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EXHIBIT 10.14
TRAVELWEB PARTICIPANT AGREEMENT
This Agreement is entered into by and between The Hotel Industry Switch
Company, a Delaware corporation (hereinafter called "THISCO") and HILTON
HOTELS CORPORATION, a Delaware corporation (hereinafter called "Participant")
to be effective on the latest date of execution by the parties hereto on the
terms and conditions as set forth herein (the "Agreement").
I.
DEFINITIONS
The following definitions shall be applicable to this Agreement:
1.1 TravelWeb. A tradename owned by THISCO for its service to
provide a catalog of information on hotels, resorts, cruise
lines and other travel and lodging subjects which is accessible
by a Client Computer (as hereinafter defined) on the Internet.
1.2 Internet. A worldwide network of computers with information
which is accessible by Client Computers (as hereinafter
defined).
1.3 TravelWeb Participant. A person or entity who enters into an
agreement with THISCO for the creation and publishing of
Internet Pages (as hereinafter defined).
1.4 TravelWeb Publication. One or more pages of Materials (as
hereinafter defined) to be developed into Internet Pages (as
hereinafter defined).
1.5 TravelWeb Order. A written order form, reasonably acceptable to
THISCO and in the form prescribed by THISCO, executed by THISCO
and Participant setting forth the information necessary for the
publication of Internet Pages (as hereinafter defined) from the
Materials (as hereinafter defined) and the agreed fees and costs
to be paid for the order. A copy of the current TravelWeb Order
Form (with additional required documents attached thereto) is
attached hereto and marked Exhibit A.
1.6 Change Order. A written change, on a form prescribed by THISCO,
in the TravelWeb Order mutually agreed to and executed by THISCO
and Participant.
1.7 Client Computer. A computer with access to information on the
Internet.
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The monthly maintenance fee is for each property with an Internet
Page published for all or any portion of a month and is due upon
receipt and shall be past due thirty (30) days thereafter for
each month during which an Internet Page has been published on
TravelWeb pursuant to this Agreement.
2. This First Amendment shall be and hereby is incorporated into
the Agreement for all intents and purposes and all terms,
provisions and definitions of the Agreement shall apply.
3. Except where inconsistent with the terms of this First
Amendment, the Agreement is hereby ratified and affirmed in all
respects.
This First Amendment shall be effective upon the date set forth above upon
execution by both parties.
TRAVELWEB, INC.
By: /s/ XXXX X. XXXXX, III
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Xxxx X. Xxxxx, III
President
Date: 4/27/95
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HILTON HOTELS CORPORATION
By: /s/ XXXXXX XXXXX
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Its:
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Date: 4/20/95
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1.8 Materials. All of the information, in documentary form or
otherwise, provided to THISCO by Participant to be used by
THISCO to publish the Internet Pages.
1.9 Trave]Web Access Information. Information regarding TravelWeb
access by Client Computers as is gathered by THISCO and made
available to Participant which shall include daily transaction
statistics, hourly transaction statistics, total transfers by
client domain, total transfers by reversed sub domain, total
transfers from each archive section and previous full summary
period, which shall include the date, time, page number and
originating domain for all accesses to Participant's TravelWeb
Pages.
1.10 Internet Page. The finished informational product created and
published by THISCO from the Materials pursuant to this
Agreement and a TravelWeb Order or a Change Order which appears
on an individual Client Computer screen and which is available
on and is accessible by Client Computers on the Internet.
1.11 Authorized Representative. An authorized representative is any
person or entity with the express written right, authority
and/or obligation to perform the obligations of or act on behalf
of THISCO or Participant with respect to this Agreement.
1.12 Certificate of Acceptance. Written acceptance by Participant of
the Internet Pages and authorization to publish them. The
Certificate of Acceptance will be in a form prescribed by
THISCO.
II.
