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EXHIBIT 10.6
PREFERRED HOSPITALITY PARTNER AGREEMENT
This PREFERRED HOSPITALITY PARTNER AGREEMENT (this "Agreement") is made
this ___ day of September, 1999, by and between xxxxxxxxxx.xxx(TM), a Delaware
corporation ("xxxxxxxxxx.xxx(TM)") and The Xxxx-Xxxxxxx Hotel Company, L.L.C., a
Delaware limited liability company ("Xxxx-Xxxxxxx").
WHEREAS, xxxxxxxxxx.xxx(TM), through its exclusive Internet web site
(the "Web Site") proposes to provide to the private aviation marketplace
facilities for the reservation and purchase of various services incident to
private aircraft travel including, without limitation, aircraft charter, ground
transportation, personal and aircraft security services, hotel space, food
service and other hospitality services;
WHEREAS, Xxxx-Xxxxxxx is in the business of operating premier luxury
hotels (guest room accommodations only as provided by Xxxx-Xxxxxxx are
hereinafter referred to as the "Services") and, subject to the terms and
conditions set forth herein, desires for xxxxxxxxxx.xxx(TM) to advertise and
promote the Services provided by Xxxx-Xxxxxxx through the Web Site;
WHEREAS, xxxxxxxxxx.xxx(TM), subject to the terms and conditions
hereof, desires to include the Services of Xxxx-Xxxxxxx, on the Web Site:
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NOW, THEREFORE, in consideration of the premises set forth above and
the mutual promises set forth below, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto
do hereby agree as follows:
1. RECITALS. The Recitals set forth above are an integral part
of this Agreement and are incorporated into and made a part of this Agreement.
2. INCLUSION ON WEB SITE; CONTINUED USE OF SERVICES; FLIGHTSERV.
COM(TM) EXCLUSIVity. Xxxx-Xxxxxxx hereby authorizes xxxxxxxxxx.xxx(TM), and
xxxxxxxxxx.xxx(TM) hereby agrees, during the term of this Agreement, to identify
and include a description of the Services it provides, the price and the other
terms and conditions related thereto (the "Information") on the Web Site. If any
person (the "Customer") utilizes the Services of Xxxx-Xxxxxxx pursuant to
reservations made through the Web Site, xxxxxxxxxx.xxx(TM) shall be entitled to
the xxxxxxxxxx.xxx(TM) Fee as set forth in, and pursuant to, Section 9 below.
For those Services performed by Xxxx-Xxxxxxx, for such Customer subsequent to
the expiration or termination of this Agreement but which were reserved through
the Web Site, xxxxxxxxxx.xxx(TM) shall also be entitled to, and Xxxx-Xxxxxxx
shall pay the xxxxxxxxxx.xxx(TM) Fee to xxxxxxxxxx.xxx(TM). Xxxx-Xxxxxxx and
xxxxxxxxxx.xxx(TM) agree that, during the term of this Agreement,
xxxxxxxxxx.xxx(TM) shall be a non-exclusive but preferred internet distribution
facility of the Services to Customers in the private aviation marketplace
provided by Xxxx-Xxxxxxx but nothing in this Agreement, except as specifically
set forth herein, shall be deemed to be a prohibition against xxxxxxxxxx.xxx(TM)
advertising and promoting the Services of any other provider of hospitality
services on the Web Site. Nothing in this Agreement shall prevent Xxxx-Xxxxxxx
from operating its own web site or permitting it services to be distributed
through other web sites.
