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Exhibit 10.29
CONCESSION AGREEMENT - WINDSTAR
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This Concession Agreement made and concluded as of the 18th day of January,
1996, by and between Holland America Line-Westours Inc., a Washington
corporation d/b/a Windstar Cruises, hereinafter sometimes referred to an "Agent"
or "HA" which is the duly authorized agent of the owners and/or charterers of
the vessels mv Wind Song, mv Wind Star and mv Wind Spirit, hereafter referred to
individually as "Vessel" or collectively as the "Vessels," and Allders
International (USA) Inc., a California corporation (hereinafter referred to as
"Concessionaire").
W I T N E S S T H
- - - - - - - - -
HA agrees to grant and Concessionaire agrees to accept the below
described concession on the following terms and conditions:
DESCRIPTION AND TERM OF CONCESSION
1. This Agreement covers the exclusive concession aboard the Vessels
for:
A. Purchasing, supplying and selling merchandise and sundry in the
Vessels' retail shops;
B. Purchasing and supplying cosmetics, beauty and barbering supplies,
as well as operating the Vessels' hairdressing salons; and
C. Purchasing and supplying liniments, body oils and other similar
consumable items, as well as operating the Vessels' massage facilities.
As used in this Agreement, the term "Owners" includes the entities identified
above together with all other entities that are or become affiliated with and
principals of HA and who have or acquire an interest in a Vessel either as an
owner or charterer.
2. The effective date of this Agreement as to each Vessel shall be
January 18, 1996. Unless terminated earlier in accordance with the provisions
herein, the term of this Agreement shall continue as to each Vessel until
November 30, 2001, plus or minus up to 15 days at HA's option which option may
be applied on a Vessel-by-Vessel basis such that the termination date may be
different as between the Vessels. The termination of the term of this Agreement,
in whole or as to any Vessel, shall not diminish the rights or obligations of
the parties in respect of the period prior to termination including, without
limitation, as to any liabilities or obligations arising as a consequence of
events that occurred prior to termination. Except as otherwise provided in this
Agreement (including, without limitation, Articles 65 and 66 and 66A), HA shall
give Concessionaire at least 90 days' written notice of the exact termination
date of the term of this Agreement or any extension.
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3. Either party shall have the right to terminate the term of this
Agreement prior to the expiration of the term above stated by giving at least
six (6) months advance notice to the other party, provided, however, such notice
may not be given prior to October 1, 1997 and if given, must include all
Vessels.
BASIC STORAGE AND PHYSICAL FACILITIES TO BE FURNISHED BY HA
4. A. HA shall, during the term of this Agreement, permit
Concessionaire to use the existing shops on the Vessels for the purposes
contemplated by this Agreement.
B. HA shall, during the term of this Agreement, permit
Concessionaire to use the existing hairdressing salons and massage facilities on
the Vessels, including furniture, xxxxxx chairs, hair driers, and other
equipment for the purposes contemplated by this Agreement.
C. HA shall, during the term of this Agreement, furnish
Concessionaire with adequate refrigeration and storage facilities, as well as
all reasonable water, electric, air conditioning and other utility services
necessarily incident to Concessionaire's operations on the Vessels. HA shall not
be liable to Concessionaire for any lose or damage caused by or resulting from
any variation, interruption or any failure of said utility services except that
HA shall promptly take such corrective measures as are feasible to restore or
repair such utility services.
D. Concessionaire has inspected and fully familiarized itself
with all of the existing facilities as well as utility services aboard the
Vessels, and Concessionaire acknowledges that they are adequate, sufficient and
fit for their intended use by Concessionaire.
DETAILS AND QUALITIES OF OPERATIONS TO BE PERFORMED BY CONCESSIONAIRE
5. Concessionaire covenants, warrants, and represents that:
A. Concessionaire is an experienced concessionaire, fully qualified to
operate, supervise and/or perform the purchase and sale of sundries and
merchandise in the Vessels' shops; the hairdressing and massage facilities on
the Vessels, as well as the purchase and sale of cosmetics and beauty aids; and
that it has employed or has available and will furnish capable and trained staff
to operate the shops and facilities.
B. Concessionaire will engage the services of a professional window
dresser to display the merchandise for sale in a Vessel's shop. Concessionaire
will maintain the highest standards when changing showcase and window displays.
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C. Concessionaire will purchase, supply and sell in the Vessels' shops
adequate quantities of high quality internationally recognized brands of retail
merchandise of the types agreed to by Concessionaire and HA.
D. Concessionaire will purchase and supply adequate quantities of high
quality, internationally recognized brands of cosmetics, beauty and barbering
supplies, including scissors, xxxxx, haircutters, and brushes, for use in
Concessionaire's operation of the Vessels' hairdressing salons.
E. Concessionaire will purchase and supply adequate quantities of high
quality liniments, bath oils and similar consumable items for use in
Concessionaire's operation of the Vessels' massage facilities.
F. Concessionaire will operate the Vessels' shops, hairdressing salons
and massage facilities during reasonable and customary hours as directed by HA
including operation of each hairdressing salon for services to a Vessel's
officers, staff and crew at convenient hours.
G. HA may prohibit Concessionaire from marketing any specific goods or
services aboard a Vessel if in HA's opinion such marketing is undesirable or
likely to be prejudicial to the business of HA either directly or indirectly or
HA otherwise reasonably objects to the type or quality of the good or services.
During any voyage a Vessel's Master may exercise this right on behalf of HA, but
on termination of any such voyage, the matter may be referred to HA by
Concessionaire.
H. Concessionaire will engage in its service three employees aboard
each Vessel (or such other number as the parties may from time to time agree
upon in writing), all of whom shall be sufficiently trained in their duties and
conversant in English, who will perform Concessionaire's obligations hereunder
in a courteous and efficient manner so as to meet high standards of retail
merchandising, hair dressing and massage facilities at first class resorts.
I. Concessionaire will continue utilizing and improving, to the
reasonable satisfaction of HA, a system for evaluating the performance of
Concessionaire's employees so as to assure continuous maintenance of the quality
standards required of them.
J. Concessionaire will at all times establish and maintain on a Vessel
high standards of sanitary conditions and cleanliness in the storerooms,
hairdressing salon, massage facilities, shop and other spaces where it performs
its obligations; and its employees will at all times maintain high standards of
personal cleanliness. Such sanitary and cleanliness standards shall include but
not necessarily be limited to the requirements imposed by the United States
Public Health Service.
