Exhibit 10.12
STRATEGIC ALLIANCE
AGREEMENT
BY AND AMONG
BARTECH EMEA
AND
HOTEL OUTSOURCE MANAGEMENT INTERNATIONAL, INC.
DATED APRIL 9, 2003
TABLE OF CONTENTS
SECTION NUMBER AND HEADING PAGE
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1. DEFINITIONS AND PREAMBLE............................................................................2
1.1 DEFINED TERMS................................................................................2
1.2 PREAMBLE AND ATTACHMENTS.....................................................................4
2. MARKETING SERVICES..................................................................................4
2.1 MARKETING PLAN...............................................................................4
2.2 ANNUAL BUDGET................................................................................4
2.3 MARKETING ACTIVITIES.........................................................................4
2.4 MARKETING MATERIAL AND REPRESENTATIONS.......................................................4
2.5 MARKETING AND NEGOTIATION PROCEDURES.........................................................5
2.6 COMPENSATION.................................................................................6
3. SURVEYS BY BARTECH..................................................................................6
3.1 PRELIMINARY SURVEYS..........................................................................6
3.2 DETAILED TECHNICAL SURVEY....................................................................6
3.3 COMPENSATION.................................................................................7
4. PURCHASE OF BARTECH MINIBARS........................................................................7
4.1 PURCHASE ORDER...............................................................................7
4.2 SPECIFICATIONS...............................................................................7
4.3 TERMS AND CONDITIONS OF PURCHASE.............................................................7
4.4 BARTECH MINIBAR PURCHASE PRICE...............................................................8
4.5 SPECIAL TERMS................................................................................8
4.6 SPECIAL SALES EXECUTIVE INCENTIVE............................................................8
4.7 END OF YEAR PERFORMANCE BONUS................................................................9
4.8 PAYMENTS TO HEADQUARTERS.....................................................................9
5. PMS INTERFACE.......................................................................................9
5.1 PREPARATION OF THE PMS INTERFACE.............................................................9
5.2 COMPENSATION................................................................................10
6. TURNKEY INSTALLATION OF BARTECH MINIBARS...........................................................10
6.1 PERFORMANCE OF TURNKEY INSTALLATION.........................................................10
6.2 ACCEPTANCE..................................................................................10
6.3 COMPENSATION................................................................................10
7. WARRANTY...........................................................................................11
7.1 BASIC WARRANTY..............................................................................11
7.2 EXTENDED WARRANTY...........................................................................11
8. INTELLECTUAL PROPERTY..............................................................................11
8.1 RIGHTS TO INTELLECTUAL PROPERTY.............................................................11
8.2 NO INFRINGEMENT.............................................................................11
SECTION NUMBER AND HEADING PAGE
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9. TERM AND TERMINATION...............................................................................11
9.1 INITIAL TERM................................................................................11
9.2 TERMINATION WITHOUT CAUSE...................................................................11
9.3 TERMINATION FOR CAUSE.......................................................................12
9.4 EFFECT OF TERMINATION.......................................................................12
10. REPRESENTATIONS AND WARRANTIES.....................................................................12
10.1 MUTUAL REPRESENTATIONS......................................................................12
10.2 REPRESENTATIONS AND WARRANTIES OF BARTECH...................................................13
11. FURTHER UNDERTAKINGS...............................................................................13
11.1 FURTHER ASSURANCES..........................................................................13
11.2 DISCHARGE OF SERVICES.......................................................................13
11.3 INDEMNIFICATION.............................................................................14
12. RELATIONS WITH DISTRIBUTORS........................................................................14
12.1 NOTIFICATION REGARDING DISTRIBUTORS.........................................................14
12.2 SERVICES IN DISTRIBUTION TERRITORIES........................................................14
12.3 COMMERCIAL TERMS............................................................................14
12.4 ANNUAL BUDGET...............................................................................15
13. EXCLUSIVITY........................................................................................15
14. MISCELLANEOUS......................................................................................15
14.1 COMPENSATION................................................................................15
14.2 NOTICES.....................................................................................15
14.3 ASSIGNMENT..................................................................................15
14.4 ENTIRE AGREEMENT............................................................................16
14.5 NO JOINT VENTURE OR PARTNERSHIP.............................................................16
14.6 FURTHER ASSURANCES..........................................................................16
14.7 AMENDMENTS, MODIFICATIONS, WAIVERS..........................................................16
14.8 SEVERABILITY................................................................................16
14.9 FAILURE OR DELAY............................................................................16
14.10 GOVERNING LAW AND JURISDICTION..............................................................16
14.11 HEADINGS; INTERPRETATION....................................................................16
14.12 COUNTERPARTS; FACSIMILE SIGNATURES..........................................................17
STRATEGIC ALLIANCE AGREEMENT
BARTECH EMEA - HOTEL OUTSOURCE MANAGEMENT INT'L, INC.
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STRATEGIC ALLIANCE AGREEMENT
THIS AGREEMENT DATED AS OF APRIL 9, 2003 , BY AND AMONG:
BARTECH EMEA, a French corporation incorporated and existing under the laws of
France ("BARTECH"); and
HOTEL OUTSOURCE MANAGEMENT INTERNATIONAL, INC., a Delaware corporation ("HOMI");
RECITALS
WHEREAS Bartech, itself and/or through its Affiliates and/or
Distributors (as defined below), manufactures,
markets, sells, installs and services proprietary,
technologically advanced minibars ("BARTECH
MINIBARS"); and
WHEREAS A principal area of HOMI's activity is the provision
of outsource services to hotels, whereby inter alia
HOMI purchases and operates Bartech Minibars in
hotels (the "PRINCIPAL ACTIVITY"); and
WHEREAS The Parties are interested in entering into a
Strategic Alliance Agreement, pursuant to which HOMI
will conduct the Principal Activity, on an exclusive
basis, in all of Europe and all the territories in
which Bartech is active and/or in which Bartech sells
Bartech Minibars, either directly or through agents,
dealers and/or distribution channels (the
"TERRITORY"), using Bartech Minibars which it will
purchase from Bartech (the "OUTSOURCE SERVICES"), and
Bartech will market the Outsource Services for HOMI
and will sell Bartech Minibars to HOMI and will
install and service them for HOMI and provide other
services as set forth in this Agreement; and
WHEREAS HOMI is prepared to undertake to use only Bartech
Minibars in the provision of Outsource Services, in
the Territory, and Bartech is prepared to undertake
not to sell, install and/or service Bartech Minibars,
in the context of and/or in such a way as to
facilitate the provision of services identical,
similar or competing with Outsource Services, to or
for anyone other than HOMI, in the Territory; and
WHEREAS The Parties wish to enter into this Agreement in
order to set forth their mutual understandings and
undertakings in relation to the matters set forth
above and following, all in accordance with and
subject to the terms and conditions set forth in this
Agreement below;
NOW, THEREFORE in consideration of the premises and the mutual
covenants, agreements, representations and warranties
herein contained, the Parties hereto, intending to be
legally bound, covenant and agree as follows:
STRATEGIC ALLIANCE AGREEMENT
BARTECH EMEA - HOTEL OUTSOURCE MANAGEMENT INT'L, INC.
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1. DEFINITIONS AND PREAMBLE
1.1 DEFINED TERMS
Capitalized terms used and not otherwise expressly defined in this Agreement
shall have the meanings ascribed below or in the other locations of this
Agreement as specified below:
"ADDITIONAL TERM" shall have the meaning ascribed to such term in Section 9.1
below.
"AFFILIATE" as applied to any specified Person, shall mean any other Person
that, directly or indirectly, controls, is controlled by or is under common
control with such specified Person. For the purposes of the foregoing,
"control", when used with respect to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of such Person, whether through the ownership of voting securities,
by contract or otherwise, and the terms "controlled" and "controlling" shall
have meanings correlative to the foregoing.
"AGREEMENT" means this Strategic Alliance Agreement.
"ANNUAL BUDGET" shall have the meaning ascribed to such term in Section 2.2
below.
"BARTECH MINIBARS" has the meaning ascribed thereto in the preamble to this
Agreement.
"BARTECH" has the meaning ascribed thereto in the preamble to this Agreement.
"BASIC WARRANTY" shall have the meaning ascribed to such term in Section 7.1
below.
"BUSINESS DAY" means any regular working day that is not Saturday, Sunday, a
legal holiday or other day on which banks are required to be closed in New York.
"COMMERCIAL SURVEY" shall have the meaning ascribed to such term in Section 2.5b
below.
"DEFAULTING PARTY" shall have the meaning ascribed to such term in Section 9.3b
below.
"DETAILED TECHNICAL SURVEY REPORT" shall have the meaning ascribed to such term
in Section 3.2 below.
"DETAILED TECHNICAL SURVEY" shall have the meaning ascribed to such term in
Section 3.2 below.
"DISTRIBUTION TERRITORIES" shall have the meaning ascribed to such term in
Section 12 below.
"DISTRIBUTORS" shall have the meaning ascribed to such term in Section 12 below.
"DOLLAR" or "$" means the United States Dollar.
"END OF YEAR BONUS" shall have the meaning ascribed to such term in Section 4.7a
below.
"EXTENDED WARRANTY" shall have the meaning ascribed to such term in Section 7.2
below.
"GENERAL TECHNICAL SURVEY" shall have the meaning ascribed to such term in
Section 3.1 below.
"GENERAL TERMS" shall have the meaning ascribed to such term in Section 4.3
below.
"HOMI" has the meaning ascribed thereto in the preamble to this Agreement.
"HOTEL" means any hotel, or chain of hotels, in the Territory, with which HOMI
has entered into negotiation and/or agreement in relation to the provision of
Outsource Services by HOMI.
"INCORPORATION DOCUMENTS" means the documents by which the specified Party
establishes its legal existence or which govern its internal affairs.
"INITIAL TERM" shall have the meaning ascribed to such term in Section 9.1
below.
"INTELLECTUAL PROPERTY" shall have the meaning ascribed to such term in Section
8.1 below.
"MARKETING MATERIAL" shall have the meaning ascribed to such term in Section
2.4a below.
"MARKETING PLAN" shall have the meaning ascribed to such term in Section 2.1
below.
STRATEGIC ALLIANCE AGREEMENT
BARTECH EMEA - HOTEL OUTSOURCE MANAGEMENT INT'L, INC.
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"MARKETING" shall have the meaning ascribed to such term in Section 2 below.
"NOTICE OF COMPLETION" shall have the meaning ascribed to such term in Section
6.1 below.
"OUTSOURCE SERVICES AGREEMENTS" shall have the meaning ascribed to such term in
2.5d below.
"OUTSOURCE SERVICES" has the meaning ascribed thereto in the preamble to this
Agreement.
"PARTY" shall have the meaning ascribed to such term in the Preamble.
"PERFORMING PARTY" shall have the meaning ascribed to such term in Section 9.3b
below.
"PERSON" shall be construed as broadly as possible and shall include any
individual, corporation, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated organization or
government or other agency or political subdivision thereof.
"PMS INTERFACE" shall have the meaning ascribed to such term in 5.1a below.
"PMS" shall mean the property management system employed by the relevant Hotel
and/or Site.
"POTENTIAL CUSTOMER" shall have the meaning ascribed to such term in Section
2.5b below.
"POTENTIAL CHAIN CUSTOMER" shall have the meaning ascribed to such term in
Section 2.5a below.
"PRELIMINARY SURVEY REPORT" shall have the meaning ascribed to such term in
Section 3.1 below.
"PRELIMINARY SURVEY" shall have the meaning ascribed to such term in Section 3.1
below.
"PRICE-LIST" shall have the meaning ascribed to such term in Section 4.4a below.
"PRINCIPAL ACTIVITY" has the meaning ascribed thereto in the preamble to this
Agreement.
"PURCHASE ORDER" shall have the meaning ascribed to such term in Section 4.1
below.
"PURCHASES" shall have the meaning ascribed to such term in Section 4.3 below.
"QUESTIONNAIRE" shall have the meaning ascribed to such term in Section 2.5a
below.
"SERVICES" shall mean the Marketing, the Preliminary Surveys, the Detailed
Technical Survey, the Turnkey Installations, the PMS Interface, the Warranty
services and the Extended Warranty services and all related reports, ancillary
services etc.
"SITES" shall have the meaning ascribed to such term in Section 3.1 below.
"SPECIAL TERMS" shall have the meaning ascribed to such term in Section 4.5
below.
"SPECIFICATIONS" shall have the meaning ascribed to such term in Section 4.2
below.
"STANDARD PURCHASE PRICE" shall have the meaning ascribed to such term in
Section 4.4a below.
"STANDARD TERMS" shall have the meaning ascribed to such term in Section 2.4b
below.
"TARGET QUANTITY" shall have the meaning ascribed to such term in Section 2.2
below.
"TERM OF THIS AGREEMENT" shall have the meaning ascribed to such term in Section
9.1 below.
"TERRITORY" has the meaning ascribed thereto in the preamble to this Agreement.
"TURNKEY INSTALLATION" means the complete and final installation of Bartech
Minibars in the Site for which HOMI purchased the Bartech Minibars, inclusive of
all necessary hardware, software, applications, appliances and all other items
as applicable, in accordance with the Specifications, such that the Bartech
Minibars are in full working order upon completion of said installation, and
further including the full and complete installation of the PMS Interface on
HOMI's and/or the Hotel's computers at the Site, such that HOMI shall be in a
position to commence full Outsource Services at that Site forthwith upon
completion of the installation, without any interference being caused to
Television, MATV, PayTV and/or any other systems at the Site.
STRATEGIC ALLIANCE AGREEMENT
BARTECH EMEA - HOTEL OUTSOURCE MANAGEMENT INT'L, INC.
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1.2 PREAMBLE AND ATTACHMENTS
The Preamble to this Agreement, as well as any and all Exhibits,
Appendices, Exhibits or other attachments to this Agreement shall form
an integral part hereof.
2. MARKETING SERVICES
Bartech hereby undertakes to promote and market the Outsource Services, in the
Territory, in accordance with the provisions of this Section 2 below (the
"MARKETING").
2.1 MARKETING PLAN
The Parties recognize and acknowledge that the initial introduction of
Outsource Services into any country in the Territory will require
special investment of time and resources, and it may not be feasible at
the outset to offer Outsource Services concurrently throughout the
Territory, or in countries in which a minimum number of installations
cannot be achieved. The Parties further recognize and acknowledge that
the marketing and offer of the Outsource Services should be targeted at
a defined market segment and at suitable kinds of hotel (typically
upscale and luxury Hotels, preferably chain affiliated). In view of the
foregoing, it is agreed that Bartech will perform the Marketing
strictly and solely in accordance with the Marketing Plan attached as
EXHIBIT 2.1 hereto (the "MARKETING PLAN"), as amended by the Parties
from time to time.
2.2 ANNUAL BUDGET
In addition to the Marketing Plan, and in accordance with the
principles set forth therein, HOMI will deliver to Bartech, no later
than October 31st in each calendar year, a budget for the coming
calendar year, which will include an indication of the minimum quantity
of Bartech Minibars which HOMI plans to purchase during the budget
period (the "TARGET QUANTITY") and an indication of how HOMI intends to
fund the purchase of said Bartech Minibars (the "ANNUAL BUDGET"). The
Annual Budget for the year 2003 is attached as EXHIBIT 2.2 and the
Annual Budget for subsequent years will follow substantially the same
format. Upon HOMI's purchasing two thirds of the Target Quantity in any
given year, it will notify Bartech of any increase to the Target
Quantity for that year.
2.3 MARKETING ACTIVITIES
In the context of performing the Marketing, and at all times in
accordance with the Marketing Plan and the Annual Budget, Bartech will
include the Outsource Services in all applicable marketing programs
and/or advertising campaigns run by Bartech, at all levels, including
hotel chains, major accounts and individual hotels, and will recommend
the Outsource Services to its current and potential customers, giving
the Outsource Services no less preference than any other equivalent or
alternative program marketed by Bartech, and specifically with the
objective of facilitating the entry into and the execution of term
sheets or definitive agreements by and between HOMI and appropriate
major hotel chains, relating to the provision of Outsource Services by
HOMI, all in the manner set forth herein. For avoidance of doubt, the
actions set forth above are not by no means an exhaustive list of the
actions which will be taken by Bartech in performing the Marketing. An
indication of other actions which will be taken by Bartech in
performing the Marketing is set forth in the list of Marketing
Activities which is included in the Marketing Plan (Exhibit 2.1)
hereto.
2.4 MARKETING MATERIAL AND REPRESENTATIONS
A. In performing the Marketing, Bartech will make use of
promotional material, including brochures, pamphlets and the
like, which it will receive from HOMI ("MARKETING MATERIAL")
and in any event Bartech will make use, in performing the
Marketing, only of currently valid material that has been
approved in advance by both Parties.
STRATEGIC ALLIANCE AGREEMENT
BARTECH EMEA - HOTEL OUTSOURCE MANAGEMENT INT'L, INC.
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B. Any representation made by Bartech in the context of outlining
the nature of the Outsource Services must be consistent with
the standard terms under which HOMI typically provides the
Outsource Services, as amended by HOMI and provided to Bartech
from time to time. A current summary of these terms is set
forth in EXHIBIT 2.4B hereto (the "STANDARD TERMS").
C. HOMI will be bound by the terms of definitive agreements which
it may enter into with hotels or hotel chains, and Bartech
will have no authority to make any representation on HOMI's
behalf or in its name, to any third party, except in the form
of and/or in accordance with the then current Marketing
Material and Standard Terms, and Bartech will not have the
power to make any commitments or representations that will be
binding on HOMI towards any third party.
D. All the Marketing will be performed under the joint names of
Bartech and HOMI, and Bartech will indicate clearly that the
Outsource Services will be provided by HOMI.
2.5 MARKETING AND NEGOTIATION PROCEDURES
A. Upon a hotel chain that meets the criteria set forth in the
Marketing Plan expressing to Bartech an interest in receiving
the Outsource Services (a "POTENTIAL CHAIN CUSTOMER"), Bartech
will immediately notify HOMI and, in coordination with HOMI,
will facilitate one or more meetings, as necessary, to be
attended by the Potential Chain Customer, Bartech and HOMI,
with the objective of enabling HOMI to negotiate an Outsource
Services framework agreement between HOMI and the Potential
Chain Customer, pursuant to which the Potential Chain Customer
will afford HOMI the status of approved, preferred or
exclusive service provider in relation to Outsource Services.
B. Any hotel that meets the criteria set forth in the Marketing
Plan, whether or not it is affiliated with a hotel chain as
set forth in Sub-Section a above, that expresses an interest
in receiving the Outsource Services (a "POTENTIAL CUSTOMER")
shall complete a questionnaire, in a form to be supplied to
Bartech by HOMI (the "QUESTIONNAIRE"), whereupon Bartech will
immediately notify HOMI of such approach and will proceed with
the Preliminary Surveys as set forth in Section 3.1 below.
C. Once the Preliminary Surveys have been conducted and the
Preliminary Survey Reports have been delivered to HOMI,
pursuant to the provisions of Section 3.1 below, and solely in
the event that HOMI, in its discretion, decides that it is
interested in further examining the possibility of providing
Outsource Services to the Potential Customer, then Bartech, at
HOMI's request, will facilitate a meeting between HOMI and the
Potential Customer, and the Bartech salesperson who was in
contact with the Potential Customer will also be invited to
attend this meeting.
D. To the extent that, following said meeting, HOMI, in its
discretion, and the Potential Customer, are interested in
proceeding with negotiations over the possible supply of
Outsource Services to the Potential Customer, then HOMI will
conduct these negotiations directly with the Potential
Customer, and Bartech will aid and assist this effort to the
best of its ability, upon such request being made by HOMI. For
avoidance of doubt, the determination of whether to conduct
negotiations, as well as the terms being offered to the
Potential Customer and the decision on whether or not to enter
into an agreement with the Potential Customer for the
provision of Outsource Services (an "OUTSOURCE SERVICES
AGREEMENT"), and on what terms, shall be made by HOMI alone,
in its discretion.
STRATEGIC ALLIANCE AGREEMENT
BARTECH EMEA - HOTEL OUTSOURCE MANAGEMENT INT'L, INC.
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E. If, following receipt of due notification by Bartech of the
existence of a particular Potential Customer, in accordance
with the provisions of this Section 2.5 above, HOMI decides
that it is not interested in providing Outsource Services to
said Potential Customer, or if HOMI's subsequent negotiations
with the Potential Customer are abandoned without an Outsource
Agreement being signed, then HOMI shall notify Bartech in
writing of these circumstances and Bartech shall then,
notwithstanding the provisions of Section 13 below, be free to
offer said Potential Customer other outsource service
solutions, to be provided by a Person other than HOMI,
provided however that said solutions shall be a one-time
arrangement, and Bartech will still not be permitted to enter
into any joint venture, partnership or similar arrangement
with any Person (including said Potential Customer) other than
HOMI, relating to Outsource Services, or services identical,
similar or competing with Outsource Services, in the
Territory.
2.6 COMPENSATION
The Standard Purchase Price includes inter alia the full and final
compensation for the Marketing and Bartech will not be entitled to any
kind of compensation for the Marketing, other than any sum to which it
may actually be entitled on account of Purchase of Bartech Minibars, in
accordance with the provisions of Section 4 below.
3. SURVEYS BY BARTECH
3.1 PRELIMINARY SURVEYS
Within 10 Business Days of receiving a completed Questionnaire from a
Potential Customer, Bartech will perform, solely at its own expense,
preliminary surveys at each of the Potential Customer's premises at
which the provision of Outsource Services is being considered (the
"SITES"), in relation to the suitability of Bartech Minibars, and their
Turnkey Installation, to the Potential Customer's infrastructure
("GENERAL TECHNICAL SURVEY") and in relation to the suitability of
Bartech Minibars, and their Turnkey Installation, to the provision of
Outsource Services at said premises of the Potential Customer
("COMMERCIAL SURVEY") (the General Technical Survey and the Commercial
Survey shall be termed, jointly and severally, "PRELIMINARY SURVEYS").
Bartech will deliver to HOMI a report on the findings of each of the
Preliminary Surveys, together with a copy of the completed
Questionnaire, details of Bartech's own observations and
recommendations and a detailed account of any and all information and
material that has already been provided to said Potential Customer,
plus a summary of all contacts with the Potential Customer in
connection with the Outsource Services, and full contact details of the
Potential Customer's relevant contact person, such reports
substantially to take the form set forth in EXHIBIT 3.1(1) and EXHIBIT
3.1(2) hereto, respectively (the "PRELIMINARY SURVEY REPORTS"). Bartech
will deliver the Preliminary Survey Reports to HOMI within 10 Business
Days of performing each of the Preliminary Surveys, respectively, in
recognition of the fact that HOMI may rely upon said Preliminary Survey
Reports during its negotiations with the Potential Customer. HOMI may
elect, at any time, in its discretion, to participate or otherwise
assist in the Preliminary Surveys and/or the preparation of the
Preliminary Survey Reports, without in any way derogating from
Bartech's undertakings and obligations as set forth herein.
3.2 DETAILED TECHNICAL SURVEY
A. Within 10 Business Days of receiving written notice from HOMI
that HOMI's negotiations with a Hotel have reached the stage
where at least one draft Outsource Services Agreement has been
exchanged between HOMI and that Potential Customer, Bartech
will perform, solely at its own expense, a detailed, room by
room survey of the Sites. Bartech will deliver to HOMI a
report with its findings
STRATEGIC ALLIANCE AGREEMENT
BARTECH EMEA - HOTEL OUTSOURCE MANAGEMENT INT'L, INC.
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under the Detailed Technical Survey and its recommendations
thereunder, such report substantially to take the form set
forth in EXHIBIT 3.2A hereto ("DETAILED TECHNICAL SURVEY
REPORT"), within 10 Business Days of performing the Detailed
Technical Survey, in recognition of the fact that HOMI may
rely upon said Detailed Technical Survey Report during its
negotiations with the Hotel.
B. Bartech acknowledges and is aware that in some or all Sites
the Turnkey Installation will be performed using existing Site
infrastructure including co-axial or other forms of cable,
which may or may not be used by the Hotel to provide other
services to its guests, and it is essential that the Detailed
Technical Survey and Detailed Technical Survey Report address
this matter thoroughly, in recognition inter alia of the fact
that the Turnkey Installation must not cause any interference
to Television, MATV, PayTV and/or any other systems at the
Site and that Bartech will be required to immediately remedy
any such interference that is caused during or after the
installation of the Bartech Minibars, and that if unremedied,
such interference could even entitle Hotels to revoke
Outsource Services Agreements.
C. Bartech further acknowledges and is aware that HOMI will make
various undertakings towards Hotels in relation to Outsource
Services, as a fundamental part of the Outsource Services
Agreements between HOMI and the Hotels, in full reliance upon
the accuracy of the Detailed Technical Survey Report. A sample
form of the kind of Outsource Services Agreement which HOMI
may enter into with Hotels is attached hereto as EXHIBIT 3.2C,
which is confidential and for Bartech's eyes only.
3.3 COMPENSATION
The Standard Purchase Price includes inter alia the full and final
compensation for the Preliminary Surveys and the Detailed Technical
Survey and Bartech will not be entitled to any kind of compensation for
the foregoing, other than any sum to which it may actually be entitled
on account of Purchase of Bartech Minibars, in accordance with the
provisions of Section 4 below.
4. PURCHASE OF BARTECH MINIBARS
4.1 PURCHASE ORDER
At any time and from time to time during the Term of this Agreement,
HOMI shall be entitled to purchase Bartech Minibars from Bartech, for
the purpose of providing Outsource Services to Hotels, by means of
sending Bartech a purchase order, substantially in the form attached
hereto as EXHIBIT 4.1 ("PURCHASE ORDER"). For avoidance of doubt and
notwithstanding all other provisions herein, the determination of which
models of Bartech Minibar are to be purchased will be HOMI's, in its
discretion, based on HOMI's negotiations with the Hotels.