INTENT OF THIS AGREEMENT
2.1 Mutual Intent. It is intended by both parties to this Agreement
that this Agreement and all exhibits hereto set forth, in its
entirety, all of the terms, conditions, rights and obligations
of THISCO and Participant with respect to the publishing of
Internet Pages by THISCO for the benefit of Participant as more
specifically set forth herein. THISCO agrees to enter into
separate agreements on the same terms and conditions with each
of Participant's franchisees which may, from time to time,
notify THISCO of their intent to enter into such an agreement.
Ill.
CREATION AND PUBLICATION OF A TRAVELWEB BROCHURE;
DUTIES AND OBLIGATIONS OF THISCO AND PARTICIPANT
3.1 TravelWeb Order. The TravelWeb Order shall be completed in the
form attached hereto and marked Exhibit A (the "TravelWeb Order
Form") and shall contain all of the information requested on the
form for THISCO to
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publish the Internet Pages requested by Participant. The
TravelWeb Order Form may be amended or replaced by THISCO at any
time without notice prior to any TravelWeb Order being executed
and such new or amended form need not be attached hereto as a
replacement for Exhibit A to be effective and to supersede
Exhibit A. To be effective, any TravelWeb Order Form must be
executed by an Authorized Representative of THISCO and
Participant. A new TravelWeb Order Form shall be completed and
agreed to with respect to each TravelWeb Publication to be
created and published by THISCO for the benefit of Participant
pursuant to this Agreement.
3.2 Materials for Creation and Publication of the Internet Pages.
Participant shall be solely responsible for providing to THISCO
all Materials reasonable and necessary for THISCO to create and
publish the Internet Pages pursuant to the TravelWeb Order. All
Materials shall be in form, substance, condition and format as
mutually agreed and shall meet or exceed all of the requirements
set forth on Exhibit A hereto and all other reasonable and
necessary requirements requested by THISCO and mutually agreed
with Participant. Exhibit A may be amended by THISCO at any
time. THISCO is hereby authorized to utilize, consistent with
the TravelWeb Order, all copyrights, trademarks, trade names,
service marks or other proprietary marks or symbols contained
within the Materials (collectively, "Participant's Marks"),
provided that THISCO hereby acknowledges and agrees that it does
not have and shall not gain any usage or other rights or
interests of any kind in and to any Materials or Participant's
Marks at any time.
3.3 Processing the Order; Creation of the Internet Pages; Approvals.
THISCO shall process the TravelWeb Order pursuant to the
schedule set forth therein but no later than fourteen (14)
business days from the date of receipt thereof. Upon creation of
the Internet Pages to be published pursuant to the TravelWeb
Order and this Agreement (but prior to such publication), THISCO
shall (i) deliver to Participant a printed black and white copy
of the completed Internet Pages and (ii) notify Participant of
and permit Participant access to the TravelWeb server via its
Client Computer to view the completed Internet Pages.
Participant shall, within seven (7) business days of such
delivery and notification, make any and all written corrections
or proposed amendments it may have to the Internet Pages and
shall provide THISCO with written notice detailing such
corrections and/or proposed amendments. In the event the
Internet Pages are approved, Participant shall, within seven (7)
business days of receipt of the Internet Pages, provide THISCO
with a Certificate of Acceptance. In the event Participant does
not provide written notice to THISCO of corrections or proposed
amendments or approving the Internet Pages within seven (7)
business days of receipt of the Internet Pages, the Internet
Page shall be
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deemed disapproved by Participant and THISCO shall not publish
the Internet Pages on the Internet.
3.4 Authority to Publish. Participant hereby authorizes and directs
THISCO to publish on the Internet as part of TravelWeb the
approved Internet Pages. No Internet Page may be changed or
revised without Participant's express written permission.
IV.