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K. Concessionaire will submit all price schedules in connection with
operations of its hairdressing and massage facilities on a Vessel to HA for
approval, which approval shall not be unreasonably withheld.
L. Prices charged on goods for resale to passengers in the Vessels'
shops are to be fixed by Concessionaire subject to the rights of HA to question
any such prices if HA regards them as unreasonable. On or before October 1,
1997, HA and Concessionaire shall work together to complete development of their
systems for a bar code scanning system on board the Vessels. The Concessionaire
shall ensure that bar codes (UPC) are included on all merchandise sold on board
the Vessels, that Concessionaire's employees have the equipment and training to
enable them to process sales by scanning the bar codes, and that
Concessionaire's employees do, in fact, process sales by such method.
M. For any sales exceeding $500.00, prior authorization has to be
obtained by the Concessionaire from the Vessel's Xxxxxx; in no event shall
Concessionaire deliver merchandise to the purchaser unless and until such
authorization has been obtained (including as to sales on the last day of the
voyage). Concessionaire will actively support HA's "no cash" policy such that
all purchases are charged to the passengers' shipboard accounts. If a passenger
refuses to allow a purchase to be charged to his/her shipboard account,
Concessionaire may accept direct payment but only by credit card and only if the
purchase exceeds $50.00; the credit card processing will still be handled
directly by HA under such procedures as HA and Concessionaire shall hereafter
agree to (such purchases are referred to in this Agreement as "NSA Sales"). The
foregoing provisions of this Article 5(M) do not apply to Post-Voyage Sales (as
that term is defined in Article 6 below). Concessionaire shall not take any
action or omit to take any action for the purpose of inducing or encouraging a
person to purchase merchandise following conclusion of a voyage rather than
during the voyage.
N. Concessionaire will sell barbering services to officers, staff, and
crew of a Vessel at a [* ] discount off the prices charged to passengers, during
hours set aside for services to officers, staff and crew as provided in Article
5(F) above. Concessionaire will, from time to time and in cooperation with HA,
prepare a list of merchandise then being offered in the Vessels' stores that
will be available for purchase at a discount to Vessel officers and crew. From
time to time, HA and Concessionaire shall mutually determine appropriate
discount levels and policies.
O. Concessionaire will continue and maintain the standards of
presentation, service and product selection currently established.
P. Concessionaire will comply, and cause its staff to comply, with the
terms of any agreement and/or policy now existing, or hereafter entered into or
adopted by HA, with respect to the carrying on board the Vessels and/or use on
board the Vessels of alcoholic beverages, any narcotics or other controlled
substances that HA may deem necessary or desirable in view of health and safety
considerations and/or the laws, regulations and policies
_____________________________
* This confidential portion has been omitted and filed separately
with the Commission.
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of any governmental jurisdiction including, without limitation, the zero
tolerance policy of the government of the United States of America.
Q. Concessionaire acknowledges that HA is, and will be, implementing
programs designed to minimize the waste products generated by the Vessels and
further to control the types of waste products in order to reduce disposal costs
and address environmental concerns. Concessionaire shall comply with such
reasonable rules as HA may, from time to time, establish with respect to such
matters. In no event shall Concessionaire place any waste materials or other
substances into the Vessel's waste disposal or garbage systems that are
considered "hazardous substances," "hazardous wastes," "toxic substances" or
"toxic wastes" under applicable law or the generation or disposal of which in
the normal course of garbage handling by the Vessel could result in the
violation of any law, rule or regulation promulgated by any governmental
authority having jurisdiction over the Vessel.
R. Concessionaire will work with HA to develop and utilize an "e-mail"
system that will improve communications between Concessionaire, HA and the
Vessels.
S. In its performance under this Agreement, neither Concessionaire nor
any of its employees or representatives shall engage in any conduct that would
be construed under the laws of the United States of America as constituting
discrimination or harassment on the basis of race, sex, religion, age, national
origin, creed, marital status or sexual orientation.
PAYMENTS
6. A. Concessionaire will pay HA in U.S. Dollars a rental fee of [* ]
of passenger revenue from all Vessels in each year. For purposes of this Article
6, sales revenue from a Vessel includes sales made to passengers by
Concessionaire following conclusion of the voyage and after the passengers have
disembarked the Vessel but which are attributable to events that occurred during
the voyage ("Post-Voyage Sales").
B. Concessionaire acknowledges that HA has established a passenger
rating system for its Vessels whereby most aspects of the Vessels, operations
and passenger services are rated by passengers on a 1-9 scale with 9 being the
highest rating (the "COB System"). The parties further agree that as to both the
Signature Shop's Staff rating and the Beauty Shop's Staff rating, Concessionaire
is expected to maintain a rating of [* ] or better. If there shall occur two or
more consecutive sailings (determined without regard to Excluded Sailings, as
that term is defined below) as to which Concessionaire is unable to maintain an
average Signature Shop's Staff rating and Beauty Shop's Staff rating that are
equal to or greater than [* ] then as to each such consecutive deficient sailing
(other than the first one and not including Excluded Sailings), Concessionaire
shall pay HA the sum of [* ] per day of the
___________________________
* This confidential portion has been omitted and filed separately
with the Commission.
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sailing, excluding day of disembarkation, but in no event more than [* ] as to
any sailing. For purposes of this Agreement, Excluded Sailings are all sailings
as to which the Signature Shop's Staff rating, the Beauty Shop's Staff rating
and the Vessel's overall experience rating are all less than [* ]. HA will
provide Concessionaire with each sailing's Signature Shop's Staff, Beauty Shop's
Staff and overall experience ratings by e-mail promptly following the conclusion
of the sailing. On a monthly basis as to sailings ending during that month,
Concessionaire shall deliver to HA amounts due, if any, pursuant to this Article
6(B). An example of the foregoing is as follows:
Overall
Beauty Shop's Signature Shop's Experience
Cruise Staff Rating Staff Rating Rating
------ ------------ ------------ ------
1 [*
2
3
4
5
6 ]
CRUISE 1: Signature Shop's Staff rating and Beauty Shop Staff Rating at or above
[* ] - no payment.
CRUISE 2: Signature Shop's Staff rating or Beauty Shop's Staff Rating below [*
], not an Excluded Sailing because overall experience rating is at or above [* ]
- no payment because of Cruise 1 rating.