4.2 SPECIFICATIONS
Bartech Minibars will be supplied in accordance with the standard
Bartech Minibar specifications as detailed by Bartech from time to time
in respect of each model of Bartech Minibar purchased, and in
accordance with specific specifications set forth by Bartech in the
Detailed Technical Survey and further specifications of which HOMI may
notify Bartech in writing when submitting a Purchase Order
(collectively, the "SPECIFICATIONS").
4.3 TERMS AND CONDITIONS OF PURCHASE
Purchases of Bartech Minibars by HOMI from Bartech in accordance with
this Agreement ("PURCHASES") shall be subject to the General Terms and
Conditions of Sale as set forth in EXHIBIT 4.3 hereto (the "GENERAL
TERMS"). Bartech undertakes to sell and deliver Bartech
STRATEGIC ALLIANCE AGREEMENT
BARTECH EMEA - HOTEL OUTSOURCE MANAGEMENT INT'L, INC.
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Minibars to HOMI in accordance with the Purchases HOMI makes and in
accordance with the General Terms and the Specifications.
4.4 BARTECH MINIBAR PURCHASE PRICE
A. The Parties hereby agree that the Purchases will be made and
supplied at a 10% discount from Bartech's End User Price-List
for the Territory as shall be in force at the time the
Purchase Order is sent to Bartech (the "PRICE-LIST" and the
"STANDARD PURCHASE PRICE"), provided however that HOMI will
only be invoiced for items which it actually purchases (e.g.
training will usually not be required and will thus not
usually be included in the Standard Purchase Price, although
it will be invoiced if it is nonetheless required and received
by HOMI). Bartech's current Price-List is attached hereto as
EXHIBIT 4.4A. Each Price-List shall remain in force and be
binding upon the Parties until the expiry of 60 days from such
time as Bartech shall deliver to HOMI an updated Price-List,
whereupon said updated Price-List shall enter into force for
the purposes of this Agreement.
B. For avoidance of doubt, it is agreed that the 10% discount
shall apply to hardware and software and license fees only and
not to labour, transportation, taxes or duties, if any.
4.5 SPECIAL TERMS
A. If HOMI shall require certain Purchases to be made under
special terms, which differ from and/or are in addition to the
General Terms, and/or at special prices which differ from the
Standard Purchase Price ("SPECIAL TERMS"), then it shall send
Bartech, together with its Purchase Order or at a mutually
agreeable later date, a list of the Special Terms it requires
and the Parties shall negotiate in good faith and reach
agreement as to the Special Terms that will apply to said
Purchases. Bartech is aware that the Special Terms which may
be requested by HOMI may arise out of certain requirements
being made by Hotels, and Bartech agrees, without prejudice to
its legitimate commercial interests, to negotiate with HOMI in
good faith as to the Special Terms, with the objective of
approving Special Terms that will be satisfactory to HOMI and
to the Hotels, whereupon the General Terms and/or Standard
Purchase Price will, for the purposes of this Agreement, be
deemed amended in accordance with the Special Terms.
B. Bartech acknowledges and is aware that HOMI will make various
undertakings towards Hotels in relation to the Outsource
Services, as a fundamental part of the Outsource Services
Agreements between HOMI and the Hotels, in full reliance upon
Bartech's supplying HOMI's Purchases of Bartech Minibars in
accordance with the General Terms and/or any applicable
Special Terms in such manner as to enable HOMI to provide the
Hotels with Outsource Services in accordance with the
Outsource Services Agreements.
4.6 SPECIAL SALES EXECUTIVE INCENTIVE
Bartech hereby grants its consent that HOMI may, from time to time, in
its discretion, offer and grant a special incentive bonus for Bartech
sales executives with responsibility for one or more countries in the
Territory, amounting to up to 1% (usually no more than 0.75%) of the
Standard Purchase Price paid by HOMI to Bartech for all Purchases made
during a particular year for installation in said country/ies. Any such
bonus will be paid to Bartech by HOMI, and Bartech will pay the bonus
to the appropriate sales executive, in line with the foregoing.
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4.7 END OF YEAR PERFORMANCE BONUS
A. For each calendar year, during the Term of this Agreement, in
which HOMI purchases at least the Target Quantity of Bartech
Minibars, Bartech shall pay HOMI an end of year bonus, subject
to HOMI paying the full Standard Purchase Price for said
Bartech Minibars, as follows (the "END OF YEAR BONUS"):
(I) if the Target Quantity was achieved, then the End of
Year Bonus shall equal 1% of the Standard Purchase
Price in respect of the Bartech Minibars purchased in
that year and paid for in full by HOMI;
(II) if the Target Quantity was exceeded by at least 20%,
then the End of Year Bonus shall equal 1.5% of the
Standard Purchase Price in respect of the Bartech
Minibars purchased in that year and paid for in full
by HOMI; and
(III) if the Target Quantity was exceeded by at least 30%,
then the End of Year Bonus shall equal 2% of the
Standard Purchase Price in respect of the Bartech
Minibars purchased in that year and paid for in full
by HOMI.
B. Calculation of the End of Year Bonus shall be on the basis of
invoices actually issued to HOMI during the year for which the
bonus is being calculated, and Bartech will pay the End of
Year Bonus to HOMI, in a single payment, by check, no later
than February 15th immediately following the end of the year
for which the bonus is being paid, subject to HOMI's prior
settlement in full of all of said invoices.
4.8 PAYMENTS TO HEADQUARTERS
To the extent that a Hotel, which is a hotel chain, requests that a
payment be made to its headquarters, on account of its expenses and
efforts in negotiating Outsource Services Agreement(s) with HOMI,
whether in the form of reimbursement of all or part of the Hotel's
expenses, or in any other form (usually up to 2% of the value of the
agreement), then Bartech will use its best efforts to try and persuade
said Hotel chain to waive such request. If, however, notwithstanding
Bartech's best efforts, the Hotel chain continues to require said
payment, then any such payment which is made to the Hotel chain shall
be made by HOMI, at its own cost and expense.
5. PMS INTERFACE 5.1 PREPARATION OF THE PMS INTERFACE
A. The Parties acknowledge that, in order to facilitate seamless
and continuous interface between the software which Bartech
supplies with the Bartech Minibars and installs on HOMI's
computers, and the PMS at the Site for which the Bartech
Minibars are being purchased, various refinements may need to
be made to the PMS and/or a software package may need to be
prepared to effect such interface, based on the specifications
which Bartech will have found to be applicable in light of the
Detailed Technical Survey, as reported in the Detailed
Technical Survey Report (the "PMS INTERFACE").
B. The Parties acknowledge that, in most cases, the Hotel, or the
supplier of the PMS, will wish to prepare the PMS Interface,
and in all instances HOMI will inform the Hotel that the Hotel
is responsible for preparation of the PMS Interface. Bartech
will provide whatever timely information and assistance may be
required in order to assist the Hotel and/or the PMS supplier
in preparing the PMS Interface.
C. If, however, the Hotel requires that HOMI prepare and provide
the PMS Interface, then, upon receipt of HOMI's written
request, Bartech will immediately prepare the PMS Interface,
of such nature as to facilitate successful Turnkey
Installation at the Site.
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D. In the context of its undertakings in this Section 5.1 above,
Bartech acknowledges and is aware that HOMI will make various
undertakings towards Hotels in relation to the Outsource
Services, as a fundamental part of the Outsource Services
Agreements between HOMI and the Hotels, in full reliance upon
the full suitability and functionality of the PMS Interface.
5.2 COMPENSATION
The Standard Purchase Price includes inter alia the full and final
compensation for assistance provided by Bartech to the Hotel and/or PMS
supplier in connection with the Hotels' preparation of the PMS
Interface and Bartech will not be entitled to any kind of compensation
for such assistance, other than any sum to which it may actually be
entitled on account of the Purchase of the Bartech Minibars for which
the PMS Interface was prepared, in accordance with the provisions of
Section 4 above. In each instance in which Bartech is required to
prepare the PMS Interface itself, pursuant to Section 5.1c above, and
the Hotel does not bear the full costs of such preparation, then the
Parties will discuss and decide the question of who will bear the cost
of such preparation.
6. TURNKEY INSTALLATION OF BARTECH MINIBARS
6.1 PERFORMANCE OF TURNKEY INSTALLATION
Bartech undertakes to perform all Turnkey Installations required under
this Agreement, according to the timetable and under the terms set
forth in this Agreement and in accordance with the General Terms and
the Special Terms, if any. Bartech will deliver to HOMI a written
notice of completion of each Turnkey Installation that Bartech is
satisfied has been completed, forthwith upon said completion ("NOTICE
OF COMPLETION").
6.2 ACCEPTANCE
A. Bartech acknowledges and is aware that, following delivery to
HOMI of the Notice of Completion, HOMI will enable the Hotel
to check the Turnkey Installation for full functionality and
suitability. Within 10 days of receiving the Notice of
Completion, HOMI will deliver to Bartech, in writing, details
of any defects in the Turnkey Installation or non-conformity
with the Specifications and Bartech will remedy any such
defect or non-conformity within 10 days of receiving any such
notice and will deliver a further Notice of Completion,
whereupon the provisions of this Section 6.2 shall be
re-applied, mutatis mutandis, until such time as the Turnkey
Installation is accepted as being free of defects or
non-conformity with the Specifications, prior to which time
the Turnkey Installation will not be deemed completed.
B. Bartech acknowledges and is aware that HOMI will make various
undertakings towards Hotels in relation to the Outsource
Services, as a fundamental part of the Outsource Services
Agreements between HOMI and the Hotels, in full reliance upon
the due completion of the Turnkey Installations in accordance
with the provisions of this Agreement.
6.3 COMPENSATION
The Standard Purchase Price includes inter alia the full and final
compensation for the Turnkey Installation of the Bartech Minibars and
Bartech will not be entitled to any kind of compensation for Turnkey
Installation, other than any sum to which it may actually be entitled
on account of the Purchase of the Bartech Minibars for which the
Turnkey Installation was performed, in accordance with the provisions
of Section 4 above.
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7. WARRANTY
7.1 BASIC WARRANTY
The Bartech Minibars and the Turnkey Installations will be warranted by
Bartech to be free of defects, in accordance with a one-year
contractual warranty in the form set forth in EXHIBIT 7.1 hereto (the
"BASIC WARRANTY"), under which Bartech will, subject to the terms of
said warranty, provide service and parts, as and when requested to do
so by HOMI, at no charge to HOMI.
7.2 EXTENDED WARRANTY
The Parties will, concurrently with the execution of this Agreement,
enter into an Extended Warranty/Maintenance Agreement substantially in
the form set forth in EXHIBIT 7.2 hereto (the "EXTENDED WARRANTY"),
under which, in accordance with its terms, Bartech will undertake to
provide service and parts, as and when requested to do so by HOMI, for
all Bartech Minibars purchased hereunder by HOMI and all Turnkey
Installations performed hereunder by Bartech, for a period of up to 10
years from the date of each Turnkey Installation, in respect of each
said Turnkey Installation, for the special, reduced-rate fee set forth
in the Extended Warranty.
8. INTELLECTUAL PROPERTY
8.1 RIGHTS TO INTELLECTUAL PROPERTY
Bartech represents and warrants that it owns or has the right to use,
free and clear of all liens, claims and restrictions all intellectual
property, of any kind, howsoever required and/or utilized in connection
with the Bartech Minibars and/or the Turnkey Installation
("INTELLECTUAL PROPERTY").
8.2 NO INFRINGEMENT
Bartech represents and warrants that, to the best of its knowledge, the
Intellectual Property does not infringe upon or violate any right,
lien, or claim of any third party, and Bartech is not currently
obligated or under any liability whatsoever to make any payments by way
of royalties, fees or otherwise to any owner or licensee of, or other
claimant to, any patent, trademark, service xxxx, trade name, copyright
or other intangible asset, with respect to the use thereof in
connection with the Bartech Minibars and/or the Turnkey Installation.
9. TERM AND TERMINATION
9.1 INITIAL TERM
This Agreement shall enter into force on the date of its execution by
the Parties hereto and shall remain in force for an initial period of
no less than 10 years (the "INITIAL TERM"). Upon the culmination of the
Initial Term, and any Additional Terms, this Agreement will be deemed
renewed for additional terms of two years each (each an "ADDITIONAL
TERM"), unless and until terminated in accordance with its terms. The
Initial Term and any and all Additional Terms will together constitute
the Term of this Agreement (the "TERM OF THIS AGREEMENT").
9.2 TERMINATION WITHOUT CAUSE
At any time following the culmination of the fifth year of the Initial
Term, either Party may, at its discretion, give notice of its desire to
terminate this Agreement, without the need to provide the reasons for
its decision, by means of advance, written notice to the other Party,
and this Agreement shall terminate upon the expiry of 18 months
following the delivery of such notice, or at such later date of
termination as may be stipulated in such notice.
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9.3 TERMINATION FOR CAUSE
A. If HOMI shall fail to make timely payment to Bartech of any
sum which it is obliged to pay to Bartech pursuant to the
terms hereof, including the Standard Purchase Price, and fails
to cure said breach within a period of 60 days from its
receipt of a detailed written notice from Bartech warning of
such breach, then Bartech will be entitled to terminate this
Agreement by means of advance, written notice to HOMI, and
this Agreement shall terminate upon the expiry of 6 months
following the delivery of such notice, or at such later date
of termination as may be stipulated in such notice.
B. If either Party is in breach of this Agreement (a "DEFAULTING
PARTY"), other than as set forth in Section 9.3a above, then
the other Party (the "PERFORMING PARTY") shall deliver to the
Defaulting Party written notice of said breach, whereupon the
Parties will use their best efforts to amicably resolve the
dispute between them and/or the breach, by means of
discussions to be held between the Parties' respective CEOs,
with or without mediation services from other Persons. If,
notwithstanding the Parties' best, good faith efforts to
resolve the situation as aforementioned, no such resolution is
achieved within 6 months of delivery of the notice of breach,
then the Performing Party may deliver a second written notice
of breach to the Defaulting Party and, if the Defaulting Party
fails to cure said breach within a period of 60 days from its
receipt of said second written notice, then the Performing
Party will be entitled to terminate this Agreement by means of
advance, written notice to the Defaulting Party, and this
Agreement shall terminate upon the expiry of 6 months
following the delivery of such notice, or at such later date
of termination as may be stipulated in such notice.
9.4 EFFECT OF TERMINATION
For avoidance of doubt, the termination of this Agreement, for whatever
reason, shall not have the effect of terminating, or otherwise
derogating from, the force and effect of the Warranty and Extended
Warranty and any other agreements and/or purchase orders that shall
already have been entered into by the Parties, all of which shall
continue in full force and effect in accordance with their terms.
10. REPRESENTATIONS AND WARRANTIES
10.1 MUTUAL REPRESENTATIONS
Each Party hereby represents and warrants to the other Party as
follows, in recognition of the fact that the other Party is entering
into this Agreement inter alia in reliance upon these representations
and warranties:
A. it is a duly incorporated and validly existing corporation in
good standing under the laws of the State of its
incorporation, with all requisite power and authority
(corporate and other) to own its properties and conduct its
business.
B. it has the corporate power and authority to execute and
deliver this Agreement and to carry out the transactions
contemplated hereby; this Agreement has been duly and validly
duly authorized by all necessary action, corporate or
otherwise, on its part, and this Agreement constitutes a
legal, valid and binding obligation, enforceable against it in
accordance with its terms.
C. delivery and performance by it of this Agreement, and the
performance by it of its obligations hereunder, will not:
(I) conflict with or result in a breach of any of the
provisions of its Incorporation Documents;
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(II) contravene any law, rule or regulation of any
jurisdiction to which it is subject, or any political
subdivision thereof or therein, or any order, writ,
judgment, injunction, decree, determination or award
currently in effect, which, singly or in the
aggregate, would have a material adverse effect on
it;
(III) conflict in any respect with or result in a breach of
or default under any agreement, contract or
instrument to which it is a party or by which it or
any of its properties may be affected or bound, such
as would, singly or in the aggregate, would have a
material adverse effect on it;
10.2 REPRESENTATIONS AND WARRANTIES OF BARTECH
Bartech hereby represents and warrants to HOMI as follows, in
recognition of the fact that HOMI is entering into this Agreement inter
alia in reliance upon these representations and warranties:
A. it is fully aware that HOMI is entering into this Agreement
for the purpose of procuring products and services which it
will need in order to be in a position to provide Outsource
Services to Hotels, in accordance with the Outsource Services
Agreements, and that the timely supply of the Bartech Minibars
and Services in accordance with this Agreement is absolutely
essential in order for HOMI to be able to discharge its duties
and obligations under the Outsource Services Agreements;
B. it is fully aware that HOMI will make various undertakings
towards Hotels in relation to the Outsource Services, as a
fundamental part of the Outsource Services Agreements between
HOMI and the Hotels, in full reliance upon the timely supply
by Bartech of the Bartech Minibars and Services in accordance
with this Agreement.
11. FURTHER UNDERTAKINGS
11.1 FURTHER ASSURANCES
In view inter alia of its representations and warranties herein and in
recognition of the fact that HOMI will have only limited control over
numerous matters relating to the supply of the Bartech Minibars and the
Services, including such matters as dates of installation, acceptance
of the Bartech Minibars and Turnkey Installations etc., in which
matters HOMI will be dependent upon the Hotels with whom it has entered
into Outsource Services Agreements, Bartech hereby undertakes, in
addition to and notwithstanding specific provisions of General Terms
and/or Special terms, but without prejudice to its legitimate
commercial interests, to display maximum flexibility and understanding
and take all reasonable and necessary steps throughout the Term of this
Agreement, with a view to enabling HOMI to discharge all of its duties
and obligations and meet all of its undertakings under the Outsource
Services Agreements in a timely fashion, to the Hotels' satisfaction.
11.2 DISCHARGE OF SERVICES
In recognition inter alia of the fact that Bartech will be providing
HOMI with the Bartech Minibars and Services on a sub-contractor basis
in view of the undertakings being made by HOMI to the Hotels under the
Outsource Services Agreements, and in view of the fact that the Bartech
Minibars and Services will be installed and provided in the Sites
themselves, Bartech hereby undertakes to supply the Services with the
greatest of care and to ensure that no damage, and only minimum
inconvenience, is caused to the Hotels or any third parties in the
process of provision of the Services, and likewise to ensure that all
of its staff conduct themselves in a respectable and polite manner
befitting the luxury status of the Hotels.
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11.3 INDEMNIFICATION
A. In view inter alia of its representations and warranties
herein and in recognition of the facts acknowledged by Bartech
herein, Bartech hereby undertakes to defend, indemnify and
hold harmless HOMI and its affiliates, officers, directors,
agents and employees from and against any and all actions,
costs, claims, losses, expenses and/or damages, including
reasonable attorneys' fees, arising out of or in any way
incidental to allegations of patent, copyright, trademark or
other intellectual property infringements howsoever in
relation to the Bartech Minibars and/or the Services.
B. To the extent that HOMI may be required, from time to time, to
provide Hotels with any kind of indemnification relating to
Bartech Minibars and/or the Services, in addition to the
indemnification as set forth in Sub-Section a. above, then
Bartech will indemnify HOMI accordingly, by means of a back to
back indemnification corresponding to the indemnification
provided to the Hotel by HOMI.
12. RELATIONS WITH DISTRIBUTORS
12.1 NOTIFICATION REGARDING DISTRIBUTORS
Bartech hereby gives notice to HOMI that in the countries set forth in
the list attached as EXHIBIT 12.1 hereto ("DISTRIBUTION TERRITORIES"),
Bartech Minibars are sold and serviced exclusively through the official
distributors appointed by Bartech, whose details appear beside the
relevant Distribution Territory in Exhibit 12.1 ("DISTRIBUTORS").
12.2 SERVICES IN DISTRIBUTION TERRITORIES
A. Bartech Minibars used in the provision of Outsource Services
in a Distribution Territory will be purchased by HOMI from the
relevant Distributor.
B. In respect of Sites located in a Distribution Territory, the
relevant Distributor will perform and provide the Preliminary
Surveys, the Detailed Technical Survey, the Turnkey
Installations and the Extended Warranty Services, including
all related reports, ancillary services etc., and the PMS
interface will be provided by the Distributor and/or Bartech,
in accordance with the provisions of Section 5 above, mutatis
mutandis.
C. In respect of hotels located in a Distribution Territory and
hotel chains exclusive to a particular Distribution Territory,
Bartech confirms that the relevant Distributor shall also
perform the Marketing in respect thereof, in coordination and
consultation with Bartech, and in accordance with the
Marketing Plan and the Annual Budget and other applicable
provisions of this Agreement.
12.3 COMMERCIAL TERMS
A. Bartech will, promptly upon the execution hereof, notify all
the Distributors of the existence and general nature of this
Strategic Alliance Agreement and will inform them that HOMI is
to be treated as an approved and most preferential "Major
Account" of Bartech, entitled to the prices and discounts set
forth herein and as agreed between Bartech and HOMI from time
to time.
B. Whilst the Parties recognise that the purchase of Bartech
Minibars Services from Distributors, as set forth herein,
shall be subject to and in accordance with negotiated
agreements between HOMI and the Distributors, and that the
Distributors will not be obliged to enter into agreement with
HOMI, nevertheless, Bartech will make clear to the
Distributors that if they do decide to enter into agreement
with HOMI as set forth above, then the terms and conditions of
the sale of Bartech Minibars (including prices and discounts)
and the provision of Services to HOMI, by the Distributors,
shall be as set forth in this Strategic Alliance Agreement,
mutatis mutandis.
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12.4 ANNUAL BUDGET
For avoidance of doubt, the Parties hereby acknowledge that purchase of
Bartech Minibars from Distributors shall, for all intents and purposes,
be included in the calculation of Target Quantities, and in the Annual
Budgets.
13. EXCLUSIVITY
HOMI hereby undertakes to use only Bartech Minibars in the provision of
Outsource Services, in the Territory, and Bartech hereby undertakes not to sell,
install and/or service Bartech Minibars, in the context of and/or in such a way
as to facilitate the provision of services identical, similar or competing with
Outsource Services, to or for anyone other than HOMI, in the Territory.
14. MISCELLANEOUS
14.1 COMPENSATION
Notwithstanding anything to the contrary in this Agreement, the
Standard Purchase Price includes inter alia the full and final
compensation for the full and timely performance and provision of the
Marketing, the Services and all other obligations and undertakings of
Bartech pursuant to this Agreement, and Bartech will not be entitled to
any compensation, other than any sum to which it may actually be
entitled on account of Purchase of Bartech Minibars, in accordance with
the provisions of Section 4 above.
14.2 NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered by messenger,
transmitted by facsimile or mailed by registered or certified mail,
postage prepaid, as follows, and will be deemed to have reached their
destination within 5 business days of being deposited with the Post
Office for dispatch as registered mail (10 business days in the case of
air mail), upon actual delivery when delivered by hand, and upon
receipt of the recipient's confirmation of receipt when sent by
facsimile:
IF TO THE COMPANY, TO:
Hotel Outsource Management International, Inc.
000 Xxxx 00xx Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000
Attention: Xx Xxxxx Xxxxxx
Fax: x0-000-000-0000
IF TO BARTECH:
Bartech EMEA
0 Xxx xx Xxxx Xxx Xxxx, 00000 Xxxxxxxx, Xxxxxx
Attention: Xxx Xxxxxx
Fax: x000-00000000
14.3 ASSIGNMENT
This Agreement shall bind and inure to the benefit of the Parties and
their respective successors, assigns, heirs and personal
representatives. Either Party shall be entitled to
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assign all, but no less than all, of its rights and obligations under
this Agreement, to any wholly owned Affiliate, without the prior,
written consent of the other Party.
14.4 ENTIRE AGREEMENT
This Agreement contains the entire agreement among the Parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous arrangements or understandings between the Parties with
respect thereto.
14.5 NO JOINT VENTURE OR PARTNERSHIP
Nothing in this Agreement shall be construed as creating a joint
venture or partnership between the Parties and neither Party shall act
as agent or representative of the other for any purpose and independent
contractor relations alone shall subsist between the Parties under this
Agreement.
14.6 FURTHER ASSURANCES
Each Party shall take all reasonable steps so as to facilitate and
cooperate with respect to the performance of the other Party's
obligations under this Agreement.
14.7 AMENDMENTS, MODIFICATIONS, WAIVERS
The terms and provisions of this Agreement may not be modified or
amended, nor may any of the provisions hereof be waived, temporarily or
permanently, except pursuant to written instrument executed by both
Parties, in the case of an amendment, or by the waiving Party, in the
case of a waiver.
14.8 SEVERABILITY
It is the desire and intent of the parties that the provisions of this
Agreement be enforced to the fullest extent permissible under the law
and public policies applied in each jurisdiction in which enforcement
is sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited
or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this agreement or affecting the validity or
enforceability of such provision in any jurisdiction. Notwithstanding
the foregoing, if such provision could be more narrowly drawn so as not
be invalid, prohibited or unenforceable in such jurisdiction, it shall,
as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
14.9 FAILURE OR DELAY
No failure or delay on the part of any Party in exercising any right
and/or remedy to which it may be entitled hereunder and/or by law shall
operate as a waiver by that Party of any right whatsoever. No waiver of
any right under this Agreement shall be deemed as a waiver of any
further or future right hereunder, whether or not such right is the
same kind of right as was waived in a previous instance.
14.10 GOVERNING LAW AND JURISDICTION
This Agreement shall be deemed to have been made and concluded in
France and the construction, validity and performance of this Agreement
shall be governed by the laws of France without giving effect to the
conflicts of law principles thereunder. By their execution hereof, the
parties irrevocably agree to submit all disputes arising hereunder to
the jurisdiction of the Courts of France.
14.11 HEADINGS; INTERPRETATION
The headings of the Sections and Subsections of this Agreement are for
convenience of reference only and are not to be considered in
construing this Agreement. As used in this Agreement, the term
"including", and all derivations thereof, shall mean "including,
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without limitation", unless expressly stipulated to the contrary. Where
the context permits, use of the singular number includes the plural and
vice versa and words denoting any gender shall include all genders.
