CALL TRANSFER AGREEMENT
THIS CALL TRANSFER AGREEMENT (the "Agreement") is made and entered into this
4th day of March 1997, between AVIS RENT A CAR SYSTEM, INC. ("AVIS") and HFS
INCORPORATED ("HFS").
WITNESSETH
WHEREAS, HFS wishes to provide the customers (the "Customers") of its
hotel franchise systems (including all of HFS's existing hotel systems and any
additional hotel systems acquired or developed during the term of this
Agreement) with the opportunity to reserve rental cars; and
WHEREAS, HFS is the parent of Resort Condominiums International, Inc.
("RCI") and wishes to provide the members (the "Members") of RCI's time share
exchange programs with the opportunity to reserve rental cars; and
WHEREAS, AVIS wishes to provide rental cars to the Customers
and Members (collectively, the "Callers"); and
WHEREAS, HFS agrees to actively promote, solicit and transfer to AVIS
telephone calls from Callers seeking to rent cars from Avis, and AVIS agrees to
pay HFS a fee for calls that have been transferred to AVIS resulting in car
rental reservations, in accordance with the terms hereof.
NOW, THEREFORE, for mutual and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties agree with each other as
follows:
1. Term. The term of this Agreement shall commence
on the date set forth above and shall continue for a period of
five (5) years. A "Contract Year" shall mean each twelve month
period (or portion thereof) commencing on the date set forth
above or an anniversary thereof.
2. Call Transfer. HFS shall transfer, or cause to be
transferred, to AVIS telephone calls from Callers who seek to rent a car from
Avis, which calls are on lines for which a call transfer capability has been
established. HFS and AVIS shall mutually agree on the form of solicitation to
be used by HFS's and RCI's agents.
3. Recurring Fees. (a) In consideration for trans-
ferring the telephone calls of Callers to XXXX, XXXX shall pay
HFS a "Recurring Fee" in the amount of $8.00 per HFS - originated
(including RCI) reservation that results in a car rental during
the term of this Agreement. In addition, AVIS agrees that the
minimum annual aggregate Recurring Fees for each Contract Year of
this Agreement shall be guaranteed to be not less than $2,250,000.00 (the
"Minimum Guaranteed Fee").
(b) The payments required pursuant to this Section shall be
made on a monthly basis within ten (10) days after the end of the calendar
month (or portion thereof) to which such payment relates, and shall be
accompanied by documentation supporting the calculation of such amount. In the
event the aggregate Recurring Fees for any Contract Year of this Agreement is
less than the Minimum Guaranteed Fee, the deficiency shall be paid along with
the payment made with respect to the twelfth (12th) month of such Contract
Year.
4. Access Fee. In consideration of HFS providing access to
Callers seeking car rentals, AVIS will pay HFS, in immediately available funds,
an access fee of $1,000,000.00. This fee will be paid to HFS by AVIS
concurrently with the execution of this Agreement and shall be non-refundable
and fully earned upon execution of this Agreement regardless of the termination
of this Agreement for any reason.
5. Cal1er Rates. AVIS will provide Callers with
promotional rates and specials during the term of this Agreement.
6. Implementation. The parties agree that it is
their intention and expectation that the program contemplated by
this Agreement will be implemented on or before March 4, 1997, or
as soon thereafter as practicably possible.
7. Transfer Charges. During the term of this Agreement, AVIS
shall pay to HFS $1.75 per call transferred to AVIS by HFS and RCI. HFS shall
submit a monthly invoice to AVIS for these charges. AVIS shall pay HFS the call
transfer charges within fifteen (15) days of receipt by AVIS of HFS's invoice.
8. Amendments. The provisions of this Agreement
shall not be modified, amended, supplemented, waived or changed
in any respect except in writing executed by all parties hereto.
9. Assignments. This Agreement, or any part thereof, shall
not be assigned by either party without the express written consent of the
other party. Notwithstanding the foregoing, either party may assign this
Agreement, or any part thereof, to its affiliate or in connection with a
consolidation, merger or sale of substantially all of its assets, without the
consent of the other party; provided, however, that the party making such an
assignment furnishes the other party advance notice in writing of such
assignment.
