriber and use their browser, or your Internet service provider has a firewall in place, you may not be able to complete a Ticketless
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Travel transaction on the Southwest web sites (Contact your service provider for more information).
Web Browser Compatibility

To view southwest.com or swabiz.com and purchase travel online, we recommend you use a web browser equivalent to Firefox 2.0+, Microsoft Internet Explorer 7.0+, Safari 3.0+, or Chrome 1.0+. The browser you use must support Secure Sockets Layer (SSL) encryption and JavaScript. Disabling any of these features or using older noncompatible browsers may reduce site functionality. To determine which browser you are running, click Help at the top of the browser and select the About menu item that describes your browser. Please note that any "Beta" or "Preview" version of a browser may not properly work with these pages.
Contacting Southwest Airlines

We love to hear from our Customers and encourage you to send us your comments and questions by phone, e-mail, or U.S. mail. If you need immediate assistance, please call us at 1-800-I-FLY-SWA. If you would like to contact us via e-mail, you can expect a response within five business days. We will read all the mail you send to us through the U.S. Postal Service and respond to you within a reasonable amount of time. For more information on how to contact Southwest Airlines visit our Contact Us page.
Links to Other Sites

The Southwest Airlines sites may have links to other web sites which are not operated, controlled or maintained by Southwest Airlines. Southwest Airlines is not responsible for the content of such web sites and cannot guarantee that such web sites will not change without knowledge. The inclusion of such links on Southwest Airlines sites does not imply Southwest Airlines' endorsement or approval of the linked sites to their content. If you navigate away from our web pages by clicking on an unaffiliated web site link, you do so at your own risk and you should be aware that our Terms and Conditions no longer govern. You should review the applicable Terms and Policies, including privacy and data gathering practices, of any site to which you navigate from our sites or relating to any applications you use or install from another site.
Liability Disclaimer
THE CONTENT AND COMPANY INFORMATION FOUND ON SOUTHWEST'S SITES IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY CONCERNING THE INFORMATION, SERVICES, OR PRODUCTS OFFERED OR PROVIDED THROUGH
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OR IN CONNECTION WITH SOUTHWEST'S WEB SITES AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. IN NO EVENT SHALL SOUTHWEST OR ITS PREFERRED PARTNERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE USE OF SOUTHWEST'S WEB SITES OR WITH THE DELAY OR INABILITY TO USE SOUTHWEST'S WEB SITES, FOR ANY INFORMATION (INCLUDING COMPANY INFORMATION), SOFTWARE PRODUCTS, AND SERVICES OBTAINED THROUGH SOUTHWEST'S WEB SITES , OR OTHERWISE ARISING OUT OF THE USE OF THE SOUTHWEST WEB SITES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF SOUTHWEST OR ITS PREFERRED PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. This disclaimer of liability applies to any damages or injuries caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication-line failure, theft or destruction or unauthorized access to, alteration of, or use of record, whether for breach of contract, tortious behavior, negligence, or under any other cause of action. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to you. E-Mail Communication Disclaimer Please note that when we contact you by e-mail, such communications are not secure. It is the responsibility of the recipient to make sure the message is virus-exempt. We are not responsible for any unauthorized alterations or modifications made to any of our email messages. We make no warranty of any kind with respect to the accuracy of the contents of any of our e-mails. If you require confirmation of the content of any of our emails, please contact Southwest Airlines Customer Service directly.
Our Legal Rights

Forum Selection These Terms and the relationship between you and Southwest shall be governed by the laws of the State of Texas without regard to any conflict of law provisions. You agree to the personal and exclusive jurisdiction of the courts located within Dallas, TX. You hereby consent to the exclusive jurisdiction and venue of the State and Federal courts in Dallas, Texas in all disputes arising out of or relating to these Terms, our sites and site information. Class Actions To the fullest extent permitted by applicable law, no arbitration or claim under these Terms and Conditions shall be joined to any other arbitration or claim, including any
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arbitration or claim involving any current or former user of our services, and no class arbitration proceedings shall be permitted. Limited Time to Bring Your Claim You agree that any cause of action arising out of related to the site or any site information must be commenced within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
Purchases & Forms of Payment

Ticketless Travel must be purchased on Southwest web site(s) using one of the following forms of payment: American Express, MasterCard, Visa, Diners Club, Discover Network, PayPal, and UATP Card. Travel may also be purchased by applying available Ticketless Travel funds, southwestgiftcards or Southwest LUV Vouchers. If you wish to use another form of payment (e.g., Southwest Airlines Residual Travel Fund, or discount coupon), please contact Southwest Reservations at 1-800-I-FLYSWA (1-800-435-9792) for information on how to use those payment options. Southwest's Internet Specials may only be purchased at Southwest's web sites using the above-referenced credit cards, available Ticketless Travel funds, southwestgiftcards, or Southwest LUV Vouchers.
Additional Information
We want to thank you for visiting the Southwest web sites for your travel and information needs. For additional information and to learn more about Southwest Airlines, please visit our Customer Service Commitment or Contract of Carriage pages on southwest.com.
Patents
Some technologies, components, or progresses of this site along with the features and services accessible via the site may be covered by Southwest Airlines Co. patents pending. In addition, some components or processes referenced in this website may be subject to one or more U.S. Patent Numbers 4,745,468; 4,876,592; 4,926,255; 5,034,807; 5,057,915; 5,128,752; 5,227,874; 5,249,044;5,283,734; 5,368,129; 5,508,731; 5,697,844; 5,713,795; 5,759,101; 5,916,024; 6,443,840 along with all corresponding foreign counterparts. Updated: July 25, 2011

Southwest v.

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throughout the state of Texas.

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In the highly competitive and sometimes tumultuous airline industry, Southwest

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Southwest.com. 54. By preventing Southwests customers from visiting Southwest.com, Defendant

competes with Southwests authorized automatic check-in service.

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Defendant has been unjustly enriched by its actions.

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February 27, 2012

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Terms & Conditions

Ownership of Company Information

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Southwest Travel Guide

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Web Browser Compatibility

Contacting Southwest Airlines

Links to Other Sites

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Our Legal Rights

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Purchases & Forms of Payment

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