14.12 COUNTERPARTS; FACSIMILE SIGNATURES
This Agreement may be executed in two or more counterparts, in original
or by facsimile, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
* REST OF PAGE INTENTIONALLY LEFT BLANK *
IN WITNESS WHEREOF, the parties hereto have executed this Strategic Alliance
Agreement, as of the date first above-mentioned.
SIGNED for and on behalf of )
BARTECH EMEA )
)
By /s/ Xxx Xxxxxx )
-------------------------------- )
Xxx Xxxxxx )
)
Its Managing Director )
)
Date April 9, 2003
SIGNED for and on behalf of )
BARTECH EMEA )
)
By /s/ Xxxxxx Xxxxx )
------------------------------- )
Xxxxxx Xxxxx
)
Its Gerant )
)
Date April 9, 2003 )
)
SIGNED for and on behalf of )
HOTEL OUTSOURCE MANAGEMENT INTERNATIONAL, INC. )
By /s/ Xxxxx Xxxxxx )
--------------------------------- )
Xxxxx Xxxxxx )
)
Its CEO )
)
Date April 9, 2003 )
LIST OF EXHIBITS TO STRATEGIC ALLIANCE AGREEMENT BARTECH EMEA - HOTEL OUTSOURCE
MANAGEMENT INT'L, INC.
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LIST OF EXHIBITS TO AGREEMENT
EXHIBIT NUMBER BRIEF DESCRIPTION
----------------------- --------------------------------------------------------
EXHIBIT 2.1 Marketing Plan
EXHIBIT 2.2 Annual Budget for 2003
EXHIBIT 2.4B Summary of Standard Terms
EXHIBIT 3.1(1) Form of General Technical Preliminary Survey Report
EXHIBIT 3.1(2) Form of Commercial Preliminary Survey Report
EXHIBIT 3.2A Form of Detailed Technical Survey Report
EXHIBIT 3.2C Sample Outsource Services Agreement
EXHIBIT 4.1 Form of Purchase Order
EXHIBIT 4.3 General Terms and Conditions of Sale
EXHIBIT 4.4A Current end-user Price List for Territory (Pre-Discount)
EXHIBIT 7.1 Basic Warranty
EXHIBIT 7.2 Extended Warranty
EXHIBIT 12.1 Distribution Territories and Distributors
Exhibit 2.1
MARKETING PLAN
In order to achieve the objectives set forth in the Strategic Agreement and in
order to accomplish the Targets set in the Annual Budgets (Exhibit 2.2), the
parties will act in accordance with the guidelines and plan as set in the
Marketing Plan in General and the Annual Marketing Schedules & Activities in
particular.
The marketing of the Outsource Services should be targeted at a defined market
segment and at suitable kinds of hotel (typically upscale and luxury Hotels,
preferably chain affiliated), initially in Capital European Cities and later in
other Major cities.
Bartech will include the Outsource Services in all applicable marketing programs
and/or advertising campaigns run by Bartech, at all levels, including hotel
chains, major accounts and individual hotels, and will recommend the Outsource
Services to its current and potential customers, giving the Outsource Services
no less preference than any other equivalent or alternative program marketed by
Bartech, and specifically with the objective of facilitating the entry into and
the execution of term sheets or definitive agreements by and between HOMI and
appropriate major hotel chains, relating to the provision of Outsource Services
by HOMI
All the Marketing will be performed under the joint names of Bartech and HOMI,
and Bartech will indicate clearly that the Outsource Services will be provided
by HOMI.
Marketing Activities
Initial Activities following the signature of the Strategic Alliance:
o Based on the annual Budget, Sales targets are set according to certain
Chains & Areas & Countries.
o The Marketing Schedule for 2003 is set, detailing Marketing activities
(see sample below)
o HOMI will train Bartech's Marketing and Sales people regarding the
Outsourcing Program
o HOMI will prepare and provide the Marketing collateral (Brochures,
Presentations, Forms, Term-Sheets, etc.)
o Beginning of Marketing activities with the Major Chains and
Distributors.
o Frame agreements with Major Accounts
o Beginning of Sales Activities.
30 days following the Agreement and every year 30 days following the Annual
Budget, Bartech will submit the annual Marketing and P&R Schedule & Activities,
detailed by month, with specific dates and locations where available.
Sample: Yearly Marketing and PR Schedule & Activities, detailed by month
o Meetings with Major Accounts
o Trade Shows, Chain conventions, Seminars
o Sales Calls, Sales Activities
o Mailings
o Press Releases
o Advertising campaigns
o Other Activities
Details of Planned Sales Activities
Following the Initial marketing activities and Area & Country Sales targets, the
relevant Sales people will begin their activities:
o Sales targets are set for a certain Area & Country
o Sales people will offer the Outsourcing Program to suitable
Hotels
o If Hotel is interested, Hotel will complete a Questionnaire
o Following a successful Survey an Outsourcing meeting is
organized
o HOMI's representative and Bartech Sales person meets with
Hotel
o Following negotiations, HOMI produces a detailed draft
agreement
o Following signature HOMI issues a P.O. and purchases
Maintenance
Profile of Hotels Suitable for Outsourcing - Initial phase:
o Location: Capital Cities
(In some cases other Major Cities)
o Type: Upscale & Luxury
o Size: Preferably more than 200 rooms
(in some cases smaller Hotels as well)
o Management: Preferably Chain affiliated
Exhibit 2.2
ANNUAL BUDGET
FOR 2003
(July 2003 - December 2003)
The minimum quantity of Bartech minibars which HOMI plans to purchase from
Bartech EMEA (the "Target Quantity"), for the Year 2003 (July - December 2003)
1200 Bartech minibars
Exhibit 2.4b
INSTALLATION AND OUTSOURCE OPERATION OF BARTECH MINIBARS
--------------------------------------------------------------------------------
Summary of the Basic Terms of the Outsource Operation Program
--------------------------------------------------------------------------------
Hotel Outsource Management International, Inc. ("HOMI") is the Operator that
owns and operates the Bartech Minibars
|_| HOMI shall Install, Operate and Maintain the Minibars in the
Hotel and shall Purchase the Minibars and associated Software
and Equipment solely for this purpose.
|_| The Hotel shall provide, at its cost, the items necessary for
the Installation, including the Cabinets for the Minibars (if
not stand-alone units); the wiring; cables and plugs, etc.
|_| The Hotel shall provide suitable Office and Storage space to
be used by HOMI.
|_| HOMI shall purchase the goods to be filled in the Minibars.
|_| The pricing of the products offered in the Minibars shall be
mutually determined by HOMI and the Hotel.
|_| HOMI shall refill the Minibars and shall Operate them.
|_| The Hotel shall allow and facilitate HOMI's Operators' access
to the guestrooms no less than twice a day.
|_| The personnel operating the Minibars (The "Operators") are
employees of HOMI. HOMI shall maintain sufficient trained
personnel in order to Operate the Minibars in accordance with
the highest standards.
|_| The Operators shall be checked by Hotel's Security prior to
their employment and the Hotel will have the right to
Interview them.
|_| The Operators shall wear Hotel's customary uniforms and shall
act in accordance with the rules of conduct as issued by the
Hotel.
|_| The Hotel shall bear the cost of Electricity related to the
Minibars.
|_| The Hotel shall provide paging devices to the Operators.
|_| The Hotel shall supply the glasses and accessories for the
Minibars and shall replace the used glasses and accessories on
a daily basis.
|_| The Hotel will not be allowed to put Vending machines / Soft
Drink & Snack Dispensers in the floors where the Minibars are
installed.
|_| Amenities such as Mineral Water and Soft Drinks would not be
given to guests, free of charge, as a standard policy.
|_| Hotel may offer complimentary products from the Minibars to
VIP guests as well as Discounts to preferred guests, within
set rules.
|_| The Hotel shall collect the Revenues generated by the
Minibars.
|_| HOMI shall furnish to the Hotel a monthly Sales Report, within
5 days following the end of each month, with the Gross
Revenues and Net Revenues.
|_| Revenues generated by the Minibars shall be allocated on a
monthly basis. The Hotel shall retain 12% of the Net Revenues
and shall pay HOMI 88% of the Net Revenues.
|_| The Hotel shall Pay HOMI's share within 10 days following the
end of each month.
|_| Hotel's share of the Revenues may increase or decrease based
on Performance.
|_| Detailed Rules and procedures will apply to Rebates and
Disputes.
|_| Once a day HOMI shall perform an accounts Reconciliation with
Hotel's Front Desk.
|_| The Basic Term of the Outsourcing Agreement is 9 Years.
|_| The Hotel has an Option to Purchase the Minibars and related
Equipment, every Year, starting from the end of the 3rd year
of Operation.
Bartech(R)
automatic systems
Exhibit 3.1(1) : PROPERTY SURVEY SHEET
Date of Survey September 26, 2001
Survey completed by: Xxxxxx Xxxx
A) Hotel General Information
------------------------------------------------------------ ---------------------------------------------------------
Hotel Name: Hyatt of San Francisco
------------------------------------------------------------ ---------------------------------------------------------
Address: 5 Embarcadero Center Phone: (000) 000-0000
------------------------------------------------------------ ---------------------------------------------------------
Xxx Xxxxxxxxx, XX 00000 Fax:
------------------------------------------------------------ ---------------------------------------------------------
Number of Rooms: 805
------------------------------------------------------------ ---------------------------------------------------------
General Manager: Xxxx Xxxxx Phone: (000) 000-0000, ext 4500
------------------------------------------------------------ ---------------------------------------------------------
Fax:
------------------------------------------------------------ ---------------------------------------------------------
Assistant: Xxxxxxx Xxxxxx Phone: (000) 000-0000, ext 4501
------------------------------------------------------------ ---------------------------------------------------------
Rooms Executive: Xxx Xxxxx Phone: (000) 000-0000
------------------------------------------------------------ ---------------------------------------------------------
Technical Manager: Xxxx Xxxxxx Phone: (000) 000-0000
------------------------------------------------------------ ---------------------------------------------------------
Fax:
------------------------------------------------------------ ---------------------------------------------------------
F & B Manager: Xxxx Childs Phone: (000) 000-0000
------------------------------------------------------------ ---------------------------------------------------------
Assist F&B Manager: Xxxxx Xxxxxx Fax:
------------------------------------------------------------ ---------------------------------------------------------
IS Manager: Xxxxx Xxxx Phone: (000) 000-0000
------------------------------------------------------------ ---------------------------------------------------------
Fax:
------------------------------------------------------------ ---------------------------------------------------------
Financial Controller: Xxxx Xxxx Phone: (000) 000-0000
------------------------------------------------------------ ---------------------------------------------------------
Fax:
------------------------------------------------------------ ---------------------------------------------------------
Purchasing Manager: Xxxxxxx XxXxxxxx Phone (000) 000-0000, ext 4030
------------------------------------------------------------ ---------------------------------------------------------
Fax:
----------------------------------------------------------------------------------------------------------------------
Describe the loading dock and ability to offload a 40 -ft. container:
The loading dock is unable to support a 40-ft container. The loading dock will
support a 24-ft truck.
----------------------------------------------------------------------------------------------------------------------
What is the maximum time a container can stay at the dock?
Overnight?
A truck will be able to seat overnight curbside on Drum street.
------------------------------------------------------------ ---------------------------------------------------------
If necessary, list alternate container parking locations Notes and Comments: Alternate location for offloading
and proximity to freight elevators. and storage of minibars may be necessary.
Pacific level of hotel at Market and Drum. There is no
loading dock, just a freight door.
------------------------------------------------------------ ---------------------------------------------------------
Bartech(R)
automatic systems
B) Technical Information
B1) General
1. How many different designs of cabinets? 4
2. How many different types of wood grain? 2
3. How many different colors? 2 (cherry and blonde)
4. Is any refurbishment forecasted? No
If so, when? ______________
What level? ______________
5. What sort of refurbishment?
Wall paper ________ Carpet _____ Furniture ____ Bathroom _____
6. What type of lock is on the minibar cabinet door?
Keys ________ Magnetic _____ Other ________ None __X__
7. Is a detailed drawing of the cabinet available?
Yes [ ] No [x] Attached_____
8. Provide dimensions of the minibar space; free open space, without hinge
interference.
W x D x H in inches: Armoires 20x21.25x28.125, Open Xxxxxxxx 19.75x18.75x31.375,
_________ Xxxxxxxx (suites)19.75x18.75x31.375, Xxxxxxxx 28.25x28.5x31.875
9. Number of right and left hinged door units: Right N/A Left N/A
10. Any specific requirements of the cabinet door opening? _______________________________________
11. What is the thickness of the shelf? (incase of an added dry section) ________________________
12. Is the shelf removable in order to replace with our minibar with built-in section? _________
13. What is the proposed Bartech Model and options? B41 top dry
Bartech(R)
automatic systems
B2) Minibar and Cabinet Specifications
1. In the case of existing wood cabinet, do you require a slider? Yes, on blonde
armoires.
2. If minibar is to be installed in a cabinet, is a hole required in the door
for the infrared? No
3. Minibar particulars: Wooden Door ___ PIP Door ____ Color ____
Type of Wood ____
Is a sample of wood/color required for the hotel? ____
4. What type of handle is required for the cabinet? ____ Sample required ____
5. If minibar is stand-alone with wooden cabinet: Yes, approximately 53 units
What type and color of wood? Cherry and Blonde
Finish: Gloss x Flat ____ Satin ____
------
B3) Unit Ventilation
1. Minimum ventilation space required:30 inches2 Yes
Chimney Effect ___ Other [x] (no back cover on furniture)
2. Does the furniture top contain a marble plate or a mirror? Yes
3. How is it attached? Molded marble top is glued to cabinet. Is it possible to
dismount it? No Create an exhaust exit? Yes
Use space below to provide drawing:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Bartech(R)
automatic systems
B4) Electrical
1. Verify electrical outlet is 110 VAC/60 Hz, with safety ground:
Yes [X] No ____
If no, explain: _______________________________________________________
B5) Computer and PMS Information
1. PMS Company: Encore
2. Year of Purchase: Version/Release IP Manager to provided at a later
time ________ Platform N/A
3. Pay TV System: On Command Video. Is system on 1 Coax network ____
Several networks [X]
4. Where will the PC with application be located? Ice Room, pacific level.
5. Is a telephone line accessible for our dial-in Maintenance? Telephone
line will need to be run.
6. Where will CPU be located? Ice Room, pacific level.
7. If twisted pair will be utilized, where is the main terminal block
located? ___________
8. If MATV will be utilized, where are the amps (for system tap) located?
MATV room, located on the pacific level.
9. Map/explain juxtaposition of the PC, CPU and MATV Tap location/twisted
pair terminal block. Include approximate lengths for cable runs. MATV
room
10. Does the hotel have a network? Yes What type? T1, static addresses
11. What are the requirements for the front desk interface?
Is minibar graphic required? No Hot Key required? No
Is hotel network accessible? Yes, with Controllers
authorization.
12. Is there a requirement for the application anywhere other than the host
PC? Yes
List locations: Possible the front desk.
Is the network available? Yes, with Controllers authorization.
C) Twisted Pair and MATV Requirements
C1) UTP
1. Where is the telephone xxxx or dedicated minibar xxxx located? ____________
2. If no xxxx/extra pairs at telephone xxxx in room, indicate location:
_______________________________
3. What is the length of cable required to the minibar? _________________
Draw an overview of the room, marking the xxxx or pair location and minibar
location.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
4. What type of baseboard is used in the room? _________________________________
5. How is the carpet attached? _________________________________________________
6. Does necessary space exist to run the cable? ________________________________
7. Does the room have a false ceiling? _________________________________________
8. Is access to the minibar (for power/network) available, or is drilling
necessary? ____________
Additional Comments:
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
Bartech(R)
automatic systems
C2) MATV
1. Check the coax and determine the transmit/receive frequencies for the Pay TV:
Transmit 115.25 MHz
Receive 13 MHz
**Note that Bartech standard frequencies are 53Hz/17Hz**
2. Will a splitter/tap be required from the wall socket? Yes. Recommended tap
value? 3 db or 6db.
3. What is length of cable required for the minibar? Minimum of 2-ft.
4. If accessible, note the type of cable and connectors in use for the TV. RG 59
and 6, with multi connectors.
5. If no Pay TV on site, list the make, model and type of TV amplifiers (Note if
bi-directional)
Draw an overview of the room, marking the TV/xxxx location and minibar location.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
9. What type of baseboard is used in the room? Carpet.
10. How is the carpet attached? Tack board.
11. Does necessary space exist to run the cable? Yes, along the baseboard.
12. Does the room have a false ceiling? No.
13. Is access to the minibar (for power/network) available, or is drilling
necessary? Two of the room design have power and network accessibility. The
other two room designs have power, but network accessibility is only
possible if the coax is wrapped around the room to the minibar location.
Additional Comments: Movie system is three, two truck junior racks. Test movie
system forward at the TV. Room 1708 and 1645 at -2 db. Room 802 at 14 db, room
856 at 2 db, room 218 at 7 db. Test movie system return using 13 db at launch
amplifiers. Rack A & B 23db, and rack C 15db.
Bartech(R)
automatic systems
D) Minibar Product Specification
1. How many drinks and snacks are required (in total): _______________
List sizes: Big Bottles: Height ___________ Diameter _____________
Little Bottles Height ___________ Diameter _____________
Other Bottles Height ___________ Diameter _____________
Aluminum Cans Height ___________ Diameter _____________
Miniatures Height ___________ Diameter _____________
List Dry Goods: ______________________________________________________
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
List Carton
Additional items: _____________________________________________________
------------------------------------------------------
------------------------------------------------------
Additional
Comments: ______________________________________________________
------------------------------------------------------
------------------------------------------------------
------------------------------------------------------
Bartech(R)
automatic systems
MODELS AND SIZES
---------------------------- ---------------------- ------------------------------------------------------------------
MODEL CAPACITY DIMENSIONS
(Listed in inches)
---------------------------- ---------------------- ------------------------------------------------------------------
570mm x 400mm x 485mm
B32 40 LITERS 221/2H x 153/4W x 19 1/8 D
---------------------------- ---------------------- ------------------------------------------------------------------
570mm x 450mm x 485mm
B41 50 LITERS 221/2H x 173/4W x 19 1/8 D
---------------------------- ---------------------- ------------------------------------------------------------------
570mm 520mm x 485mm
B46 60 LITERS 221/2H x 201/2W x 19 1/8 D
---------------------------- ---------------------- ------------------------------------------------------------------
650mm x 450mm x 485mm
H41 60 LITERS 25 5/8 H x 173/4W x 19 1/8 D
---------------------------- ---------------------- ------------------------------------------------------------------
650mm x 520mm x 485 mm
H46 75 LITERS 25 5/8 H x 201/2W x 19 1/8 D
---------------------------- ---------------------- ------------------------------------------------------------------
For Side Dry, add 5 15/16" (150mm) For Double Side Dry, add 11 7/8" (300mm)
For Top Dry, custom sizes? For Double Top Balcony, add 8 11/16" (220mm)
Model Chosen: B41
Type Chosen:
Built-in: Yes Stand Alone: Yes, approximately 53 units.
Options:
Basic Yes Electronic LockYes
Laid Down Bottles Yes Door Balconies Yes
Big Bottles on Balcony ____ Interior Light Yes
Side Dry Section ____ Top Dry Section Yes
Double Balcony ____ Other _________
Additional Comments:
Hotel staff upon authorization of the contract will provide additional
information.
EXHIBIT 3.1(2) COMMERCIAL SURVEY REPORT
CONFIDENTIAL __________________, 2003
--------------------------------------------------------------------------------
HOTEL QUESTIONNAIRE
--------------------------------------------------------------------------------
Following the Questionnaire a Feasibility Study and Revenue Projections will be
produced.
--------------------------------------------------------------------------------
HOTEL: __________________________ Managed by: _______________________________
Owned by: _____________________________________________________________________
Address: ______________________________________________________________________
Location: (Downtown, Suburban, Airport, Resort Area, etc.) _____________________
New /Old Construction:____ Last Renovated in ______ Major Renovation Planned___
Tel:________________ Fax:______________ Web Address_______
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Contact Person: _______________________ Position: ______________________
Tel:_______________ Fax:_____________ Email___________________
Contact Person: _______________________ Position: ______________________
Tel:_______________ Fax:_____________ Email___________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Hotel's Rank & Standing: ___________________ (* Stars; Upscale; Deluxe...)
Direct Competitors: ____________________________ _________________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total Number of Rooms: ___________
Number of Rooms by Type: Suites: _____ Deluxe: _______ _________: __
----------- : ---------- ------------: ---------------- ---------
--------------------------------------------------------------------------------
General Statistics & Market Demographics CURRENCY:_____
--------------------------------------------------------------------------------
Yearly Average Occupancy in 2000:_______ Average Daily Room Rate in 2000:_
Yearly Average Occupancy in 2001:_______ Average Daily Room Rate in 2001:_
Yearly Average Occupancy in 2002:_______ Average Daily Room Rate in 2002:_
Projected Yearly Occupancy 2003: _______ Projected Daily Room Rate 2003:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Average Length of Stay : ___________ days
--------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Market Demographics
Business: ____% Individuals: ____% Domestic: _____%
Leisure: ____% Groups: ____% European: _____%
---- Airline Crews: ____% USA: _____%
100%
------- Others: _____%
100%
-----
100%
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Labor Cost for a minibar attendant, including all benefits:
_______ per Hour ____________ Average monthly
Any Union or Collective agreements ? ___________________________________________
Constraints & Restrictions relating to minibar attendants? ____________________
--------------------------------------------------------------------------------
Does Hotel offer complimentary Mineral Water?: ________ if Yes:
To all Guests ________? To a specific Room type & Type of Guest (members) ______
Every day or on check-in only? ____________ Chain Policy or Hotel's own Policy?
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Does Hotel offer complimentary Food & Beverage amenities other than Mineral
Water?
--------------------------------------------------------------------------------
Does Hotel offer complimentary Coffee Service in the rooms? _____ all rooms? ___
--------------------------------------------------------------------------------
Does Hotel have Club Floors & Executive Floors where complimentary Food &
Beverage are served? ______ if Yes, Location: _____________________ Service
Hours from: ____ to:___
How many such Club-floors? ________ How many such Club-rooms?: __________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Does Hotel Have Vending Machines? _______ If Yes, What is sold ____________
Yearly Revenues from Vending Machines _________________________________________
Their Location(s): _____________________________________________________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Does Hotel have a preferred & exclusive vendor agreement with soft drinks &
Beverage suppliers, Alcoholic Beverage Vendors? ___________________________
Any restrictions to sell Alcoholic Beverages in Hotel rooms: ___________________
Does Hotel have a special Liquor License? ______________________________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Does Hotel offer 24 Hours Room Service? _______, If not, Room Service Hours:
Price of mineral Water offered by Room Service: ________
Price of Cola / Diet Cola Product offered by Room Service: _________
Service Surcharge by Room Service: ____________
Please attach a copy of the Room Service Menu
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Type of Property Management System (PMS) used by the Hotel: ____________________
Type of TV & Pay TV & Video on Demand system used by Hotel: ____________________
Type of door-lock system / Access Control to guest-rooms: ______________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Minibars currently installed in the Hotel?
If Yes, Since ____ Type of minibar _________ Number of minibars: ________
Minibars are in armoires? ___________ Standalone Units? ___________
Location of minibars in the Rooms: ___________________________________________
Average minibar Sale per Occupied Room per Day, current Year___ Previous
Year ___
Average minibar Sale per Available Room per Day, current Year_______ Previous
Year _______
Allowance & Rebates, current Year: _______ % Previous Year: ______ %
Cost of Goods, current Year: ________ % Previous Year: ______ %
Department in charge of minibar refills: ______________________________________
Number of minibar attendants: _______ When do they refill / how often: _______
Please attach your current Minibar Menu
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Dedicated Office & Storage Space for Outsource Operator (1 room or 2 separate
rooms)
Need minimum 25 square meters for up to 400 rooms Hotel
Need minimum 35 square meters for up to 800 rooms Hotel
Location(s) offered: _________________________________________________________
Access to Service Elevators: _______________ Access to Supplies: ___________
Air-conditioned: __________ Phone Lines (Internal / External): _____________
Locks / Security / Access to rooms(s) ________________________________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Any difficulties to access any of the floors / rooms with the refill trolley?:__
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
What type of pagers / beepers is the Hotel using: __________________
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Hotel's "no-credit"/"no-extras" policy for certain
groups/day-use/Aircrews, etc.
How extensive is this?; what specific groups?: ________________________________
--------------------------------------------------------------------------------
Exhibit 3.2a
FORM OF DETAILED
TECHNICAL SURVEY REPORT
Report and Recommendations following a detailed, room by room technical survey
of ________________________________ Hotel.
--------------------------------------------------------------------------------
Attach form of detailed technical Survey
--------------------------------------------------------------------------------
In the event that the Detailed Technical Survey Report will be judged by Bartech
to be identical to the General Technical Preliminary Survey Report, that Bartech
has already delivered to HOMI, Bartech will inform HOMI, in writing, of the fact
that the rooms & room types / furniture / wiring infrastructure, are identical
in all rooms & room types, and remain unchanged since the Preliminary Technical
Survey and therefore there is no need to conduct an additional detailed, room by
room survey.
