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EXHIBIT 10.12
TRAVELWEB(TM) PARTICIPANT AGREEMENT
FOR INTERNET PAGES, ON LINE AVAILABILITY AND RESERVATIONS
This Agreement is entered into by and between TravelWeb, Inc. as
successor in interest to The Hotel Industry Switch Company (hereinafter called
"TWI") and Hyatt Corporation (hereinafter called "Participant") to be effective
on the latest date of execution by both 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(TM). The trade name and trademark owned by TWI for
its service to provide access to information on hotels,
resorts, cruise lines and other travel and lodging subjects
and a limited access to TravelWeb(TM) Participant's
reservation system with the interactive capability to permit
an operator of a Client Computer (as hereinafter defined) to
make a reservation.
1.2 Internet. A worldwide network of computers with information
which is accessible by Client Computers.
1.3 TravelWeb(TM) Participant. A person or entity who enters into
an agreement with TWI to publish Internet Pages (as
hereinafter defined) and (at its option) to provide access to
the TravelWeb(TM) Participant's reservation system with the
capability to make a reservation.
1.4 TravelWeb(TM) Publication. One or more pages of Materials (as
hereinafter defined) to be developed into Internet Pages (as
hereinafter defined).
1.5 TravelWeb(TM) Order. A written order form, reasonably
acceptable to TWI and in the form prescribed by TWI, executed
by TWI 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.
1.6 Change Order. A written change, on a form prescribed by TWI,
in the TravelWeb(TM) Order mutually agreed to and executed by
TWI and Participant.
1.7 Client Computer. A computer with access to information on the
Internet.
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1.8 TravelWeb Reservation. A TravelWeb Reservation is a
reservation made with a TravelWeb(TM) Participant via
TravelWeb(TM) by an operator of a Client Computer.
1.9 Net TravelWeb Reservation. Net TravelWeb Reservations within a
particular time period equals the number of reservations made
by an operator of a Client Computer via TravelWeb(TM) within
such time period, less the number of reservations made by an
operator of a Client Computer as to which notice of
cancellation is received via TravelWeb(TM) within such time
period.
1.10 Net Net TravelWeb Reservation. Net Net TravelWeb Reservations
within a particular time period equals the number of
reservations made by an operator of a Client Computer via
TravelWeb(TM) within such time period less cancellations,
chargebacks, rebookings of reservations, package bookings, and
any reservation for which a fee has already been paid.
1.11 Materials. All of the information, in documentary form or
otherwise, provided to TWI by Participant to be used by TWI to
create and publish the Internet Pages.
1.12 TravelWeb(TM) Activity Report. An on line report available
only to Participant and Cyber Publishing, Inc. via TravelWeb
providing information regarding the viewing of Participant's
Internet Pages by operators of Client Computers (to include,
without limitation, daily transaction statistics, hourly
transaction statistics, total transfers by client domain and
reversed subdomain, total transfers from each archive section
and previous full summary period) and all available data
prepared by TWI regarding TravelWeb Reservations with
Participant.
1.13 Internet Page. The finished informational product created and
published by TWI from the Materials pursuant to this Agreement
and a TravelWeb(TM) 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.
1.14 Authorized Representative. An authorized representative is any
person or entity with the express right, authority and/or
obligation to perform the obligations of or act on behalf of
TWI or Participant with respect to this Agreement.
1.15 Certificate of Internet Page Acceptance. Written acceptance by
Participant of the Internet Pages and authorization to publish
them. The Certificate of Internet Page Acceptance will be in a
form prescribed by TWI.
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1.16 Interface. The connection created by TWI between TravelWeb(TM)
and Participant's Reservation System pursuant to the technical
and functional design specifications set forth in the
UltraSwitch UltraSelect HRS Interface Specifications (the
"Specifications") which shall be compatible with Participant's
reservation system as of the date of this Agreement.
1.17 Interactive Portion of TravelWeb(TM). The functional
capability provided by TWI via the Interface of on line Client
Computers' access via TravelWeb and the most recent version of
Netscape Navigator (or any other browser approved by TWI's
Technical Committee) to a Participant's Reservation system
with the capability to make and cancel a reservation.
