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EXHIBIT 10.13
TRAVELWEB PARTICIPANT AGREEMENT
This Agreement is executed on the dates indicated but to be effective July
15, 1995 and is hereby entered into by and between The Hotel Industry Switch
Company (hereinafter called "THISCO") and INTER-CONTINENTAL HOTELS CORPORATION
(hereinafter called "Participant") on the terms and conditions as set forth
herein (the "Agreement").
I.
DEFINITIONS
The following definitions shall be applicable to this Agreement:
1.1 TravelWeb. A tradename owned by THISCO for its service to provide a
catalog of information on hotels, resorts, cruise lines and other
travel and lodging subjects which is accessible by a Client Computer
(as hereinafter defined) on the Internet.
1.2 Internet. A worldwide network of computers with information which is
accessible by Client Computers (as hereinafter defined).
1.3 TravelWeb Participant. A person or entity who enters into an
agreement with THISCO for the creation and publishing of Internet
Pages (as hereinafter defined).
1.4 TravelWeb Publication. One or more pages of Materials (as hereinafter
defined) to be developed into Internet Pages (as hereinafter
defined).
1.5 TravelWeb Order. A written order form, acceptable to THISCO and in
the form prescribed by THISCO, executed by THISCO and Participant
setting forth the information necessary for the publication of
Internet Pages (as hereinafter defined) from Participant's Materials
(as hereinafter defined) and the agreed fees and costs to be paid for
the order. A copy of the current TravelWeb Order Form (with
additional required documents attached thereto) is attached hereto
and marked Exhibit A.
1.6 Change Order. A written change, on a form prescribed by THISCO, in
the TravelWeb Order mutually agreed to and executed by THISCO and
Participant.
1.7 Client Computer. A computer with access to information on the
Internet.
1.8 Materials. All of the information, in documentary form or otherwise,
provided to THISCO by Participant to be used by THISCO to publish the
Internet Pages.
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1.9 TravelWeb Access Information. Information regarding TravelWeb access
by Client Computers as is gathered by THISCO and made available to
Participant which shall include daily transaction statistics, hourly
transaction statistics, total transfers by client domain, total
transfers by reversed sub domain, total transfers from each archive
section and previous full summary period.
1.10 Internet Page. The finished informational product created and
published by THISCO from the Materials pursuant to this Agreement and
a TravelWeb Order or a Change Order which appears on an individual
Client Computer screen and which is available on and is accessible by
Client Computers on the Internet.
1.11 Authorized Representative. An authorized representative is any person
or entity with the express right, authority and/or obligation to
perform the obligations of or act on behalf of THISCO or Participant
with respect this Agreement.
1.12 Certificate of Acceptance. Written acceptance by Participant of the
Internet Pages and authorization to publish them. The Certificate of
Acceptance will be in a form prescribed by THISCO.
II.
INTENT OF THIS AGREEMENT
2.1 Mutual Intent. It is intended by both parties to this Agreement that
this Agreement, all exhibits hereto, and all other documents made
reference herein, sets forth, in its entirety, all of the terms,
conditions, rights and obligations of THISCO and Participant with
respect to the publishing of Internet Pages by THISCO for the benefit
of Participant as more specifically set forth herein.
III.
CREATION AND PUBLICATION OF A TRAVELWEB BROCHURE;
DUTIES AND OBLIGATIONS OF THISCO AND PARTICIPANT
3.1 TravelWeb Order. The TravelWeb Order shall be completed and shall be
in the form attached hereto and marked Exhibit A (the "TravelWeb
Order Form") and shall contain all of the information necessary for
THISCO to publish the Internet Pages requested by Participant. The
TravelWeb Order Form may be amended or replaced by THISCO at any time
without notice prior to any TravelWeb Order being executed and such
new or amended form need not be attached hereto as a replacement for
Exhibit A to be effective and to supersede Exhibit A. To be
effective, any TravelWeb Order Form must be executed by an Authorized
Representative of THISCO and Participant. A new TravelWeb Order Form
shall be completed and
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agreed to with respect to each TravelWeb Publication to be created
and published by THISCO for the benefit of Participant pursuant to
this Agreement.