3. CUSTOMIZATION AND MAINTENANCE OF WEB SITE; DESCRIPTION OF
SERVICES; COMPILATION OF CUSTOMER INFORMATION. xxxxxxxxxx.xxx(TM) shall be
responsible, at its sole cost and expense, for the customization and maintenance
of the Web Site. Xxxx-Xxxxxxx, at its sole cost and expense, shall provide
xxxxxxxxxx.xxx(TM) with access to Xxxx-Xxxxxxx information, including the
Information, as well as access to the appropriate representatives of
Xxxx-Xxxxxxx that xxxxxxxxxx.xxx(TM) reasonably deems to be necessary and/or
useful in connection with the operation of the Web Site. xxxxxxxxxx.xxx(TM), may
modify the description of Xxxx-Xxxxxxx'x Services on the Web Site,
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provided that xxxxxxxxxx.xxx(TM) obtain the prior written approval of
Xxxx-Xxxxxxx. Provided that the Information as set forth on the Web Site is
substantially similar to the Information provided by Xxxx-Xxxxxxx to
xxxxxxxxxx.xxx(TM), Xxxx-Xxxxxxx, and not xxxxxxxxxx.xxx(TM), shall be
responsible for the accuracy thereof including with respect to any claim, cause
of action or damages between Xxxx-Xxxxxxx, xxxxxxxxxx.xxx(TM), the Customer
and/or any third party. Xxxx-Xxxxxxx promptly shall advise xxxxxxxxxx.xxx(TM) of
the type of reasonable information it would like xxxxxxxxxx.xxx(TM) to obtain
about the Customer's profile and xxxxxxxxxx.xxx(TM) shall use reasonable efforts
to collect through the Web Site, but will not guarantee either the collection of
such information or the accuracy of the information collected.
4. CITY AND AIRPORT LISTINGS OF SERVICES; PRIORITY. The Web Site
shall permit a Customer using the Web Site to ascertain the availability of, and
terms and conditions related to, the Services for specific locations or cities
(the "Locations") as provided by those entities who have entered into
arrangements satisfactory to xxxxxxxxxx.xxx(TM) for using the Web Site,
including Xxxx-Xxxxxxx. Notwithstanding the preceding sentence, in the event
that a Customer using the Web Site inquires about information for hospitality
services in any Location in which Xxxx-Xxxxxxx has one or more facilities, then,
prior to providing information about other hospitality services, the Web Site
shall include Xxxx-Xxxxxxx'x Information in a priority listing. If a Customer
wishes to view other options for any reason, then the Web Site will allow the
Customer to further search the Web Site for the Information of other entities
who have entered into appropriate contracts or similar arrangements with
xxxxxxxxxx.xxx(TM) without priority commitments. Xxxx-Xxxxxxx shall treat any
Customer seeking reservations through the Web Site as a "Last Room Account" with
access to all facilities of Xxxx-Xxxxxxx equal in access and priority as the
most favored customers of Xxxx-Xxxxxxx.
5. PRICING; RESERVATION OF SERVICES. The Web Site shall set
forth pricing information for the Services offered to Customers by Xxxx-Xxxxxxx
and other entities. The actual charges to be paid by the Customer for the
Services provided by Xxxx-Xxxxxxx to the Customer (the "Charges"), shall be
established when a Customer properly makes a reservation for the Services
provided by Xxxx-Xxxxxxx. Any Customer accessing the Web Site who desires to use
Xxxx-Xxxxxxx'x Services shall be instructed by the Web Site how to make a
reservation for Xxxx-Xxxxxxx'x Services through the Internet. A reservation
shall be made by a Customer in the following manner:
(i) the Customer shall advise xxxxxxxxxx.xxx(TM), through
the Web Site, that the Customer desires to reserve
hospitality facilities and the Web Site will cite a
pricing structure. If the reservation selected is for
Services offered by Xxxx-Xxxxxxx, xxxxxxxxxx.xxx(TM)
shall promptly forward this request to Xxxx-Xxxxxxx;
(ii) thereafter Xxxx-Xxxxxxx shall provide
xxxxxxxxxx.xxx(TM) with either an acceptance of the
reservation with a firm Charge quote and
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confirmation number or, if the requested Services are
not available to any Customer, with alternative
Services or a declination of the reservation. In
either case, xxxxxxxxxx.xxx(TM) shall promptly
provide the response to the Customer. Xxxx-Xxxxxxx
shall provide confirmation to xxxxxxxxxx.xxx(TM) for
all reservations for Services made by the Customer,
and the Charges therefore, as promptly as possible
after receipt of the reservation request from
xxxxxxxxxx.xxx, and
(iii) upon receipt of the Charge quote, the Customer shall
confirm his/her reservation to xxxxxxxxxx.xxx(TM).
