EX-10.1 4 a18-14563_2ex10d1.htm EX-10.1 TRANSITION SERVICES AGREEMENT by and between Wyndham Destinations, Inc. and Wyndham Hotels & Resorts, Inc. Dated as of May 31, 2018
|
by and between
Wyndham Destinations, Inc.
and
Wyndham Hotels & Resorts, Inc.
Dated as of May 31, 2018
|
Table of Contents
ARTICLE 1 DEFINITIONS AND INTERPRETATION |
1 | |
|
| |
Section 1.01 |
Certain Definitions |
1 |
Section 1.02 |
References; Interpretation |
3 |
|
|
|
ARTICLE 2 SERVICES |
4 | |
|
| |
Section 2.01 |
Provision of Services |
4 |
Section 2.02 |
Additional Services |
4 |
Section 2.03 |
Standard of Performance |
4 |
Section 2.04 |
Subcontracting |
5 |
Section 2.05 |
Cooperation |
5 |
Section 2.06 |
Third Party Consents |
6 |
Section 2.07 |
Certain Limits on Services |
6 |
Section 2.08 |
Transitional Nature of Services; Changes |
7 |
Section 2.09 |
Limited Remedy |
7 |
|
|
|
ARTICLE 3 PAYMENT; BILLING |
7 | |
|
| |
Section 3.01 |
Charges for the Services |
7 |
Section 3.02 |
Invoices |
8 |
Section 3.03 |
Payments |
8 |
Section 3.04 |
8 | |
Section 3.05 |
Taxes |
8 |
Section 3.06 |
Indirect Tax Registration |
9 |
|
|
|
ARTICLE 4 BOOKS AND RECORDS |
9 | |
|
| |
Section 4.01 |
Maintenance of Books and Records; Inspection Rights |
9 |
|
|
|
ARTICLE 5 CONFIDENTIALITY |
9 | |
|
| |
Section 5.01 |
Confidentiality Obligations |
9 |
Section 5.02 |
Permitted Disclosures |
9 |
Section 5.03 |
Return of Confidential Information |
10 |
|
|
|
|
| |
Section 6.01 |
Intellectual Property |
10 |
Section 6.02 |
Ownership of Data |
11 |
Section 6.03 |
Sharing |
11 |
|
|
|
ARTICLE 7 TERM AND TERMINATION |
12 | |
|
| |
Section 7.01 |
Initial Term |
12 |
Section 7.02 |
Service Period Extensions |
12 |
Section 7.03 |
Early Termination |
12 |
Section 7.04 |
Data Transmission |
13 |
Section 7.05 |
Effect of Termination |
13 |
|
| |
Section 8.01 |
Disclaimer of Warranties |
14 |
Section 8.02 |
Disclaimer of Consequential Damages |
14 |
Section 8.03 |
Liability Cap |
14 |
|
|
|
ARTICLE 9 MISCELLANEOUS |
15 | |
|
| |
Section 9.01 |
Force Majeure |
15 |
Section 9.02 |
Complete Agreement; Construction |
15 |
Section 9.03 |
Relationship of the Parties |
15 |
Section 9.04 |
No Third Party Beneficiaries |
16 |
Section 9.05 |
Notices |
16 |
Section 9.06 |
Waivers |
16 |
Section 9.07 |
Amendments |
16 |
Section 9.08 |
Assignment |
16 |
Section 9.09 |
Counterparts |
17 |
Section 9.10 |
Severability |
17 |
Section 9.11 |
GOVERNING LAW |
17 |
Section 9.12 |
Waiver of Jury Trial |
17 |
Section 9.13 |
Dispute Resolution |
17 |
Service Schedules
Facilities
HR/Benefits
Information Technology
Payroll
SEC Filing, Intellectual Property, Information Management and Related Services
Tax, Treasuring, Finance, Sourcing and Project Management
Exhibits
Exhibit A: Data Sharing Addendum
Exhibit B: Business Associate Agreements
THIS TRANSITION SERVICES AGREEMENT (this “Agreement”) effective as of May 31, 2018 (the “Effective Date”), is hereby made by and between Wyndham Hotels & Resorts, Inc., a Delaware corporation (“SpinCo”), and Wyndham Destinations, Inc., a Delaware corporation (“RemainCo”). Each of SpinCo and RemainCo is sometimes referred to herein as a “Party” and collectively, as the “Parties”.
WHEREAS, this Agreement is the “Transition Services Agreement” referred to in the SDA, and the Parties have agreed to enter into this Agreement at the Closing pursuant to the SDA.