CRUISE 3: Excluded Sailing because Signature Shop's Staff Rating, Beauty Shop's
Staff Rating and overall experience rating below [* ] - no payment.
CRUISE 4: Signature Shop's Staff rating or Beauty Shop's Staff Rating below [*
], not an Excluded Sailing because overall experience rating is at or above [* ]
- payment is due since there have been two or more consecutive sailings where
the Signature Shop's Staff rating or Beauty Shop's Staff Rating was below [* ]
(for these purposes, Cruise 3 is ignored).
CRUISE 5: Signature shop's Staff rating and Beauty Shop's Staff Rating at or
above [* ], not an Excluded Sailing even though overall experience rating is
below [* ] because Signature Shop's Staff rating or Beauty Shop's Staff Rating
is at or above [* ] - no payment.
___________________________
* This confidential portion has been omitted and filed separately
with the Commission.
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CRUISE 6: Signature Shop's Staff rating or Beauty Shop's Staff Rating below [*
], not an Excluded Sailing because overall experience rating in at or above [* ]
- no payment because of Cruise 5 rating.
Notwithstanding the above provisions, Concessionaire shall have the right to
request HA review as to any sailing in which Concessionaire was unable to
maintain an average Signature Shop's Staff rating or Beauty Shop's Staff rating
that is equal to or greater than [* ] on the basis of mitigating circumstances.
If HA agrees there were mitigating circumstances, then such sailing will be
considered an Excluded Sailing for all purposes of this Section; otherwise, the
above provisions of this Section shall apply. The decision of HA as to whether
there were mitigating circumstances shall be final and binding upon the parties.
7. [INTENTIONALLY OMITTED]
8. Concessionaire will also pay HA a per them messing charge of [* ]
per employee per day for their personnel on a Vessel until November 30, 1996. HA
may, at its option, annually increase the messing charges as of December 1 of
each year (beginning with December 1, 1996), but no such annual increase shall
exceed the applicable annual rate of increase used by HA for internal budgetary
purposes. None of the Concessionaire's employees shall order from the passenger
menus.
9. HA will pay Concessionaire for retail merchandise (other than
sundries) which HA purchases from the Vessels' shops for use as prizes or gifts
to passengers or other personnel aboard the Vessels, at prices reflecting a
mutually agreed upon discount off the prices at which Concessionaire regularly
sells the same items of retail merchandise to passengers. Such discount shall
only be available as to products then included on the officer/crew discount list
prepared pursuant to Article 5(N) above.
10. A. As HA under its "no cash" policy collects and holds all revenues
generated by Concessionaire on board and since all NSA Sales (as that term is
defined in Article 5(M) above) will be processed through HA's credit card
processing system, HA shall remit to Concessionaire, at the end of each voyage,
a sum equal to the excess of [* ] of the gross revenues for that voyage
(excluding Post-Voyage Sales) over the sum of (i) messing charges, plus (ii)
other unpaid amounts due to HA for that voyage. Credit card service charges for
on-board sales (including NSA Sales) shall be for the account of HA. Credit card
service charges for Post-Voyage Sales shall be for the account of
Concessionaire.
B. At the end of each voyage of a Vessel the Concessionaire's
supervisor shall furnish the Xxxxxx, in writing, the Concessionaire's gross
revenues from the voyage (NSA Sales to be included in gross revenues but
separately stated).
___________________________
* This confidential portion has been omitted and filed separately
with the Commission.
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C. On a monthly basis, Concessionaire shall deliver to HA an amount
equal to [* ] of the revenues received by Concessionaire from Post-Voyage Sales
during that month together with a schedule specifying the names of the
passengers, the items purchased and the amounts paid.
TRADEMARK
11. HA hereby grants Concessionaire the right to imprint the WINDSTAR
logo and, in HA's discretion, other WINDSTAR trademarks (the WINDSTAR logo and
other trademarks are herein referred to as the "Trademarks") on souvenirs and
other sundry and merchandise sold by Concessionaire on board the Vessels.
12. A. All right, title and interest in and to the Trademarks and the
goodwill associated therewith is owned by HA and/or one of its affiliates.
Concessionaire recognizes such ownership in HA and its affiliates and agrees
never to contest their title thereto or the validity of the trademark
applications or registrations therefore filed or obtained by HA or its
affiliates.
B. Concessionaire agrees that HA and/or its affiliates are and will be
the owner of all goodwill that may in the future attach to the Trademarks as a
result of Concessionaire's use of the Trademarks.
C. Concessionaire acknowledges that by entering into this Agreement,
Concessionaire acquires no rights to any trademarks pertaining to any of HA's
products or services which rights remain solely in HA and/or its affiliates,
except for such rights specifically granted in this Agreement.
D. Concessionaire shall not, without HA's prior written consent, file
any applications or obtain any registrations of the Trademarks anywhere in the
world. If requested by HA, Concessionaire agrees, at the expense of HA, to
assist and join in any application HA and/or its affiliates may make to register
the Trademarks including the execution of any documents as may be necessary to
implement such application.
E. HA shall have the right to determine the existence of infringement
of the Trademarks, and in the event of infringement by a third party, HA and its
affiliates shall have the exclusive right, at their discretion, to file and
maintain a suit for infringement.
F. Concessionaire agrees to make only proper usage of the Trademarks
and specifically to include the appropriate indication TM or "R" within a
circle, adjacent to the Trademarks at all reasonable times.
G. Concessionaire agrees upon termination of the term of this Agreement
to cease all use of the Trademarks or any confusingly similar trademark or trade
name. After
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termination of the term of this Agreement, Concessionaire shall not adopt for
use any trademark or trade name confusingly similar to the Trademarks.
13. Concessionaire shall provide HA with artwork, or photostats of
artwork, indicating colors and process of manufacture, of all newly-designed and
not previously approved uses of the Trademarks for HA's approval prior to their
use. HA shall have the right, at its discretion, to forbid the use thereof.
Samples of literature, advertising, catalogs and packaging relating to the
souvenirs will be provided on a timely basis by Concessionaire to HA following
printing or production. When using the Trademarks, Concessionaire agrees to
undertake to comply with the requirements of all laws pertaining to trademarks,
including marking requirements. Before using any Trademarks, Concessionaire
shall inform HA of the nature and quality of the souvenirs and shall thereafter
promptly furnish samples thereof to HA.