II.
INTENT OF THIS AGREEMENT
2.1 Mutual Intent. It is mutually intended that this Agreement and
all documents made reference to herein, set forth, in its
entirety, all of the terms, conditions, rights and obligations
of TWI and Participant with respect to the publishing of
Internet Pages by TWI and the installation and operation of
the Interface by TWI as specifically set forth herein. This
Agreement is not exclusive and Participant may publish the
Internet Pages and accept Internet Reservations with any other
person or entity.
III.
CREATION AND PUBLICATION OF A TRAVELWEB(TM) BROCHURE;
DUTIES AND OBLIGATIONS OF TWI AND PARTICIPANT
3.1 TravelWeb(TM) Order. The TravelWeb(TM) Order shall be
completed in the form attached hereto (the "TravelWeb(TM)
Order Form") and shall contain all of the information
requested on the form for TWI to publish the Internet Pages
requested by Participant. The TravelWeb(TM) Order Form may be
amended or replaced by TWI at any time without notice prior to
any TravelWeb(TM) Order being executed. To be effective, any
TravelWeb(TM) Order Form must be executed by an Authorized
Representative of TWI and Participant. A new TravelWeb(TM)
Order Form shall be completed and agreed to with respect to
each TravelWeb(TM) Publication to be created and published by
TWI 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 TWI
all Materials reasonable and necessary for TWI to create and
publish the Internet Pages pursuant to the TravelWeb(TM)
Order. All Materials shall be in form, substance, condition
and format as required by TWI and shall meet or exceed all of
the requirements set forth in the TravelWeb(TM) Order Form and
in all other reasonable and
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necessary requirements requested by TWI. TWI is hereby
authorized to utilize, consistent with the TravelWeb(TM) Order
and for no other purposes other than those expressly set forth
in this Agreement, all copyrights, trademarks, trade names,
service marks or other proprietary marks or symbols contained
within the Materials (collectively, "Participant's Marks").
3.3 Processing the Order Creation of the Internet Pages:
Approvals. TWI shall process the TravelWeb(TM) Order pursuant
to the schedule set forth therein. Upon creation of the
Internet Pages to be published pursuant to the TravelWeb(TM)
Order and this Agreement (but prior to such publication), TWI
shall deliver to Participant, for inspection and approval, the
completed Internet Pages. Participant shall, within fourteen
(14) days of such delivery, make any and all written
corrections or proposed amendments it may have to the Internet
Pages and shall provide TWI with written notice detailing such
corrections and/or proposed amendments. In the event the
Internet Pages are approved, Participant shall, within
fourteen (14) days of receipt of the Internet Pages, provide
TWI with a Certificate of Acceptance. Notwithstanding the
above and foregoing, in the event Participant does not provide
written notice to TWI of corrections or proposed amendments or
approving the Internet Pages within fourteen (14) days of
receipt of the Internet Pages, approval of the Internet Pages
shall be deemed not given by Participant to TWI and TWI shall
not be authorized to publish the Internet Pages on the
Internet; however, TWI may immediately invoice Participant for
all fees and costs associated with the TravelWeb Order or
Change Order and Participant shall be deemed to have waived
any dispute of such invoice.
3.4 Authority to Publish. Participant hereby authorizes and
directs TWI to publish on the Internet as part of
TravelWeb(TM) the approved Internet Pages.
3.5 TravelWeb Management. THISCO shall be responsible for all
costs associated with the connection of the TravelWeb server
to Internet and all hardware and software maintenance for such
server. THISCO shall insure that the server is monitored for
failures 24 hours per day, seven days per week and will use
commercially reasonable efforts to assure that the server is
operational and available on the Internet 98% of the time, 24
hours per day, seven days per week for each 90-day period.
IV.