ARTICLE 1
DEFINITIONS AND INTERPRETATION
“Additional Services” shall have the meaning set forth in Section 2.02.
“Affiliate” shall mean, when used with respect to a specified Person, a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person. For the purposes of this definition, “control”, when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by Contract or otherwise. It is expressly agreed that no Party shall be deemed to be an Affiliate of the other Party by reason of having one or more directors in common or having the same Chairman of the board of directors.
“Agreement” shall have the meaning set forth in the preamble.
“Charges” shall have the meaning set forth in Section 3.01.
“Confidential Information” shall mean all non-public, confidential or proprietary Information received, or otherwise obtained, by Receiving Party from Disclosing Party, on or after the Effective Date, in connection with this Agreement, of or concerning (a) the Disclosing Party or its past, current or future activities, businesses, finances, Assets, Liabilities or operations or (b) any third party who has provided Information to the Disclosing Party in confidence, except, in each case, for any Information that is (i) in the public domain or available to the public through no fault of the Receiving Party, (ii) lawfully acquired after the Effective Date by the Receiving Party from other sources not known to be subject to confidentiality obligations with respect to such Information or (iii) independently developed by the Receiving Party after the Effective Date without use of or reference to any Confidential Information.
“Data” shall have the meaning set forth in the Data Sharing Addendum.
“Data Processor” shall have the meaning set forth in the Data Sharing Addendum.
“Disclosing Party” shall mean a Party or any of its Affiliates or any Person acting on any of their behalves that discloses Confidential Information to a Receiving Party under this Agreement.
“Dispute” shall have the meaning set forth in Section 9.13(a).
“Dispute Notice” shall have the meaning set forth in Section 9.13(a).
“Effective Date” shall have the meaning set forth in the preamble.
“Force Majeure” shall have the meaning set forth in Section 9.01.
“Indirect Tax” shall have the meaning set forth in the Tax Matters Agreement.
“Information” shall mean information and data, whether or not patentable or copyrightable, in written, oral, electronic, computerized or digital, or other tangible or intangible forms, stored in any medium, including studies, reports, records, ledgers, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, artwork, models, prototypes, samples, policies, procedures and manuals, flow charts, product literature, files, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, correspondence, communications (including attorney-client privileged communications), memos and other materials of any nature, including operational, technical or legal, and other technical, financial, employee or business information or data, including earnings reports and forecasts, macro-economic reports and forecasts, all cost information, sales and pricing data, business plans, market evaluations, surveys, credit-related information and customer information.
“Party” or “Parties” shall have the meaning set forth in the preamble.
“Receiving Party” shall mean a Party or any of its Affiliates or any Person acting on any of their behalves that receives Confidential Information from a Disclosing Party under this Agreement.
“Related Parties” shall mean, with respect to a Party, its officers, directors, employees and any of its Affiliates or Subsidiaries, and their officers, directors or employees, shareholders, agents and other representatives, or any of the successors or assigns of any of the foregoing Persons.
“RemainCo” shall have the meaning set forth in the preamble.
“Representative” shall have the meaning set forth in Section 2.05(a).
“Review Meetings” shall have the meaning set forth in Section 2.05(a).
“SDA” shall have the meaning set forth in the recitals.
“Service Period” shall mean, with respect to any Service, the period commencing on the Effective Date and ending on the earlier of (i) the date Service Provider or Service Recipient terminates the provision of such Service in accordance with the terms of this Agreement, and (ii) the termination date specified with respect to such Service on the Service Schedule applicable to such Service (or, if no termination date is specified in the applicable Service Schedule, twelve (12) months from the Effective Date), taking into consideration any extensions thereto made in accordance with the terms of this Agreement.
“Service Provider” shall mean the Party providing a Service hereunder.
“Service Recipient” shall mean the Party receiving a Service hereunder.
“Service Schedule” shall have the meaning set forth in Section 2.01.
“Service Taxes” shall have the meaning set forth in Section 3.05.
“Services” shall have the meaning set forth in Section 2.01.
“SpinCo” shall have the meaning set forth in the preamble.
“Subcontractor” shall have the meaning set forth in Section 2.04.
“Tax” or “Taxes” shall have the meaning set forth in the Tax Matters Agreement.
“Term” shall have the meaning set forth in Section 7.01.
“Third Party” shall mean a Person that is neither a Party nor an Affiliate of a Party.
to this Agreement in its entirety and not to any particular Article, Section or provision of this Agreement.