--------------------------------------------------------------------------------
Written notice from Bartech to HOMI
--------------------------------------------------------------------------------
Exhibit 3.2c
SAMPLE
OUTSOURCE SERVICES AGREEMENT
--------------------------------------------------------------------------------
Attached hereto
--------------------------------------------------------------------------------
A sample form of the kind of Outsource Services Agreement which HOMI may enter
into with Hotels is attached hereto, is confidential and for Bartech's eyes only
COFIDENTIAL
_________________, 2003
INSTALLATION AND OUTSOURCE OPERATION AGREEMENT
BY AND BETWEEN
HOTEL OUTSOURCE MANAGEMENT INTERNATIONAL, INC. (European Subsidiary)
AND
(HOTEL)
--------------------------
doing business as _____________________________
DATED ______________________
TABLE OF CONTENTS
SECTION NUMBER AND HEADING PAGE
-------------------------- ----
1. Definitions and Construction........................................................................1
1.1 Defined Terms................................................................................1
1.2 Preamble and Attachments.....................................................................3
1.3 Construction.................................................................................3
2. Representations and Warranties of the Parties.......................................................3
2.1 Mutual Representations and Warranties........................................................3
2.2 Representations and Warranties of the Hotel..................................................4
2.3 Representations and Warranties of the Company................................................4
3. Installation of the Units...........................................................................4
3.1 Type of Installation.........................................................................4
3.2 Date of Installation.........................................................................5
3.3 Acceptance of Units..........................................................................5
3.4 PMS Interface................................................................................5
3.5 Undertakings by the Hotel....................................................................5
4. Maintenance and Operation of the Units..............................................................6
4.1 Maintenance..................................................................................7
4.2 Operation....................................................................................7
4.3 Operators....................................................................................8
4.4 Undertakings by the Hotel....................................................................8
4.5 Manual Posting...............................................................................9
5. The Products.......................................................................................10
5.1 Nature of Products..........................................................................10
5.2 Agreed Price of Products....................................................................10
5.3 Alcoholic Beverages.........................................................................10
6. Promotion..........................................................................................10
6.1 Active Promotion............................................................................10
6.2 Passive Promotion...........................................................................10
7. Consideration; Revenue Sharing.....................................................................11
7.1 Revenue Sharing.............................................................................11
7.2 Method of Payment...........................................................................12
7.3 Deductions from Gross Revenue for Calculation of Net Revenue................................12
7.4 Reports and Accounts........................................................................14
7.5 Fundamental Condition.......................................................................14
SECTION NUMBER AND HEADING PAGE
-------------------------- ----
8. Term and Termination...............................................................................14
8.1 Initial Term................................................................................14
8.2 Subsequent Terms............................................................................14
8.3 Changes in Hotel Management or Ownership....................................................15
8.4 Termination for Cause.......................................................................15
9. Purchase Option....................................................................................16
9.1 Exercise of Purchase Option.................................................................16
9.2 Option Price................................................................................16
9.3 Effect of Exercise..........................................................................16
9.4 Expiry of Purchase Option...................................................................17
10. Proprietary Rights.................................................................................17
10.1 Confidentiality and Ownership...............................................................17
10.2 No Grant of Rights..........................................................................17
11. Limited Warranty...................................................................................17
11.1 Warranty....................................................................................17
11.2 No Other Warranty...........................................................................17
12. Miscellaneous......................................................................................18
12.1 Notices.....................................................................................18
12.2 Retention of Title..........................................................................18
12.3 Insurance...................................................................................18
12.4 Adjustment of Quantity of Units.............................................................19
12.5 Rights of Company Representatives...........................................................19
12.6 Assignment..................................................................................19
12.7 Entire Agreement............................................................................19
12.8 No Joint Venture or Partnership.............................................................19
12.9 Further Assurances..........................................................................20
12.10 Amendments, Modifications...................................................................20
12.11 Severability................................................................................20
12.12 Failure or Delay............................................................................20
12.13 Governing Law and Jurisdiction..............................................................20
12.14 Counterparts; Facsimile Signatures..........................................................20
DRAFT
THIS INSTALLATION AND OUTSOURCE OPERATION AGREEMENT, dated as of __________ o,
2003 (this "Agreement"), by and between HOTEL OUTSOURCE MANAGEMENT
INTERNATIONAL, INC., (European Subsidiary) _____________________ (the "Company")
and ___________________, ("______________") doing business as
__________________, of ____________________ (the "Hotel") (each of the Company
and the Hotel a "Party" and collectively the "Parties").
WITNESSETH:
WHEREAS,
(A) _______ is the manager and operator of the Hotel, and has been duly
authorized by the Hotel owner to enter into this Agreement as its agent
for and on its behalf, such that the Hotel will be bound by this
Agreement for all intents and purposes as if it had executed the
Agreement itself and the obligations of the Hotel herein shall be
deemed joint and several obligations of _______ and the Hotel; and
(B) The Hotel has requested that the Company install, maintain and operate
the Units (as defined below) in the Hotel, pursuant to the terms
hereof; and
(C) The Company is willing to install, maintain and operate the Units in
the Hotel, pursuant to the terms hereof, and shall purchase the Units
solely for this purpose; and
(D) The Parties wish to enter into this Agreement in order to set forth
their mutual understandings and undertakings in relation to the
installation, maintenance and operation of the Units in the Hotel.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Definitions and Construction
1.1 Defined Terms
The following terms used in this Agreement shall have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
"Agreed Price" shall have the meaning ascribed to such term in Section 5.2
below.
"Agreement" shall have the meaning ascribed to such term in the Preamble.
"Approved Discount Upper Limit" shall have the meaning ascribed to such term in
Section 7.3.5 below.
"Approved Discount" shall have the meaning ascribed to such term in Section
7.3.3 below.
"Approved Rebate Upper Limit" shall have the meaning ascribed to such term in
Section 7.3.2 below.
"Approved Rebate" shall have the meaning ascribed to such term in Section 7.3.1
below.
"Business Day" means any regular working day that is not Saturday, Sunday, a
legal holiday or other day on which banks are required to be closed in
____________________.
"Cabinets" shall have the meaning ascribed to such term in Section 3.1.1 below.
"Company Computer" means the Company's computers located in the Office (as
defined below).
"Company's Share" shall have the meaning ascribed to such term in Section 0
below.
"Company" shall have the meaning ascribed to such term in the Preamble.
"Discount Sales" shall have the meaning ascribed to such term in Section 7.3.4.1
below.
"Employee Discount Sales" shall have the meaning ascribed to such term in
Section 7.3.4.2 below.
"Energy Costs" shall have the meaning ascribed to such term in Section 4.4.9
below.
"First Installation Date" shall have the meaning ascribed to such term in
Section 3.2 below.
"Gross Revenue" means all revenue on the basis of the Product (as defined below)
billing data recorded by the Company Computer, calculated on the basis of
consumption of Products, multiplied by the Agreed Price for those Products,
before deduction of Approved Rebates and/or Approved Discounts.
"Hotel's Share" shall have the meaning ascribed to such term in Section 0 below.
"Hotel" shall have the meaning ascribed to such term in the Preamble.
"_______" shall have the meaning ascribed to such term in the Preamble.
"Incorporation Documents" means the documents by which the specified Party
establishes its legal existence or which govern its internal affairs.
"Industry Standards" shall have the meaning ascribed to such term in Section 4.1
below.
"Initial Term" shall have the meaning ascribed to such term in Section 8.1
below.
"Injured Party" shall have the meaning ascribed to such term in Section 8.4
below.
"Installation" shall have the meaning ascribed to such term in Section 3.1
below.
"Interface" shall have the meaning ascribed to such term in Section 3.3 below.
"Maintenance and Operation" shall have the meaning ascribed to such term in
Section 4 below.
"Malfunction Notice" shall have the meaning ascribed to such term in Section
4.4.1 below.
"Manufacturer's Warranty" shall have the meaning ascribed to such term in
Section 11.1 below.
["Measurement Period" shall have the meaning ascribed to such term in Section
7.1.1.1 below.]
["Net Revenue Bonus Target" shall have the meaning ascribed to such term in
Section 7.1.1.1 below.]
"Net Revenue" means Gross Revenue, less Approved Rebates and/or Approved
Discounts.
"Office" shall have the meaning ascribed to such term in Section 3.5.4.1 below.
"Operators" shall have the meaning ascribed to such term in Section 4.3.1 below.
"Option Assets" shall have the meaning ascribed to such term in Section 9 below.
"Option Price" shall have the meaning ascribed to such term in Section 9.2
below.
"Option Station" shall have the meaning ascribed to such term in Section 9.1.1
below.
"Party" shall have the meaning ascribed to such term in the Preamble.
"PMS" shall mean the property management system employed by the Hotel.
"Products" shall have the meaning ascribed to such term in Section 5.1 below.
"Purchase Option" shall have the meaning ascribed to such term in Section 9
below.
"Rooms" means rooms in the Hotel.
"Service Rooms" shall have the meaning ascribed to such term in Section 3.5.4.3
below.
"Start-Up Date" means the date of commencement of full operation of all the
Units at the Hotel, following completion of Installation, which date shall be
agreed upon in writing by the Parties prior to Maintenance and Operation
commencing.
"Storage Room" shall have the meaning ascribed to such term in Section 3.5.4.2
below.
"Subsequent Term" shall have the meaning ascribed to such term in Section 8.2.1
below.
"Term of the Agreement" shall mean the entire term during which this Agreement
remains in force, commencing with the date hereof and culminating on termination
hereof.
"Turnkey Installation Price" shall have the meaning ascribed thereto in Section
9.2 below.
"Unit Operation" shall have the meaning ascribed to such term in Section 4.2
below.
"Units" means _______ Bartech(TM) minibar units, whether free-standing or for
cabinet installation, of the kind described in Exhibit 1.1 hereto.
"User" means anyone that uses the Units with a view to consuming Products
offered for sale therein, including Hotel guests, employees etc. 1.2 Preamble
and Attachments
The Preamble to this Agreement, as well as any and all Exhibits,
Appendices, Schedules or other attachments to this Agreement shall form an
integral part hereof.
1.3 Construction
The headings used in this Agreement are for convenience of reference
only and will not be used in the construction of this Agreement. Any use of the
word "including" in this Agreement shall be construed as meaning "including,
without limitation", unless expressly stipulated to the contrary. All pronouns
contained herein, and any variations thereof, shall be deemed equally to refer
to the masculine, feminine or neutral, singular or plural, as the context may
require.
2. Representations and Warranties of the Parties
2.1 Mutual Representations and Warranties
Each Party hereby represents and warrants to the other Party as
follows, in recognition of the fact that the other Party is entering into this
Agreement inter alia in reliance upon these representations and warranties:
2.1.1 it is a duly incorporated and validly existing corporation in
good standing under the laws of the Country of its incorporation, with all
requisite power and authority (corporate and other) to own its properties and
conduct its business.
2.1.2 it has the corporate power and authority to execute and deliver
this Agreement and to carry out the transactions contemplated hereby; this
Agreement has been duly and validly duly authorized by all necessary action,
corporate or otherwise, on its part, and this Agreement constitutes a legal,
valid and binding obligation, enforceable against it in accordance with its
terms.
2.1.3 delivery and performance by it of this Agreement, and the
performance by it of its obligations hereunder, will not:
2.1.3.1 conflict with or result in a breach of any of the
provisions of its Incorporation Documents;
2.1.3.2 contravene any law, rule or regulation of any jurisdiction
to which it is subject, or any political subdivision thereof or therein, or any
order, writ, judgment, injunction, decree, determination or award currently in
effect, which, singly or in the aggregate, would have a material adverse effect
on it;
2.1.3.3 conflict in any respect with or result in a breach of or
default under any agreement, contract or instrument to which it is a party or by
which it or any of its properties may be affected or bound, such as would,
singly or in the aggregate, would have a material adverse effect on it;
2.1.4 it has fully examined all aspects of this Agreement and the
transactions contemplated thereby and is not entering into it in reliance upon
any representation of the other Party as to any prospects of profitability or
commercial success of the venture, nor has it received any such representation.
2.2 Representations and Warranties of the Hotel
The Hotel hereby represents and warrants to the Company as follows, in
recognition of the fact that the Company is entering into this Agreement inter
alia in reliance upon these representations and warranties:
2.2.1 it has ______ Rooms in which the Units are to be installed
and will maintain _________ Units during the Term of the Agreement;
2.3 Representations and Warranties of the Company
The Company hereby represents and warrants to the Hotel as follows, in
recognition of the fact that the Hotel is entering into this Agreement inter
alia in reliance upon these representations and warranties:
2.3.1 it owns rights in ______________________ to install,
maintain and operate minibars manufactured by Bartech System International Inc.;
2.3.2 all of the Units will be manufactured by Bartech System
International Inc. and the Company is purchasing the Units solely for this
purpose of performing its obligations herein.
3. Installation of the Units
3.1 Type of Installation
The Hotel hereby requests from the Company, and the Company agrees, to
install the Units in the Hotel, in whichever Rooms the Hotel shall specify in
writing, as follows (the "Installation"):
3.1.1 for Rooms which contain cabinets which are in satisfactory
condition and working order and which are sufficiently ventilated for heat
dispersion purposes ("Cabinets"), the Company shall install the Units in the
Cabinets;
3.1.2 in Rooms where there are no Cabinets, the Company will install
free-standing Units. The Company will as far as possible match the color of the
free-standing Units to compliment the existing Room furnishings. The color of
the Cabinets shall be subject to _______'s prior approval.
3.2 Date of Installation
The Company shall commence Installation at the earlier of ____________,
or upon the expiry of 90 (ninety) days from the execution of this Agreement by
both Parties (the "First Installation Date"), subject to the prior fulfillment
of the Hotel's undertakings set forth in Section3.5 below. The Installation is
scheduled to take between 10 and 15 Business Days, provided that it is not
interrupted at the specific written request of the Hotel.
3.3 Acceptance of Units
Within five (5) days of receiving notification from the Company of the
installation of all the Units at the Hotel, Hotel shall notify Company, in
writing, of any Units rejected due to a nonconformity or defect in terms of the
specifications set forth in Exhibit 1.1. Company shall use its best efforts to
remedy any such nonconformity or defect within thirty (30) days of receiving
said written notification from Hotel. Failure of the Hotel to provide Company
with notice of any such nonconformity or defect in any Units within said five
(5) day period shall be deemed acceptance by Hotel of the Units as being in good
working order.
3.4 PMS Interface
The Company will interface the Units with the PMS, via the Company
Computer, subject to the Hotel providing the necessary assistance and support as
set forth in Section 3.5.3 below, said interface to have the functions set forth
in Exhibit 3.3 hereto (the "Interface"). The Interface developed by the Company
will be the property exclusively of the Company; provided that any and all
information, software, data, support and assistance that _______ provides to
Company shall remain the exclusive property of _______.
3.5 Undertakings by the Hotel
In connection with the Installation, the Hotel hereby undertakes to
perform the following actions, to be completed no later than the First
Installation Date, in recognition of the fact that the Company will commence
Installation only after the Hotel has duly fulfilled these undertakings:
3.5.1 to ensure that all Rooms in which it wishes the Company to install Units
in cabinets, contain Cabinets, and to ensure that all Rooms, whether or not they
have Cabinets, are equipped with the items set forth in Exhibit
3.5.1 hereto;
3.5.2 to remove any existing minibars from the Rooms;
3.5.3 to obtain the consent and cooperation of the PMS supplier for the
Interface, including for any requisite adaptation or addition of code or the
like which the Company may perform and including in relation to the functions
listed in Exhibit 3.3, of which the Hotel will furnish a copy in advance to the
PMS supplier, and to pay any and all license fees or other charges of any kind
due to the PMS howsoever in connection with said Interface; and to liaise
between said supplier and the Company in order to ensure that the Company
receives the supplier's cooperation to facilitate the Interface;
3.5.4 to arrange and place at the Company's disposal, to remain at the
Company's disposal throughout the Term of the Agreement, one or two
air-conditioned rooms in the Hotel, of no less than 25 square meters in area,
being connected to the Hotel's UPS line and having at least one internal and two
external telephone lines (both of them long distance and international and able
to carry a modem connection between the Company Computer and the Company's head
office, with the expenses associated with such lines being paid by the Company),
all the foregoing to be approved in advance by the Company, as follows:
3.5.4.1 an office, for the purpose of housing and operating the
Company Computer and other Company administration in connection with this
Agreement, (the "Office"); the Office shall be located in the o Room on the o
Level; and
3.5.4.2 a storage room, for the purpose of storage of Products and
Units and ancillary equipment, parts and fittings and the like, in connection
with the Company's duties under this Agreement, (the "Storage Room"); the
Storage Room shall be located in the o Room on the o Level;
3.5.4.3 the Office and Storage Room (collectively, the "Service
Rooms") will be placed at the Company's disposal, without charge, as an integral
part of this Agreement and in order to facilitate the Company's performance of
its obligations under this Agreement, and they shall not be deemed rented to the
Company and no kind of lessor-lessee relationship shall subsist between the
Hotel and the Company in connection thereto;
3.5.4.4 the Company shall have the sole rights of access to the
Service Rooms, which will have locks (of VingCard or equivalent type, which
record entry data) to which the Company alone, or its representatives, shall
have keys, provided however, that a special key to the Service Rooms shall be
held by the Hotel, to enable access thereto in the case of emergency such as
fire, flood or other similar emergency and the Hotel hereby agrees not to use
such key for any other purpose and in any event only after it has made every
reasonable effort to obtain the Company's advance written consent for such use;
notwithstanding the foregoing, Hotel may access the Service Rooms to make
non-emergency repairs and to maintain the Hotel, after coordination with the
Company;
3.5.5 to place at the Company's disposal a sufficient number of
complimentary Rooms for the Company's technicians and representatives, to remain
at the Company's disposal until completion of the Installation; Incidentals are
specifically excluded from this Agreement; Company agrees to pay for room
service, food & beverage, movies, laundry or other charges in connection with
the room nights; the room nights are for standard rooms only and do not include
suites or upgrades;
3.5.6 in general to offer such other assistance and cooperation as may
reasonably be required in order to assist the Company to perform the
Installation in accordance with this Agreement.
4. Maintenance and Operation of the Units
The Hotel hereby requests from the Company, and the Company agrees to maintain
and operate the Units, following the Installation, in the manner set forth in
this Section 4 (the "Maintenance and Operation").
4.1 Maintenance
The Company will maintain the Units, following the Installation, in
accordance with the standards and practices which it customarily applies to
luxury hotels around the world, and in accordance with the highest levels of
arms-length service provided for this kind of product in the industry ("Industry
Standards"), such maintenance and operation to include the repair or
replacement, at the Company's discretion, of any malfunctioning Unit; to this
end, the Company will stock sufficient spare parts, fittings and minibar units,
so far as possible on premises, in the Storage Room; the Company shall be
entitled, as a temporary measure, to install a manual minibar instead of any
malfunctioning Unit that is undergoing repair. Notwithstanding the foregoing and
for avoidance of doubt, it is hereby agreed that during hours when the Company's
maintenance staff are not at the Hotel, or in the event of a User making direct
application to the Hotel's Engineering Department with a complaint of Unit
malfunction, the Hotel's Engineering Department will perform a basic inspection
of the status of the Unit, such as ensuring that it is properly connected to the
electricity and the like, and will issue the Company with a report of its
findings. If the Unit is still malfunctioning, the Company will repair or
replace the Unit in accordance with the provisions set forth in this Section 4.1
above.
4.2 Operation
The Company will operate the Units, following the Installation, in
accordance with the standards and practices which it customarily applies to
luxury hotels around the world, and in accordance with Industry Standards and
the Company will likewise comply with any and all applicable laws upon receiving
written notice by the Hotel of applicable terms, such operation to include the
following actions and procedures (the "Unit Operation"):
4.2.1 Operators will, twice a day, subject to Company procedures and
policies, on the basis of information received from the Units by the Company
Computer, examine whichever Units have recorded consumption of Products or other
pre-defined anomalies, in order to refill Products and/or check the Unit status,
as applicable;
4.2.2 once a day, the Company will perform a general accounts
reconciliation with the Hotel's front desk or other designated staff, in which
the Gross Revenue and Net Revenue data recorded in the Company Computer and the
PMS will be reconciled, including the identification of Approved Rebates and
Approved Discounts;
4.2.3 in the event of Approved Rebates regularly exceeding the Approved
Rebate Upper Limit, Company representatives will meet with Hotel representatives
in order to discuss the matter and explore possible procedures which the Hotel
could employ in order to keep Approved Rebates to a minimum (without in any way
derogating from the provisions of Section 7.3.2 below);
4.2.4 Operators will clean and service the Units as and when necessary;
4.2.5 the Company will purchase the Products for stocking the Units, at
its own expense, using suppliers of its choice, and will be responsible for
ensuring that there are sufficient stocks of Products for the routine refill of
the Units;
4.2.6 if a User shall ask that Products be removed from the Unit in his
Room (e.g. in order to use the minibar as a refrigerator), the Company shall, at
the Hotel's request, remove said Products as requested, for an agreed daily fee
of EURO10 per room, or EURO30 per stay of up to 1 week, which fee will be deemed
for all intents and purposes an integral part of the Gross Revenue;
4.3 Operators
4.3.1 The Maintenance and Operation shall be performed by the Company
by means of Unit operators who will be trained by the Company to perform their
respective duties (the "Operators"). The Company undertakes at all times to
engage such Operators as are necessary to enable the Company to perform the
Maintenance and Operation and the Company Computer. It is agreed that the Hotel
will have the right, upon its written request, to interview potential Operators,
prior to their being hired, and will be entitled to veto the recruitment of any
given candidate, for justified reasons which it must provide in writing to the
Company.
4.3.2 The Operators shall be Company employees and no employer-employee
relations shall subsist between the Operators and the Hotel. The Operators'
terms of employment (including wages, dismissal etc.) shall be determined by the
Company, provided however that these terms shall be in line with the
_____________ Employee Handbook.
4.3.3 The Company undertakes to cause the Operators to conduct
themselves in accordance with the written rules and regulations issued by the
Hotel in respect of Hotel employees, mutatis mutandis. The Company agrees, to
the extent so permitted under the applicable terms of employment, to dismiss any
Operator who, according to written and substantiated notification delivered to
the Company by the Hotel, has behaved in material contravention of Hotel
procedure.
4.3.4 The Operators shall wear the customary uniforms which are worn by
employees of the Hotel.
4.3.5 The Hotel has granted its consent that the Company be permitted,
but not obliged, to engage, as Operators, existing employees of the Hotel
(whether full-time or part-time employees), without in any way derogating from
the other provisions of this Section 4.3 above, and, all things being equal, the
Company will give this matter favorable consideration, on an ad hoc basis.
4.4 Undertakings by the Hotel
In connection with the Maintenance and Operation, the Hotel hereby
undertakes to perform the following actions, as of completion of the
Installation, in recognition of the fact that the Maintenance and Operation will
be dependent inter alia upon the Hotel's performing these actions:
4.4.1 to ensure that at all times no less than 5 manual minibars
will be available to the Company,
4.4.2 to provide the Company with written notice of any
malfunctioning Unit, as soon as possible after becoming aware of such
malfunction, in order to facilitate the repair or replacement of such Unit by
the Company as set forth in Section 4.1 above (a "Malfunction Notice");
4.4.3 to allow and facilitate, at least twice a day if so
requested by the Company or an Operator, and for a reasonable period of time,
access by the Operators to the Rooms, for the purposes set forth in Section
4.2.1 above, except when the User has demanded not to be
disturbed; if the Operators have no access to any given Room, due to
do-not-disturb, for more than 24 consecutive hours, the Hotel's Guest Relations
department will notify the User and request his permission to refill the Unit
and will coordinate with the Operators as necessary;
4.4.4 if the Company should so request - to facilitate the
purchase of Products by the Company from the Hotel's general suppliers, at the
Hotel's prices and terms, or to supply Products directly to the Company at the
Hotel's prices and terms;
4.4.5 to provide the Company with prompt notice of any request to
remove Products from Units and to provide the User with full information on the
fee that will be charged for this service, all as provided in Section 4.2.6
above; at its discretion, the Hotel will be permitted, upon receipt of such
request by a User, to instead provide the User with a manual minibar or
refrigerator; it is likewise agreed that a special solution will be applied,
with the Parties' mutual consent, regarding Rooms occupied by "aircrews" as it
is recognized that guests of this kind often do not consume Products from the
minibars and often remove Products from the Units in order to empty the Units
for their personal use; in such cases the Parties will agree on mutually
acceptable ways to charge the aircrews, or will lock the Units in their Rooms or
find other mutually acceptable solutions;
4.4.6 to provide the Company with the Operators' uniforms, in
accordance with written requests to be delivered from time to time by the
Company, each Operator to receive three sets of uniform which will be replaced
from time to time as needed, and to clean these uniforms on a regular basis in
accordance with standard Hotel policy; the Hotel will invoice the Company
monthly for the actual cost of these uniforms and the laundry, in the amount of
Euroo per Operator uniform delivered (Euroo for shirt; Euroo for pants) and
Euroo per Operator uniform cleaned (Euroofor shirt; Euroo for pants), said
prices subject to change from time to time upon written notice to the Company;
4.4.7 to provide the Company, at its written request, for the
Operators' benefit, with meals of the kind that the Hotel customarily provides
to its own employees; the Hotel will invoice the Company monthly for the actual
cost of meals that are in practice so requested and provided, in the amount of
Euroo per day per Operator, said price subject to change from time to time upon
written notice to the Company;
4.4.8 to provide the Company with at least 2 complimentary pagers
(beepers) for the Operators, by means of which the Company will be able to
contact the Operators at all times;
4.4.9 to make timely payment to the relevant third parties of all
the direct costs and expenses of the Units' electricity and/or other forms of
energy consumption in the Units' daily operation ("Energy Costs");
4.4.10 to supply, at its own expense, the glasses, tray, bottle
openers, shaker spoons, menus, promotional material and all other accessories
related to the Units and to replace, at least once a day, any and all used
glasses, menus and/or other accessories;
4.4.11 to perform at its own expense, on behalf of both Parties,
all the collection in respect of all sales of Products;
4.4.12 in general to offer such other assistance and cooperation
as may reasonably be required in order to assist the Company to perform the
Maintenance and Operation in accordance with this Agreement.
4.5 Manual Posting
If the automatic recording, posting and billing system shall at any
time and from time to time be inoperative, whether as a result of a malfunction
or other problem with the PMS, the Company Computer and/or the Interface, or for
any other reason whatsoever, the Parties will cooperate with each other and take
whatever action may be necessary in order to arrange for manual recording,
posting and billing, until the automatic system returns to operation.