FEES AND COSTS
4.1 Creation and Publication Fees. For the creation and development
of the Internet Pages from the Materials provided by Participant
to THISCO, Participant shall pay to THISCO the fees and costs
set forth on each TravelWeb Brochure Order and/or Change Order
provided however the price for page construction shall not
exceed Seventy Five Dollars ($75.00) per page, the price for
picture processing shall not exceed Forty Five ($45.00) per
picture and the price for data entry shall not exceed Twenty
Dollars ($20.00) per page. Fees and costs charged in connection
with each TravelWeb Brochure Order are subject to change only by
mutual agreement.
4.2 Monthly Maintenance Fees. For maintaining the Internet Pages on
the Internet and the management and operation of the TravelWeb,
Participant shall pay to THISCO a monthly maintenance fee as
follows:
1 - 10 properties $25
11 - 30 properties $50
31 - 50 properties $100
51 - 100 properties $250
101 - 500 properties $500
over 500 properties $1000
Franchises $2.50 per property
The monthly maintenance fee is for each property with an
Internet Page published for all or any portion of a month and is
due upon receipt and shall be past due thirty (30) days
thereafter for each month during which an Internet Page has been
published on TravelWeb pursuant to this Agreement.
4.3 Additional Hypertext Connections. For all hypertext connections
to Internet sites not on TravelWeb, Participant shall pay to
THISCO Five Dollars ($5.00) per additional site.
4.4 Payment of Fees and Costs. THISCO shall invoice Participant for
all fees and costs and Participant shall pay each invoice upon
receipt and each invoice shall be past due thirty (30) days
thereafter.
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V.
TERM AND TERMINATION
5.1 Term. Unless terminated as provided herein, the term of this
Agreement shall begin on the date this Agreement is executed by
both parties and shall terminate on the date of its first (lst)
anniversary hereof. This Agreement shall be automatically
renewed and extended on the same terms and conditions for
additional one (1) year terms thereafter unless, at least sixty
(60) days prior to the expiration of the initial one (1) year
term or the expiration of any additional one (1) year term,
either party hereto shall give notice of its intent not to renew
and extend this Agreement.
5.2 Termination. This Agreement may only be terminated prior to the
expiration of the initial one (1) year term or any extended term
(if applicable) in the event of a breach hereof and the failure
to cure within the applicable time period as provided herein or
in the event this Agreement is not performable as the result of
an event of force majeure as set forth in Section 7.2 hereof.
5.3 Effect of Termination. In the event this Agreement is terminated
as permitted herein or the term of this Agreement expires
without being renewed and extended, the publication of all
Internet Pages shall immediately cease and all duties and
obligations as set forth herein shall immediately cease and
terminate except for the provisions set forth in Article 6,
Sections 7.6, 7.7, 9.1 and Articles 10 and 11 hereof and any
payments which may be due after the date of termination and all
Materials shall be returned to Participant.
VI.
INTELLECTUAL PROPERTY AND MATERIALS
6.1 Ownership of Materials. Participant represents and warrants that
it is the sole and exclusive owner, or has the authorized right
of use in connection herewith, of all Materials, and
Participant's Marks to be used hereby, by virtue of common or
statutory law, used in connection therewith and that the
publication of same on the Internet Pages is and shall be, at
all times material hereto, legal and shall not, in any manner,
violate any applicable law or the rights of any third party.
6.2 Protection of Intellectual Property Rights. Participant shall be
solely and exclusively responsible for the protection of any and
all of its intellectual property including, but not limited to
the inclusion of any and all statutory or other notices
customarily used or required for purposes of providing notice of
ownership or protection of Participant's Marks in connection
with the Materials and the Internet Pages.
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6.3 Ownership of Internet Pages. Subject to Section 3.2 hereof, the
Internet Pages, shall, at all times material to this Agreement,
be and remain the property of Participant and may be used by
Participant to be available for receiving on the Internet via a
server other than TravelWeb. THISCO may not use or publish the
Internet Pages or any portion thereof or elements contained
therein in any manner other than pursuant to this Agreement
without the prior written consent of Participant.
VII.