CONCESSIONAIRE'S EMPLOYEES
14. A. Concessionaire's status under this Agreement is solely that of
an independent contractor, and Concessionaire at all times has the obligation
and right to control all of the employees engaged by Concessionaire to perform
its obligations hereunder, and such persons are solely the responsibility of
Concessionaire. Concessionaire is solely responsible for the payment of all
wages, vacation pay, benefits and repatriation expenses to each of its
employees. Concessionaire shall furnish HA with copies of the contract forms
used for engaging the services of Concessionaire employees.
B. Concessionaire may, at its own expense and without interfering with
a Vessel's operations, replace its employees or transfer them between the
Vessels, at reasonable intervals.
15. Concessionaire is solely responsible for satisfying all maintenance
and cure obligations, and for the payment of any medical and subsistence
expenses or damages, to Concessionaire's employees arising from accident, injury
or illness. Except as provided in Article 28, Concessionaire shall indemnify HA
and the Owners and hold them harmless for and from any such obligations,
expenses or damages they may incur together with all expenses incident thereto
including, without limitation, legal fees.
16. Concessionaire's employees do not have maritime liens on a Vessel
for any payments due to them in connection with their services for
Concessionaire. Concessionaire shall indemnify HA and the Owners and hold them
harmless for and from any such lien discharged by them together with all
expenses incident thereto including, without limitation, legal fees.
17. Concessionaire's employees are not entitled to assert claims
against HA or the Owners under Xxxxx Act, 46 U.S.C. ss.688 or any successor
statute. Concessionaire shall indemnify HA and the Owners and hold them harmless
for and from and such Xxxxx Act
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damages incurred by them together with all expenses incident thereto including,
without limitation, legal fees.
18. In each of its contracts with its employees, Concessionaire will
insert the following notice:
"Your employer is a concessionaire of Holland America Line-Westours
Inc. d/b/a Windstar Cruises ("HALW"), agent of (insert shipowner name),
the owner or charterer of the Vessel. You are subject to the control of
your employer. You are also subject to the authority of the Master for
purposes of health, safety, and discipline. In your dealings with
passengers you will refer to yourself an employee in the Vessel's
Shops. However, your employer is solely responsible for you, and
neither the Vessel nor HALW nor the Vessel's owner or charterer are
obligated to you for any payments. In view of the laws, regulations and
policies of governmental jurisdictions and/or the safety of the Vessel,
its passengers and crewmembers, HALW and/or its affiliates may deem it
necessary or desirable to enter into agreements or adopt policies with
respect to the carrying on board the Vessel and/or use on board the
Vessel of narcotics, other controlled substances and/or alcoholic
beverages including, without limitation, random drug and/or alcohol
testing policies. You are required to comply with the terms of any such
agreement and/or policy now existing, or hereafter entered into or
adopted by HALW or its affiliates. without limiting the generality of
the foregoing, your entering into of this contract constitutes your
consent to submit to drug and/or alcohol testing if and when required
by HALW or its representatives.
19. A. Concessionaire irrevocably appoints the Master of a Vessel as
its agent with the power of overall supervision of Concessionaire's employees on
board the Vessel for purposes of health, safety, and discipline. The Master may
delegate this supervisory power to the Vessel's Hotel Manager and/or Xxxxxx.
B. Only for purposes of health, safety and discipline and to facilitate
compliance with the immigration laws applicable in a Vessel's base port and
other ports of call, Concessionaire's employees will sign on ship's articles;
but such adherence to ship's articles will not in any way detract from or modify
the Concessionaire's status as an independent contractor, and its relationship
or its right and obligation to control its employees, as described in Articles
14-18. HA agrees to make all arrangements for the Concessionaire's employees to
sign on and off ship's articles; provided that all disbursements in connection
therewith shall be for the Concessionaire's account.
20. Concessionaire will not intentionally advertise or otherwise cause
to become known amongst the passengers that Concessionaire is a concessionaire.
In their dealings with passengers, Concessionaire's employees will refer to
themselves as employees of the Vessel's
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Shops; but such reference for purposes of passenger relations will not in any
way detract from or modify Concessionaire's status as an independent contractor,
and its relationship or its right and obligation to control its employees as
described in Articles 14-18.
21. Concessionaire will employ on board the Vessel only persons who are
of good moral character and who are in good health, who hold valid passports,
visas, and all other permits required by any governmental authority having
jurisdiction, in order that they may enter and leave the base port and other
ports where the Vessel may call. HA agrees to arrange for all on board
immigration formalities and to accept responsibility for safekeeping of all
passports or other immigration documents turned over to it by Concessionaire's
employees.
22. Concessionaire will at its own expense arrange for each of its
employees to receive a complete medical examination immediately prior to serving
aboard a Vessel and periodically thereafter. The examination must be performed
by the Vessel's physician or another physician acceptable to HA, must include
such tests and procedures as may be required by HA (including, without
limitation, a chest x-ray), and must show the employee to be in good health, fit
for performance of shipboard duties and otherwise to have satisfied such health
criteria as may be established by HA. If performed other than by the Vessel
doctor, the report of such examination shall be forwarded to the Vessel's
doctor. if the physical examination is conducted by the Vessel's doctor on board
the Vessel, Concessionaire shall pay the Vessel's Xxxxxx the cost thereof prior
to conclusion of the voyage during which the examination occurs.
23. Concessionaire's employees will at all times keep themselves neatly
groomed, well spoken, and suitably attired in uniforms to be provided at
Concessionaire's expense.
24. Concessionaire will designate for a Vessel a supervisor of suitable
experience and caliber to supervise the work of Concessionaire's other
employees, subject to the overall supervision of the Master as provided in
Article 19. The supervisor will be entitled to the same privileges as a hotel
officer of a Vessel.
25. From time to time, when deemed necessary by Concessionaire or
reasonably requested by HA, Concessionaire will furnish a reasonable number of
executive or surveillance employees to travel on a Vessel for purposes of
inspecting Concessionaire's operations. Suitable accommodations for such
executive or surveillance employees of Concessionaire will be provided by HA if
available, without charge to Concessionaire; except that Concessionaire will pay
the charge described in Article 8 for such persons at the same rate
Concessionaire is then being charged for its shop personnel and will also pay
port charges and taxes for such persons based on amounts stated in HA's
brochures. If an employee is on the Vessel for less than the entire voyage, the
port charges and taxes amount will be prorated based on the number of ports
during which the employee was on the Vessel relative to the total number of
ports scheduled for the voyage (including, for these purposes, the port of
embarkation and disembarkation).