10. Exclusivity. HFS agrees that Avis shall be one
(1) of three (3) rental car systems for all HFS-initiated call
transfer programs during the term of this Agreement.
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11. Entire Agreement. This Agreement represents the
entire understanding and agreement between the parties, and
supersedes all other negotiations, understandings and representa-
tions (if any) made by and between the parties.
12. Notices. All notices and other communications required or
permitted under this Agreement shall be in writing and given by (i)
hand-delivery; (ii) registered or certified mail, return receipt requested;
(iii) overnight courier with receipt; or (iv) facsimile with confirmation, to:
If to AVIS: Avis Rent A Car System, Inc.
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attention: VP Marketing
Fax: (000) 000-0000
If to HFS: HFS Incorporated
0 Xxxxxx Xxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Senior Vice President
Preferred Alliance Services
Fax: 000-000-0000
or to such other address as any party may designate by notice complying with
the terms of this Section.
13. Jurisdiction. This Agreement shall be governed by
the laws of the State of New Jersey, except for New Jersey's
conflict of law principles.
14. Relationship of Parties. AVIS is an independent
contractor. Neither party is the legal representative or agent of, or has the
power to obligate (or has the right to direct or supervise the daily affairs
of) the other or any other party for any purpose whatsoever. HFS and AVIS
expressly acknowledge that the relationship intended by them is a business
relationship based entirely on and circumscribed by the express provisions of
this Agreement and that no partnership, joint venture, agency, fiduciary or
employment relationship is intended or created by reason of this Agreement.
15. Successors: Severability. This Agreement shall
inure to the benefit of and shall be binding upon the parties
hereto and their respective successors and assigns, subject,
however, to the limitations contained herein. The unenforceability, invalidity
or illegality of any provision of this Agreement shall not render the other
provisions unenforceable, invalid or illegal.
16. Honoring Rentals. AVIS agrees to honor, or to
cause the person(s) or party(ies) operating the locations to
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honor all reservations for AVIS services booked from transferred calls pursuant
to the terms hereof.
17. Force Majeure. Neither AVIS nor HFS (nor their respective
subsidiaries) shall be liable for any failure or delay in performing their
obligations under this Agreement where such failure or delay is caused by act
of God, fire, explosion, flooding, riot, rebellion or insurrection, government
order, regulation, seizures, embargoes, inability to obtain supplies, delays of
carriers or suppliers, strikes or work stoppages or other similar causes beyond
the reasonable control of the party failing or delaying to perform. In the
event such acts or events occur, it is agreed that both parties shall use
reasonable good faith efforts to overcome all the effects of such acts and to
resume as soon as reasonably possible the timely performance of acts
contemplated by this Agreement.
18. Indemnity. AVIS agrees to indemnify, defend and hold
harmless HFS, its subsidiaries, and their respective employees, agents,
officers and directors from and against any and all fines, suits, claims,
demands, penalties, liabilities, costs or expenses, losses, settlements,
judgments and awards, and actions of whatever kind or nature, including
attorneys' fees and costs (and costs and fees on appeal), and damages
(including, but not limited to, all actual and consequential damages) arising
from any negligent acts or willful or wrongful misconduct, knowing
misrepresentation or breach of this Agreement by AVIS, its agents, officers,
directors, or employees. Any obligation arising pursuant to any indemnity
contained herein shall survive the termination of this Agreement.
19. Termination. At any time during the term of this
Agreement, either party may terminate this Agreement in the event of a material
breach of the terms of this Agreement by the other party. In the event of a
material breach as set forth above, the breaching party shall be given written
notice of such breach and the opportunity to cure such breach within thirty
(30) days of the date of such notice (ten (10) days in the case of a payment
default). Failure to cure such breach within the applicable period stated above
shall result in termination of the Agreement without the necessity of any
further notice. Notwithstanding anything contained herein to the contrary, in
the event either party shall fail to pay its debts generally as they become
due, if a involuntary proceeding in bankruptcy is filed against such party
which is not dismissed within sixty (60) days of filing, a voluntary proceeding
in bankruptcy is filed by such party, such party is dissolved or liquidated, or
such party makes any assignment for the benefit of creditors, this Agreement
shall immediately terminate without notice.