DEFAULT
7.1 Events of Default. Subject to Section 7.2 below, any one of the
following will be considered an Event of Default:
(i) The failure of either party to pay any amount due
hereunder within the time required;
(ii) The refusal or failure of either party (including
Participant's participating affiliates or subsidiaries) to
perform diligently and in good faith each and every
material provision of this Agreement; or
(iii) The commencement by either party of a voluntary case under
Chapters 11 or 7 of the United States Bankruptcy Code, as
from time to time in effect, the commencement against
either party of an involuntary case under said Chapters 11
or 7, either party seeking relief as a debtor under any
applicable law, other than said Chapters 11 or 7, of any
jurisdiction relating to the liquidation or reorganization
of debtors or the modification of the rights of creditors,
the entry of a court order adjudging the party bankrupt or
insolvent, ordering its liquidation or reorganization or
assuming custody or appointing a receiver or other
custodian of its property, or its making an assignment for
the benefit of, or entering into a composition with, its
creditors.
7.2 Force Majeure. It will not constitute an Event of Default if
such event listed in Section 7.1 is caused by or results from
acts of God, fire, war, civil unrest, accident, power
fluctuations or outages, telecommunication fluctuations, outages
or delays. utility failures, mechanical defects, or other events
beyond the control of the defaulting party. However, if any such
occurrence results in any of the events described in Section
6.1, and the same continues for more than thirty (30)
consecutive days, either party may terminate this Agreement by
providing notice as required herein.
7.3 Notice of Default and Opportunity to Cure. Upon the occurrence
of an Event of Default, the non-defaulting party shall give
notice of such default to the defaulting party and, in the event
of a monetary default, the
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defaulting party shall have ten (10) business days from the date
of such notice within which to cure such default or, in the
event of a non-monetary default, the defaulting party shall have
twenty (20) business days within which to cure such default. In
the event such default is not cured within the time required
herein, this Agreement may then be terminated.
7.4 Effect of Default.
(i) By Participant. In the event of a default of this
Agreement by Participant and the failure of Participant to
cure such default after notice and opportunity to cure as
provided herein, THISCO shall be entitled (i) to terminate
this Agreement and THISCO's obligations and duties set
forth herein shall cease (ii) to cease use of all
Materials, the Internet Pages and any and all other
Materials used by, developed, or created by THISCO in the
performance of this Agreement, and (iii) pursue any and
all claims for fees and costs agreed to be paid pursuant
to this Agreement with offset for mitigation resulting
from THISCO's terminated obligation to continue to develop
and create Internet Pages as required by the TravelWeb
Order Form. It is acknowledged and agreed by Participant
that the damages to THISCO for a default on this Agreement
by Participant would be difficult, if not impossible, to
measure and that the balance unpaid on any TravelWeb Order
Form is a fair and reasonable estimate of THISCO's damages
in the event of such default and shall be the total amount
due THISCO in such event.
(ii) By THISCO. In the event of a default of this Agreement by
THISCO and the failure of THISCO to cure such default
after notice and opportunity to cure as provided herein,
Participant may terminate this Agreement and THISCO shall
deliver to Participant all Materials and all other
materials used, developed and/or created by THISCO in the
development and creation of the Internet Pages and THISCO
shall refund to Participant all amounts paid pursuant to
the TravelWeb Brochure Order less a reasonable amount no
greater than the price set forth on the applicable
TravelWeb Order Form for such parts of the development and
creation of the Internet Pages accomplished by THISCO as
represented by the Materials delivered to Participant.
7.5 Errors on Internet Pages. Notwithstanding any other provision
hereof, in the event an Internet Page published pursuant to this
Agreement contains an error caused by THISCO, other than an
error arising from THISCO's gross negligence or willful
misconduct, Participant's sole and exclusive remedy for such
error shall be THISCO's obligation to remove such Internet Page
from the Travel Web within twenty four (24) hours of becoming
aware, or notified of, such error, and shall then cure such
error by correcting the information contained on the Internet
Page and restoring the corrected and approved Internet Page to
the TravelWeb as promptly
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as possible but in no event later than seven (7) days of the
date of notice from Participant of such error, each at THISCO's
sole cost and expense.