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26. In his/her discretion, the Master may require any employee of
Concessionaire to remove himself/herself and his/her belongings from a Vessel at
any time when the Vessel is in port, and all repatriation expenses, if any, will
be for Concessionaire's account; provided that if the Master acted unreasonably,
HA will reimburse Concessionaire for any such repatriation expenses.
27. HA will furnish without charge applicable accommodations of officer
or crew grade, including clean bed linen and towels at normal intervals, for the
number of Concessionaire's personnel as described in Article 5(H), as well as
Articles 24 and 25.
28. At Concessionaire's request, and except as otherwise provided in
Article 22, HA will furnish for Concessionaire's employees during the period
they are onboard the Vessel, without charge, regular and reasonable on board
medical care by a Vessel's doctor, as well as medicines, for accident, illness
and injury suffered by Concessionaire's personnel while onboard the Vessel.
29. Concessionaire's personnel are not permitted:
A. To carry or consume aboard a Vessel any narcotics, or other drugs
which are prohibited in the ' Vessel's ports, except pursuant to a program of
medical care under the direct supervision of the Vessel's doctor;
B. To consume alcoholic beverages aboard a Vessel to the point of
intoxication or to the point where, during the subsequent performance of their
duties, such consumption could become apparent to the passengers;
C. To board a vessel in an intoxicated state without the consent of the
Master; or
D. To engage in gambling aboard a Vessel in the Vessel's casino or
amongst themselves;
E. To sell any merchandise to passengers (except in the course of their
duties), or to purchase merchandise from a Vessel's shop for resale.
CONCESSIONAIRE'S OTHER GENERAL OBLIGATIONS
30. Subject to the approval of the Master, Concessionaire will safely
stow for sea and will maintain such safe stowage for sea of all retail stock and
its other property, as well as all property belonging to HA or the Owners which
Concessionaire uses to perform its obligations hereunder. Upon termination of
this Agreement, if no payments are due from Concessionaire to HA, HA will give
Concessionaire a release and Concessionaire will promptly remove its property
from the Vessel, including its retail stock.
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31. Concessionaire will create no unseaworthy conditions in the
performance of its obligations hereunder.
32. Concessionaire will care for the property of a Vessel utilized by
Concessionaire in performance of its obligations hereunder in a careful,
efficient and businesslike manner.
33. Concessionaire will comply with all laws and regulations (including
but not limited to tax laws and regulations) of all governmental authorities
having jurisdiction, relating to immigration, repatriation and its operations
hereunder.
34. Concessionaire may request structural, electrical, plumbing or
other utility changes on the Vessel but such changes will be made by HA only at
its discretion and for the account of Concessionaire.
35. A. Concessionaire will, at its own expense, repair as well as
replace when necessary, all of HA's and any Owner's property which is damaged by
Concessionaire's employees, over and above normal wear and tear.
B. Concessionaire shall be responsible for installation and maintenance
at its own expense of tasteful interior decoration of all areas used by
passengers in availing themselves of goods marketed by concessionaire aboard a
Vessel, but all plans for altering the interior decorations of those areas,
including but not limited to the existing interior decorations, shall be
submitted to HA for its approval prior to implementation. Such approval shall
not be unreasonably withheld. In addition, Concessionaire shall undertake
replacement or refurbishment at its own expense of areas whose interior
decorations are designated by HA, from time to time, as reasonably requiring
replacement or upgrading, to maintain the general standard in existence on the
Vessel.
OTHER HA OBLIGATIONS
36. HA will permit access to those portions of a Vessel and to the
Vessel's equipment which may reasonably be required by Concessionaire to perform
its obligations hereunder. HA agrees to cooperate with Concessionaire for the
purpose of promoting Concessionaire's shops aboard the Vessels.
37. HA shall furnish Concessionaire with one or two safe deposit boxes
in the office of the Xxxxxx on a Vessel.
38. HA shall coordinate stevedoring services for Concessionaire with
such services required by HA and other concessionaires, but Concessionaire shall
be responsible for its own stevedoring costs.
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39. HA shall furnish Concessionaire with reasonable radio and telephone
communications at cost.
40. HA will furnish at its own expense on board laundry services (but
not dry cleaning) for concessionaire's employees.
COMPLAINTS
41. All complaints by passengers, officers, staff and crew arising from
Concessionaire's sales and service will be referred by HA to Concessionaire's
supervisor on the Vessel involved. If any such complaint cannot be amicably
resolved within 21 days, Concessionaire agrees to propose to the complainant
that the matter be referred to arbitration, and if the complainant consents to
the proposal, Concessionaire will submit the complaint to arbitration under the
Consumer Arbitration Rules of the American Arbitration Association, with the
arbitration hearings and other proceedings to be held in Miami, Tampa, Los
Angeles, San Francisco, Seattle or New York, at the complainant's option.
INSURANCE
42. A. HA agrees at its own expense to provide and maintain marine hull
and machinery and war risk hull and machinery insurance covering the Vessel with
first class marine underwriters, and this insurance shall be endorsed to
designate HA as the loss payee.
B. In the event that Concessionaire or its personnel cause in whole or
in part any loss or damage covered by this insurance, or which would have been
covered by this insurance but for a commercially reasonable deductible (not to
exceed $5,000,000) in the insurance policy, Concessionaire agrees to reimburse
HA for the amount of the deductible applicable in such loss or damage.
C. HA and the Owners shall have no further right of recovery from
Concessionaire for loss or damage covered by such insurance, or on account of
payments made to discharge claims against or liabilities of the vessels HA or
the Owners covered by such insurance.
43. HA and the owners shall have no obligation to provide protection
and indemnity insurance coverage for Concessionaire. Concessionaire agrees to
obtain and maintain at its own expense insurance to defend and cover its
liability, if any, and HA's and the owners' liabilities, if any, for:
A. maintenance and cure as well an personal injury or death claims
asserted by Concessionaire's employees or their estates;
B. claims of passengers or other third parties arising out of or in
connection with Concessionaire's operations or the actions of Concessionaire's
employees; and
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C. repatriation, loss of personal effects and other costs to employees
(including, without limitation, burial costs) in the event of death, casualty or
termination of a voyage.
Such insurance shall be in form, in amounts, with carriers, and on terms
satisfactory to HA's Risk Management Department, shall name HA as an additional
insured and shall waive subrogation against HA, the Vessels and the Owners.