which shall promptly confirm to Xxxx-Xxxxxxx. In
order to make a reservation for the Services of
Xxxx-Xxxxxxx, the Customer shall be obligated to
provide xxxxxxxxxx.xxx(TM) with an acceptable credit
card or other payment facility to pay for the
Services provided by Xxxx-Xxxxxxx in according to
Xxxx-Xxxxxxx'x customary payment policies. At the
time xxxxxxxxxx.xxx(TM)confirms the reservation to
Xxxx-Xxxxxxx as described in clause (iii) above,
xxxxxxxxxx.xxx(TM)shall confirm to the Customer its
reservation of the Services to be provided by
Xxxx-Xxxxxxx and the terms and conditions related
thereto and, at such time, xxxxxxxxxx.xxx(TM)shall
provide the Customer with a confirmation number and,
if the Customer seeks services for banquet, meeting
facilities or other services requiring special
arrangement, with the name of a person and a
telephone number at Xxxx-Xxxxxxx for such
arrangements. The confirmation of the Services and
the terms and conditions related thereto by
Xxxx-Xxxxxxx shall be binding on Xxxx-Xxxxxxx and the
Customer. Xxxx-Xxxxxxx covenants that it will not
confirm a reservation unless it has availability for
that Service in accordance with its terms.
Xxxx-Xxxxxxx further covenants that it will provide
the confirmed and reserved Services upon the agreed
upon terms and conditions to the Customer.
6. CUSTOMER CONTRACT. The Web Site shall contain the Customer
contracts which shall by conspicuous language advise all Customers that, upon
their confirmation and reservation of the Services to be provided by
Xxxx-Xxxxxxx and the Charges to be paid by the Customer, the Customer shall be
bound to xxxxxxxxxx.xxx(TM) and Xxxx-Xxxxxxx by the terms and conditions related
thereto (the "Customer Contract"). All Customers shall be advised that, upon
their breach of the Customer Contract, they shall be liable and responsible for
payment in accordance with Xxxx-Xxxxxxx'x customary payment terms and any other
damages Xxxx-Xxxxxxx may suffer. The Customer Contract shall include standard
exculpation and limitation of liability provisions for the benefit of
xxxxxxxxxx.xxx(TM). Xxxx-Xxxxxxx and Customers shall each be bound by the
provisions of the Customer Contract to the extent that they relate to the
Services.
7. XXXX-XXXXXXX LIAISON REPRESENTATIVE. Xxxx-Xxxxxxx shall
designate in writing, from time to time, the name of a representative to act as
a liaison between Xxxx-Xxxxxxx and xxxxxxxxxx.xxx(TM) regarding, among other
things, special services and requirements of Customers.
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8. SPECIAL COVENANTS OF XXXX-XXXXXXX. Xxxx-Xxxxxxx represents
that it:
(i) is a limited liability company, duly organized,
validly existing and in good standing under the laws
of the jurisdiction of its organization;
(ii) has all requisite authority to operate its properties
and carry on its business as contemplated by this
Agreement;
(iii) is duly qualified, licensed and otherwise authorized
to transact business in each jurisdiction in which
the Services contemplated to be performed by this
Agreement make such qualification for license
necessary;
(iv) has all licenses, certificates of occupancy and other
permits necessary to conduct its business; and
(v) covenants that it shall during the term of this
Agreement maintain in good standing all certificates,
licenses, qualifications and other privileges
necessary to fully comply with its obligations under
this Agreement and to perform the Services under all
applicable law.