5. The Products
5.1 Nature of Products
The Units will be stocked with food and drink products from a list
which the Company will prepare and update from time to time, with the Hotel's
prior written approval (not unreasonably to be withheld) ("Products"), with a
view to the Products being at all times of a type and standard appropriate for a
luxury hotel. The Company shall elect which specific Products the Units shall be
stocked with at any given time. Notwithstanding anything to the contrary herein,
Company agrees to stock the Units with Products from companies that have entered
into national agreements with Hotel (including, but not limited to a soft drink
provider that is currently Pepsi-Cola), provided that the Company shall receive
the same beneficial terms and conditions offered by said companies (subject to
said companies' policies) to the Hotel for purchases of Products for the Hotel.
Details of all such current agreements are set forth in Exhibit 5.1 hereto and
the Hotel shall notify Company of any such agreements that are entered into
after the date hereof.
5.2 Agreed Price of Products
The price of the Products to be charged to the Users shall be mutually
determined and revised by the Company and the Hotel from time to time, in
advance and in writing, it being agreed that said price shall be determined
inter alia taking into account prices charged by other luxury hotels that are
equivalent to the Hotel, including the hotels: o, and likewise taking into
account room-service menu prices for identical or equivalent items (the "Agreed
Price").
5.3 Alcoholic Beverages
(Liquor License ?)
6. Promotion
6.1 Active Promotion
6.1.1 The Hotel undertakes to provide written instructions and
descriptions to the Users with respect to the operation and location of the
Units, including a sticker on the Unit door. Such written instructions and
descriptions shall be readily displayed in each Room or otherwise provided to
Users. The Company shall design these instructions, with the Hotel's prior
written approval (not unreasonably to be withheld) and the Company alone shall
bear the design and printing costs of said instructions. The Hotel will allow
the Company, and will facilitate, other promotional activities at the Company's
request, all subject to advance coordination with the Hotel.
6.1.2 Product menus, including Agreed Price data, will be supplied to
all Rooms fitted with a Unit. The Hotel shall design and provide, at its sole
expense, the cover/folder of the menu and the Company will provide, at its sole
expense, the menu inserts listing the Products and Agreed Price data (to be
updated from time to time in accordance with Section 5.2 above).
6.2 Passive Promotion
6.2.1 The Hotel agrees not to provide its guests as standard policy
with amenities related to soft drinks and mineral water, as this could be
expected to have a prejudicial effect on consumption of Products from the Units.
At the same time, it is understood that the Hotel may, from time to time, offer
certain such amenities to its V.I.P guests and/or in accordance with promotional
programs designated by _______'s Corporate Office, to be supplied by the Hotel
and at its expense.
6.2.2 The Hotel undertakes not to position any vending machines and/or
soft drinks and/or snacks dispensers, or the like, anywhere at all on any floor
on which Units are installed.
6.2.3 For the avoidance of doubt, but without in any way derogating
from the provisions of Section
6.2.1 above, as may apply to present or future V.I.P./promotional
programs, it is agreed that the Hotel may offer and sell, in the context of its
room-service, all manner of foods, drinks, etc. without limitation, and may
provide complimentary food and non-alcoholic beverages to _________ Club
members, on Club floors, as per normal operation of the Hotel's _________ Club
during Club hours, all for as long as the ________ Club (or a successor club
operation) shall be in operation at the Hotel.
7. Consideration; Revenue Sharing
In consideration for the Installation and the Maintenance and Operation
performed by the Company pursuant to this Agreement, the Hotel hereby undertakes
to pay the Company the consideration set forth in this Section 7 below.
7.1 Revenue Sharing
It is hereby agreed that all Net Revenue shall be distributed, on a
monthly basis, in the following manner, and the Hotel hereby undertakes to pay
the Company its prescribed share of the Net Revenue, as set forth below:
7.1.1 commencing with the date hereof and throughout the Term of the
Agreement, the Hotel shall retain 12% of all Net Revenue (the "Hotel's Share")
and undertakes to pay the Company the remaining 88% of all Net Revenue (the
"Company's Share"), subject to the following:
7.1.1.1 if, during the first twelve (12) months of the Initial
Term, or during any of the subsequent twelve (12) month periods throughout the
Term of the Agreement (each of them a "Measurement Period"), the total Net
Revenue for that Measurement Period exceeds Euro_____________.- (calculated on
the basis of average daily Net Revenue of Euro2.00 per day x _____ Units) (the
"Net Revenue Bonus Target 1"), then the Company undertakes to pay the Hotel, out
of the Company's Share, a sum equal to a further 18% (total 30%) of any and all
Net Revenue for that Measurement Period that is over and above the Net Revenue
Bonus Target, said payment to be effected no later than thirty (30) days
following the end of said Measurement Period, subject to all the Company's Share
for that Measurement Period having been paid to the Company;
Example:
7.1.1.2 if, during the first twelve (12) months of the Initial
Term, or during any of the subsequent twelve (12) month periods throughout the
Term of the Agreement (each of them a "Measurement Period"), the total Net
Revenue for that Measurement Period exceeds Euro_____________.- (calculated on
the basis of average daily Net Revenue of Euro2.50 per day x _____ Units) (the
"Net Revenue Bonus Target 2"), then the Company undertakes to pay the Hotel, out
of the Company's Share, a sum equal to a further 5% (total 35%) of any and all
Net Revenue for that Measurement Period that is over and above the Net Revenue
Bonus Target 1, said payment to be effected no later than thirty (30) days
following the end of said Measurement Period, subject to all the Company's Share
for that Measurement Period having been paid to the Company;
Example:
7.1.1.3 if, during any Measurement Period, the total Net Revenue
for that Measurement Period shall be below Euro___________.- (calculated on the
basis of average daily Net Revenue of Euro1.5 per day x ___ Units), then the
Hotel's Share for that Measurement Period shall be decreased to 8% of the Net
Revenue for that Measurement Period, and the Hotel undertakes to pay the Company
the difference between the Hotel's Share pursuant to Section 7.1.1 above and the
adjusted Hotel's Share pursuant to this Section 7.1.1.3, said payment to be
effected in the manner set forth in Section 7.2 below, no later than thirty (30)
days following the end of said Measurement Period;
Example:
7.2 Method of Payment
The Hotel undertakes to pay the Company's Share to the Company, by
means of wire transfer to a bank account which the Company will designate in
writing, (plus VAT / Tax, if applicable), or by immediately payable company
check made out to the Company or to the Company's order, in both cases no later
than ten (10) days following the end of each calendar month, in respect of the
Net Revenue for that month, against a corresponding invoice from the Company.
7.3 Deductions from Gross Revenue for Calculation of Net Revenue
7.3.1 In the event of any query or dispute by a User as to the amount
he has been charged for consumption of Products (i.e. the Gross Revenue recorded
in relation to his use of a Unit), the Hotel shall be permitted to grant the
User a rebate, at its discretion, provided however that for the rebate to be
deemed an Approved Rebate, the Hotel must verify, record and validate the User's
claims in accordance with directions which it will receive from the Company, and
any such rebate must be approved and validated by the Hotel's Front Desk Manager
or Supervisor (rebates which are verified, recorded, validated and approved in
this manner shall be termed "Approved Rebates").
7.3.2 Approved Rebates will be deducted from Gross Revenue and
will not be included in the Net Revenue. Notwithstanding the foregoing, the
Hotel hereby agrees to ensure that Approved Rebates in any given calendar month
during the entire term of this Agreement will not exceed 3% of that month's
Gross Revenue (the "Approved Rebate Upper Limit"). The Hotel further agrees that
if, notwithstanding the foregoing and for whatever reason, the Approved Rebate
Upper Limit is exceeded in any given month, then 50% of the Euro amount of any
and all such excess will following calculation of the Company's Share, pursuant
to Section 0 above, be deducted from the Hotel's Share and added to the
Company's Share.
7.3.3 The Hotel shall be entitled to conduct all types of
promotions and/or discounts relating to consumption of Products including
occasional complimentary discounts, discounts for large groups and/or discounts
to preferred guests, provided however that for the discount to be deemed an
Approved Discount, the Hotel must record and validate any and all such discounts
and any such discounts must be approved and validated by the Hotel's Front Desk
Manager or Supervisor (discounts which are recorded, validated and approved in
this manner shall be termed "Approved Discounts").
7.3.4 Approved Discounts will be deducted from Gross Revenue and
will not be included in the Net Revenue. Notwithstanding the foregoing, the
Hotel hereby agrees that: 7.3.4.1 for any Gross Revenue on which the Hotel
grants an Approved Discount, other than in accordance with Section
7.3.4.2 below, of 25% or more off the Agreed Price, including
on-the-house offers (100% discount) (said portion of Gross Revenue, pre-Approved
Discount, to be termed "Discount Sales"), the Hotel will, following calculation
of the Company's Share pursuant to Section 7.1.1 above, deduct from the Hotel's
Share and add to the Company's Share a further 75% of the Euro amount of all
such Discount Sales; and
7.3.4.2 for any Gross Revenue on which the Hotel grants to its
employees an Approved Discount of more than 40% off the Agreed Price, including
on-the-house offers (100% discount) (said portion of Gross Revenue, pre-Approved
Discount, to be termed "Employee Discount Sales"), the Hotel will, following
calculation of the Company's Share pursuant to Section 7.1.1 above, add to the
Company's Share a further 60% of the Euro amount of all such Employee Discount
Sales.
7.3.5 The Hotel hereby agrees to ensure that, in every month
throughout the Term of the Agreement , at least 85% of all sales of Products
will be made at the Agreed Price and will not be granted any Approved Discount.
The Hotel further agrees that if, notwithstanding the foregoing and for whatever
reason, Approved Discounts are granted in any given month on more than 15% of
all sales of Products (the "Approved Discount Upper Limit"), then, at the
Company's election at its sole discretion, either (i) any Approved Discount, of
any amount, granted after the Approved Discount Upper Limit is exceeded will be
treated as Net Revenue, for distribution among the Parties in accordance with
Section 7.1.1 above, or (ii) all discount sales in excess of the Approved
Discount Upper Limit will be treated as Discount Sales, in the manner set forth
in Section 7.3.4.1 above.
7.3.6 Any and all rebates, discounts or other deductions, other
than Approved Discounts and Approved Rebates, which the Hotel grants to Users,
will not be deducted from Gross Revenue and will therefore be included in the
Net Revenue and will be fully taken into account when calculating the Company's
Share.
7.4 Reports and Accounts
7.4.1 The Company will furnish to the Hotel the monthly sales reports
which are generated by the Company Computer, in a form of the Company's design,
within five (5) days following the end of each calendar month, in respect of
Gross Revenue and Net Revenue for that month, following accounts reconciliation
pursuant to Section 4.2.2 above, and including details of the Hotel's Share, the
Company's Share and any other pertinent information requested in writing by the
Hotel. A sample monthly report is attached as Exhibit 7.4.1 hereto.
7.4.2 Each Party shall have the right and shall afford the other Party
with the opportunity, at reasonably frequency, to inspect and examine all
aspects of the accounting related to calculation of the Gross Revenue and Net
Revenue. It is presently anticipated that this shall occur on a quarterly basis.
7.5 Fundamental Condition
The provisions of this Section 7 are fundamental to the entire
Agreement and the Company is entering into this Agreement wholly in reliance
upon the Hotel's fulfilling all of its undertakings herein in a timely fashion.
Any material breach by the Hotel of the provisions of this Section 7 above,
including non-payment of the Company's Share for two (2) consecutive months,
tardy payment of the Company's Share on three (3) consecutive occasions in any
twelve (12) month period, and/or any other action or omission on the part of the
Hotel which prevents, or substantially hinders the Company's performance of its
obligations under this Agreement, shall be deemed to be a material breach of
this Agreement and the provisions of Section 8.4 below shall apply.
8. Term and Termination
8.1 Initial Term
This Agreement shall enter into force upon its execution by both
Parties hereto and shall remain in force for an initial term culminating on the
expiry of nine (9) years (one hundred and eight calendar months) from the
Start-Up Date (the "Initial Term"). In the event the parties fail to agree in
writing as to the Start-Up Date, then the Initial Term shall culminate nine (9)
years and three (3) months from the date of full execution of this Agreement.
8.2 Subsequent Terms
8.2.1 At the end of the Initial Term, if the Hotel has not
exercised the Purchase Option, this Agreement shall automatically continue until
terminated by either Party upon ninety (90) days prior written notice
("Subsequent Term").
8.2.2 If the Hotel does not exercise the Purchase Option during
the Initial Term or the Subsequent Term then upon termination by either Party,
the Company shall remove all the Option Assets and the Company Computer from the
Hotel, at the Company's sole expense and will vacate the Service Rooms leaving
them in the same state of repair in which it received them, subject to
reasonable wear and tear. The Hotel will, no later than the date of termination
of this Agreement, pay to the Company the Company's Share for the last month
immediately preceding termination and the Parties will have no claims against
each other howsoever in respect of said termination.
8.3 Changes in Hotel Management or Ownership
8.3.1 In addition to any right which a Party may have to terminate this
Agreement, whether in accordance with the provisions of this Agreement or by
law, it is hereby agreed that if the Hotel ceases to be operated and managed by
_______, then the Hotel must notify the Company in writing of such within ten
(10) days of its occurring, and the Company shall then be entitled to terminate
this Agreement, at its discretion, by means of written notice to be delivered to
the Hotel within sixty (60) days of receiving said written notice from the
Hotel. In such event, the Agreement will terminate upon the expiry of the fourth
calendar month after the date of said notice by the Company, whereupon the
Company shall remove the Units and all other equipment related to the
Maintenance and Operation and, following payment to the Company of the Company's
Share for the last month immediately preceding termination, the Parties will
have no claims against each other howsoever in respect of said termination.
8.3.2 Changes of any kind in the ownership and/or management of the
Hotel shall not have the effect of altering any terms of this Agreement, nor
shall they give the Hotel, the owners or any other party the right to alter or
terminate this Agreement other than in accordance with its terms (if at all) and
the Hotel shall not invoke any claims of force majeure or change of
circumstances or the like based solely on a change in management and/or
ownership. Any new Hotel owner shall assume the obligations hereunder in
writing. Notwithstanding the foregoing, any assignment of rights or obligations
by the Hotel will be subject to the provisions of Section 12.6 below.
8.4 Termination for Cause
In the event of a material breach of this Agreement by either Party,
which is not remedied by that Party within 30 days of receipt of a written
notice by the second Party (the "Injured Party"), the Injured Party shall be
entitled to terminate this Agreement forthwith and with immediate effect. In
such event, the Injured Party shall be entitled to the appropriate remedies and
relief pursuant to applicable law, provided however that if the Injured Party
elects to terminate this Agreement in the wake of such breach, then the Injured
Party must elect one of the following two remedies, whereas the other Party will
be obliged and bound to act in accordance therewith:
EITHER:
8.4.1 to terminate this Agreement, whereupon the Hotel must
immediately purchase all the Option Assets from the Company, at a price equal to
the Option Price, adjusted proportionally to take into account the date of said
termination in relation to the immediately preceding and immediately following
Option Stations, with title therein and thereto passing to the Hotel upon said
payment being effected, where said price will be deemed to be: (i) at the
Start-Up Date - 110% of the Turnkey Installation Price, (ii) at the end of the
twelfth (12th) month following the Start-Up Date - 100% of the Turnkey
Installation Price, (iii) at the end of the twenty-fourth (24th) month following
the Start-Up Date - 90% of the Turnkey Installation Price and (iv) at the end of
each subsequent twelve (12) month period, the price shall continue to decrease
by 10% of the Turnkey Installation Price (i.e. 80% after 36 months, 70% after 48
months etc.), and further where the price as set forth in this Section 8.4.1
will be increased by 10% if the Company is in Injured Party and reduced by 10%
if the Hotel is the Injured Party; OR:
8.4.2 to terminate this Agreement, whereupon the Company must
remove all the Option Assets and Company Computer from the Hotel and vacate the
Service Rooms leaving them in the same state of repair in which it received
them, subject to reasonable wear and tear;
where, in both cases, the Hotel must, at termination, complete the
payment to the Company of any Company's Share that may be due and outstanding in
relation to any and all months up to termination. Without limitation, the
following shall also be grounds for termination with cause: (a) the dissolution,
liquidation, or termination of the existence of Hotel or Company; (b) the
appointment of a trustee or receiver for Hotel or Company for a substantial part
of the property of either of them, or for the Units; or (c) the making of any
assignment for the benefit of creditors, whether voluntary or involuntary, by
Hotel or Company or the filing of any petition by or against Hotel, Company or
any guarantor, as the debtor, under the U.S. Bankruptcy Code or any other
federal, state, or other laws providing a debtor relief with respect to its
creditors, all the foregoing such as are not dismissed within sixty (60) days
after initiation.
9. Purchase Option
The Hotel shall, during the Initial Term and the Subsequent Term, have an option
to purchase all, but no less than all, of the Units, together with the Interface
and all other equipment set forth in Exhibit 9.2 hereto, all the foregoing on an
"as is" basis, in their actual condition at that time (the "Option Assets"), in
the manner set forth in this Section 9 below (the "Purchase Option").
9.1 Exercise of Purchase Option
9.1.1 At the end of the thirty-sixth (36th) month following the
Start-Up Date and at the end of each twelfth (12th) month thereafter, or at any
time during the Subsequent Term (each, an "Option Station"), the Hotel shall
have the option to purchase the Option Assets, against payment of the Option
Price.
9.1.2 Exercise of the Purchase Option will be by means of delivery to
the Company of a written exercise notice, to reach the Company no less than
ninety (90) days prior to the relevant Option Station, and payment of the Option
Price to the Company, by wire transfer to the bank account designated in writing
by the Company, to be received by the Company no later than the relevant Option
Station.
9.2 Option Price
At the first Option Station, the option price shall be 80% of the price
termed the "Turnkey Installation Price" in Exhibit 9.2 hereto (the "Turnkey
Installation Price"), at the second Option Station the option price shall be 70%
of the Turnkey Installation Price, at the third Option Station the option price
shall be 60% of the Turnkey Installation Price, at the fourth Option Station the
option price shall be 50% of the Turnkey Installation Price, at the fifth Option
Station the option price shall be 40% of the Turnkey Installation Price, at the
sixth Option Station the option price shall be 30% of the Turnkey Installation
Price, at the seventh Option Station the option price shall be 10% of the
Turnkey Installation Price, and at the final Option Station (in the Subsequent
Term) the option price shall be one Euro (Euro1.00) (each of the aforementioned
option prices, in relation to its respective Option Station, shall be termed the
"Option Price").
9.3 Effect of Exercise
If the Hotel exercises the Purchase Option in accordance with Sections
9.1 and 9.2 above, including the due delivery of exercise notice and the actual
payment in full of the Option Price, then, subsequent to said exercise, and
following payment to the Company of the Company's Share for the last month
immediately preceding the Option Station, title in and to the Option Assets
shall pass to the Hotel on the date of the Option Station in respect of which
the Purchase Option was exercised, free and clear of any liens, encumbrances or
other third party rights of any kind, and this Agreement shall at that juncture
terminate forthwith, with neither Party having any claim against the other
howsoever in respect of said termination.
9.4 Expiry of Purchase Option
In the event of the Purchase Option not being exercised in the manner
set forth in this Section 9 above in the Initial Term or during the Subsequent
Term, the Purchase Option shall become null and void. Likewise, any attempt to
exercise the Purchase Option at one of the Option Stations, which is not
performed in accordance with the provisions of this Section 9 and is not
therefore consummated, will result in the voiding of the Purchase Option in
respect of that Option Station, and the Purchase Option may not then be
exercised until the subsequent Option Station.
10. Proprietary Rights
10.1 Confidentiality and Ownership
All manner of technical documents, information and/or specifications of
a confidential nature which are furnished by one Party to the other Party shall
remain the exclusive property of the disclosing Party and the receiving Party
shall be obliged and hereby undertakes not to disclose it, in whole or part, to
any third party (except as may be required by court order, subpoena or otherwise
by law, subject to the disclosing Party having given notice to all other Parties
of such disclosure requirement, immediately upon its becoming aware thereof), in
any circumstances whatsoever, without the prior written consent of the
disclosing Party, recognizing that any such disclosure could be expected to
incur grave harm to the disclosing Party. Confidential information belonging to
the Company specifically includes knowledge, data, information and expertise
relating to the Maintenance and Operation. Notwithstanding anything to the
contrary in this Agreement, neither Party shall be subject to any restriction of
its rights or remedies by law in the event of breach of the provisions of this
Section 10 by the other Party. 10.2 No Grant of Rights
Nothing in this Agreement shall confer upon the Hotel or _______ any
rights, of any kind whatsoever, in or to any inventions, patents, trade marks,
trade secrets and/or any other kind of intellectual property of any kind
whatsoever and the Hotel's sole right under this Agreement will be to receive
the Installation and the Maintenance and Operation subject to the terms and
conditions set forth herein.
11. Limited Warranty
11.1 Warranty
The Units will be covered by the Limited Warranty of the manufacturer,
Bartech System International Inc., a copy of which is attached as Exhibit 11.1
hereto (the "Manufacturer's Warranty"). Company represents and warrants that
nothing in this Section 11 shall in any way derogate from or limit its duties
and obligations under this Agreement, including the due performance of the
Maintenance and Operation and the repair of Units as provided herein.
11.2 No Other Warranty
THE MANUFACTURER'S WARRANTY IS IN LIEU OF ANY OTHER WARRANTIES, EITHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY
EXCLUDED AND DISCLAIMED. NEITHER the company nor bartech system international
inc. will be LIABLE FOR LOSS OF PROFITS, ANY SPECIAL, INCIDENTAL, or
CONSEQUENTIAL DAMAGES WHICH MAY be SUSTAINed, or punitive Damages, even in the
event of notice OF THE POSSIBILITY OF SUCH DAMAGES.
12. Miscellaneous
12.1 Notices
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if delivered by messenger, transmitted
by facsimile or mailed by registered or certified mail, postage prepaid, as
follows, and will be deemed to have reached their destination within 5 business
days of being deposited with the Post Office for dispatch as registered mail (10
business days in the case of air mail), upon actual delivery when delivered by
hand, and upon receipt of the recipient's confirmation of receipt when sent by
facsimile:
If to the Company, to:
-------------------------------------------
-------------------------------------------
Attention:
--------------------------------
Fax:
--------------------------------------
If to ______________ or the Hotel, to:
-------------------------------------------
-------------------------------------------
Attention:
Fax:
12.2 Retention of Title
Title in and to the Units shall remain with the Company, or its
funders, as applicable, at all times, unless and until the Units are purchased
by the Hotel, if at all, in accordance with the provisions of this Agreement.
Title in and to the Products shall remain with the Company until their actual
sale to Users. Upon a sale of the Units to Hotel in accordance with this
Agreement, Company shall transfer title to Hotel and process any documentation
necessary to effectuate such transfer.
12.3 Insurance
12.3.1 The Company shall carry and maintain Workers' Compensation
Insurance in statutory amounts to cover Company employees and Comprehensive
General Liability Insurance endorsed to include products and completed operation
and contractual liability in a minimum amount of One Million Euros
(Euro1,000,000) combined single limit. Such Comprehensive General Liability
Insurance shall state that _______ _____________, and its members are named as
additional insureds under the above policies and such insurance shall be primary
and not contributory with the Hotel's insurance. Each policy of insurance shall
provide that it may not be changed or cancelled without at least thirty (30)
days prior written notice to Hotel. Company shall furnish to Hotel a certificate
of insurance evidencing such coverage prior to commencement of services
hereunder.
12.3.2 Hotel shall, at its expense, obtain and maintain insurance
against all risks of loss, damage, theft or destruction of the Units caused by
the perils found under a standard fire and extended coverage policy, which will
give adequate coverage and a copy of which will be furnished to the Company
within 7 days of its issue.
12.4 Adjustment of Quantity of Units
In the event that the Hotel decides, by 30 days advance written notice
to the Company, to close some of the Rooms and/or permanently remove Units from
part of the Rooms and/or change the function of some of the Rooms such that they
no longer function in the usual manner of the Rooms as at the date hereof, all
of which instances being deemed for the purposes of this Agreement to render the
Units in said Rooms non-operational, then, notwithstanding the removal and
non-operation of said Units, each month's Net Revenue, for the remainder of the
Term of the Agreement, will be increased by the sum which is the result of the
formula: (NR / OU) x IU, where NR = Net Revenue that month, OU = operational
Units that month, and IU = non-operational Units that month. 12.5 Rights of
Company Representatives
The Hotel hereby agrees that Company representatives, of which an
initial list is attached as Exhibit 12.5 hereto, shall have the right to stay in
the Hotel while on Company business for the Hotel, up to 12 nights per annum, on
an entirely complimentary basis, subject to availability, and thereafter to a
50% discount (from "Rack Rate") on Rooms, following subject to provision of
reasonable advance notice to the Hotel and subject to availability. The Company
shall not have the right to accumulate or carry over to the following year room
nights not used during any particular year.
12.6 Assignment
12.6.1 This Agreement shall bind and inure to the benefit of the
Company and the Hotel and their respective successors, assigns, heirs and
personal representatives. The Hotel shall be entitled to assign its rights and
obligations under this Agreement, without the prior consent of the Company,
provided that the Company's rights under this Agreement are not prejudiced by
such assignment and providing the assignee first executes and delivers to the
Company a copy of an assignment and assumption agreement and assumes all of the
Hotel and _______'s obligations herein. The Company shall not be permitted to
assign its obligations under this Agreement to any party other than an affiliate
of the Company, without the prior consent of the Hotel, not unreasonably to be
withheld. The Company is however specifically permitted to assign and/or
encumber its rights under this Agreement, in whole or in part, including in
relation to all or part of the Company's Share, to one or more third parties, at
its discretion.