Concessionaire shall provide HA's Risk Management Department with a Certificate
of Insurance evidencing such coverage.
44. Concessionaire agrees to obtain and maintain, at its own expense,
insurance on the full value of all its property aboard the Vessel with
deductibles for its own account. Concessionaire shall not have any right of
recovery against HA or the Owners on account of loss or any damage to its
property whether or not covered by such insurance. Said insurance shall waive
subrogation against HA, the Vessels and the Owners.
LIENS
45. Neither Concessionaire nor any of its employees, agents or
representatives shall have any right, power, or authority to create, incur or
permit to be imposed upon a Vessel any lien whatsoever. Concessionaire agrees to
set forth in all of its purchase orders a notice with this information.
46. HA shall have a lien upon all Concessionaire's property aboard a
Vessel for all sums due hereunder, which lien shall continue after delivery of
said property ashore wherever found.
CRUISE SCHEDULING
47. Cruises shall be scheduled at the sole discretion of HA who will
promptly furnish Concessionaire with an initial cruise and overhaul schedule as
well an all changes therein. Concessionaire shall have no claim against HA for
loss or damage arising from delay, lay up or schedule change of a Vessel.
PROMOTIONAL LITERATURE
48. Concessionaire shall not circulate any photographs for promotional
purposes without prior written consent of the persons or owners of the property
which are the subject of the photographs.
49. Concessionaire shall not issue any publicity or press releases
identifying HA or a vessel without the prior written consent of HA.
INVENTORY
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50. At every drydocking of a Vessel, Concessionaire and HA shall
inventory all of HA's property which Concessionaire is using in the performance
of its obligations on such Vessel.
CHANCE OF STATUS
51. Upon 90 days written notice to Concessionaire, HA may sell or
charter a Vessel, and upon such sale or charter, the term of this Agreement
shall terminate as to such Vessel, provided that if the sale or charter of a
Vessel is to one of HA's corporate affiliates, the term of this Agreement shall
continue in full force and effect between Concessionaire and such HA corporate
affiliate for any such Vessel and further provided, however, as to charters to
non-affiliates for a duration that will not extend beyond the term of this
Agreement, Concessionaire shall have the right to cause the term of this
Agreement to merely be suspended as to such Vessel for the duration of the
charter, rather than terminated.
52. In its sole discretion, HA may, at any time: (i) change registry of
a Vessel; (ii) transfer ownership of a Vessel to any affiliate of HA; or (iii)
bareboat charter a Vessel to any affiliate of HA. Any such occurrence shall not
terminate the term of this Agreement as to that Vessel or otherwise modify the
rights and obligations of the parties under this Agreement as to that Vessel.
53. In its sole discretion, HA may change its own name or the name of a
Vessel at any time.
54. Concessionaire may not assign or subcontract this Agreement.
However, Concessionaire may upon written notification to HA assign to wholly
owned associates as long as such would not materially and adversely affect
either HA's rights under this Agreement or the performance by Concessionaire
hereunder.
FORCE MAJEURE
55. Except as otherwise provided herein, HA shall not be liable to
Concessionaire for delay, destruction, lose or damage occasioned by an Act of
God, Act of War, public enemies, government restrictions, perils of the sea,
quarantine, fire, strikes, lockouts, labor disputes, civil commotions, seizure
or arrest of the Vessel, robbers, riots, thieves, barratry, collision,
negligence in the navigation or management of a Vessel, explosions, torts of
third parties, unseaworthiness, delay in sailing, prolongation of voyage,
deviation, any act, omission, fault or negligence of any passenger, officer,
staff member or crew member or any cause whatsoever beyond HA's control, whether
of the kind hereinabove enumerated or not.
GENERAL AVERAGE AND SALVAGE
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56. General Average shall be adjusted at New York according to
York-Antwerp Rules 1974, as amended, and as to matters not therein contained,
according to the law and usages of the Port of New York. In case a general
average statement be required, the same shall be adjusted by an Adjuster to be
selected and appointed by HA and said Adjuster shall attend to the settlement
and collection of the average, subject to the customary charges.
57. In the event of accident, danger, casualty, damage or disaster
before or after commencement of a voyage resulting from any cause whatsoever,
whether due to negligence or not, for which, or for the consequences of which,
HA and the Owners are not responsible, by statute or contract or otherwise,
concessionaire shall contribute with HA in general average to the payment of any
sacrifices, losses or expenses of a general average nature that may be made or
incurred and shall pay salvage in respect to Concessionaire's property.
58. Concessionaire shall not be entitled to participate in earned
salvage.
BOTH TO BLAME COLLISION CLAUSE
59. If a Vessel comes into collision with another ship as a result of
the negligence of the other ship, and any act, neglect or default for which, or
for the consequences of which, HA and the Owners are not responsible to
Concessionaire, by statute or contract or otherwise, Concessionaire shall
indemnify HA and the Owners and hold them harmless from and against all loss or
liability to the other ship or her owners insofar as such loss or liability
represents lose of or damage to or any claim whatsoever of Concessionaire, paid
or payable by the other ship or her owners to Concessionaire and set off,
recouped or recovered by the other ship or her owners as part of their claim
against the Vessel or HA or the Owners. The foregoing provisions shall also
apply where the owners, operators or those in charge of any ship or ships or
objects other than or in addition to, the colliding ships or objects are at
fault in respect of collision or contact.
RECORDS AND INSPECTIONS
60. HA or its duly authorized representative shall be entitled to
inspect Concessionaire's relevant books and records at any reasonable time or
times upon written notice to Concessionaire in order to verify the adherence by
Concessionaire to the quality standards required by Article 5 and to safeguard
HA's rights hereunder.
61. A. HA or its duly authorized representative shall be entitled to
inspect Concessionaire's inventories and equipment on a Vessel at any reasonable
time or times upon notice to Concessionaire's supervisor in order to verify the
adherence by Concessionaire to the quality standards required by Article 5.
B. In addition, HA or its duly authorized representative shall be
entitled to inspect Concessionaire's operations on a Vessel at any reasonable
time or times without notice and
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without identification of the inspector in order to verify the adherence by
Concessionaire to the quality standards required by Article 5.