7.6 Waiver of Consequential Damages. Neither party shall be liable
to the other for any consequential damages proximately caused or
resulting from any default of this Agreement or arising out of
the performance of this Agreement, and each party hereby
expressly waives such damages.
7.7 Disclaimer and Limitation of Liabilities. THISCO WILL NOT BE
RESPONSIBLE OR LIABLE FOR ANY FALSIFICATIONS OR INACCURACIES IN
THE MATERIAL OR THE INTERNET PAGES NOR WILL IT HAVE ANY
LIABILITY FOR ANY ACT OR FAILURE TO ACT WITH RESPECT TO THE
INTERNET PAGES UNLESS EXPRESSLY SET FORTH HEREIN, OR EXCEPT TO
THE EXTENT RESULTING FROM THISCO'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND
WORKMANLIKE PRODUCT OR SERVICE OR OTHERWISE, ARE DISCLAIMED BY
THISCO AND WAIVED BY PARTICIPANT.
VIII.
TRAVELWEB ACCESS INFORMATION
8.1 TravelWeb Access Information. There shall be available to
Participant via TravelWeb current on line reports containing
TravelWeb Access Information.
IX.
INDEMNIFICATION
9.1 Indemnification in the Event of Certain Losses. Participant
agrees to indemnify, defend and hold harmless THISCO and
THISCO's partners, successors, assigns, subsidiaries,
affiliates, and each such entity's directors, officers,
employees and stockholders, from and against any losses, claims,
liabilities, damages or expenses (including reasonable
attorney's fees) ("THISCO's Losses") occurring on account of
Participant's fault except to the extent due to the fault of
THISCO. THISCO agrees to indemnify, defend and hold harmless
Participant, and Participant's partners, successors, assigns,
subsidiaries, affiliates, and each such entities' directors,
officers, employees and stockholders, from and against any
losses, claims, liabilities, damages or expenses (including
reasonable attorney's fees) ("Participant's Losses") occurring
on account of THISCO's fault except to the extent due to the
fault of Participant. Promptly after receipt by an indemnified
party of notice of the commencement of any action or the
presentation or other assertion of any claim which could result
in any indemnification claim pursuant to this Section 9.1, such
indemnified party shall give prompt notice thereof to the
indemnifying party and the
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indemnifying party shall be entitled to participate therein or,
to the extent that it shall wish, assume the defense thereof
with its own counsel. If the indemnifying party elects to assume
the defense of any such action or claim, the indemnifying party
shall not be liable to the indemnified party for any fees of
other counsel or other expenses, in each case subsequently
incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs of investigation
and preparation, unless representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. Whether or not an indemnifying
party elects to assume the defense of any action or claim, the
indemnifying party shall not compromise or settle any such
action or claim without the indemnified party's written consent
(which consent shall not be unreasonably withheld). The parties
agree to cooperate to the fullest extent possible in connection
with any claim for which indemnification is or may be sought
under this Agreement.
X.
CONFIDENTIALITY
10.1 Confidential Information. During the term of this Agreement, it
is acknowledged by Participant and THISCO that each may receive
or have access to confidential and proprietary information of
the other party including, but not limited to, marketing
information, business plans, financial information, and trade
secrets ("Confidential Information"). Each party acknowledges
that it shall not acquire any ownership or other rights in or to
Confidential Information of the other, and shall use the
Confidential Information only for the purposes of the
performance of this Agreement, and shall keep confidential and
not disclose the Confidential Information to any other person,
firm or corporation without the prior written consent of the
other party. Any Confidential Information transmitted in writing
or by other tangible media shall remain the property of the
owner and shall be returned to the owner at its request,
together with all copies made thereof, at the conclusion of this
Agreement. The parties agree that the provisions of this Section
10 shall extend without limitation beyond the date of the
expiration or other conclusion of this Agreement. THISCO agrees
to take all reasonably avoidable measures at THISCO's sole cost
and expense to ensure that Participant's Confidential
Information is not accessible to other persons, and to upgrade
such measures as often as necessary and practicable.