ARTICLE 2
Section 2.02 Additional Services.
(a) From time to time during the Term, Service Recipient may request that Service Provider provide additional services (which may include Excluded Services) not included in the Services (such services, “Additional Services”). In the event that Service Recipient requests that Service Provider provide any Additional Services that (i) are directly dependent upon or inextricably intertwined with the Services and (ii) were inadvertently and unintentionally omitted from the Services, the Parties shall negotiate in good faith to determine the terms and conditions for the provision of such Additional Services; provided, however, that Service Provider shall not be obligated to provide Additional Services if, notwithstanding such good faith negotiation, the Parties are unable to reach agreement on the terms and conditions with respect to the provision of such Additional Services. For clarity, Service Provider shall not have any obligation to consider in good faith any request from Service Recipient for Additional Services unless such Services meet the criteria in (i) and (ii) above.
(b) In the event the Parties agree that Service Provider will provide any Additional Service, such Additional Service shall automatically constitute a “Service” hereunder, and the Parties shall execute an amendment to the relevant Service Schedule that shall set forth, among other things, (i) the termination date for such Additional Service, (ii) a description of such Additional Service in reasonable detail, (iii) the fees and costs to Service Recipient for such Additional Service, and (iv) any additional terms and conditions specific to such Additional Service. For clarity, Service Provider’s obligations with respect to providing any Additional Services shall become effective only upon an amendment to the applicable Service Schedule being duly executed and delivered by Service Provider and Service Recipient.
Section 2.03 Standard of Performance.
(a) Service Provider shall perform the Services (i) in a manner, and at a level of service (including with respect to care, frequency and functionality), that is substantially similar
to the manner in which, and at the level of service with which such Services were provided during the twelve (12) month period immediately prior to the Effective Date, subject to any different or additional service levels for a Service specifically set forth on the applicable Service Schedule and (ii) in compliance with applicable Law.
(b) Service Recipient hereby acknowledges that Service Provider (i) may be providing similar services and/or services that involve the same resources as those used to provide the Services hereunder to its internal organizations and businesses and to other Affiliates and to customers and other Third Parties, and that the provision of, and allocation of resources to, any such similar services shall in no event be deemed to be a breach of Service Provider’s obligations hereunder, so long as Service Provider continues to provide the Services in accordance with the terms of this Agreement, and (ii) is not in the business of providing the Services (or any services similar to the Services) and is providing the Services to Service Recipient solely for the purpose of facilitating the transactions contemplated by the SDA.
(a) Each Party shall designate in writing to the other Party one (1) representative to act as a contact person with respect to all issues relating to the provision of the Services pursuant to this Agreement (each, a “Representative”). The Representatives shall hold review meetings by telephone or in person, as mutually agreed upon, to discuss issues relating to the provision of the Services under this Agreement (“Review Meetings”). In the Review Meetings, the Representatives shall be responsible for discussing, and seeking to address and resolve, any problems identified relating to the provision (or lack thereof) of Services. If the Representatives
are unable to resolve any such problems, the dispute resolution procedure set forth in Section 9.13 shall apply.
(b) Service Recipient shall, during the applicable Service Period, timely provide to Service Provider all information, materials and other items, and otherwise cooperate, as reasonably requested by Service Provider in connection with the performance of the Services. In the event that Service Recipient fails to timely provide any such information, materials or other items, or otherwise cooperate with Service Provider in connection with the provision of the Services, Service Provider shall be relieved of its obligation to provide any impacted Service hereunder, if and to the extent the provision of such Service is dependent or otherwise reliant on such information, materials or other items or such cooperation, but only for so long as the failure to provide such information, materials and other items continues. For clarity, Service Provider shall not be deemed to be in default under, or otherwise in breach of any provision of, this Agreement for any failure or delay in fulfilling or performing any of its obligations under this Agreement if such failure or delay results from Service Recipient’s failure to provide such information, materials or other items to, or otherwise cooperate with, Service Provider in connection with the provision of the Services hereunder. Each Party shall bear its own costs and expenses incurred in connection with complying with its obligations to provide information, materials and other items, and otherwise cooperate, as provided in this Section 2.05(b).
Section 2.06 Third Party Consents.
(a) The Parties shall reasonably cooperate and use commercially reasonable efforts to obtain all third-party consents, licenses and other agreements, if any, necessary for the provision of the Services.