12.6.2 Notwithstanding anything to the contrary in this Agreement, the
Company shall be fully entitled to discharge some or all of its duties under
this Agreement by means of sub-contractors engaged by the Company, provided
however that this shall in no way derogate from the Company's obligations and
liability towards the Hotel for the full and faithful fulfillment of its
obligations and undertakings under this Agreement. Any and all sub-contractors
shall be subject to the Hotel's prior approval, not unreasonably to be withheld.
Nothing herein shall be construed to create a relationship between the Hotel and
any sub-contractor.
12.7 Entire Agreement
This Agreement contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior and
contemporaneous arrangements or understandings between the Parties with respect
thereto.
12.8 No Joint Venture or Partnership
Nothing in this Agreement shall be construed as creating a joint
venture or partnership between the Parties and neither Party shall act as agent
or representative of the other for any purpose and independent contractor
relations alone shall subsist between the Parties under this Agreement.
12.9 Further Assurances
Each Party shall take all reasonable steps so as to facilitate and
cooperate with respect to the performance of the other Party's obligations under
this Agreement.
12.10 Amendments, Modifications
The terms and provisions of this Agreement may not be modified or
amended except pursuant to a written instrument executed by both Parties.
12.11 Severability
It is the desire and intent of the Parties that the provisions of this
Agreement be enforced to the fullest extent permissible by law. Accordingly, in
case any provision of the Agreement shall be declared invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby and shall
continue in full force and effect and the Parties will cooperate in order to
implement an arrangement which is as close as possible to the arrangement as set
forth in any provision so declared invalid, illegal or unenforceable.
12.12 Failure or Delay
No failure or delay on the part of any Party in exercising any right
and/or remedy to which it may be entitled hereunder and/or by law shall operate
as a waiver by that Party of any right whatsoever. No waiver of any right under
this Agreement shall be deemed as a waiver of any further or future right
hereunder, whether or not such right is the same kind of right as was waived in
a previous instance.
12.13 Governing Law and Jurisdiction
This Agreement shall be deemed to have been made and concluded in
_____________ and the construction, validity and performance of this Agreement
shall be governed by the laws of ________________ without giving effect to the
conflicts of law principles thereunder. By their execution hereof, the parties
irrevocably agree to submit all disputes arising hereunder to the jurisdiction
of the Courts of ________________________
12.14 Counterparts; Facsimile Signatures
This Agreement may be executed in two or more counterparts, in original
or by facsimile, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
* Remainder of page left intentionally blank *
IN WITNESS WHEREOF THE PARTIES HAVE EXECUTED THIS
AGREEMENT ON THE DATE FIRST ABOVE WRITTEN:
SIGNED for and on behalf of )
----------------------------------------- )
By )
Its )
Date )
SIGNED for and on behalf of )
_______ _____________ d/b/a _______________ )
By )
Its )
Date )
List of Exhibits to Installation and Outsource Operation Agreement
LIST OF EXHIBITS TO AGREEMENT
----------------------- --------------------------------------------------
Exhibit Number Brief Description
----------------------- --------------------------------------------------
Exhibit 1.1 Description/Specifications of Units
----------------------- --------------------------------------------------
Exhibit 3.3 Interface Functions
----------------------- --------------------------------------------------
Exhibit 3.5.1 Hotel Undertakings
----------------------- --------------------------------------------------
Exhibit 5.1 National Agreements with Suppliers
----------------------- --------------------------------------------------
----------------------- --------------------------------------------------
Exhibit 7.4.1 Sample Monthly Report
----------------------- --------------------------------------------------
Exhibit 9.2 Turnkey Installation Price / List of Option
Assets
----------------------- --------------------------------------------------
Exhibit 11.1 Manufacturer's Warranty
----------------------- --------------------------------------------------
Exhibit 12.5 List of Company Representatives
----------------------- --------------------------------------------------
Exhibit 9.2 to Installation and Outsource Operation Agreement
EXHIBIT 9.2
Turnkey Installation Price / List of Option Assets
[ overleaf ]
The Turnkey Installation Price defined in this Exhibit refers to the Unit having
the specifications set forth in Exhibit 1.1. In the event of optional add-on
features being added to Units, the Turnkey Installation Price, for all intents
and purposes in this Agreement, will be increased accordingly.
================================================================================
Exhibit 4.3
General Terms and Conditions of Sale
Hotel Outsource Management International Inc.
April 9, 2003
Submitted By
Bartech(R) EMEA
SALES AGREEMENT
FOR A TURNKEY INSTALLATION
BY AND BETWEEN THE UNDERSIGNED:
* BARTECH EMEA ., located at 0 Xxx xx Xxxx Xxx Xxxx, 00000 Xxxxxxxx,
Xxxxxx, represented by Xxx Xxxxxx duly authorized for the purposes
hereof,
hereinafter referred to as the "Seller" or "Bartech"
party of the first part
AND:
* HOTEL OUTSOURCE MANAGEMENT INTERNATIONAL INC., of 000 Xxxx, 00xx
Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 represented by Xxxxx Xxxxxx, duly
authorized for the purposes hereof,
hereinafter referred to as the "Purchaser" or "HOMI"
party of the second part
PREAMBLE:
A. BARTECH is a company which specializes in the production and the
marketing of refrigeration equipment that implements a highly technical
electronic system, including a line of refreshment centers which are
intended for use primarily in the hotel and cruise line industries.
B. The Purchaser has entered, or is negotiating entry, into an agreement
the ("Outsourcing Agreement") with ______________________________ Hotel
(the "Hotel"), under which HOMI undertakes to install, maintain and
operate minibar units in the Hotel (the "Outsourcing Services").
C. The Purchaser wishes to provide the Outsourcing Services using the
refreshment centers and the innovative electronic system of BARTECH as
set forth in this Agreement.
D. In accordance with the offer attached hereto in Exhibit A, BARTECH has
proposed and undertakes to supply a "turnkey" installation to the
Purchaser, consisting inter alia of refreshment centers connected among
themselves and to a central unit located in the Hotel all as set forth
in this Agreement.
E. Under such conditions, the parties have negotiated with a view to the
execution of this agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1 SUBJECT OF THE AGREEMENT
1.1 The Seller hereby agrees to sell, to the Purchaser, which hereby
accepts (i) the refreshment centers in the BARTECH line, as listed in
Exhibit A attached hereto, which meet the technical specifications
defined between the parties in Exhibit A, based on Purchaser's choice
of minibar model(s) and on the Detailed Technical Survey Report
attached hereto as Exhibits A1 and A2, respectively, which shall be
deemed part of the Installation, and additional information supplied by
the Purchaser (the "Products"), and (ii) the BARTECH electronic system
described in Exhibit A attached hereto (hereinafter referred to as the
"System"). The Products and the System are hereinafter collectively
referred to as the "Turnkey System" (excluding Training).
1.2 The Seller hereby further agrees to grant, to the Purchaser, which
accepts, a non-exclusive license to use the System's software, under
the conditions specified below in Article 4.
ARTICLE 2 DELIVERY TIMES
The Seller shall deliver and install the Turnkey System in accordance with this
Agreement commencing on _____________, or such other date as the Purchaser may
request, in writing ("Initial Delivery Date"), and culminating no later than
_____ days from the Initial Delivery Date. If the Purchaser delays the delivery
times for the Products and for the installation at least 45 days before the
delivery date scheduled, the Seller agrees to delay the delivery without
specific conditions.
Whereas if the Purchaser delays the delivery less than 45 days before the
delivery date scheduled by the Purchaser, then the Purchaser must accept the
delivery of the Products and take at its charge the storage of these Products.
The purchaser must pay in any case on the agreed original delivery date, based
on the agreed payment terms (see below), 70% of the total amount of the sales
contract, excluding the installation costs itself.
If the Purchaser is financing its installation by lease or rental, then he must
sign a certificate of acceptance, in the form of the model attached hereto in
Exhibit B, the latest 5 days following original delivery date.
In addition, if the delivery is delayed less than 14 days before the delivery
date scheduled by the Purchaser, then the Purchaser must pay all expenses
incurred by Bartech for the reservation and set up of travel plans for
installers, to include re-ticketing/cancellation of airline reservations, etc..
Payment Terms: the Purchaser must pay 20% of the Price upon issuing the Purchase
Order; an additional 50% of the Price upon delivery of all the Products to the
Hotel's premises and commencement of the Installation by the Seller. The
remaining 30% of the Price shall be paid following completion of the
installation pursuant to Section 3.3 below.
ARTICLE 3 OBLIGATIONS OF THE SELLER
3.1 The Seller hereby agrees to deliver, to install and to start-up the
Turnkey System at the Hotel's premises, at the location specified in
Exhibit A hereto, including the complete and final installation of the
Turnkey System in the Hotel, inclusive of all necessary hardware,
software, applications, appliances and all other items as applicable,
(excluding Training) in accordance with the agreed specifications, such
that the Turnkey System is in full working order upon completion of
said installation, and further including the full and complete
installation of the System on HOMI' and/or the Hotel's computers at the
Hotel, such that HOMI shall be in a position to commence the provision
of full Outsourcing Services at the Hotel forthwith upon completion of
the installation, without any interference being caused to Television,
MATV, PayTV and/or any other systems in the Hotel (the "Installation").
3.2 The Seller hereby agrees to perform an on-site test to verify that the
Turnkey System can perform its functions, in compliance with the
technical specifications defined in Exhibit A attached hereto, and in
order to verify that the Installation has been completed. The Seller
shall be under no obligation whatsoever with regard to the length of
the performance of such test, and for such reason, no penalty may be
claimed from the Seller in such connection. The Seller will deliver to
HOMI a written notice of completion of the Installation, forthwith upon
the Seller being satisfied of such completion ("Notice of Completion").
3.3 The Seller acknowledges and is aware that, following delivery to HOMI
of the Notice of Completion, HOMI will enable the Hotel to check the
Installation for full functionality and suitability. Within 10 days of
receiving the Notice of Completion, HOMI will deliver to the Seller, in
writing, details of any defects or non-conformity in the Installation
and the Seller will remedy any such defect or non-conformity within 10
days of receiving any such notice and will deliver a further Notice of
Completion, whereupon the provisions of this Section 3.3 shall be
re-applied, mutatis mutandis, until such time as the Installation is
accepted as being free of defects or non-conformity, at which time a
person designated by the Purchaser (the "Representative") must accept
delivery of the Installation, by signing a certificate of acceptance,
in the form of the model attached hereto in Exhibit B, and the
Installation will be deemed completed.
3.4 Failing any response from the Purchaser, in accordance with the
procedure specified above in Article 3.3, within a period of 30 days
after delivery of the Notice of Completion, the Purchaser shall be
deemed to have accepted its delivery without any reservations, even in
the absence of any certificate signed by the parties.
ARTICLE 4 SOFTWARE
4.1 As of the payment for the Installation, in accordance with the
provisions of Article 9 below, the Seller hereby agrees to grant to the
Purchaser and the Hotel, for the longer of (i) the entire term of this
agreement, (ii) the entire term of the Outsourcing Agreement, or (iii)
for as long as the Turnkey System is in the Purchaser's possession, a
non-exclusive license to use, at no charge, the software included in
the System, for the sole purpose of operating and using the
Installation and providing the Outsourcing Services. The use of the
software shall be restricted exclusively to the Hotel's premises, as
referred to in Article 3.1 above.
In no event shall the Purchaser be entitled to make any copies
whatsoever of such software (other than for backup purposes), insofar
as such software shall remain the exclusive property of the Seller. In
addition, the Purchaser hereby agrees not to make any modifications to
the software. The term "modification" shall be understood to mean any
changes, including but not limited to changes in the terminals,
additions to and/or decreases in capacities or memories.
4.2 The Purchaser shall be eligible to receive upgrades, modifications and
improvements to the software developed by the Seller, provided that it
has executed an extended warranty or maintenance agreement with the
Seller, and in accordance with the terms thereof.
ARTICLE 5 WARRANTY
5.1 Subject to the fulfillment of all the contractual obligations by the
Purchaser, the Installation, to include hardware and software, shall be
covered by a contractual warranty for a period of One Year as of the
completion of the installation referred to above in Article 3.3. This
Parts, No Labor warranty shall be expressly contingent on the
maintenance and use of the Installation by the Purchaser in a proper
and conforming manner; the Purchaser must thus use a due standard of
care with regard to the Turnkey System. The Parties will, concurrently
with the execution of this Agreement, further enter into an Extended
Warranty/Maintenance Agreement Level 2, substantially in the form set
forth in Exhibit ______ hereto (the "Extended Warranty"), under which,
in accordance with its terms, Bartech will undertake to provide service
and parts, as and when requested to do so by HOMI, for the Turnkey
System and Installation, for the duration of the Outsourcing agreement
with the Hotel, for the special, reduced-rate fee set forth in the
Extended Warranty. Services to be provided under the Basic Warranty
and/or the Extended Warranty shall be termed herein "Warranty
Services".
5.2 For the purposes of the Warranty Services, the Seller hereby agrees as
follows:
(a) to make a telephone line available to the Purchaser, during
Seller's normal business days and normal business hours, in
order to be able to respond to all its requests for
information during the warranty period;
(b) to make a full inventory of spare parts available to the
Purchaser, in order to allow it to directly make the repairs
and to perform the routine maintenance on the Products. The
spare parts thus made available to the Purchaser at no charge
shall not include consumables. The term "consumables" shall be
understood to include without being limited to the replacement
parts due to wear and tear the joints, the hinges, the
resistors, the aggregates, the bulbs and the fuses;
(c) In the event that the Purchaser is unable to resolve on its
own the difficulty thus encountered, the Seller shall provide
corrective maintenance for the Installation and Turnkey
System, on site and within ____ hours following the request
from the Purchaser.
5.3 On the other hand, the warranty shall not apply and the Seller shall
not assume any liability whatsoever by reason (i) of the unsuitability,
if any of the specifications stipulated in Exhibit A hereto as compared
to the needs of the Purchaser; (ii) of the abnormal wear and tear or
improper use of all or part of the Turnkey System; and/or (iii) any
damage caused by accidents, external and fortuitous events, negligence,
lack of supervision or deficient maintenance attributable to the
Purchaser.
ARTICLE 6 LIABILITY
6.1 The warranty described above in Article 5 sets out the entire warranty
offered by the Seller. The liability of the Seller may in no event be
claimed by the Purchaser in connection with any direct or indirect damage,
financial loss, physical damage or contingent damage, including without
being limited to any business interruption, deprivation of use and/or loss
of profits, and/or any delays caused to or by the Installation.
Notwithstanding the foregoing, the Purchaser shall be entitled to claim the
Seller's direct liability where it can show that the established physical
defect of the Installation is the result of the gross negligence of the
Seller.
6.2 In any event, and where the Seller's liability is claimed in any connection
whatsoever, and if a final and binding court decision has been issued, the
damages that it may be required to pay must in no event exceed the price
paid by the Purchaser for the Turnkey System, pursuant to this agreement.
6.3 Bartech represents and warrants that it owns or has the right to use, free
and clear of all liens, claims and restrictions all intellectual property,
of any kind, howsoever required and/or utilized in connection with the
Turnkey System and/or the Installation ("Intellectual Property"). Bartech
represents and warrants that, to the best of its knowledge, the
Intellectual Property does not infringe upon or violate any right, lien, or
claim of any third party. Bartech hereby undertakes to defend, indemnify
and hold harmless HOMI and its affiliates, officers, directors, agents and
employees from and against any and all actions, costs, claims, losses,
expenses and/or damages, including reasonable attorneys' fees, arising out
of or in any way incidental to allegations of patent, copyright, trademark
or other intellectual property infringements howsoever in relation to the
Turnkey System and/or Installation;
6.4 Bartech hereby undertakes to perform the Installation and supply the
services with the greatest of care and to ensure that no damage, and only
minimum inconvenience, if at all, is caused to the Hotel or any third
parties, and likewise to ensure that all of its staff conduct themselves in
a respectable and polite manner befitting the luxury status of the Hotel.
ARTICLE 7 MAINTENANCE
7.1 The terms for the routine preventive maintenance on the Turnkey System
are described in the "BARTECH Maintenance Guide," a copy of which shall
be supplied to the Purchaser at time of installation. Such maintenance
services shall be performed directly by the Purchaser's personnel.
7.2 However, the Seller may be required to perform preventive maintenance
services, during the warranty period, where the cause of the failures
is attributable to a negligent error of the Seller.
In such case, the Seller, at its sole discretion, shall select the type
of remedy to be implemented. The Seller shall use its best efforts to
perform such maintenance services in a satisfactory manner, but it
shall offer no assurances that its work will allow the failures if any
that may be encountered to be resolved, or that after its work, such
failures will not reappear. In connection with the warranty, the Seller
shall only be under an obligation to use its best efforts and not to
achieve any specific results.
ARTICLE 8 OBLIGATIONS OF THE PURCHASER
In order to allow the Seller to perform its obligations hereunder in a
satisfactory manner, the Purchaser hereby agrees to provide the Seller with any
and all assistance that may be necessary, and in particular, with the assistance
described below:
(a) The Purchaser must allow the Seller access to the Installation and to
its maintenance records, to the extent necessary and following advance
coordination.
(b) The Purchaser shall comply with the Terms and Conditions as specified
in Exhibit A attached hereto.
(c) The Hotel will provide the wire/cable infrastructure to support the
Turnkey System. Unless strictly specified in Exhibit A attached hereto,
any upgrade and/or repair to the Hotel's cable/wire infrastructure as
was in place prior to the Installation shall not be the responsibility
of the Seller.
(d) The Purchaser hereby agrees (i) to always use the Turnkey System in
accordance with the use guidelines, procedures, rules and instructions
of the Seller, to maintain it properly and to provide the proper
ventilation as defined by the Seller; (ii) not to change the
environment of the location where the System is installed; (iii) not to
move the Installation from the contractual location where it is
installed, without having first secured the Seller's prior written
authorization, except in cases of emergency or for its protection; (iv)
not to modify the Turnkey System or add any accessories thereto; (v)
not to perform any work directly on the Turnkey System, except in the
case referred to above in Article 7.1; and (vi) to use consumables that
are compatible with the Turnkey System.
ARTICLE 9 PRICE
9.1 In accordance with the attached offer, the sales price for the
Installation and Turnkey System, including inter alia all Products,
System, hardware, software and licenses, and shipping costs, has been
defined as specified in Exhibit A attached hereto (the "Price").
9.2 The Purchaser must pay for the Turnkey System, at the net Price,
without any further discount beyond the special discount already
incorporated into the Price, under the terms and conditions specified
in Exhibit A attached hereto.
9.3 Any amount that is not paid by the Purchaser on the agreed due date
shall automatically bear interest for overdue payment, at the rate of
1.25% per month, without prejudice to the Seller's other rights and
remedies. The payments may not be delayed for more than 60 days for any
reason whatsoever.
ARTICLE 10 TRANSFER OF TITLE
10.1 Title to the Turnkey System shall only be transferred upon the payment
in full of the Price, by the Purchaser. The payment shall only be
deemed to have been made upon the actual collection of the Price by the
Seller.
10.2 However, the risks shall be transferred to the Purchaser as of the
delivery of the Installation per Section 3.3 above at the Hotel's
premises, and the Purchaser hereby agrees to use a due standard of care
in connection with its custody and protection, and to take out any and
all insurance it deems appropriate, in its discretion, in order to
cover damage and casualties that could be caused either to or by the
Turnkey System.
10.3 Up until the full payment of the Price, the Purchaser shall not be
entitled to pledge the Turnkey System or to use the Turnkey System in
any manner whatsoever as collateral, other than in favor of any entity
that has funded the purchase of the Turnkey System by the Purchaser, in
whole or in part.
10.4 In case the Purchaser fails to pay all or most of the Price on its due
date, the Seller, without forfeiting any of its other rights, shall be
entitled to repossess the Turnkey System, at the expense and risks of
the Purchaser.
ARTICLE 11 SUB-CONTRACTING
The Seller shall be entitled to sub-contract for all or part of its obligations
in connection with this agreement, subject to compliance with the contractual
terms and conditions. Any such sub-contracting shall not serve to release the
Seller from its obligations.
ARTICLE 12 CONFIDENTIALITY AND PROPERTY
All the types of technical documents, details on the offer, general rules and
special rules and specifications provided to the Purchaser by the Seller shall
remain the exclusive property of the Seller. None of the information referred to
above may be used or disclosed to any third parties other than to the Hotel
and/or to the Purchaser's affiliates, in any connection whatsoever, without the
Seller's prior written authorization.
ARTICLE 13 GOVERNING LAW ~ JURISDICTION CLAUSE
13.1 Arbitration All disputes that may arise under this Agreement, except
for disputes which may necessitate extraordinary equitable or
injunctive relief, that are not settled by parties themselves, shall be
submitted to binding arbitration in France before the French
Arbitration under its Commercial Rules then prevailing. The
non-prevailing party shall pay all costs of arbitration, including each
party's attorney's fees and the fees of the arbitrators.
13.2 Relationship of Parties. This Agreement does not constitute a
partnership or joint venture between the Buyer and the Seller. Both
parties acknowledge that the relationship shall be one of an
independent contractor.
13.3 Governing Law. This Agreement and any dispute or claim arising under
this Agreement shall be governed by the laws of France, without regard
to principles of conflicts of law.
13.4 Jurisdiction. The parties hereby consent to personal jurisdiction in a
court located in France. Service of process may be made by certified
mail/return receipt requested or any other method of service of process
authorized by law. Each party agrees that it shall not assert venue as
a defense to any action or proceeding or make any argument based on
principles of forum non conveniens or similar legal principles of
doctrines.
13.5 No Waiver. Failure of any party to insist upon the strict performance
of this Agreement, or a delay in exercising any remedy provided under
this Agreement, shall not constitute a waiver of any rights, remedies,
terms, conditions or provisions of this Agreement.
ARTICLE 14 MISCELLANEOUS PROVISIONS
14.1 This agreement constitutes the entire agreement between the parties in
relation to its subject matter. It replaces and supersedes any other
earlier agreements, whether oral or written, express or implied, that
may have been made by and between the parties in relation to the same
subject matter.
14.2 None of the parties to this agreement shall be deemed to be in default
in the performance of this agreement in any case of force majeure or
for any other cause beyond its reasonable control, including without
being limited to in case of war, civil war, riot, shortages of supplies
or any other event having the same nature.
14.3 No amendment may be made to this agreement, and it shall not be legally
binding on the Seller or on the Purchaser, unless such amendment is
recorded in a written deed bearing the signature of both parties.
14.4 In the event that any provision of this agreement is considered or
held, at any time whatsoever, to be illegal, unenforceable and/or null
and void, such fact shall not affect the validity of the agreement's
remaining provisions, which shall thus be deemed to be severable, and
in such case, the agreement shall be considered as having been drafted
or redrafted without the provision that is illegal, unenforceable or
null and void.
14.5 The exhibits hereto shall form an integral part of this agreement.
Executed in: Paris
[---------------] [---------------]
THE SELLER THE PURCHASER
Title: [__________] Title: [__________]
Date: [__________] Date: [__________]
EXHIBIT A
Exhibit B
ACCEPTANCE OF INSTALLED AND COMPLETED PRODUCT/SERVICES
----------------------------------------------------------------------------------------------------------------------
QTY PRODUCT SIGN-OFF
----------------------------------------------------------------------------------------------------------------------
Refreshment Centers with Firmware Licenses :
----------------------------------------------------------------------------------------------------------------------
[Specify type and model]
----------------------------------------------------------------------------------------------------------------------
Spare Units
----------------------------------------------------------------------------------------------------------------------
Bartech Central Processing Unit, as required
----------------------------------------------------------------------------------------------------------------------
Bartech Software, Version ___________
----------------------------------------------------------------------------------------------------------------------
PMS Interface
----------------------------------------------------------------------------------------------------------------------
Remote Control - Refill Attendant
----------------------------------------------------------------------------------------------------------------------
Remote Control - Maintenance
----------------------------------------------------------------------------------------------------------------------
Remote Control - Set-Up
----------------------------------------------------------------------------------------------------------------------
User Manual
----------------------------------------------------------------------------------------------------------------------
TRAINING
----------------------------------------------------------------------------------------------------------------------
Room Service :
----------------------------------------------------------------------------------------------------------------------
o Bartech Mini Bar
----------------------------------------------------------------------------------------------------------------------
o Bartech PC
----------------------------------------------------------------------------------------------------------------------
Engineering :
----------------------------------------------------------------------------------------------------------------------
o Bartech Mini Bar
----------------------------------------------------------------------------------------------------------------------
o Bartech PC
----------------------------------------------------------------------------------------------------------------------
o Bartech Central Processing Unit, as required
----------------------------------------------------------------------------------------------------------------------
Food and Beverage
----------------------------------------------------------------------------------------------------------------------
IT Manager
----------------------------------------------------------------------------------------------------------------------
Front Desk
----------------------------------------------------------------------------------------------------------------------
Food and Beverage Trainer
----------------------------------------------------------------------------------------------------------------------
Enigineer Trainer
----------------------------------------------------------------------------------------------------------------------
Front Desk Trainer
----------------------------------------------------------------------------------------------------------------------
================================================================================
Exhibit 4.3
General Terms and Conditions of Sale
Hotel Outsource Management International Inc.
April 9, 2003
Submitted By
Bartech(R) EMEA
SALES AGREEMENT
FOR A TURNKEY INSTALLATION
BY AND BETWEEN THE UNDERSIGNED:
* BARTECH EMEA ., located at 0 Xxx xx Xxxx Xxx Xxxx, 00000 Xxxxxxxx,
Xxxxxx, represented by Xxx Xxxxxx duly authorized for the purposes
hereof,
hereinafter referred to as the "Seller" or "Bartech"
party of the first part
AND:
* HOTEL OUTSOURCE MANAGEMENT INTERNATIONAL INC., of 000 Xxxx, 00xx
Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 represented by Xxxxx Xxxxxx, duly
authorized for the purposes hereof,
hereinafter referred to as the "Purchaser" or "HOMI"
party of the second part
PREAMBLE:
A. BARTECH is a company which specializes in the production and the
marketing of refrigeration equipment that implements a highly technical
electronic system, including a line of refreshment centers which are
intended for use primarily in the hotel and cruise line industries.