INDEMNITY
62. Concessionaire shall indemnify and hold harmless HA and the Owners
from any claims, suits, fines, damages, losses and liens of whatsoever nature
imposed upon the Vessel or asserted against or incurred by HA or the owners
arising out of or in connection with Concessionaire's operations, property, and
services, or out of any act, omission or neglect of concessionaire or
Concessionaire's employees, including, without limitation, legal fees incurred
in relation to such claims, suits, fines and liens. If a suit or proceeding
should be begun against a Vessel, or if a Vessel is otherwise levied against or
taken into custody by virtue of legal proceedings in any court because of such
lien or claim, Concessionaire shall within 24 hours thereafter cause such Vessel
to be released on bond or otherwise. In HA's or an Owner's discretion, HA or the
Owner may act to secure release of such Vessel on bond or otherwise and
Concessionaire shall reimburse and indemnify HA and the Owner for the cost of
obtaining the Vessel's release, including, without limitation, bond premiums as
well an HA's and the Owner's legal fees in arranging such release.
TERMINATION BY WITHDRAWAL, REQUISITION OR LABOR DISPUTE
63. Upon 90 days written notice to Concessionaire, HA may in its sole
discretion withdraw a Vessel from the cruise trades covered by this Agreement
and upon such withdrawal, the term of this Agreement shall terminate as to such
Vessel provided, however, as to withdrawals for a duration that will not extend
beyond the term of this Agreement, Concessionaire shall have the right to cause
the term of this Agreement to merely be suspended as to such Vessel for the
duration of the withdrawal, rather than terminated.
64. Upon requisition for title or use of Vessel by any government,
including but not limited to the United States of America, the term of this
shall terminate immediately as to such Vessel provided, however, as to
requisitions for a duration that will not extend beyond the term of this
Agreement, Concessionaire shall have the right to cause the term of this
Agreement to merely be suspended as to such Vessel for the duration of the
requisition, rather than terminated.
65. If a Vessel shall be prevented from sailing with or without
passengers by a strike, lockout or labor dispute arising from Concessionaire's
operations, upon the request of. HA, Concessionaire will close down its
operations, remove its personnel and property from such Vessel, and take all
similar action necessary to effect removal of the picket line. If the strike,
lockout or labor dispute persists for more than 3 days, then HA may thereafter
give Concessionaire 4 days written notice of an intention to terminate the term
of this Agreement as to all Vessels or solely as to such Vessel (in the
discretion of HA) and if the strike, lockout, or labor dispute is not resolved
within that 4 day period, the term of this Agreement shall so
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terminate; provided that if the strike, lockout or labor dispute is resolved
within that 4 day period, the term of this Agreement shall not be terminated.
DEFAULT
66. If during the term of this Agreement, and any extensions thereof,
any one or more of the following events ("Events of Default") shall occur:
A. Concessionaire or HA shall fail to perform or comply with any one or
more of its covenants, duties or obligations hereunder or shall violate any one
or more of the prohibitions imposed upon it under this Agreement or one or more
of the warranties shall be breached, and the failure, violation or breach shall
continue, after written or telegraphic notice of the failure, violation or
breach in given to the offending party for an additional fourteen (14) days or,
in exigent circumstances, a reasonable period of time, whichever is shorter; or
B. Any statement, representation or warranty contained in this
Agreement or in any document furnished in connection herewith or hereafter
pursuant hereto, shall prove to be knowingly or recklessly untrue or incorrect
in any material respect when made; or
C. Concessionaire or HA shall (i) apply for or consent to the
appointment of a receiver, trustee or liquidator of all or a substantial part of
its assets; (ii) be unable, or admit in writing its inability, to pay its debts
as they mature; (iii) make a general assignment for the benefit of creditors; or
(iv) be adjudicated bankrupt or insolvent; or (v) be dissolved; or (vi) file a
petition in bankruptcy or for re-organization or for an agreement pursuant to a
bankruptcy act or any insolvency law providing for the relief of debtors, now or
hereafter in effect; or (vii) file an answer admitting the material allegations
of, or consent to, or default in answering, a petition filed against it in any
bankruptcy, reorganization or insolvency proceeding; or (viii) take corporate
action for the purpose of effecting any of the foregoing; or
D. An order, judgment or decree shall be entered against either party,
and without the application, approval or consent of the other party, by any
court of competent jurisdiction, approving a petition seeking reorganization of
party or appointing a receiver, trustee or liquidator of it or of all or a
substantial part of either party's assets;
then without prejudice to any other rights and claims for damages suffered or to
be suffered by reason of such Event of Default which the other party may have in
law, equity or admiralty or under this Agreement, that other party may: (i)
terminate the term of this Agreement; (ii) exercise any other right or remedy
which may be available to it under applicable law; and/or (iii) proceed by
appropriate court action to enforce the terms hereof or to recover damages for
the breach hereof.
66A. As used in this Article 66A, the terms "COB System" and "Excluded
Sailings" have the meanings specified in Article 6(B). If under the COB System,
Concessionaire is
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unable to maintain an average Signature Shop's Staff rating and Beauty Shop's
Staff rating that is equal to or better than [* ] on any Vessel (with averages
to be determined on a calendar month basis giving consideration to all sailings
ending during the month other than Excluded Sailings), HA may notify
Concessionaire of the deficiency (a "Deficiency Notice"). Upon receipt of a
Deficiency Notice, Concessionaire shall promptly implement such changes as may
be necessary to improve the deficient ratings. If the Signature Shop's Staff
rating and/or Beauty Shop's Staff Rating, as the case may be, is not improved to
an average equal to or greater than [* ] within 90 days after the Deficiency
Notice from HA or, having been improved, is not thereafter maintained at or
above an average equal to or greater than [* ], HA may terminate the term of
this Agreement as to the Vessel on which the deficient ratings are continuing by
notice to Concessionaire. The determination of whether Concessionaire has
improved the ratings sufficiently to preclude HA from exercising this right of
termination shall be made with reference to the average Signature Shop's Staff
ratings and Beauty Shop's Staff ratings for all sailings of the Vessel (other
than Excluded Sailings) ending during any calendar month selected by HA so long
as the month selected is not earlier than the month during which the 90-day
period referred to above in this Article 66A ends. In the event HA exercises
this right of termination, the term of this Agreement shall, on the termination
date specified in such notice, terminate as to such Vessel but shall remain in
full force and effect as to the remaining Vessels.