(b) In the event that any consent, license or other agreement necessary for the provision of the Services cannot be obtained despite the Parties’ commercially reasonable efforts, or is revoked after the Effective Date, (i) Service Provider shall (A) promptly notify Service Recipient, describing the nature of the potential exposure and any proposed modification in the Services, (B) cooperate and assist Service Recipient (or, as applicable, its Affiliates) in obtaining a reasonable alternative means by which Service Recipient (or such Affiliate) may obtain the affected Services and (C) continue to provide the Services, to the extent reasonably practicable under the circumstances, and (ii) the Parties shall use commercially reasonable efforts to reduce the amount and/or effect of disruption caused by any such failure to obtain such consent, license or other agreement. All costs and expenses incurred in connection with obtaining any consent or obtaining any alternative arrangement shall be split evenly between the Parties.
Section 2.07 Certain Limits on Services.
(a) Nothing in this Agreement shall require Service Provider to perform any Service in a manner that would constitute a violation of (i) applicable Law or (ii) the rights of any Person.
(b) In the event that (i) there is nonperformance of any Service as a result of a Force Majeure or (ii) the provision of a Service would violate (A) applicable Law or (B) the rights of any Person, the Parties hereby acknowledge and agree that Service Provider may suspend
performance of the Service(s) so affected during such period (but, without limiting the foregoing, only if and to the extent such Service(s) so affected cannot reasonably be performed by Service Provider in another commercially reasonable manner) and agree to work together in good faith to arrange for a reasonable alternative means by which Service Recipient (or, as applicable, its Affiliates) may obtain the Services so affected. Service Provider shall use commercially reasonable efforts during any such period to mitigate its costs with respect to any such affected Service. All costs and expenses incurred in connection with obtaining any alternative arrangement shall be split evenly between the Parties.
ARTICLE 3
Section 3.04 Late Payments; Invoice Disputes.
(a) If Service Recipient fails to pay any undisputed amount due to Service Provider hereunder by the due date for payment, Service Recipient shall pay interest on any outstanding amounts at the rate equal to the then applicable Prime Rate plus four percent (4%) (or the maximum rate under applicable Law, whichever is lower), from the due date for such payment until such payment is made in full.
(b) Service Recipient may withhold payments for amounts disputed in good faith pending resolution of such disputes in accordance with Section 9.13 of this Agreement; provided that if Service Recipient disputes any amount of an invoice, Service Recipient shall notify Service Provider in writing promptly following Service Recipient’s receipt of such invoice and shall describe in reasonable detail the reason for disputing such amount. Upon resolution of such dispute, to the extent Service Recipient owes Service Provider some or all of the amount withheld, such amount shall bear interest in accordance with this Section 3.04 and Service Recipient shall promptly pay such applicable amount, together with the interest accrued, to Service Provider.
Taxes, and Service Recipient shall pay, in addition to the other amounts required to be paid pursuant to the terms of this Agreement, such Service Taxes to Service Provider
ARTICLE 4
ARTICLE 5
Section 5.02 Permitted Disclosures.
(a) Receiving Party may disclose Confidential Information of Disclosing Party (i) between and among its Affiliates in connection with the Services hereunder and to otherwise exercise its rights and fulfill its obligations hereunder and (ii) to Receiving Party’s auditors, attorneys, financial advisors, bankers and other appropriate consultants and advisors, to the extent (A) such disclosure is related to the Services; (B) such Person’s duties justify the need to know such Confidential Information and (C) such Person is under obligations of confidentiality and non-use at least as restrictive as those set forth in this Agreement.
(b) Receiving Party may disclose Confidential Information (i) if Receiving Party is required or compelled to disclose any such Confidential Information by judicial or administrative process or by other requirements of applicable Law or stock exchange rule or (ii) as required in connection with any legal or other proceeding by Receiving Party against Disclosing Party (or vice versa). Notwithstanding the foregoing, in the event that any demand or request for disclosure of Confidential Information is made pursuant to clause (i) or (ii) above, Receiving Party shall promptly notify Disclosing Party of the existence of such request or demand and shall provide Disclosing Party a reasonable opportunity to seek an appropriate protective order or other remedy, which Receiving Party will cooperate in obtaining. In the event that such appropriate protective order or other remedy is not obtained, Receiving Party shall furnish only that portion of the Confidential Information that is legally required to be disclosed and shall take commercially reasonable steps to ensure that confidential treatment is accorded such information.
ARTICLE 6
INTELLECTUAL PROPERTY; DATA; PERSONAL INFORMATION
Section 6.01 Intellectual Property.