THE INTERFACE: DUTIES AND OBLIGATIONS OF TWI AND PARTICIPANT
4.1 Duties of TWI. TWI shall be responsible for all costs
associated with the production, development, service and
maintenance of the Interface and the Interactive Portion of
TravelWeb including, but not limited to providing all
reasonable and necessary personnel, technical support,
hardware and
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software to produce the Interface between Client Computers and
Participant's reservation system meeting or exceeding the
Specifications. Subject to Section 9.2 hereof and acts of
third parties, the Interactive Portion of TravelWeb will be
operable at least 98% of the time measured 24 hours per day, 7
days per week for each rolling 90-day period after the
Interface has been completed. TWI will periodically review and
update, as is reasonable and necessary, all security
applications of the Interactive Portion of TravelWeb
including, without limitation, the current reservation limits.
4.2 Duties of Participant. Participant shall provide all
reasonable and necessary personnel and technical support,
reasonable and necessary programming and modification of its
reservation system and all other reasonable and necessary
accommodations to produce a dependable and operable Interface
with its reservation system and shall cooperate fully with TWI
personnel to produce the Interface. Through the Interface,
Participant will permit access to Participant's reservation
system by all Client Computers utilizing TravelWeb(TM) and the
most recent version of Netscape Navigator (or any other server
approved by TWI's Technical Committee) and will permit all
such Client Computers to reserve and cancel rooms available to
be reserved in Participant's reservation system and to make
credit card payments to Participant in connection with the
TravelWeb Reservation.
4.3 Implementation of the Interface. It is acknowledged by
Participant that the Interface has been created and is
operable.
4.4 Security Problems. Notwithstanding any other provision set
forth herein, in the event Participant experiences losses
resulting from security breaches in the usage of the
Interactive Portion of TravelWeb and/or the Interface, or the
Technical Committee of TWI determines that additional security
measures should be implemented, Participant shall immediately
provide notice to TWI of any such security breach and
otherwise may immediately terminate the Interactive Portion of
TravelWeb and/or the Interface and refuse to accept any
transaction until such time as the security problem has been
cured or additional security measures are implemented.
Participant's right to terminate the Interactive Portion of
TravelWeb and/or the Interface shall be Participant's sole and
exclusive remedy for any such security breach.
4.5 Enhancement or Modification of the Interactive Portion of
TravelWeb(TM). TWI may undertake to modify the operation or
enhance the capability of the Interactive Portion of
TravelWeb(TM). In such event, TWI shall provide notice to
Participant of such modification or enhancement at least 30
days prior to such modification or enhancement taking effect
and will make such adjustments and modifications to
TravelWeb(TM) at TWI's sole expense, as are reasonable and
necessary to maintain the Interface with Participant.
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Participant agrees to cooperate with TWI with regard to its
modification or enhancement of the Interactive Portion of
TravelWeb(TM).
4.6 Modification of Participant's Reservation System. In the event
Participant modifies its reservation system or modification of
its reservation system is required for Participant if it
continues to participate in the Interactive Portion of
TravelWeb(TM), Participant shall pay for such modification to
its reservation system. In the event Participant modifies its
reservation system and such modification requires TWI to
modify the Interface or the Interactive Portion of
TravelWeb(TM) to maintain the Interface and to comply with its
functional specifications with Participant, Participant shall
pay TWI its standard consulting rate and all reasonable
expenses incurred by TWI as a result of the modification.
V.
FEES AND COSTS
5.1 Creation and Publication Fees. For the creation and
development of the Internet Pages from the Materials provided
by Participant to TWI, Participant shall pay to TWI the fees
and costs set forth on each TravelWeb(TM) Order Form and/or
Change Order Form. Fees and costs charged in connection with
each TravelWeb(TM) Order are subject to change without notice
for all TravelWeb(TM) Orders which have not been executed.
5.2 Monthly Maintenance Fees. For maintaining the Internet Pages
on the Internet and the management, supervision and operation
of the software, hardware and facilities management associated
with the TravelWeb connection, Participant shall pay to TWI a
monthly maintenance fee as follows:
1 - 50 properties $3.00 per property
51 - 200 properties $2.75 per property
201 - 400 properties $2.50 per property
over 400 properties $1,000
The monthly maintenance fee is due for each month during which
Internet Pages have been published on the Internet pursuant to
this Agreement.