3.2 Materials for Creation and Publication of the Internet Pages.
Participant shall be solely responsible for providing to THISCO all
Materials reasonable and necessary for THISCO to create and publish
the Internet Pages pursuant to the TravelWeb Order. All Materials
shall be in form, substance, condition and format as required by
THISCO and shall meet or exceed all of the requirements set forth on
Exhibit A hereto and all other reasonable and necessary requirements
requested by THISCO. Exhibit A (or any other similar document setting
forth the requirements for the Materials) may be amended by THISCO at
any time. Subject to the terms of this Agreement, THISCO is hereby
authorized to utilize, consistent with the TravelWeb Order and for no
other purposes other than those expressly set forth in this
Agreement, all copyrights, trademarks, trade names, service marks or
other proprietary marks or symbols contained within the Materials.
3.3 Processing the Order; Creation of the Internet Pages; Approvals.
THISCO shall process the TravelWeb Order pursuant to the schedule set
forth therein. Upon creation of the Internet Pages to be published
pursuant to the TravelWeb Order and this Agreement (but prior to such
publication), THISCO shall deliver to Participant, for inspection and
approval, the completed Internet Pages. Participant shall, within
fourteen (14) days of such delivery, make any and all written
corrections or proposed amendments it may have to the Internet Pages
and shall provide THISCO with written notice detailing such
corrections and/or proposed amendments. In the event the Internet
Pages are approved, Participant shall, within fourteen (14) days of
receipt of the Internet Pages, provide THISCO with a Certificate of
Acceptance. Notwithstanding the above and foregoing, in the event
Participant does not provide written notice to THISCO of corrections
or proposed amendments or approving the Internet Pages within
fourteen (14) days of receipt of the Internet Pages, approval of the
Internet Page shall be deemed not given by Participant to THISCO and
THISCO shall not be authorized to publish the Internet Pages on the
Internet; however, THISCO may immediately invoice Participant for all
fees and costs associated with the TravelWeb Order and/or Change
Order and Participant shall be deemed to have waived any dispute of
such invoice. THISCO may not modify or amend the approved Internet
Pages without Participant's prior written consent.
3.4 Authority to Publish. Participant hereby authorizes and directs
THISCO to publish on the Internet as part of TravelWeb the approved
Internet Pages.
3.5 TravelWeb Management. THISCO shall be responsible for all costs
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associated with the connection of the TravelWeb server to Internet
and all hardware and software maintenance for such server. THISCO
shall insure that the server is monitored for failures 24 hours per
day, seven days per week and will use commercially reasonable efforts
to assure that the server is operational and available on the
Internet 24 hours per day, seven days per week.
IV.
FEES AND COSTS
4.1 Creation and Publication Fees. For the creation and development of
the Internet Pages from the Materials provided by Participant to
THISCO, Participant shall pay to THISCO the fees and costs set forth
on each TravelWeb Brochure Order and/or Change Order. Fees and costs
charged in connection with each TravelWeb Brochure Order are subject
to change without notice for all TravelWeb Brochure Orders which have
not been executed.
4.2 Monthly Maintenance Fees. For maintaining the Internet Pages on the
Internet and the management and operation of the TravelWeb,
Participant shall pay to THISCO a monthly maintenance fee as
follows:
1 - 50 properties $3.00 per property
51 - 200 properties $2.75 per property
201 - 400 properties $2.50 per property
over 400 properties $1000
The monthly maintenance fee is for each property for which an
Internet Page appears for all or any portion of a month and shall be
due on or before the thirtieth (30th) day after the date of the
invoice.
4.3 Additional Hypertext Connections. For all hypertext connections to
Internet sites not on TravelWeb, Participant shall pay to THISCO Five
Dollars ($5.00) per additional site.
4.4 Payment of Fees and Costs. THISCO shall invoice Participant for all
fees and costs and Participant shall pay each invoice within thirty
(30) days of the date of such invoice. In the event any amount is not
paid as required, all unpaid amounts shall incur interest at one and
one-quarter percent (1 1/4%) per month (15% per annum) until paid in
addition to the other remedies provided herein.
V.
TERM AND TERMINATION
5.1 Term. Unless terminated as provided herein, the initial term of this
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Agreement shall be from the date hereof through the first anniversary
date hereof provided, however, this Agreement shall be automatically
renewed and extended for additional one (1) year terms unless, at
least sixty (60) days prior to the expiration of the initial or any
extended term, either party shall terminate this Agreement by
providing written notice to the other party of such termination.
5.2 Effect of Termination. Upon termination of this Agreement, the
publication of all Internet Pages by THISCO shall cease and all
duties and obligations as set forth herein shall immediately cease
and terminate except for the those provisions that expressly state
otherwise and the provisions set forth in Article 6, Sections 7.6,
7.7, 9.1 and Articles 10 and 11 hereof and any payments which may
be due after the date of termination and all Materials shall be
returned to Participant.