20. Reservation System Modification. HFS and its
subsidiaries retain the right, in their discretion, to modify or
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alter the operation of the reservation systems at any time they deem such
modification or alteration to be desirable. HFS will provide advance written
notice to AVIS of any proposed material modification or alteration.
21. Power and Authority. Each party represents and
warrants to the other party that it has all necessary power and
authority to enter into and perform this Agreement in accordance
with terms thereof.
22. Books and Records; Audit. AVIS shall keep accurate and
complete records of all car rentals resulting from HFS- originated
reservations. All such records and all accounting systems with respect thereto
shall be available for inspection, copy and audit by HFS or its representatives
on reasonable notice to AVIS during normal business hours throughout the term
of this Agreement and for one (1) year thereafter. AVIS shall fully cooperate
with HFS in such inspection and audit. Neither HFS's acceptance of any
information nor HFS's inspection or audit of AVIS' records shall waive HFS's
right later to dispute the accuracy or completeness of any information supplied
by AVIS. In the event any such audit establishes an underpayment of
commissions, AVIS shall pay the amount of the deficit within five (5) business
days of notification of such deficiency. In the event such audit identifies an
overpayment of commissions, such overpayment shall be a credit against future
fees to become due from AVIS to HFS. If an audit establishes an underpayment of
commissions greater than five percent (5%) of the total commissions then due
and payable to HFS, AVIS shall pay for the costs and expenses of such audit. In
the event of a dispute over the result of any such audit, the amount so
disputed shall be deposited by the party to be charged with an escrow agent
acceptable to both parties and pursuant to an escrow agreement acceptable to
both parties and such escrow agent until such time as the dispute is resolved.
The obligations of AVIS pursuant to this Section shall survive termination of
this Agreement.
23. Trademarks and Servicemarks. AVIS specifically
acknowledges that this Agreement does not confer upon AVIS any interest in or
right to use any trademark, service xxxx or other intellectual property right
of HFS, the franchisors, RCI, or their affiliates (collectively referred to as
the "Intellectual Property Rights") in connection with the services unless AVIS
receives the prior written consent of HFS which consent HFS may grant or
withhold in its sole discretion. AVIS further agrees that upon termination of
this Agreement, AVIS shall immediately cease and discontinue all use of the
Intellectual Property Rights. Further, if AVIS wishes to utilize the
Intellectual Property Rights in advertising or promotional materials, it must
submit such materials to HFS for final approval before utilizing them. In no
event may AVIS or any affiliated or associated person or entity utilize the
Intellectual Property Rights in
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connection with any products or services other than the services provided under
this Agreement. AVIS further acknowledges that this Agreement does not create
or grant any rights in AVIS to use any Intellectual Property Rights owned or
controlled by any franchisee of the hotel systems or its affiliates, nor does
HFS have any right to grant any such rights.
24. Compliance with Laws. The parties shall, at their own
expense, comply with all laws, orders and regulations of federal, state and
municipal authorities, and with any lawful direction of any public officer
which shall impose any duty upon that party regarding the performance under
this Agreement.
25. Consents. Any consent or approval of any party required
hereunder shall not be unreasonably withheld unless otherwise provided that
such consent or approval is within the sole discretion of such party. Any
request for the consent or approval of a party to which that party does not
respond shall not be deemed approved by the other party.
26. No Waiver. Each and every covenant and agreement
herein shall be separate and independent from any other and the
breach of any covenant or agreement shall in no way or manner
discharge or relieve the performance of any other covenant or
agreement.
IN WITNESS WHEREOF, the parties have executed this Call
Transfer Agreement on the date first written above.
AVIS RENT A CAR SYSTEM, INC. HFS INCORPORATED
BY: /s/ Xxxxxx X. Xxxxxxxx BY:/s/ Xxxx X. Xxxxxxx
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NAME: Xxxxxx X. Xxxxxxxx NAME: Xxxx X. Xxxxxxx
---------------------------- ---------------------------
TITLE: V.P. Marketing TITLE: SVP
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