9. BILLING AND COLLECTION; XXXXXXXXXX.XXX(TM) Fees. Xxxx-Xxxxxxx
shall be responsible for billing Customers and collecting the Charges from the
Customers for the Services agreed to be performed by Xxxx-Xxxxxxx. No later than
five (5) business days after the close of each month, Xxxx-Xxxxxxx shall provide
xxxxxxxxxx.xxx(TM) with a written statement setting forth the total of all guest
room accommodations received by Xxxx-Xxxxxxx from Customers for reservations
made through the Web Site. Xxxx-Xxxxxxx shall provide with such written
statement, payment of the xxxxxxxxxx.xxx(TM) which shall be 10% of the amount
received by Xxxx-Xxxxxxx pursuant to reservations made through the Web Site
(excluding all amounts received for meals and all other incidentals to a hotel
room stay). All risk of non-payment of the Charges by the Customers for the
Services provided by Xxxx-Xxxxxxx to the Customer pursuant to the terms of the
reservation made by the Customer and Xxxx-Xxxxxxx shall be borne by Xxxx-Xxxxxxx
and xxxxxxxxxx.xxx(TM) in proportion to their respective interests in the
Charges.
10. INDEMNIFICATION; LIMITATION OF LIABILITY; EXCULPATION.
(a) Xxxx-Xxxxxxx hereby indemnifies, and agrees to defend and hold
harmless xxxxxxxxxx.xxx(TM) and its affiliates, officers, directors, employees,
independent contractors and agents, including its attorneys (each a
"xxxxxxxxxx.xxx(TM) Indemnified Party") from and against any and all losses,
costs, expenses, damages penalties, fines, charges, demands, liabilities and
obligations of any kind (including interest, penalties and reasonable attorneys'
fees and consultants' fees, expenses and disbursements) incurred or suffered by
a xxxxxxxxxx.xxx(TM) Indemnified Party, when incurred or suffered, as a result
of a failure of Xxxx-Xxxxxxx to comply with applicable law or otherwise to
comply with any of its obligations under this Agreement or the Customer, without
limitation injury or damage to persons or property that may be caused to any
third party resulting from any Xxxx-Xxxxxxx Service, or under any applicable law
or regulation or otherwise arising out of the provision, or failure to provide,
the Services. If a claim by a third party is made against a xxxxxxxxxx.xxx(TM)
Indemnified Party, such xxxxxxxxxx.xxx(TM) Indemnified Party shall promptly give
notice thereof to Xxxx-Xxxxxxx which shall have the right to assume the defense
of such claim. No failure to give or promptly give notice of a claim shall
excuse Xxxx-Xxxxxxx from its indemnification and hold harmless obligations
hereunder except to the extent that Xxxx-Xxxxxxx is prejudiced thereby. This
Section 10(a) shall survive the expiration or termination of this Agreement.
(b) xxxxxxxxxx.xxx(TM) hereby indemnifies and agrees to defend and hold
harmless Xxxx-Xxxxxxx and its affiliates, officers, directors, employees,
independent contractors and agents, including its attorneys
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(each a "Xxxx-Xxxxxxx Indemnified Party") from and against any and all losses,
costs, expenses, damages, penalties, fines, charges, demands, liabilities and
obligations of any kind (including interest, penalties and reasonable attorneys'
fees and consultants' fees, expenses and disbursements) incurred or suffered,
when incurred or suffered, by a Xxxx-Xxxxxxx Indemnified Party as a result of a
failure of xxxxxxxxxx.xxx(TM) to comply with applicable law or otherwise breach
of any of its obligations under this Agreementor to the Customer. If a claim by
a third party is made against a Xxxx-Xxxxxxx Indemnified Party, a Xxxx-Xxxxxxx
Indemnified Party shall promptly give notice thereof to xxxxxxxxxx.xxx(TM) which
shall have the right to assume the defense of such claim. No failure to give or
promptly give notice of a claim shall excuse xxxxxxxxxx.xxx(TM) from its
indemnification obligations hereunder except to the extent that
xxxxxxxxxx.xxx(TM) is prejudiced thereby. This Section 10(b) shall survive the
expiration or termination of this Agreement.