VI.
INTELLECTUAL PROPERTY AND MATERIALS
6.1 Ownership of Materials. Participant represents and warrants that it
is the sole and exclusive owner, or has the unlimited authorized
right of use in connection herewith, of all Materials, copyrights,
trademarks, trade names, service marks and any and all other
intellectual property rights, by virtue of common law or statutory,
used in connection therewith and that the publication of same on the
Internet Pages is and shall be, at all times material hereto, legal
and shall not, in any manner, infringe upon or violate any applicable
law or rights of any third party.
6.2 Protection of Intellectual Property Rights. Participant shall be
solely and exclusively responsible for the protection of any and all
of its intellectual property including, but not limited to the
inclusion of any and all statutory or other notices customarily used
or required for purposes of providing notice of ownership or
protection of such intellectual property in connection with the
Materials and the Internet Pages.
6.3 Ownership of Internet Pages. The Internet Pages, shall, at all times
be and remain the property of Participant. THISCO may not use or
publish the Internet Pages in any manner other than pursuant to this
Agreement without the prior written consent of Participant.
Participant may use and republish the Internet Pages upon payment to
THISCO of all costs associated with providing the Internet Pages to
Participant.
VII.
DEFAULT
7.1 Events of Default. Subject to Section 7.2 below, any one of the
following will be considered an Event of Default:
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(i) The failure of either party to pay any amount due hereunder
within the time required;
(ii) The failure of either party (including Participant's
participating affiliates and franchisees) to satisfy the
obligations set forth in this Agreement;
(iii) The material breach by either party of this Agreement; or
(iv) If either THISCO or Participant (the "Defaulting Party")
becomes insolvent, takes any step leading to its cessation as
a going concern, or ceases business operations for reasons
other than a strike and other than assignment as allowed by
this Agreement, then the other party (the "Insecure Party") may
immediately terminate this Agreement upon written notice to the
other party unless the Defaulting Party immediately gives the
Insecure Party adequate assurance of the future performance of
this Agreement. If bankruptcy proceedings are commenced with
respect to the Defaulting Party, and if this Agreement has not
otherwise terminated, then the Insecure Party may suspend all
further performance of this Agreement until the Defaulting
Party assumes or rejects this Agreement pursuant to Section 365
of the Bankruptcy Code or any similar or successor provision.
Any such suspension of further performance by the Insecure
Party pending the Defaulting Party's assumption or rejection
will not be a breach of this Agreement.
7.2 Force Majeure. It will not constitute an Event of Default if such
event listed in Section 7.1 is caused by or results from acts of God,
fire, war, civil unrest, accident, power fluctuations or outages,
telecommunication fluctuations, outages or delays, utility failures,
mechanical defects, or other events beyond the control of the
defaulting party. However, if any such occurrence results in any of
the events described in Section 6.1, and the same continues for more
than thirty (30) consecutive days, either party may terminate this
Agreement by providing notice as required herein.
7.3 Notice of Default and Opportunity to Cure. Upon the occurrence of an
Event of Default, the non-defaulting party shall give notice of such
default to the defaulting party and, in the event of a monetary
default, the defaulting party shall have ten (10) days from the date
of such notice within which to cure such default or, in the event of
a non-monetary default, the defaulting party shall have twenty (20)
days within which to cure such default. In the event such default is
not cured within the time required herein, this Agreement may then be
terminated.
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7.4 Effect of Default.
(i) By Participant. In the event of a default of this Agreement by
Participant and the failure of Participant to cure such default
after notice and opportunity to cure as provided herein, THISCO
shall be entitled (i) terminate this Agreement and THISCO's
obligations and duties set forth herein shall cease (ii) to
retain all materials, the Internet Pages and any and all other
Materials used by, developed or created by THISCO in the
performance of this Agreement, and (iii) pursue any and all
claims for fees and costs agreed to be paid pursuant to this
Agreement without any offset for mitigation resulting from
THISCO's terminated obligation to continue to develop and create
Internet Pages as required by the TravelWeb Brochure Order. It
is acknowledged and agreed by Participant that the damages to
THISCO for a default on this Agreement by Participant would be
difficult, if not impossible, to measure and that the balance
unpaid on any TravelWeb Brochure Order would represent a fair
and reasonable estimate of THISCO's damages in the event of such
default.