5.3 TravelWeb Reservation Fees. For each Net TravelWeb Reservation
during the first 12 months after the date hereof, Participant
shall pay to TWI a fee of $2.00 (the "TravelWeb Reservation
Fee"). Prior to the expiration of 12 months after the date
hereof and on or before each anniversary date hereof,
Participant and TWI shall diligently and in good faith attempt
to agree on a new TravelWeb Reservation Fee to be applicable
for each subsequent 12
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month period. In the event Participant and TWI do not agree on
a new TravelWeb Reservation Fee to be applicable for each 12
month period as provided herein, either party may terminate
the portions of this Agreement with respect to the Interactive
Portion of TravelWeb and the parties shall be relieved of
their responsibilities set forth herein with respect to the
Interactive Portion of TravelWeb. The TravelWeb Reservation
Fee is in addition to the fees to be paid by Participant for
transactions utilizing The Hotel Industry Switch Company's
UltraSwitch system. Notwithstanding the above and foregoing,
Participant shall have the option to renew for any period at a
mutually agreed Net TravelWeb Reservation fee.
5.4 Communication Line Costs. Participant shall pay all costs of
communication lines required for the Interface and operation
of the Interactive Portion of TravelWeb.
5.5 Payment of Fees and Costs. TWI shall provide to Participant a
monthly invoice itemizing all fees and costs and Participant
shall pay each invoice upon receipt and each invoice shall be
past due thirty (30) days thereafter.
VI.
TRAVELWEB(TM) REPORTS
6.1 TravelWeb(TM) Activity Reports. TWI shall provide to
Participant via TravelWeb(TM) current on line TravelWeb(TM)
Activity Reports.
VII.
TERM AND TERMINATION
7.1 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
(1st) anniversary. This Agreement shall be automatically
renewed and extended for additional one (1) year terms unless,
at least sixty (60) days prior to the expiration of any one
(1) year term, either party hereto shall give notice of its
intent not to renew and extend this Agreement.
7.2 Termination. This Agreement may only be terminated prior to
the expiration of each 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 9.2 hereof.
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7.3 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 and access to Participant's reservation
system via TravelWeb shall cease and all duties and
obligations as set forth herein shall immediately cease and
terminate except for the provisions set forth in Article VIII,
Sections 9.7, 9.8, 10.1 and Articles 11 and 12 hereof and any
payments which may be due after the date of termination and
all Materials shall be returned to Participant.
VIII.
INTELLECTUAL PROPERTY AND DATA
8.1 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.
8.2 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, the Internet Pages and the
Interactive Portion of TravelWeb(TM).
8.3 Ownership of Internet Pages. The Internet Pages, shall, at all
times material to this Agreement, be and remain the property
of Participant. TWI may not use or publish the Internet Pages
in any manner other than pursuant to this Agreement without
the prior written consent of Participant.
8.4 TravelWeb Reservation Information. Subject to Participant's
right to receive information pursuant to Section 6.1 hereof,
TWI shall own all statistical data regarding a Client
Computer's access to TravelWeb and the name and address of the
user of each Client Computer accessing TravelWeb provided TWI
shall not use or distribute such data in any manner which is
specific to Participant or reasonably determinable as related
to Participant (except as required to perform this Agreement).
TWI may use all aggregate data generated from the Interactive
Portion of TravelWeb provided such data is not specific to
Participant or reasonably determinable as related to
Participant, and does not indicate that a customer is a
customer of Participant.
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IX.
DEFAULT
9.1 Events of Default. Subject to Section 9.2 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 failure of Participant or any of its
participating affiliates or franchisees to satisfy
the obligations set forth in this Agreement;
(iii) 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
(iv) The commencement by either party of a voluntary case
under Chapter 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 Chapter 11 or 7, either party seeking
relief as a debtor under any applicable law, other
than said Chapter 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.
9.2 Force Majeure. It will not constitute an Event of Default if
such event listed in Section 9.1 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 9.1, and the same continues for more than
thirty (30) consecutive days, either party may terminate this
Agreement by providing notice as required herein.