B. The Purchaser has entered, or is negotiating entry, into an agreement
the ("Outsourcing Agreement") with ______________________________ Hotel
(the "Hotel"), under which HOMI undertakes to install, maintain and
operate minibar units in the Hotel (the "Outsourcing Services").
C. The Purchaser wishes to provide the Outsourcing Services using the
refreshment centers and the innovative electronic system of BARTECH as
set forth in this Agreement.
D. In accordance with the offer attached hereto in Exhibit A, BARTECH has
proposed and undertakes to supply a "turnkey" installation to the
Purchaser, consisting inter alia of refreshment centers connected among
themselves and to a central unit located in the Hotel all as set forth
in this Agreement.
E. Under such conditions, the parties have negotiated with a view to the
execution of this agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1 SUBJECT OF THE AGREEMENT
1.1 The Seller hereby agrees to sell, to the Purchaser, which hereby
accepts (i) the refreshment centers in the BARTECH line, as listed in
Exhibit A attached hereto, which meet the technical specifications
defined between the parties in Exhibit A, based on Purchaser's choice
of minibar model(s) and on the Detailed Technical Survey Report
attached hereto as Exhibits A1 and A2, respectively, which shall be
deemed part of the Installation, and additional information supplied by
the Purchaser (the "Products"), and (ii) the BARTECH electronic system
described in Exhibit A attached hereto (hereinafter referred to as the
"System"). The Products and the System are hereinafter collectively
referred to as the "Turnkey System" (excluding Training).
1.2 The Seller hereby further agrees to grant, to the Purchaser, which
accepts, a non-exclusive license to use the System's software, under
the conditions specified below in Article 4.
ARTICLE 2 DELIVERY TIMES
The Seller shall deliver and install the Turnkey System in accordance with this
Agreement commencing on _____________, or such other date as the Purchaser may
request, in writing ("Initial Delivery Date"), and culminating no later than
_____ days from the Initial Delivery Date. If the Purchaser delays the delivery
times for the Products and for the installation at least 45 days before the
delivery date scheduled, the Seller agrees to delay the delivery without
specific conditions.
Whereas if the Purchaser delays the delivery less than 45 days before the
delivery date scheduled by the Purchaser, then the Purchaser must accept the
delivery of the Products and take at its charge the storage of these Products.
The purchaser must pay in any case on the agreed original delivery date, based
on the agreed payment terms (see below), 70% of the total amount of the sales
contract, excluding the installation costs itself.
If the Purchaser is financing its installation by lease or rental, then he must
sign a certificate of acceptance, in the form of the model attached hereto in
Exhibit B, the latest 5 days following original delivery date.
In addition, if the delivery is delayed less than 14 days before the delivery
date scheduled by the Purchaser, then the Purchaser must pay all expenses
incurred by Bartech for the reservation and set up of travel plans for
installers, to include re-ticketing/cancellation of airline reservations, etc..
Payment Terms: the Purchaser must pay 20% of the Price upon issuing the Purchase
Order; an additional 50% of the Price upon delivery of all the Products to the
Hotel's premises and commencement of the Installation by the Seller. The
remaining 30% of the Price shall be paid following completion of the
installation pursuant to Section 3.3 below.
ARTICLE 3 OBLIGATIONS OF THE SELLER
3.1 The Seller hereby agrees to deliver, to install and to start-up the
Turnkey System at the Hotel's premises, at the location specified in
Exhibit A hereto, including the complete and final installation of the
Turnkey System in the Hotel, inclusive of all necessary hardware,
software, applications, appliances and all other items as applicable,
(excluding Training) in accordance with the agreed specifications, such
that the Turnkey System is in full working order upon completion of
said installation, and further including the full and complete
installation of the System on HOMI' and/or the Hotel's computers at the
Hotel, such that HOMI shall be in a position to commence the provision
of full Outsourcing Services at the Hotel forthwith upon completion of
the installation, without any interference being caused to Television,
MATV, PayTV and/or any other systems in the Hotel (the "Installation").
3.2 The Seller hereby agrees to perform an on-site test to verify that the
Turnkey System can perform its functions, in compliance with the
technical specifications defined in Exhibit A attached hereto, and in
order to verify that the Installation has been completed. The Seller
shall be under no obligation whatsoever with regard to the length of
the performance of such test, and for such reason, no penalty may be
claimed from the Seller in such connection. The Seller will deliver to
HOMI a written notice of completion of the Installation, forthwith upon
the Seller being satisfied of such completion ("Notice of Completion").
3.3 The Seller acknowledges and is aware that, following delivery to HOMI
of the Notice of Completion, HOMI will enable the Hotel to check the
Installation for full functionality and suitability. Within 10 days of
receiving the Notice of Completion, HOMI will deliver to the Seller, in
writing, details of any defects or non-conformity in the Installation
and the Seller will remedy any such defect or non-conformity within 10
days of receiving any such notice and will deliver a further Notice of
Completion, whereupon the provisions of this Section 3.3 shall be
re-applied, mutatis mutandis, until such time as the Installation is
accepted as being free of defects or non-conformity, at which time a
person designated by the Purchaser (the "Representative") must accept
delivery of the Installation, by signing a certificate of acceptance,
in the form of the model attached hereto in Exhibit B, and the
Installation will be deemed completed.
3.4 Failing any response from the Purchaser, in accordance with the
procedure specified above in Article 3.3, within a period of 30 days
after delivery of the Notice of Completion, the Purchaser shall be
deemed to have accepted its delivery without any reservations, even in
the absence of any certificate signed by the parties.
ARTICLE 4 SOFTWARE
4.1 As of the payment for the Installation, in accordance with the
provisions of Article 9 below, the Seller hereby agrees to grant to the
Purchaser and the Hotel, for the longer of (i) the entire term of this
agreement, (ii) the entire term of the Outsourcing Agreement, or (iii)
for as long as the Turnkey System is in the Purchaser's possession, a
non-exclusive license to use, at no charge, the software included in
the System, for the sole purpose of operating and using the
Installation and providing the Outsourcing Services. The use of the
software shall be restricted exclusively to the Hotel's premises, as
referred to in Article 3.1 above.
In no event shall the Purchaser be entitled to make any copies
whatsoever of such software (other than for backup purposes), insofar
as such software shall remain the exclusive property of the Seller. In
addition, the Purchaser hereby agrees not to make any modifications to
the software. The term "modification" shall be understood to mean any
changes, including but not limited to changes in the terminals,
additions to and/or decreases in capacities or memories.
4.2 The Purchaser shall be eligible to receive upgrades, modifications and
improvements to the software developed by the Seller, provided that it
has executed an extended warranty or maintenance agreement with the
Seller, and in accordance with the terms thereof.
ARTICLE 5 WARRANTY
5.1 Subject to the fulfillment of all the contractual obligations by the
Purchaser, the Installation, to include hardware and software, shall be
covered by a contractual warranty for a period of One Year as of the
completion of the installation referred to above in Article 3.3. This
Parts, No Labor warranty shall be expressly contingent on the
maintenance and use of the Installation by the Purchaser in a proper
and conforming manner; the Purchaser must thus use a due standard of
care with regard to the Turnkey System. The Parties will, concurrently
with the execution of this Agreement, further enter into an Extended
Warranty/Maintenance Agreement Level 2, substantially in the form set
forth in Exhibit ______ hereto (the "Extended Warranty"), under which,
in accordance with its terms, Bartech will undertake to provide service
and parts, as and when requested to do so by HOMI, for the Turnkey
System and Installation, for the duration of the Outsourcing agreement
with the Hotel, for the special, reduced-rate fee set forth in the
Extended Warranty. Services to be provided under the Basic Warranty
and/or the Extended Warranty shall be termed herein "Warranty
Services".
5.2 For the purposes of the Warranty Services, the Seller hereby agrees as
follows:
(a) to make a telephone line available to the Purchaser, during
Seller's normal business days and normal business hours, in
order to be able to respond to all its requests for
information during the warranty period;
(b) to make a full inventory of spare parts available to the
Purchaser, in order to allow it to directly make the repairs
and to perform the routine maintenance on the Products. The
spare parts thus made available to the Purchaser at no charge
shall not include consumables. The term "consumables" shall be
understood to include without being limited to the replacement
parts due to wear and tear the joints, the hinges, the
resistors, the aggregates, the bulbs and the fuses;
(c) In the event that the Purchaser is unable to resolve on its
own the difficulty thus encountered, the Seller shall provide
corrective maintenance for the Installation and Turnkey
System, on site and within ____ hours following the request
from the Purchaser.
5.3 On the other hand, the warranty shall not apply and the Seller shall
not assume any liability whatsoever by reason (i) of the unsuitability,
if any of the specifications stipulated in Exhibit A hereto as compared
to the needs of the Purchaser; (ii) of the abnormal wear and tear or
improper use of all or part of the Turnkey System; and/or (iii) any
damage caused by accidents, external and fortuitous events, negligence,
lack of supervision or deficient maintenance attributable to the
Purchaser.
ARTICLE 6 LIABILITY
6.1 The warranty described above in Article 5 sets out the entire warranty
offered by the Seller. The liability of the Seller may in no event be
claimed by the Purchaser in connection with any direct or indirect damage,
financial loss, physical damage or contingent damage, including without
being limited to any business interruption, deprivation of use and/or loss
of profits, and/or any delays caused to or by the Installation.
Notwithstanding the foregoing, the Purchaser shall be entitled to claim the
Seller's direct liability where it can show that the established physical
defect of the Installation is the result of the gross negligence of the
Seller.
6.2 In any event, and where the Seller's liability is claimed in any connection
whatsoever, and if a final and binding court decision has been issued, the
damages that it may be required to pay must in no event exceed the price
paid by the Purchaser for the Turnkey System, pursuant to this agreement.
6.3 Bartech represents and warrants that it owns or has the right to use, free
and clear of all liens, claims and restrictions all intellectual property,
of any kind, howsoever required and/or utilized in connection with the
Turnkey System and/or the Installation ("Intellectual Property"). Bartech
represents and warrants that, to the best of its knowledge, the
Intellectual Property does not infringe upon or violate any right, lien, or
claim of any third party. Bartech hereby undertakes to defend, indemnify
and hold harmless HOMI and its affiliates, officers, directors, agents and
employees from and against any and all actions, costs, claims, losses,
expenses and/or damages, including reasonable attorneys' fees, arising out
of or in any way incidental to allegations of patent, copyright, trademark
or other intellectual property infringements howsoever in relation to the
Turnkey System and/or Installation;
6.4 Bartech hereby undertakes to perform the Installation and supply the
services with the greatest of care and to ensure that no damage, and only
minimum inconvenience, if at all, is caused to the Hotel or any third
parties, and likewise to ensure that all of its staff conduct themselves in
a respectable and polite manner befitting the luxury status of the Hotel.
ARTICLE 7 MAINTENANCE
7.1 The terms for the routine preventive maintenance on the Turnkey System
are described in the "BARTECH Maintenance Guide," a copy of which shall
be supplied to the Purchaser at time of installation. Such maintenance
services shall be performed directly by the Purchaser's personnel.
7.2 However, the Seller may be required to perform preventive maintenance
services, during the warranty period, where the cause of the failures
is attributable to a negligent error of the Seller.
In such case, the Seller, at its sole discretion, shall select the type
of remedy to be implemented. The Seller shall use its best efforts to
perform such maintenance services in a satisfactory manner, but it
shall offer no assurances that its work will allow the failures if any
that may be encountered to be resolved, or that after its work, such
failures will not reappear. In connection with the warranty, the Seller
shall only be under an obligation to use its best efforts and not to
achieve any specific results.
ARTICLE 8 OBLIGATIONS OF THE PURCHASER
In order to allow the Seller to perform its obligations hereunder in a
satisfactory manner, the Purchaser hereby agrees to provide the Seller with any
and all assistance that may be necessary, and in particular, with the assistance
described below:
(a) The Purchaser must allow the Seller access to the Installation and to
its maintenance records, to the extent necessary and following advance
coordination.
(b) The Purchaser shall comply with the Terms and Conditions as specified
in Exhibit A attached hereto.
(c) The Hotel will provide the wire/cable infrastructure to support the
Turnkey System. Unless strictly specified in Exhibit A attached hereto,
any upgrade and/or repair to the Hotel's cable/wire infrastructure as
was in place prior to the Installation shall not be the responsibility
of the Seller.
(d) The Purchaser hereby agrees (i) to always use the Turnkey System in
accordance with the use guidelines, procedures, rules and instructions
of the Seller, to maintain it properly and to provide the proper
ventilation as defined by the Seller; (ii) not to change the
environment of the location where the System is installed; (iii) not to
move the Installation from the contractual location where it is
installed, without having first secured the Seller's prior written
authorization, except in cases of emergency or for its protection; (iv)
not to modify the Turnkey System or add any accessories thereto; (v)
not to perform any work directly on the Turnkey System, except in the
case referred to above in Article 7.1; and (vi) to use consumables that
are compatible with the Turnkey System.
ARTICLE 9 PRICE
9.1 In accordance with the attached offer, the sales price for the
Installation and Turnkey System, including inter alia all Products,
System, hardware, software and licenses, and shipping costs, has been
defined as specified in Exhibit A attached hereto (the "Price").
9.2 The Purchaser must pay for the Turnkey System, at the net Price,
without any further discount beyond the special discount already
incorporated into the Price, under the terms and conditions specified
in Exhibit A attached hereto.
9.3 Any amount that is not paid by the Purchaser on the agreed due date
shall automatically bear interest for overdue payment, at the rate of
1.25% per month, without prejudice to the Seller's other rights and
remedies. The payments may not be delayed for more than 60 days for any
reason whatsoever.
ARTICLE 10 TRANSFER OF TITLE
10.1 Title to the Turnkey System shall only be transferred upon the payment
in full of the Price, by the Purchaser. The payment shall only be
deemed to have been made upon the actual collection of the Price by the
Seller.
10.2 However, the risks shall be transferred to the Purchaser as of the
delivery of the Installation per Section 3.3 above at the Hotel's
premises, and the Purchaser hereby agrees to use a due standard of care
in connection with its custody and protection, and to take out any and
all insurance it deems appropriate, in its discretion, in order to
cover damage and casualties that could be caused either to or by the
Turnkey System.
10.3 Up until the full payment of the Price, the Purchaser shall not be
entitled to pledge the Turnkey System or to use the Turnkey System in
any manner whatsoever as collateral, other than in favor of any entity
that has funded the purchase of the Turnkey System by the Purchaser, in
whole or in part.
10.4 In case the Purchaser fails to pay all or most of the Price on its due
date, the Seller, without forfeiting any of its other rights, shall be
entitled to repossess the Turnkey System, at the expense and risks of
the Purchaser.
ARTICLE 11 SUB-CONTRACTING
The Seller shall be entitled to sub-contract for all or part of its obligations
in connection with this agreement, subject to compliance with the contractual
terms and conditions. Any such sub-contracting shall not serve to release the
Seller from its obligations.
ARTICLE 12 CONFIDENTIALITY AND PROPERTY
All the types of technical documents, details on the offer, general rules and
special rules and specifications provided to the Purchaser by the Seller shall
remain the exclusive property of the Seller. None of the information referred to
above may be used or disclosed to any third parties other than to the Hotel
and/or to the Purchaser's affiliates, in any connection whatsoever, without the
Seller's prior written authorization.
ARTICLE 13 GOVERNING LAW ~ JURISDICTION CLAUSE
13.1 Arbitration All disputes that may arise under this Agreement, except
for disputes which may necessitate extraordinary equitable or
injunctive relief, that are not settled by parties themselves, shall be
submitted to binding arbitration in France before the French
Arbitration under its Commercial Rules then prevailing. The
non-prevailing party shall pay all costs of arbitration, including each
party's attorney's fees and the fees of the arbitrators.
13.2 Relationship of Parties. This Agreement does not constitute a
partnership or joint venture between the Buyer and the Seller. Both
parties acknowledge that the relationship shall be one of an
independent contractor.
13.3 Governing Law. This Agreement and any dispute or claim arising under
this Agreement shall be governed by the laws of France, without regard
to principles of conflicts of law.
13.4 Jurisdiction. The parties hereby consent to personal jurisdiction in a
court located in France. Service of process may be made by certified
mail/return receipt requested or any other method of service of process
authorized by law. Each party agrees that it shall not assert venue as
a defense to any action or proceeding or make any argument based on
principles of forum non conveniens or similar legal principles of
doctrines.
13.5 No Waiver. Failure of any party to insist upon the strict performance
of this Agreement, or a delay in exercising any remedy provided under
this Agreement, shall not constitute a waiver of any rights, remedies,
terms, conditions or provisions of this Agreement.
ARTICLE 14 MISCELLANEOUS PROVISIONS
14.1 This agreement constitutes the entire agreement between the parties in
relation to its subject matter. It replaces and supersedes any other
earlier agreements, whether oral or written, express or implied, that
may have been made by and between the parties in relation to the same
subject matter.
14.2 None of the parties to this agreement shall be deemed to be in default
in the performance of this agreement in any case of force majeure or
for any other cause beyond its reasonable control, including without
being limited to in case of war, civil war, riot, shortages of supplies
or any other event having the same nature.
14.3 No amendment may be made to this agreement, and it shall not be legally
binding on the Seller or on the Purchaser, unless such amendment is
recorded in a written deed bearing the signature of both parties.
14.4 In the event that any provision of this agreement is considered or
held, at any time whatsoever, to be illegal, unenforceable and/or null
and void, such fact shall not affect the validity of the agreement's
remaining provisions, which shall thus be deemed to be severable, and
in such case, the agreement shall be considered as having been drafted
or redrafted without the provision that is illegal, unenforceable or
null and void.
14.5 The exhibits hereto shall form an integral part of this agreement.
Executed in: Paris
[---------------] [---------------]
THE SELLER THE PURCHASER
Title: [__________] Title: [__________]
Date: [__________] Date: [__________]
EXHIBIT A
Exhibit B
ACCEPTANCE OF INSTALLED AND COMPLETED PRODUCT/SERVICES
----------------------------------------------------------------------------------------------------------------------
QTY PRODUCT SIGN-OFF
----------------------------------------------------------------------------------------------------------------------
Refreshment Centers with Firmware Licenses :
----------------------------------------------------------------------------------------------------------------------
[Specify type and model]
----------------------------------------------------------------------------------------------------------------------
Spare Units
----------------------------------------------------------------------------------------------------------------------
Bartech Central Processing Unit, as required
----------------------------------------------------------------------------------------------------------------------
Bartech Software, Version ___________
----------------------------------------------------------------------------------------------------------------------
PMS Interface
----------------------------------------------------------------------------------------------------------------------
Remote Control - Refill Attendant
----------------------------------------------------------------------------------------------------------------------
Remote Control - Maintenance
----------------------------------------------------------------------------------------------------------------------
Remote Control - Set-Up
----------------------------------------------------------------------------------------------------------------------
User Manual
----------------------------------------------------------------------------------------------------------------------
TRAINING
----------------------------------------------------------------------------------------------------------------------
Room Service :
----------------------------------------------------------------------------------------------------------------------
o Bartech Mini Bar
----------------------------------------------------------------------------------------------------------------------
o Bartech PC
----------------------------------------------------------------------------------------------------------------------
Engineering :
----------------------------------------------------------------------------------------------------------------------
o Bartech Mini Bar
----------------------------------------------------------------------------------------------------------------------
o Bartech PC
----------------------------------------------------------------------------------------------------------------------
o Bartech Central Processing Unit, as required
----------------------------------------------------------------------------------------------------------------------
Food and Beverage
----------------------------------------------------------------------------------------------------------------------
IT Manager
----------------------------------------------------------------------------------------------------------------------
Front Desk
----------------------------------------------------------------------------------------------------------------------
Food and Beverage Trainer
----------------------------------------------------------------------------------------------------------------------
Enigineer Trainer
----------------------------------------------------------------------------------------------------------------------
Front Desk Trainer
----------------------------------------------------------------------------------------------------------------------
Exhibit 4.4a
CURRENT
END USER PRICE LIST
FOR EMEA
--------------------------------------------------------------------------------
Attached hereto
--------------------------------------------------------------------------------
Exhibit 7.2
Extended Warranty & Service Agreement
--------------------------------------------------------------------------------
HOTEL OUTSOURCE MANAGEMENT INTERNATIONAL, INC.
--------------------------------------------------------------------------------
Submitted By:
Bartech(R) EMEA
SERVICE AND MAINTENANCE AGREEMENT
FOR A TURNKEY INSTALLATION
BY AND BETWEEN THE UNDERSIGNED:
|X| BARTECH EMEA, located at 0 Xxx xx Xxxx xxx xxxx, 00000 Xxxxxxxx,
Xxxxxx, represented by Xxx Xxxxxx, duly authorized for the purposes
hereof,
hereinafter referred to as the "Bartech"
party of the first part
AND:
|X| *HOTEL OUTSOURCE MANAGEMENT INTERNATIONAL INC., of 000 Xxxx, 00xx
Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000, represented by Xxxxx Xxxxxx,
duly authorized for the purposes hereof,
hereinafter referred to as the "Customer" or "HOMI"
party of the second part
PREAMBLE:
A. BARTECH markets and installs highly technical refrigeration equipment
designed with the lodging industry in mind.
B. The Customer is the operator of a BARTECH equipment installation and
wishes to receive service that includes both parts and labor.
C. The parties have conducted negotiations with a view to defining the
terms and conditions under which BARTECH would provide its service on
the Customer's equipment and its operations.
THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1 SERVICE SUPPORT
1.1 Under this agreement, BARTECH hereby agrees to ensure SPARE PARTS AND
LABOR SUPPORT of that equipment listed on the descriptive sheet
attached hereto in Exhibit 1 (the "Equipment") and, in particular, to
provide SPARE PARTS, LABOR and EQUIPMENT as described below (the
"Support"). BARTECH alone shall be the judge whether to repair or
replace defective equipment.
1.2 PREVENTIVE AND CORRECTIVE LABOR: This agreement provides for
replacement parts, equipment and the labor necessary to maintain the
system. Bartech shall be responsible for all labor required to
trouble shoot, diagnose, remove, replace and verify all failures and
replacements. Bartech is further responsible to provide the level of
preventive maintenance necessary to keep the equipment in good
functional condition.
Preventive maintenance shall include all the services intended to
reduce the number of the equipment's malfunctions and to extend its
life expectancy. Such services shall consist of checking and testing
operations and occasional cleaning of the equipment.
1.3 MAINTENANCE SUPPORT: In case of any malfunctioning of all or part of
the equipment, at the Customer's express request, BARTECH shall
provide all the necessary SPARE PARTS AND LABOR during its normal
office hours and on normal business days, or at any other time
subject to the payment of a supplemental charge, according to the
rates specified in Exhibit 2 hereto.
Based on the information supplied by the Customer, Bartech hereby
agrees, at the Customer's request, to dispatch a qualified service
representative to the Customer's premises as follows: a) If the
entire system is in an inoperative state, Bartech will respond within
a 1-day period to remedy the failure; b) if more than 30 units have
dropped off-line, Bartech will respond within a 2-day period to
remedy the failures; c) If less than 30 units but more than 10 units
are off-line, Bartech will respond within a 4 day period to remedy
the failures. Singular or multiple individual unit piece-part
failures will be addressed on a monthly basis. It is understood that
such requests made by the Customer will not warrant any additional
charges. If over-night stays are required by the technician(s), the
hotel shall provide room and meals as necessary.
BARTECH will provide a preventive program on a scheduled basis each
year for revision of the installation, refreshment training to
trainers, site visits and inspection of system with preventive
cleaning and replacement procedures. A minimum of two visits per year
is guaranteed under this agreement. If over-night stays are required
by the technician(s), the hotel shall provide room and meals as
necessary.
1.4 BARTECH will connect via modem to the BARTECH System in order to
perform diagnostic procedures and, if necessary, to update software.
1.5 BARTECH will provide an annual schedule of classroom training made
available to the Customer for its own choice to send staff (limited
to determined number of people per session) that can be held on-site
and at the Customer's request. This service is limited to two times
per calendar year and will be combined with the preventive
maintenance visits.
ARTICLE 2 ASSISTANCE BY THE CUSTOMER
2.1 The Customer shall maintain an incident logbook, in which the
Customer records all service-related events. The Customer must make
available to BARTECH all the documentation pertaining to the
equipment including the incident logbook. The Customer shall allow
BARTECH to ask questions to one or more of the Customer's employees
familiar with the equipment and installations to help diagnose the
observed technical difficulties.
2.2 The Customer must make available a proper environment to perform
diagnostics and repair suited to the nature of the service call.
2.3 The Customer must set aside, free of charge, an area to store SPARE
PARTS for the BARTECH System. The Customer must take precautions to
safeguard the SPARE PARTS.
2.4 The Customer hereby agrees to use only BARTECH-approved SPARE PARTS.
2.5 The Customer hereby agrees to provide a dedicated telephone line to
allow remote access to the BARTECH System for "off site" diagnosis
and file transfer.
ARTICLE 3 FEE
3.1 Service contracts are available at time of original purchase. In
consideration of providing a service contract, the Customer agrees to
pay a fee to BARTECH. A schedule of costs for the Service Contract
for SPARE PARTS, EQUIPMENT AND LABOR and fees for additional training
and services are defined in Exhibit 2.
3.2 Invoices will be sent out on a quarterly basis. Terms of payment are
net thirty days. Invoicing will begin on the first month following
installation and will continue for a term equal to the length of the
Service Contract.
3.3 Any invoices which remain unpaid for more than fifteen (15) days
after the due date shall accrue interest at a rate of 1.5% per month.
Any invoices which remain unpaid after 90 days will be considered in
default and will result in termination of this service agreement.
ARTICLE 4 SPARE PARTS
4.1 During the Service Contract period, BARTECH shall supply (for on-sight
storage) to the Customer proprietary SPARE PARTS necessary for
maintaining the BARTECH System as part of the agreement. BARTECH will
use its sole discretion in providing new or like-new SPARE PARTS. The
used parts will become property of BARTECH.