(ii) By THISCO. In the event of a default of this Agreement by THISCO
and the failure of THISCO to cure such default after notice and
opportunity to cure as provided herein, Participant may
terminate this Agreement and THISCO shall deliver to Participant
all Materials and all other materials used, developed and/or
created by THISCO in the development and creation of the
Internet Pages and THISCO shall refund to Participant all
amounts paid pursuant to the TravelWeb Brochure Order less a
reasonable amount for such parties of the development and
creation of the Internet Pages accomplished by THISCO as
represented by the Materials delivered to Participant.
7.5 Errors on Internet Pages. Notwithstanding any other provision hereof,
but except as provided in Section 9.1, in the event an Internet Page
published pursuant to this Agreement contains an error caused by
THISCO, Participant's sole and exclusive remedy for such error shall
be THISCO's obligation to cure such error by correcting the
information contained on the Internet Page within ten (10) days of
receipt of notice of such error.
7.6 Waiver of Consequential Damages. Except as provided in Section 9.1,
neither party shall be liable to the other for any consequential
damages proximately caused or resulting from any default of this
Agreement or arising out of the performance of this Agreement, and
each party hereby expressly waives such damages.
7.7 Disclaimer and Limitation of Liabilities. EXCEPT AS PROVIDED IN
SECTION 9.1, THISCO WILL NOT BE RESPONSIBLE OR LIABLE TO PARTICIPANT
FOR ANY FALSIFICATIONS OR INACCURACIES IN THE
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MATERIAL OR THE INTERNET PAGES NOR WILL IT HAVE ANY LIABILITY TO
PARTICIPANT FOR ANY ACT OR FAILURE TO ACT WITH RESPECT TO THE
INTERNET PAGES UNLESS EXPRESSLY SET FORTH HEREIN, EXCEPT TO THE
EXTENT RESULTING FROM THISCO'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR
A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PRODUCT
OR SERVICE OR OTHERWISE, ARE DISCLAIMED BY THISCO AND WAIVED BY
PARTICIPANT.
VIII.
TRAVELWEB ACCESS INFORMATION
8.1 Access Reports. Periodically, THISCO shall provide to Participant a
report containing TravelWeb Access Information.
IX.
INDEMNIFICATION
9.1 Indemnification in the Event of Certain Losses. Participant agrees to
indemnify and hold harmless THISCO and THISCO's affiliates,
directors, officers, employees and stockholders, from and against any
losses, claims, liabilities, damages or expenses (including
reasonable attorney's fees), arising out of the performance of this
Agreement ("THISCO's Losses") occurring on account of Participant's
fault and through no fault of THISCO. THISCO agrees to indemnify and
hold harmless Participant, and Participant's affiliates, directors,
officers, employees and stockholders, from and against any losses,
claims, liabilities, damages or expenses (including reasonable
attorney's fees) arising out of the performance of this Agreement
("Participant's Losses") occurring on account of THISCO's fault and
through no fault of Participant. Promptly after receipt by an
indemnified party of notice of the commencement of any action or the
presentation or other assertion of any claim which could result in
any indemnification claim pursuant to this Section 9.1, such
indemnified party shall give prompt notice thereof to the
indemnifying party and the indemnifying party shall be entitled to
participate therein or, to the extent that it shall wish, assume the
defense thereof with its own counsel. If the indemnifying party
elects to assume the defense of any such action or claim, the
indemnifying party shall not be liable to the indemnified party for
any fees of other counsel or other expenses, in each case
subsequently incurred by such indemnified party in connection with
the defense thereof, other than reasonable costs of investigation
and preparation, unless representation OF both parties by the same
counsel would be inappropriate due to actual or potential differing
interests between them. Whether or not an indemnifying party elects
to assume the defense of any action or claim,
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the indemnifying party shall not compromise or settle any such action
or claim without the indemnified party's written consent (which
consent shall not be unreasonably withheld). The parties agree to
cooperate to the fullest extent possible in connection with any claim
for which indemnification is or may be sought under this Agreement.
X.
CONFIDENTIALITY
10.1 Confidential Information. During the term of this Agreement, it is
acknowledged by Participant and THISCO that each may receive or have
access to confidential and proprietary information of the other party
including, but not limited to, marketing information, business plans,
financial information, and trade secrets ("Confidential Information").
