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EXHIBIT 10.49
PROPERTY INFORMATION DISTRIBUTION AGREEMENT
This Agreement is entered into by and between Pegasus Systems, Inc. and
the below named Participant on the following terms and conditions:
1. Property Information Database. Pegasus will provide
Participant with the ability to create a digital database of Participant's
properties which is (i) capable of being accessed by distribution systems with
whom Pegasus contracts and (ii) where functionality exists, capable of
permitting the accessor of the database to make, amend and cancel reservations
with Participant. Participant shall be solely responsible for the creation and
editing of the property database pursuant to Pegasus' prescribed methods.
2. Distribution of the Database. Pegasus will contract and develop
interfaces with distribution systems to access Participant's database.
Participant may elect to exclude certain distribution systems access to its
database.
3. Distribution Systems Interface. For each distribution system,
Pegasus will create an operable interface providing access to Participant's
database and maintain the interface during the term of the Distribution
Agreement. All updates and edits of the database shall be accessible by the
distribution systems within two (2) business days of receipt by Pegasus.
4. Fees. *With each invoice Pegasus will provide La Quinta a
breakdown of bookings per property.
(a) For the services provided by Pegasus as set forth
herein, Participant shall pay to Pegasus the fees set
forth on Schedule A.
(b) For each hypertext link from Participant's database to
a site with whom Pegasus has not contracted to receive
Participant's database, Participant shall pay Pegasus a
fee of [*] per month.
(c) For each Net Reservation originating with a distribution
system with whom Pegasus contracts, Participant shall
pay to Pegasus a fee of [*]. The term "Net
Reservations" is defined as the number of reservations
made by an accessor of a distribution system exhibiting
Participant's database within a given period less the
number of reservations to which notice of cancellation
is received by the distribution system within such time
period.
(d) Pegasus will invoice Participant for all fees as set
forth herein and as provided on Schedule A including
any taxes applicable to such fees and Participant
agrees to pay each invoice upon receipt. Each invoice
shall be past due and it shall be a breach of this
Agreement if it is not paid within thirty (30) days
after the date of the invoice. All payments to
Pegasus shall be made in U.S. Dollars. Pegasus may,
once each year after the initial year increase the fees
set forth in (a), (b) and (c) above up to 8% of the
then-existing fee. Any fee changes resulting from an
increase in the services or number of properties in the
database will be invoiced upon notice of such increase
or at the next scheduled invoice, at Pegasus' option.
5. Term. The initial term of this Agreement shall be for two (2)
years from the date hereof provided that the Agreement shall be renewed and
extended on a month to month basis, year terms thereafter unless, at least
sixty (60) days prior to expiration of the initial two (2) years or the
expiration of any additional term.
6. Property Rights. The information provided by Participant is
acknowledged to be the sole property of Participant and Pegasus may not
distribute or allow access to any of the information in any manner other than
pursuant to this Agreement. 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 statutory or other
notices customarily used or required for purposes of providing notice of
ownership or protection of Participant's trademarks, trade names, service
marks or copyrights.
7. Disclaimer, Limitation of liabilities and Risk of Internet
Usage. PEGASUS WILL NOT BE RESPONSIBLE OR LIABLE FOR (i) ANY FALSIFICATIONS OR
INACCURACIES IN ANY OF THE INFORMATION, (ii) ANY ACT OR FAILURE TO ACT WITH
RESPECT TO THE PUBLICATION OF THE INFORMATION ON THE INTERNET OR CREATION OR
FUNCTIONALITY OF RESERVATION CAPABILITIES UNLESS EXPRESSLY SET FORTH HEREIN,
(iii)
*Confidential Treatment Requested
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE S.E.C.