9.3 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 defaulting party shall have
ten (10) 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) days within which
to cure such default. In the event
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such default is not cured within the time required herein,
this Agreement may then be terminated.
9.4 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, TWI shall be
entitled (i) to terminate this Agreement and TWI's
obligations and duties set forth herein shall cease
(ii) to retain Materials, the Internet Pages and any
and all other Materials used by, developed, or
created by TWI 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
without any offset for mitigation resulting from
TWI's terminated obligation to continue to develop
and create Internet Pages as required by the
TravelWeb(TM). Order. It is acknowledged and agreed by
Participant that the damages to TWI for a default on
this Agreement by Participant would be difficult, if
not impossible, to measure and that the balance
unpaid on any Travelweb(TM) Order in addition to any
unpaid TravelWeb Reservation Fees or other fees is a
fair and reasonable estimate of TWI's damages in the
event of such default and shall be the total amount
due TWI in such event.
(ii) By TWI. In the event of a default of this Agreement
by TWI and the failure of TWI to cure such default
after notice and opportunity to cure as provided
herein, Participant may terminate this Agreement and
TWI shall deliver to Participant all Materials and
all other materials used, developed and/or created by
TWI in the development and creation of the Internet
Pages and TWI shall refund to Participant all amounts
paid pursuant to the TravelWeb(TM) Order less a
reasonable amount (no greater than the price set
forth on the applicable TravelWeb Order) for such
portion of the development and creation of the
Internet Pages accomplished by TWI as represented by
the Materials delivered to Participant.
9.5 Risk of Internet Usage. Each party acknowledges and agrees
that the Internet is a communication medium over which the
parties have 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 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 either party's
sole discretion, to continue to perform this Agreement, either
party may, upon notice to the other party, immediately
terminate the Interactive Portion of TravelWeb, the interface,
and/or this Agreement without such action constituting an
event of default.
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9.6 Errors on Internet Pages. Not withstanding any other provision
hereof, in the event an Internet Page published pursuant to
this Agreement contains an error caused by TWI, its employees,
agents or subcontractors, other than an error arising from
TWI's gross negligence or willful misconduct, Participant's
sole and exclusive remedy for such error shall be TWI's
obligation to remove such Internet Page from TravelWeb 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 as promptly as reasonably
possible but in no event later than seven (7) days of date of
notice from Participant of such error, each at TWI's sole cost
and expense.
9.7 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.
9.8 Disclaimer and Limitation of Liabilities. TWI WILL NOT BE
RESPONSIBLE OR LIABLE FOR (i) ANY FALSIFICATIONS OR
INACCURACIES IN THE MATERIAL OR THE INTERNET PAGES; (ii) 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 (iii) ANY CLAIM, DAMAGE OR LIABILITY OF ANY NATURE
ARISING OUT OF A CLIENT COMPUTER'S ACCESS TO PARTICIPANT'S
RESERVATION SYSTEM AND/OR ANY TRANSACTION OR THE USE OF A
CREDIT CARD OR OTHER DEBIT DEVISE IN CONNECTION THEREWITH,
EXCEPT TO THE EXTENT RESULTING FROM THE FAILURE OF THE
INTERACTIVE PORTION OF TRAVELWEB TO PERFORM PURSUANT TO THE
SPECIFICATIONS (PROVIDED HOWEVER, TWI SHALL NOT BE LIABLE FOR
ANY FAILURE OR DEFECT RESULTING FROM ANY THIRD PARTY SOFTWARE
APPLICATION SET FORTH AS PART OF THE SPECIFICATIONS) OR FROM
TWI'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 TWI AND WAIVED BY PARTICIPANT.
X.
INDEMNIFICATION
10.1 Indemnification in the Event of Certain Losses. Subject to the
other provisions hereof, Participant agrees to indemnify,
defend and hold harmless TWI and TWI's partners successors,
assigns, subsidiaries, affiliates, and each such entities
directors, officers, employees and stockholders, from and
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against any losses, claims, liabilities, damages or expenses
(including reasonable attorney's fees) ("TWI's Losses")
occurring on account of Participant's fault except to the
extent dye to the fault of TWI. Subject to the other
provisions hereof, TWI 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 TWI'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 10.1, such indemnified party shall give prompt
notice thereof to the indemnifying party and the 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.