11. CONFIDENTIALITY. Xxxx-Xxxxxxx and xxxxxxxxxx.xxx(TM)
acknowledge that in the performance of their respective duties under this
Agreement, each will come into possession of confidential information and trade
secrets of the other, and each agrees that they, and their respective officers,
directors, employees and agents, shall not disclose and shall keep confidential
any and all such confidential information and trade secrets of the other except
information that entered the public domain otherwise than through a breach of
this Section 11, unless Xxxx-Xxxxxxx or xxxxxxxxxx.xxx(TM), respectively, came
into the rightful possession of such information from an unrelated third party
or unless Xxxx-Xxxxxxx or xxxxxxxxxx.xxx(TM), as the case may be, independently
developed such information. This Section 11 shall survive the expiration or
proper termination of this Agreement.
12. NON-SOLICITATION. xxxxxxxxxx.xxx(TM) and Xxxx-Xxxxxxx, each
agrees on its own behalf and on behalf of each of its officers, directors,
employees and agents, that it will not, without the express prior written
consent of the other, either during the term of this Agreement or for a period
of twelve (12) months after the termination hereof, hire, employ or otherwise
engage the services of any officer, director, employee or agent of the other.
Each party hereto recognizes that the employment relations protected by this
Section 12 are unique, no adequate remedy at law exists for a violation of this
Section 12, and both parties shall have the right of specific performance, or
any other equitable relief, in addition to all other remedies, in order to
protect such party's business interests. This Section 12 shall survive the
expiration or proper termination of this Agreement.
13. NOTICES. Any notice required or permitted under this Agreement
shall be given in writing and shall be deemed effectively given upon personal
delivery, upon delivery by reputable overnight courier or three (3) business
days after deposit in the United States mail, postage pre-paid, by registered or
certified mail, addressed:
(i) if to xxxxxxxxxx.xxx(TM) to
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, XX 00000
Facsimile 000-000-0000
Telephone 000-000-0000
Attention: C. Xxxxxxx Xxxxx, President
With a copy to:
Xxxxxx X. Xxxxxx, Esquire
Xxxxxx & Xxxxxx
2700 International Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile 000-000-0000
Telephone 000-000-0000
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(ii) if to Xxxx-Xxxxxxx to
The Xxxx-Xxxxxxx Hotel Company, L.L.C.
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Associate General Counsel
14. TERM. This Agreement shall be for an initial term of three (3)
years and, until terminated pursuant to the termination provision set forth in
Section 16 below, shall continue from year to year thereafter.
15. TERMINATION. This Agreement may be terminated as follows:
(i) By either party upon a material breach by the other
party of its obligations hereunder which has not been
cured after thirty days written notice specifying the
breach and the action required to correct;
(ii) By either party upon thirty days written notice to
the other, without cause or penalty.
Upon the expiration or termination of this Agreement, all rights and obligations
of the parties hereto shall cease except as otherwise set forth in this
Agreement. Xxxx-Xxxxxxx immediately shall pay xxxxxxxxxx.xxx(TM) the
xxxxxxxxxx.xxx(TM) Fee for Services contracted prior to the effective date of
the expiration or termination of this Agreement. This Section 16 shall survive
the expiration or termination of this Agreement.
16. COUNTERPARTS; FACSIMILE COPY. This Agreement may be executed
in one (1) or more facsimile counterparts each of which shall together
constitute one (1) and the same instrument.
17. NON-ASSIGNMENT. Neither this Agreement nor any of the rights
or obligations hereunder may be assigned by any party hereto without the express
written consent of the other party. Neither a merger, sale of all or
substantially all of the assets of or the sale of the stock of
xxxxxxxxxx.xxx(TM) or other business combination of xxxxxxxxxx.xxx(TM) shall be
considered an assignment hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date first above
written.
XXXXXXXXXX.XXX(TM) Attest
By:
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C. Xxxxxxx Xxxxx
President
THE RITZ CARLTON HOTEL ATTEST
COMPANY, L.L.C.
By:
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Vice President Assistant Secretary
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