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ANY CLAIM, DAMAGE, OR LIABILITY OF ANY NATURE ARISING OUT OF A COMPUTER
OPERATOR'S OR DISTRIBUTION SYSTEM'S ACCESS TO PARTICIPANT'S RESERVATION SYSTEM
AND/OR THE MAKING, CHANGING OR CANCELING OF A RESERVATION AND THE USE OF A
CREDIT CARD OR OTHER DEBIT DEVICE IN CONNECTION THEREWITH, OR (iv) ANY CLAIM
RESULTING FROM ANY INTERRUPTION, MALFUNCTION OR CHANGE IN THE USE OF THE
INTERNET OR A DISTRIBUTION SYSTEM, EXCEPT TO THE EXTENT RESULTING FROM PEGASUS'
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 PEGASUS AND WAIVED BY PARTICIPANT.
PARTICIPANT ACKNOWLEDGES AND AGREES THAT ALLOWING ACCESS TO ITS DATABASE AND
RESERVATION SYSTEM TO COMPUTERS ACCESSING THE INTERNET VIA ANY DISTRIBUTION
SYSTEM IS AT PARTICIPANT'S OWN RISK. Pegasus shall not be responsible for the
order, completeness or format of Participant's database being published by
distribution systems. Participant acknowledges and agrees that the Internet is
a communication medium over which Pegasus has no control and that its continued
utilization in its present form at current costs is uncertain. Therefore, if at
any time during the term of this Agreement, the cost of access to the Internet
increases or there is imposed a fee or cost for access to or use of the
Internet communication lines, or there is imposed any law, governmental ruling,
or regulation the result of which increases the cost of access to or usage of
the internet or otherwise makes it impractical, in Pegasus' sole discretion, to
continue to perform this Agreement, Pegasus may, upon notice to Participant,
immediately terminate this Agreement without such action constituting an event
of default. Pegasus shall not be liable for any breach of this Agreement
resulting from an act of God, accidents, power or telecommunication outages or
delays, mechanical defects or other events beyond its control.
8. Breach. In the event of a breach of this Agreement, the
non-breaching party may terminate this Agreement after providing notice to the
other party of such breach and the failure of the breaching party to cure the
breach within ten (10) days of receipt of the notice. Upon breach by
Participant and failure to timely cure Pegasus may immediately cease the
distribution and/or publication of Participant's database on distribution
systems.
9. Miscellaneous. This Agreement shall be interpreted in
accordance with the laws of the State of Texas and any legal proceeding arising
out of this Agreement shall have venue in Dallas County, Texas. This Agreement
shall be binding upon and inure to the benefit of the legal representatives,
successors and assigns of the parties hereto. This Agreement contains all the
provisions of any agreement between pegasus and Participant with respect to the
creation, maintenance and distribution of Participant's database and
Participant has not relied upon any promises or representations by Pegasus with
respect to the subject matter except as set forth herein. This Agreement shall
terminate and replace any existing agreement between Participant and TravelWeb,
Inc.
PEGASUS SYSTEMS, INC. PARTICIPANT: LA QUINTA INNS, INC.
By: /s/ XXXXXXXX XXXX By: /s/ XXXXXX XXXXX
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Its: V. P. Sales Its: V.P. Reservation Services
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Date: 3/4/97 Date: 3/4/97
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SCHEDULE A
1. Fees. Participant shall pay to Pegasus the following fees:
(i) For 1 to 25 Participant properties in the database, [*] per
Participant property per month;
(ii) For 26 to 100 Participant properties in the database, [*]
per Participant property per month;
(iii) For 101 to 200 Participant properties in the database, [*]
per Participant property per month;
(iv) For 201 to 500 Participant properties in the database, [*]
per Participant property per month;
(v) For 501 to 1000 Participant properties in the database, [*]
per Participant property per month;
(vi) For 1001 to 2000 Participant properties in the database,
[*] per Participant property per month; and
(vii) For in excess of 2000 Participant properties in the database,
[*] per Participant property per month.
The fees for this service shall be paid quarterly in advance.
*Confidential Treatment Requested