XI.
CONFIDENTIALITY
11.1 Confidential Information. During the term of this Agreement,
it is acknowledged by Participant and TWI that each may
receive or have access to confidential and proprietary
information of the other party including, but not limited to,
the UltraSwitch UltraSelect HRS Interface Specifications,
Participant's reservation system specification, marketing
information, business plans, financial information and other
proprietary information or 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
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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 11 shall extend, without
limitation, beyond the date of the expiration or other
conclusion of this Agreement. Each party agrees to take all
reasonably avoidable measures, at their own expense, to ensure
that the other party's Confidential Information is not
accessible to other persons and to upgrade such measures as
often as necessary and practicable.
11.2 Use of Marks. Participant acknowledges that "TravelWeb(TM)" is
a trade name and servicemark of TWI and that it shall not use
such xxxx without the prior written approval of TWI. Except as
otherwise permitted herein, TWI agrees that it shall not use
any of Participant's Marks or any portion thereof or elements
contained therein without Participant's prior written consent.
XII.
MISCELLANEOUS
12.1 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).
12.2 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 TWI: IF TO PARTICIPANT:
0000 Xxxxxx Xxxxx Xxxx. Hyatt Corporation
Suite 1100 200 X. Xxxxxxx
Dallas, Tx 75219 Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, III Attention: Xxxx Xxxxx
(if by telecopy: (000) 000-0000) (if by telecopy: (000) 000-0000)
With a copy to General Counsel
[at same address]
(if by telecopy to: (312 750-8581)
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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.
12.3 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.
12.4 Assignment; Authorized Agents. This Agreement is not
assignable by either party without the prior written consent
of the other and such consent shall not be unreasonably
withheld or delayed; provided, however, it is acknowledged and
agreed that the obligations of TWI as set forth in paragraphs
3.2 and 3.3 herein may be performed by Cyber Publishing, Inc.
or such other Authorized Representative. Notwithstanding any
restrictions herein on assignment or transfer, either party
shall have the right at its option to assign and transfer all
of its rights and interests hereunder to any entity or
entities which may be spun-off from either party, to the
extent such rights and interests relate to properties which
will be owned, leased, licensed or managed by, or services to
be performed by, such entity or entities. Following the date
of such spin-off, such entity or entities shall be solely
responsible for the performance of any and all covenants,
agreements, indemnities and other obligations of any kind
hereunder as they relate to such properties or services and
the assigning party, its subsidiaries, affiliates, licensees
and successors, and each of such entities and their officers,
directors, employees and agents shall be released from any and
all such covenants, agreements, indemnities and other
obligations of any kind hereunder, without however, in any way
increasing the Net Reservation fee or any other fees or
charges payable by Participant hereunder.
12.5 Entire Agreement. This Agreement, the Exhibits hereto, and the
documents made reference to herein (and any replacements
and/or amendments thereto) shall constitute the entire, sole
and exclusive agreement between TWI and Participant with
respect to the subject matter set forth herein and shall
supersede and cause the mutual termination of any and all
other agreements, oral or written with respect to TravelWeb
including, but not limited to, that certain TravelWeb
Participant Agreement between The Hotel Industry Switch
Company and Participant with an effective date of July 15,
1995. Each party hereto acknowledges that it has not relied
upon any representation or promise not set forth herein.
12.6 Parties Independence. This Agreement will not constitute a
partnership, joint venture or similar arrangement. The parties
hereto
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are separate and distinct entities independently contracting
with each other at arms length.
TRAVELWEB, INC.
BY: /s/ XXXX X. XXXXX, III
----------------------------------
Xxxx X. Xxxxx
President
DATE: January 17, 1996
--------------------------------
PARTICIPANT:
HYATT CORPORATION
BY: /s/ XXXX XXXXXXXXX XXXXXX
----------------------------------
---------------------------------
ITS: Associate General Counsel
---------------------------------
DATE: January 12, 1996
--------------------------------
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