10.2 Use of Marks. Participant acknowledges that "TravelWeb" is a
service xxxx of THISCO and that it shall not use such xxxx
without the prior written approval of THISCO, which shall not be
unreasonably withheld or delayed and which shall not be required
for internal uses and uses consistent with this Agreement and
the promotion of TravelWeb to prospective viewers of Internet
Pages. Except as otherwise permitted herein, THISCO agrees that
it shall not use any of Participant's Marks or
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any portion thereof or elements contained therein without
Participant's prior written consent.
XI.
MISCELLANEOUS
11.1 Controlling Law. This Agreement will be interpreted pursuant to
the laws of the State of Texas without reference to its conflict
of laws principles. Any action brought relating to or arising
out of this Agreement must be brought in the state or federal
courts situated in the county and state of the residence or
principal place of business of the party against whom the action
is brought (or any of them, if more than one).
11.2 Notice. All notices and other communications contemplated hereby
must be in writing (except in the case of electronically
transmitted data) and (a) personally delivered, (b) deposited in
the United States mail, first-class, registered or certified
mail, return receipt requested, with postage prepaid, (c) sent
by overnight courier service (for next business day delivery),
shipping prepaid, (d) sent by telecopy with confirmation of
receipt of telecopy to the number indicated, or (e) transmitted
directly to the recipient by electronic data transmission
pursuant to arrangements made between the parties. Such notices
and other communications (except in the case of electronically
transmitted data) shall be addressed as follows:
IF TO THISCO: IF TO PARTICIPANT:
0000 Xxxxxx Xxxxx Xxxx. Hilton Hotels Corporation
Suite 1100 0000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, III
(if by telecopy to: Attention: Xx. Xxxxx Xxxxxxxxx
(000) 000-0000) (if by telecopy to: (000) 000-0000)
cc: General Counsel
or such persons or addresses as any party may request by notice
duly given hereunder. Except as otherwise specified herein,
notices will be deemed given and received when received.
11.3 Binding Effect. This Agreement will be binding upon and will
inure to the benefit of the legal representatives, successors
and duly authorized assigns of each party whether resulting from
merger, acquisition, reorganization or assignment pursuant to
the terms hereof.
11.4 Assignment; Authorized Agents. This Agreement is not assignable
by either party without the prior written consent of the other
and such consent
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shall not be unreasonably withheld or delayed. Provided however,
it is acknowledged and agreed that the obligations of THISCO as
set forth in Paragraphs 3.2 and 3.3 herein may be performed by
Cyber Publishing, Inc. or such other third party with whom
THISCO may contract to perform such services.
11.5 Entire Agreement. This Agreement and the Exhibits hereto shall
constitute the entire, sole and exclusive agreement between
THISCO and Participant with respect to the subject matter set
forth herein and shall supersede any and all other agreements,
oral or written. Each party hereto acknowledges that it has not
relied upon any representation or promise not set forth herein.
11.7 Parties' Independence. This Agreement will not constitute a
partnership, joint venture or similar arrangement. The parties
hereto are separate and distinct entities independently
contracting with each other at arms length.
THE HOTEL INDUSTRY SWITCH COMPANY
a Delaware corporation
BY: /s/ XXXX X. XXXXX, III
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Xxxx X. Xxxxx, III
President
DATE: April 27, 1995
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PARTICIPANT:
HILTON HOTELS CORPORATION
a Delaware corporation
BY: /s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
ITS: Senior Vice President Marketing - Hotel
Operations
DATE: April 20, 1995
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