Each party acknowledges that it shall not acquire any ownership or
other rights in or to Confidential Information of the other, and shall
use the Confidential Information only for the purposes of the
performance of this Agreement, and shall keep confidential and not
disclose the Confidential Information to any other person, firm or
corporation without the prior written consent of the other party. Any
Confidential Information transmitted in writing or by other tangible
media shall remain the property of the owner and shall be returned to
the owner at its request, together with all copies made thereof, at the
conclusion of this Agreement. The parties agree that the provisions of
this Section 10 shall be in perpetuity. However, this provision shall
not in any way restrict the rights of either party to disclose
information that: (i) is required by the other party to be disclosed in
the performance of the services specified herein; (ii) is specifically
requested by the other party to be disclosed; (iii) is specifically
requested by authorized staff of either party to be disclosed; (iv) is
or becomes generally available to the public other than by breach of
this Agreement; or (v) either party is required by law to disclose;
provided, however, that prior to such disclosure the disclosing party
shall immediately notify the other party in writing if it believes that
there will be a legal requirement to disclose, so that the
non-disclosing party can determine the most appropriate means of
disclosure and so that the non-disclosing party is provided the
opportunity to contest the disclosure requirement through legal means.
10.2 Use of Marks. Participant acknowledges that "TravelWeb" is a service
xxxx of THISCO and that it shall not use such xxxx without the prior
written approval of THISCO. Except as otherwise permitted herein,
THISCO agrees that it shall not use any copyright Materials, service
xxxx, trademark or trade name of Participant without Participant's
prior written consent. Notwithstanding the preceding provisions of
this Section 10.2, either party to this Agreement may, for purposes
consistent with the use of the name and/or logo of other hotel
companys participating in TravelWeb, utilize the proper trade names,
service marks, trademarks and logos of the other party.
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XI.
MISCELLANEOUS
11.1 Controlling Law. This Agreement will be interpreted pursuant to the
laws of the State of Texas without reference to its conflict of laws
principles. Subject to the agreement to arbitrate and the
jurisdiction and venue provisions set forth in Section 10.1 hereof,
any action brought relating to or arising out of this Agreement must
be brought in the state or federal courts situated in the county and
state of the residence or principal place of business of the party
against whom the action is brought (or any of them, if more than
one).
11.2 Notice. All notices and other communications contemplated hereby must
be in writing (except in the case of electronically transmitted data)
and (a) personally delivered, (b) deposited in the United States
mail, first-class, registered or certified mail, return receipt
requested, with postage prepaid, (c) sent by overnight courier
service (for next business day delivery), shipping prepaid, (d) sent
by telecopy with confirmation of receipt of telecopy to the number
indicated, or (e) transmitted directly to the recipient by electronic
data transmission pursuant to arrangements made between the parties.
Such notices and other communications (except in the case of
electronically transmitted data) shall be addressed as follows:
IF TO THISCO:
0000 Xxxxxx Xxxxx Xxxx. Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, III
(if by telecopy to:
(000) 000-0000)
IF TO PARTICIPANT:
Inter-Continental Hotels Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
(if by telecopy to:
(000) 000-0000)
with a copy to:
Inter-Continental Hotels Group Ltd.
Xxxxxxxxxx Xxxxx, Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxx WlX 5FX
Attention: Sr. Vice President Marketing
& Sales
(if by telecopy to: 44 171 355 6504)
or such persons or addresses as any party may request by notice duly
given hereunder. Except as otherwise specified herein, notices will
be deemed given and received when received.
11.3 Binding Effect. This Agreement will be binding upon and will inure to
the benefit of the legal representatives, successors and duly
authorized assigns of each party whether resulting from merger,
acquisition, reorganization or assignment pursuant to the terms
hereof.
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11.4 Assignment; Authorized Agents. This Agreement is not assignable by
Participant without the prior written consent of THISCO and such
consent shall not be unreasonably withheld or delayed. Any of the
duties and obligations of THISCO may be assigned by THISCO or
performed by any Authorized Representative of THISCO.
11.5 Entire Agreement. This Agreement and the Exhibits hereto (and any
replacements and/or amendments thereto) shall constitute the entire,
sole and exclusive agreement between THISCO and Participant with
respect to the subject matter set forth herein and shall supersede
any and all other agreements, oral or written. Each party hereto
acknowledges that it has not relied upon any representation or
promise not set forth herein.
11.6 Parties Independence. This Agreement will not constitute a
partnership, joint venture or similar arrangement. The parties hereto
are separate and distinct entities independently contracting with
each other at arms length.
THE HOTEL INDUSTRY SWITCH COMPANY
BY: /s/ XXXX X. XXXXX, III
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Xxxx X. Xxxxx, III
President
DATE: 6/29/95
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PARTICIPANT:
INTER-CONTINENTAL HOTELS CORPORATION
BY: /s/ XXXXXX X. XXXXXXXXXXX
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ITS: Executive Vice President
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DATE: 23 June 1995
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