STRATEGIC ALLIANCE
AGREEMENT
BY AND AMONG
BARTECH EMEA
AND
HOTEL OUTSOURCE MANAGEMENT INTERNATIONAL, INC.
DATED APRIL 9, 2003
TABLE OF CONTENTS
I
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
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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
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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