(i) Service Recipient hereby grants, on behalf of itself and its Affiliates, to Service Provider (and, as applicable, any Person working on its behalf) a limited, non-exclusive, royalty-free right and license (with the right to grant sublicenses as provided herein) to use any Intellectual Property rights or Data owned or controlled by Service Recipient (the “Service Recipient Intellectual Property”), solely to the extent necessary for the provision of the Services hereunder (the “Service Provider License”). Service Provider hereby acknowledges and agrees
that all right, title and interest in and to the Service Recipient Intellectual Property are, as between the Parties, owned solely and exclusively by Service Recipient, and that Service Provider shall not have any right, title or interest therein or thereto, whether by implication, estoppel or otherwise.
(ii) Service Provider hereby grants, on behalf of itself and its Affiliates, to Service Recipient (and, as applicable, its Affiliates) a limited, non-exclusive, royalty-free right and license (with the right to grant sublicenses as provided herein) to use any Intellectual Property rights or Data owned or controlled by Service Provider (the “Service Provider Intellectual Property”), solely to the extent necessary for Service Recipient to receive the Services hereunder (the “Service Recipient License”). Service Recipient hereby acknowledges and agrees that all right, title and interest in and to the Service Provider Intellectual Property are, as between the Parties, owned solely and exclusively by Service Provider, and that Service Recipient shall not have any right, title or interest therein or thereto, whether by implication, estoppel or otherwise.
(iii) The Service Provider License and the Service Recipient License (and any sublicenses granted thereunder) shall automatically terminate with respect to each Service upon the earlier of (i) the expiration of the applicable Service Period and (ii) the termination of such Service in accordance with the terms of this Agreement.
(a) The subject matter of the Processing of Personal Information is set out in this Agreement and on each respective Service Schedule under which Personal Information is Processed. Subject to Section 4.11 and Section 4.12 of the Data Sharing Addendum, Data Recipient will Process Personal Information for the duration of the period set forth in accordance with RemainCo’s records management policy in effect as of the Effective Date, unless otherwise set forth in the applicable Service Schedule or otherwise agreed between the Parties in writing to comply with applicable Law.
(b) Data Recipient will Process Personal Information as necessary to perform its obligations under the applicable Service Schedule and this Agreement.
(c) The Personal Information to be Processed by the Data Recipient in performing its obligations under this Agreement may include, but is not limited to, the categories of Personal Information (if any) set forth in the applicable Service Schedule (the “Data Processing Categories”).
(d) The Personal Information to be Processed by the Data Recipient in relation to this Agreement may include, but is not limited to, Personal Information relating to the categories (if any) of Data Subjects set forth in the applicable Service Schedule (the “Data Subject Categories”).
ARTICLE 7
Section 7.03 Early Termination.
(i) If a Party materially breaches this Agreement and fails to remedy such breach within sixty (60) days after receipt of written notice of such breach from the other Party, such other Party may terminate this Agreement, solely with respect to the Service or Services impacted by such breach, upon written notice to the other Party.
(ii) Either Party may terminate this Agreement upon written notice to the other Party if the other Party makes a general assignment for the benefit of creditors or becomes insolvent, a receiver is appointed on behalf of the other Party, or a court approves reorganization or arrangement proceedings for the other Party.
Section 7.04 Data Transmission. On or prior to the last day of each applicable Service Period, Service Provider shall cooperate, and shall cause its Affiliates and any other Person working on its behalf, to cooperate, to support the transfer to Service Recipient (or its designee) of any data owned by Service Recipient or any of its Affiliates that was generated in connection with the performance of the applicable Services. If requested by Service Recipient, Service Provider shall promptly deliver, and shall cause its Affiliates and any Person working on its behalf to promptly deliver to Service Recipient (or its designee), within such time periods as the Parties may reasonably agree, copies of records, data, files and other information received or computed for the benefit of Service Recipient or any of its Affiliates during the Term, in electronic and/or hard copy form; provided, however, that (i) Service Provider and its Affiliates shall not have any obligation to provide any data in any format other than the format in which such data was originally generated, and (ii) Service Provider shall be reimbursed for its reasonable out-of-pocket costs incurred in connection with providing such records, data, files and other information.
Section 7.05 Effect of Termination.
terminate such Service (or group of Services), Service Recipient shall, upon receipt of an invoice consistent with Article 3, reimburse Service Provider for all Termination Costs in accordance with Article 3. Service Provider shall take commercially reasonable efforts to mitigate the Termination Costs associated with any such termination.