However, in the event that a SPARE PART is required to replace one
damaged by abuse, neglect, fire, water, or any reason other than
ordinary wear and tear, BARTECH hereby reserves the right to invoice
for the material and labor at its current rates.
4.2 As part of the repair process, BARTECH reserves the right to make
technical changes that improve the performance of the equipment.
ARTICLE 5 PROPER SAFEGUARDING OF THE EQUIPMENT
5.1 The Customer must maintain a proper location and environment for the
BARTECH System, in accordance with the generally accepted practices.
The Customer hereby agrees not to change the equipment's location
without first notifying BARTECH in writing.
5.2 The Customer should only use procedures approved by BARTECH. The
Customer should follow all instructions and recommendations relating to
the handling and operation of the equipment as specified in the manual.
5.3 BARTECH recommends that the Customer operate the system in accordance
with the instructions in the user's manual.
5.4 In the event of a lease or revenue share agreement, the Customer hereby
represents that they have taken out insurance policies covering the
damage and casualties that may be caused either to or by the equipment.
5.5 BARTECH will ensure product continuity to the Customer through
software and firmware updates when applicable. Through a standard
update procedure, BARTECH will notify Customer of update content and
program. BARTECH will also provide additional training if it applies.
ARTICLE 6 UNCERTIFIED THIRD PARTY SERVICE
6.1 The Customer must notify BARTECH of all work performed on the BARTECH
System by a third party, and record such work in the incident logbook
for the equipment. Any service call that BARTECH deems to be the
result of uncertified third party involvement shall be invoiced by
BARTECH to the Customer at BARTECH's current rates.
ARTICLE 7 LIABILITY
7.1 BARTECH shall in no event be held liable, in any connection
whatsoever, for any direct or indirect damages, financial loss,
physical damage or contingent damage, including but not limited to
any lost profits or business interruption, by reason of BARTECH's
work, unless the Customer establishes a direct causal link between
the damage sustained by the equipment and BARTECH's gross negligence.
7.2 When BARTECH's liability is claimed in any connection whatsoever, and
if a final and binding court decision has been issued, the parties
hereby agree that any damages that BARTECH may be ordered to pay
shall be limited to the Service Contract fee owed by the Customer.
ARTICLE 8 TERM OF THE AGREEMENT
This agreement shall enter into effect on the date of its execution by the
parties hereto, for the term specified in Exhibit 1.
ARTICLE 9 TERMINATION
Notwithstanding any other provisions contained herein, this agreement may
be terminated:
9.1 By BARTECH, immediately and automatically during the course of this
agreement, where any court decision orders the Customer into
bankruptcy liquidation or where the Customer is dissolved.
9.2 By either of the parties, automatically, subject to the dispatch of a
written notice to the other party by registered letter with return
receipt requested, in case of any breach of any one of the
contractual obligations, where such breach has not been cured thirty
(30) days after the receipt of the above formal notice.
ARTICLE 10 FORCE MAJEURE
10.1 BARTECH shall not be liable for any delay or breach in the
performance of any one of its contractual obligations, where such
breach is the direct or indirect result of a case of force majeure.
10.2 For the purposes of this agreement, the term "force majeure" shall be
understood to mean transportation delays or the impossibility in
procuring necessary materials due to strikes or other labor
difficulties, uprisings, riots, wars, fires, floods or other natural
disasters, or any causes beyond the control of BARTECH. Bartech will
use its best efforts to mitigate any potential delays by
investigating work-around methods, use of alternate suppliers of
material and labor. In such event, the performance of its obligations
shall be suspended until the end of the case of force majeure, or
until such time a work-around procedure can be mutually agreed to by
both parties.
ARTICLE 11 MISCELLANEOUS PROVISIONS
11.1 Any silence or abstention by a wronged party in connection with one
or more breaches shall in no event be deemed to be any tacit approval
thereof, that would constitute a precedent that could be claimed by
the defaulting party.
11.2 No amendment may be made to this agreement, and it shall not be
legally binding on the parties unless such amendment is made in
writing and signed by both parties.
11.3 In the event that any provision of this agreement is considered or
held, at any time whatsoever, to be illegal, unenforceable and/or
null and void, such fact shall not affect the validity of the
agreement's remaining provisions, which shall thus be deemed to be
severable, and in such case, the agreement shall be considered as
having been drafted or redrafted without the provision that is
illegal, unenforceable or null and void.
11.4 The exhibits hereto shall form an integral part of this agreement.
ARTICLE 12 ASSIGNMENT
The Customer shall not be entitled to assign or to otherwise transfer any
right whatsoever that it may hold under this agreement, without BARTECH's
prior written authorization.
ARTICLE 13 GOVERNING LAW
This Agreement and any dispute or claim arising under this Agreement shall
be governed by the laws of France, without regard to principles of
conflicts of law.
Signature: Signature:
------------------------------
Bartech EMEA Hotel Outsource Management
International, Inc.
By: By:
----------------------------- ----------------------
Date: Date:
---------------------------- ---------------------
EXHIBIT 1
LIST OF THE EQUIPMENT
THE EQUIPMENT
o Qty. of units Automatic Refreshment Centers
o Qty. of remotes Infrared Remote Control Units
o 1 Application Software
Should Bartech provide the optional PC equipment and printer, any extended
warranty on this equipment shall be provided solely by the PC manufacturer.
EXHIBIT 2
FEES
2. TERM OF THE AGREEMENT
Service Contract Period Yearly Payment
----------------------- ----------------
Year One Euro 0 per Bartech Minibar Installed
and Operating
Years Two through Ten Euro 20 per Bartech Minibar Installed
and Operating
Pricing is presented in a "per year " schedule.
Pricing does not include taxes. The fee will be invoiced quarterly at four
equal payments
Summary of Options (Rates subject to change)
Standard fees for any additional training or technical intervention
requirements outside the scope of the contract:
1. First Hour of Service....................................Euro150.00
2. Thereafter...............................................Euro75/hour
3. Daily Training Services..................................Euro850/day
4. Classroom Training
-Training the Trainer or end-user
Standard 3 days, maximum 8 participants............Euro1,750.00
All costs exclude direct travel, per diem and taxes, which will be added to
any invoice.
SPARE PARTS LIST
The following list is typical of the spare part inventory that will be left
with the Customer after system installation is completed. Quantities are
based upon the installation base. In addition to this list, Bartech will
provide one of each type of units (complete and ready for installation) for
sparing purposes.
Upper and Lower Shelf PCB
Upper and Lower Balcony PCB
Master Control PCB
Power Supply Unit
Cooling System Compressor/Absorption Unit
Internal Light PCB
Electromagnetic Lock Set
LED Assembly
Detector Kit, Door/Shelf
Exhibit 12.1
DISTRIBUTORS DIRECTORY
Europe, Middle East, Africa, United States,
and
Asia Pacific Regions
--------------------------------------------------------------------------------
BARTECH SYSTEMS INTERNATIONAL, Inc
000 Xxxxxxx Xxxx, Xxxxx X
Xxxxxxxxxxxx, Xxxxxxxx 00000 - XXX
Fax : (0) 000 000 0000 - E-mail : xxxxxx@xxxxxxxxxx.xxx
Web : xxxx://xxx.xxxxxxxxxx.xxx
--------------------------------------------------------------------------------
BSI BARTECH E.M.E.A BARTECH ASIA PACIFIC
INCLUDING ASIA PACIFIC (BARTECH EMEA)
000, Xxxxxxx Xxxx,
Xxxxx X 0, Xxx xx Xxxx-Xxx-Xxxx Xxxxx 0,
Xxxxxxxxxxxx, 00000 Suresnes, Wisma Goldhill
Xxxxxxxx 00000 XXX France 00 Xxxxx Xxxx Xxxxxx
00000 Xxxxx Xxxxxx, Xxxxxxxx
Contacts : Xxxxxx Xxxxx Contacts : Xxx Xxxxxx
Phone : x0 (000) 000 0000 Phone : x00 (0)0 00 00 00 10 Contact : Sophie Longevialle
Fax : x0 (000) 000 0000 Fax : x00 (0)0 00 00 00 11 Web : xxxx://xxx.xx-xxxxxxx.xxx
Web : xxxx://xxx.xxxxxxxxxx.xxx Web : xxxx://xxx.xx-xxxxxxx.xxx E-mail : xxxxxxxxxxxx@xxxxxxx.xx
E-mail : dcohen@usabartech .com E-mail : xxxxxxx@xxxxxxx.xx Area :
Area : United States Area :Europe, Middle East, Africa
ASIA & PACIFIC
EUROPE, MIDDLE EAST, AFRICA
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xxxxxxx & Xxxxxx & Xxxxxxx & Xxxxx Xxxxxxxx
**********************************************************************
Hugin. Xxxxx Datensysteme Ges.m.b.H
Xxxxxxxxxxx Xxxxxxx 000
X - 0000 Xxxxxx, Xxxxxxx
Phone : +43 (1) 610 99
Fax : x00 (0) 000 0000
Contacts: Xxxxxxx Xxxxxxx - Sales Manager E-mail : xxxxxxx.xxxxxxx@xxxxxxxxxx.xx
Belgium
*****************************************************************************
Bartech E.M.E.A.
0, Xxx xx Xxxx-Xxx-Xxxx
00000 Xxxxxxxx, Xxxxxx Phone: x00 (0)0 00 00 00 10
Fax: x00 (0)0 00 00 00 11
Web: xxxx://xxx.xx-xxxxxxx.xxx
Czech Republic
*****************************************************************************
Hugin. Xxxxx Datensysteme Ges.m.b.H
Xxxxxxxxxxx Xxxxxxx 000
X - 0000 Xxxxxx, Xxxxxxx
Phone: +43 (1) 610 99
Fax: x00 (0) 000 0000
Contacts: Xxxxxxx Xxxxxxx - Sales Manager E-mail: xxxxxxx.xxxxxxx@xxxxxxxxxx.xx
Denmark
*****************************************************************************
E-Bar Nordic A/S
Xxxxxxxxxxxx 00X
XX - 0000 xxxxxx
Xxxxxxx
Phone: x00 00 00 0000
Fax: x00 00 00 0000 Contacts:
Xxx Xxxxxxxxxxxx - Managing Sales Director E-mail : xx@Xxxxxxx.xx
Xxx Vejler- Managing Director E-mail : xx@Xxxxxxx.xx
Estonia (Baltic States)
*****************************************************************************
Baltic HRS
Xxxxxxxxx xxx.0, xxxx 000
00000 Xxxxxxx
Xxxxxxx
Phone: x000 000 00 00
Fax: x000 000 00 00
Contacts: Katrin Vellesalu E-mail: Xxxxxxxxxx@xxxxxxxxxx.xx
Finland
*****************************************************************************
E-Bar Nordic A/S
Xxxxxxxxxxxx 00X
XX - 0000 xxxxxx
Xxxxxxx
Phone: x00 00 000 000
Fax: x00 00 000 000
Contacts: Xxx Xxxxxxxxxxxx - Managing Sales Director E-Mail: xx@Xxxxxxx.xx
Xxx Vejler - Managing Director E-Mail: xx@Xxxxxxx.xx
France
*****************************************************************************
Bartech E.M.E.A.
0, Xxx xx Xxxx-Xxx-Xxxx
00000 Xxxxxxxx, Xxxxxx Phone : x00 (0)0 00 00 00 10
Fax : x00 (0)0 00 00 00 11
Web : xxxx://xxx.xx-xxxxxxx.xxx
Sales contacts:
Xxx Xxxxxx E-mail : xxx.xxxxxx@xxxxxxx.xx
Xxxxxxx Xxxxxx E-mail : xxxxxxx@xxxxxxx.xx
Sophie Longevialle E-mail : xxxxxxxxxxxx@xxxxxxx.xx
Xxxxx Xxxxxx E-mail : xxxxxxx@xxxxxxx.xx
Xxxxxxxx Revol E-mail: xxxxxx@xxxxxxx.xx
Technical contacts:
Xxxx-Xxxxxx Xxxxxx E-mail : xxxxxxxx@xxxxxxx.xx
Xxxxxxx Xxxxxxxxxxxx E-mail : xxxxxxx@xxxxxxx.xx
Xxxx-Xxxx Achaume E-mail : xxxxxxxxx@xxxxxxx.xx
Xxxxxxx Xx Xxxxxx E-mail : xxxxxxxxx@xxxxxxx.xx
Xxxx Xxxxxxxxx E-mail : xxxxxxxxxx@xxxxxxx.xx
Germany
*****************************************************************************
Bartech Deutschland GmbH
Xxxxxxxxxxx 00
00000 Xxxxxxx, Xxxxxxx
Phone: x00 (0) 0000 00 00 00
Fax: x00 (0) 0000 00 00 00
Web: xxxx://xxx.xx-xxxxxxx.xxx
Contact for sales : Xxxxxx Xxxxx E-mail: xxxxxxx@x-xxxxxx.xx
Greece
*****************************************************************************
Habakis
0 Xxxxxxxxxx Xxx. XXXXXXXXX,
00000 Xxxxxx, Xxxxxx
Phone: x00 (00) 0000 0000
Fax: x00 (00) 0000 0000
Contacts for Sales : Xxxxxx X. Habakis E-mail: xxxx@xxxxxxx.xx
Iceland
*****************************************************************************
E-Bar Nordic A/S
Xxxxxxxxxx 0
X-0000 Xxxxxxx, Xxxx
Xxxxxx
Phone : x00 00 00 00 00
Fax : x00 00 00 00 00
Contacts: Xxxxxx Xxxxxx - Sales Director E-Mail : xx@Xxxxxxx.xx
Israel
*****************************************************************************
Bartech Mediterranean Ltd
Hamered Street 25
POBox 50501
Xxx Xxxx 00000, Xxxxxx
Phone : x000 0 000 00 00
Fax : x000 0 000 00 00
Contacts : Xxxxx Xxxxxx - Managing Director E-Mail : xxxxxxx0@xxxxx.xxx.xx
Italy
*****************************************************************************
XX.XX Hospitality S.r.l.
Xxx X. Xxxxxxxx, 00
00000 Xxxxxxx, Xxxxx
Phone : x00 0000 000 000
Fax : x00 0000 000 000
Mobile : x00 00 0000 0000
Contacts : Dario Bastasin - Managing Director E-mail : xxxxxxxx@xxx.xx
Lebanon
*****************************************************************************
CHIP -Bartech Agent
Media Center Bldg
Accawi - Ashrafieh
XX XXX 000000
Xxxxxxxx, Xxxxxxx
Phone : +961 (1) 573 573
Fax : +961(1) 561 599
Contacts : Xxxx XXXXX - General Manager E-mail :xxxxxx@Xxxx.xxx.xx.
Netherlands
*****************************************************************************
Bartech E.M.E.A.
0, Xxx xx Xxxx-Xxx-Xxxx
00000 Xxxxxxxx, Xxxxxx Phone : x00 (0)0 00 00 00 10
Fax : x00 (0)0 00 00 00 11
Web : xxxx://xxx.xx-xxxxxxx.xxx
Norway
*****************************************************************************
E-Bar Nordic A/S
Xxxxxxxxxx 0
X-0000 Xxxxxxx, Xxxx
Xxxxxx
Phone: x00 00 00 00 00
Fax : x00 00 00 00 00
Web : xxxx://xxx.xxxxxxx.xx
Contacts: Xxxxxx Xxxxxx - Sales Director E-mail : xx@Xxxxxxx.xx
Portugal
*****************************************************************************
BARTECH sales office
Xxxxx xx xx Xxxxxxx, 00 Xxxx Xxxxx
00000 Xxxxxxxxxx (Xxxxxx)
Xxxxx Phone : x00 00 000 0000
Fax : x00 00 000 0000
Mobile : x00 000 000 000
Contacts : Xxx Xxxxxxxx Xxxxxxx E-mail : xxxxxxxx@xxxxxxx.xx
Qatar
*****************************************************************************
Chip Xxxxxxxxxxxxx
X.X Xxx 00000
Xxxx - Xxxxx
Phone : x000 000 0000
Fax : x000 000 00 00
Contacts : Xxxx Xxxxx - Chief Executive Officer E-mail : xxxx_Xxxxx@xxxxx.xxx
Russia
*****************************************************************************
Hotel & Restaurant Systems Micros & Fidelio
4 Tessinsky Per, Bldg 1
Xxxxxx 000000, Xxxxxx
Phone : x00 (000) 000 00 00
Fax : x00 (000) 000 00 00
Contacts : Xxxxxx Xxxxxxx E-mail : xxxxxxxx@xxx.xx
South Africa
*****************************************************************************
BATIM - Bartech Agency
00 Xxxxxx Xxxx
Xxxxxxxxxxxx 0000
Xxxxx Xxxxxx
Phone : x00 (00) 00 00 000
Fax : x00 (00) 00 00 000
Contacts : Xxxxx Xxxxx
Spain
*****************************************************************************
BARTECH sales office
Xxxxx xx xx Xxxxxxx, 00 Xxxx Xxxxx
00000 Alcobendas (Madrid)
Spain Phone : + 00 00 000 0000
Fax : + 00 00 000 0000
Mobile : + 00 000 000 000
Contacts : Xxx Xxxxxxxx Xxxxxxx E-mail : xxxxxxxx@xxxxxxx.xx
Sweden
*****************************************************************************
E-Bar Nordic A/S
Xxxxxxxxxx 0
X-0000 Xxxxxxx, Xxxx
Xxxxxx
Phone: x00 00 00 00 00
Fax : x00 00 00 00 00
Web : xxxx://xxx.xxxxxxx.xx
Contacts: Xxxxxx Xxxxxx - Sales Director E-mail : xx@Xxxxxxx.xx
Switzerland
*****************************************************************************
Bartech E.M.E.A.
0, Xxx xx Xxxx-Xxx-Xxxx
00000 Xxxxxxxx, Xxxxxx
Phone : x00 (0) 00 00 00 00
Fax : x00 (0) 00 00 00 00
Web : xxxx://xxx.xxxxxxx.xx
Contact for sales : Xxxxxxx Xxxxxx E-mail : xxxxxxx@xxxxxxx.xx
Turkey
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Protel Ltd
Sulun Sock. No 8
1. Xxxxxx
00000 Xxxxxxxx, Xxxxxx
Phone : x00 (000) 000 0000
Fax : x00 (000) 000 0000
Contacts : Metin Arghan - Managing Director E-mail : xxxxxxx@xxxxxx.xxx.xx
Xxxxx Xxxxxx - Project Manager
United Arab Emirates - Bahrain - Kuwait - Saudi Arabia
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Emirates Commercial Business Services
Al Xxx Xxxxx, 0xx Xxxxx, Xxxxx 000
Xxxxxx Xxxxxx
X.X.Xxx 00000
Xxx Xxxxx , Xxxxxx Xxxx Xxxxxxxx
Phone : x000 (0) 000 0000
Fax : x000 (0) 000 0000
Contacts : Xx Xxxxx Xxxxxx - General Manager E-mail : xxx@xxxxxxxx.xxx.xx
United Kingdom
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Bartech UK
Riverside Business Centre
Xxxx X00
Xxxxxxx Xxxxx
Xxxxxx XX00 0XX
Xxxxxx Xxxxxxx
Phone : x00 (000) 0000 00 00
Fax : x00 (000) 0000 0000
Mobile Tel : x00 000 000 00 00
Web : xxxx://xxx.xxxxxxx.xx
Contact for sales :
Xxxxxx Xxxxxx - Managing Director E-mail : xxxxxxx@xxxxxxx.xx.xx.
Xxxxxx Xxxxxxx - Sales E-mail : xxxxxxxx@xxxxxxx.xx.xx
Xxxxx Xxxxx - Sales E-mail : xxxxxx@xxxxxxx.xx.xx
Contact for Technical support in U.K :
Xxxxx Xxxxxxxxx Tel : x00 (000) 0000 00 00
Fax : x00 (000) 0000 0000
Mobile Tel : x00 000 000 00 00
E-mail : xxxxxxxxx@xxxxxxx.xx.xx
ASIA
Hong Kong
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Virtual Technology System Company Ltd
1903, Seaview Commercial Building
00-00, Xxxxxxxxx Xxxx Xxxx
Xxxxxx Xxx, Xxxx Xxxx Phone : x000 0000 0000
Fax : x000 0000 0000
Contacts : Xxxxxxx Xxx - Managing Director E-mail : xxxxx@xxx.xxx.xx
Korea
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CSOS CO., LTD Micros
3F. Hyojin B/D
#0000-0, Xxxxxx-Xxxx
Xxxxxx-Xx
Xxxxx, Xxxxx
Phone : x00 (0) 0000 0000
Fax : x00 (0) 0000 0000
Contacts : B.R. Cheon - President E-mail : xxxxxxx@xxxxxx.xxxxxx00.xxx
Xxxxxx Xxxx - Managing Director
Singapore
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DTS Marketing PTE Ltd.
67 Ayer Rajah Crescent - #00-00/00
Xxxx Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxx 000000
Singapore
Phone : x00 0000 0000
Fax : x00 0000 0000
Mobile : x00 000 000 00
Contacts : X.X. Xxx - General Manager & Chairman
Xxxxxx Xxxx - Director
Xxxxx Xxx - Director E-mail : xxxxx_xxx@xxxxxx.xxx
Lay See Tan - Manager E-mail : xxx_xxx_xxx@xxxxxx.xxx
AUSTRALIA
Australia
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Kyloon Pty Ltd
X.X. Xxx 0000,
Xxxxx Xxxxx XXX 0000
XXXXXXXXX
Freecall : + 1800 623 323
Phone : + 00 0 0000 0000
Fax : + 00 0 0000 0000
Mobile : + 00 000 000 000
Contacts : Xxxxx Xxxxxx E-mail : XxxxxX@Xxxxxx.xxx.xx
NEW ZEALAND
NEW ZEALAND
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Brantas international Technology Ltd
Xxxxx 0, Xxx Xxxxxxxxx Xxxxxx
00 Xxxx xxxxxx
Xxxxxxxx - Xxx Xxxxxxx
Phone : 00 (0) 000 0000
Fax : + 00 (0) 000 0000
Contacts : Jan W. Strijker E-mail : xxxxxxxxx@xxxxxxxxxxxxxxxxxxxx.xxx
USA
United States of America
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Bartech Systems Corporation
000 Xxxxxxx Xxxx,
Xxxxx X
Xxxxxxxxxxxx,
Xxxxxxxx 00000 - XXX
Phone : +(1)(000) 000 0000
Fax : +(1)(000) 000 0000
Web : xxxx://xxx.xxxxxxxxxx.xxx
Contacts : Xxxx Xxxxx - President E-mail : xxxxxx@xxxxxxxxxx.xxx
Xxxxx Xxxxx - Technical E-mail : xxxxxx@xxxxxxxxxx.xxx
Xxxx Xxxxxx - Technical E-mail : xxxxxxxxxxxxxxxxx.xxx
Bartech Systems International
000 Xxxxxxx Xxxx,
Xxxxx X
Xxxxxxxxxxxx,
Xxxxxxxx 00000 - XXX
Phone : +(1)(000) 000 0000
Fax : +(1)(000) 000 0000
Contacts : Xxxxxx Xxxxx - President E-mail : xxxxxx@xxxxxxxxxx.xxx
Mario Agrario E-mail : xxxxxxxx@xxxxxxxxxx.xxx
Xxxxxxx Xxxxxxx E-mail : xxxxxxxx@xxxxxxxxxx.xxx
Xxxx Xxxxxxx E-mail : Xxxxxxxxx@xxx.xxx
Xxxxxxx Xxxxx E-mail : xxxxxx@xxxxxxxxxx.xxx
Southeast of America
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Bartech Sales Office Florida (Miami. USA)
16465 NE 22nd avenue,
Xxxx 000
Xxxxx Xxxxx Xxxxx, XX 00 000 - XXX
Phone : +(1)(000) 000 0000
Fax : +(1) (000) 000 0000
Web : xxxx://xxx.xxxxxxxxxx.xxx
Contacts : Xxxxx Xxxxxxxx - Sales Manager E-mail : xxxxxxxxx@xxxxxxxxxx.xxx
South Central of America
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Bartech Sales Office Texas (Dallas. USA)
0000 Xxxxxx Xxxxx #00000
Xxxxxx XX 00000- XXX
Phone : x0 (000) 000 0000
Fax : x0 (000) 000 0000
Contacts : Xxxxxxx X.Xxxx - Sales Executive E-mail : xxxxx@xxxxxxxxxx.xxx
Web : xxxx://xxx.xxxxxxxxxx.xxx
Southwest of America
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Bartech Sales Office California (Los Angeles. USA)
000 Xxxxxxxx Xxxxxx #00
Xxxxxxxx, XX 00000
Phone : x0 000 000 0000
Fax : x0 000 000 0000
Cell : x0 000 000 0000
Contacts : Xxxxx Xxxxxx Email : xxxxxxx@xxxxxxxxxx.xxx
North Central of America
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Bartech Sales Office Chicago
00000 Xxxxx Xxxxxxxx Xxx
Xxxxxxx, XX 00000
Phone : x0 000 000 0000
Fax : x0 000 000 0000
Contacts : Xxxxxxx XxXxxxxx Email : xxxxxxxxx@xxxxxxxxxx.xxx
Puerto Rico
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MicroTech Service, Inc
000 Xxxxxx Xxxxx Xxxxxx
Xxxx Xxx, XX 00000
Phone : x0 000 000 0000
Fax : x0 000 000 0000
Contacts : Xxxxxx Xxxxxx - President Web : xxx.xxxxxxxxx-xx.xxx
Mexico
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Grupo Avance Sistemas S.A de X.X
Xxxxxxxxxxx #149
Colonia Xxxxxxx
Zip Code 00000 Xxxxxx City
Phone : x00 00 0000 0000
Contacts : Xxxxxx Xxxx Web: xxx.xxxxxx.xxx.xx