ARTICLE 8 DISCLAIMER AND LIMITATION OF LIABILITY
such liability, as of the date of the events or circumstances giving rise to such liability, and (ii) one hundred thousand U.S. dollars (U.S. $100,000).
ARTICLE 9
employer-employee or joint venture relationship between the Parties. The Parties’ obligations and rights in connection with the subject matter hereof are solely as specifically set forth in this Agreement (including in any Service Schedule hereto), and each Party acknowledges and agrees that it owes no fiduciary or other duties or obligations to the other by virtue of any relationship created by this Agreement.
To RemainCo:
Wyndham Destinations, Inc. 0000 Xxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Office of the General Counsel
Facsimile: 000-000-0000
To SpinCo:
Wyndham Hotels & Resorts, Inc. 00 Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: Office of the General Counsel
Facsimile: 000-000-0000
surviving entity or the sale by such Party of all or substantially all of its Assets; provided, that the surviving entity of such merger or the transferee of such Assets shall agree in writing, reasonably satisfactory to the other Party, to be bound by the terms of this Agreement as if named as a “Party” hereto. No assignment shall relieve either Party of the performance of any accrued obligation that such Party may then have under this Agreement.
Section 9.11 GOVERNING LAW. THIS AGREEMENT (INCLUDING THE ARBITRATION PROCEDURE REFERENCED IN Section 9.13) SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF NEW YORK, INCLUDING ITS STATUTE OF LIMITATIONS, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES OR OTHER RULES THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF A DIFFERENT JURISDICTION.
Section 9.13 Dispute Resolution.
(a) In the event of any dispute, controversy or claim arising out of or in connection with this Agreement (including its formation, interpretation, breach or termination, and whether contractual or non-contractual in nature) (a “Dispute”), either Party may serve written notice of the Dispute on the other Party (a “Dispute Notice”). The general counsels of the Parties and/or an executive officer designated by each Party shall negotiate for a reasonable period of time following receipt of a Dispute Notice to seek to amicably resolve such Dispute; provided, that such
period shall not, unless otherwise agreed by the Parties in writing, exceed forty-five (45) days from the time of receipt by a Party of a Dispute Notice. The receipt of a Dispute Notice associated with a specified Dispute pursuant to this Section 9.13(a) shall toll the running of any applicable statute of limitations associated with the Dispute, until the Parties have jointly determined in writing that they are unable to resolve the Dispute, or the dispute is resolved, in accordance with this Section 9.13.
(b) In the event that the Parties are unable to resolve a Dispute within forty-five (45) days following receipt of a Dispute Notice, a Party may request that such Dispute be finally settled under the then-existing Commercial Rules of the American Arbitration Association (the “Rules”), except as modified herein. The seat of the arbitration shall be New York, New York. Within twenty (20) days of requesting that such Dispute be submitted to arbitration, each Party shall designate one (1) arbitrator, and the two (2) arbitrators so appointed shall jointly designate the third arbitrator. The proceedings shall be conducted in the English language. All matters relating to the arbitration or the award, and any negotiations, conferences and discussions pursuant to this Section 9.13 shall be treated as Confidential Information and shall be subject Article 5 of this Agreement. Judgment upon any award rendered may be entered in any court having jurisdiction over the relevant Party or its assets. The costs associated with arbitration shall be borne by the losing Party.
(c) Neither Section 9.13(a) nor Section 9.13(a) shall prohibit a Party from seeking injunctive relief from any court of competent jurisdiction in the event of a breach or prospective breach of this Agreement or the Confidentiality Agreement by the other Party where such relief is available under applicable Law. The Parties acknowledge and agree that, in the event either Party seeks injunctive relief in the event of a breach or prospective breach of this Agreement, the prevailing Party shall be entitled to reimbursement from the non-prevailing party for commercially reasonable attorneys’ fees and costs incurred in connection with seeking such relief.
[signature page follows]
|
WYNDHAM HOTELS & RESORTS, INC. | |
|
| |
|
| |
|
By: |
/s/ Xxxxx X. Xxxxxxx |
|
|
|
|
Name: |
Xxxxx X. Xxxxxxx |
|
Title: |
Chief Financial Officer |
|
| |
|
| |
|
WYNDHAM DESTINATIONS, INC. | |
|
| |
|
| |
|
By: |
/s/ Xxxxxxx Xxx |
|
|
|
|
Name: |
Xxxxxxx Xxx |
|
Title: |
Executive Vice President |