66B. No remedy or power referred to or given to a party in this
Agreement or otherwise existing is intended to be exclusive, but each shall be
cumulative and in addition to, and may be exercised concurrently with, any other
remedy referred to herein or which may otherwise be available to that party in
law, equity or admiralty. Each and every power and remedy, whether herein so
given or otherwise existing, may be exercised from time to time and as often and
in such order an may be deemed expedient. No express or implied waiver of any
ground for exercising rights in connection with this Agreement shall be, or be
construed to be, a waiver of any further or subsequent ground. No delay or
omission in the exercise of any right or power or in, the pursuit of any remedy
shall impair any such right or be construed to be a waiver of any further or
subsequent ground or of any default or as an acquiescence thereto.
66C. Any termination of the term of this Agreement shall be without
prejudice to the rights and obligations of the parties accruing prior to such
termination. Any rights and obligations that would apply to a party were this
Agreement to have been terminated at the expiration of the term stated in
Article 2 shall apply in respect of any early termination.
HA MAY CURE; EXPENSES
--------
* This confidential portion has been omitted and filed separately with
the Commission.
* This confidential portion has been omitted and filed separately with
the Commission.
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67. Except as otherwise provided in Article 62, if Concessionaire shall
fail to perform or observe any of the terms of this Agreement, HA or an Owner
may, in its discretion and upon seven (7) day's written or telegraphic notice to
Concessionaire, do all acts and make all expenditures necessary to remedy such
failure, and Concessionaire shall promptly reimburse HA and the Owner for any
and all expenditures so incurred; provided that HA shall be under no obligation
to do any act or make any such expenditure nor shall the doing or making thereof
relieve Concessionaire of any such failure and default in that respect.
ARBITRATION AND CHOICE-OF-LAW
68. Any and all differences and disputes of whatsoever nature arising
out of this Agreement shall be arbitrated in Seattle, Washington before a board
of three persons, consisting of one arbitrator to be appointed by each party and
the third (who must be a commercial person) by the two so chosen; provided that
if both parties appoint the same person to be an arbitrator for a particular
dispute, then that person shall act as a sole arbitrator for that dispute.
Arbitration shall be the exclusive method of resolving differences and disputes
between the parties. The decision of any two of the arbitrators (or the sole
arbitrator) shall be final and binding and any relief deemed just and equitable
may be granted, including but not limited to attorneys fees and specific
performance. Judgment may be entered upon any award in any court of competent
jurisdiction.
69. This Agreement shall be governed by the Federal statutory and
general maritime law of the United States, as well as, where appropriate, the
law of the State of Washington; excluding, however, all Federal and Washington
statutes applying to common carriage of passengers and cargo, such as but not
limited to the Xxxxxx Act and Carriage of Goods by Sea Act. In all instances the
Federal law shall take precedence over Washington law. The parties expressly
choose the above described laws to the exclusion of all choice of law rules
which might otherwise be applicable in any particular forum, except to the
extent that circumstances would reasonably require application of the laws of
some other jurisdiction to resolve specific issues pertaining solely to health
and safety or to the mandatory requirements imposed by the laws of the state of
a Vessel's registry.
AMENDMENTS AND MISCELLANEOUS
70. This written Agreement constitutes the entire agreement between the
parties; all prior negotiations, agreements and communications are merged herein
and superseded hereby; and there are no representations, warranties or
obligations by either party to the other concerning the subjects of this
Agreement except those herein set forth. The terms of this Agreement shall not
be waived, altered, modified, amended, or supplemented, in any manner
whatsoever, except by a written document duly executed by both parties hereto.
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71. In the event HA shall at any time act as an agent of
Concessionaire, HA shall have no liability in respect of such acts or omissions
nor shall there arise from such acts by HA any express or implied warranties of
any nature whatsoever.
72. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns who are
authorized herein to succeed to the rights and duties of the parties by
assignment or otherwise.
73. Nothing in this Agreement shall operate to deprive HA, in whole or
in part, of any right to limit liability on the theory of personal contract or
otherwise.
74. Article headings are for convenience of reference only and shall
not be construed as part of this Agreement.
75. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
76. All notices required under the terms and provisions hereof
(excluding Article 61) shall be in writing, or by telegraphic means, and any
such notices and other correspondence or communications shall be addressed:
IF TO HA:
Holland America Line - Westours Inc.
000 Xxxxxxx Xxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Marine Hotel Department
Director, Hotel Operations
Fax: (000) 000-0000
if to Concessionaire:
Allders International (USA) Inc.
0000 X.X. 00xx Xx.
Xxxx Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
or to such other address as either party may from time to time designate by
notice to the other.
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77. HA and Concessionaire each warrant to the other that no brokers,
agents or any third parties were involved in or played any part in the
negotiations of this Agreement and no commissions, finders fees or compensation
of any type is payable to any third party in connection with this Agreement.
78. The parties hereto agree that, during the term of this Agreement,
they shall use reasonable efforts to maintain the confidentiality of all
information, records, reports and other data as to the activities of the parties
under this Agreement, provided, however, that: (a) nothing contained herein
shall preclude disclosures, on a confidential basis, to affiliated entities; and
(b) each party acknowledges that confidentiality may be difficult to maintain
given the large number of people with access to such information, records,
reports and other data and that neither party shall have any liability to the
other so long as reasonable efforts were utilized to maintain confidentiality.
79. Concessionaire represents, warrants, covenants and agrees that it
has not offered or made, nor will it offer or make, any payment (in cash, in
kind or otherwise) to any employee, officer or director of HA or any of its
affiliates (including officers or crewmembers of any Vessel) that could be
construed as being a bribe or inducement to act or refrain from acting. If any
such person shall solicit such a payment from Concessionaire, Concessionaire
shall promptly notify the President of HA, by telefax, telefax No. (206)
284-8332.
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IN WITNESS WHEREOF, HA and Concessionaire have executed this Agreement
the day and year first above written.
HOLLAND AMERICA LINE - WESTOURS INC.
An Agents for the Owners and Charterers
of the Vessels mv WIND SONG, mv WIND STAR
and mv WIND SPIRIT
BY /s/ A. Xxxx Xxxxxxxxx
-------------------------------------
A. Xxxx Xxxxxxxxx
President and Chief Executive officer
ALLDERS INTERNATIONAL (USA) INC.
BY /s/ Xxxxxxx X. Xxx
-------------------------------------
Xxxxxxx X. Xxx
President
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AMENDMENT TO
CONCESSION AGREEMENT - WINDSTAR
AMENDMENT, dated and effective as of the 15th day of December 1998, by
and between Holland America Line-Westours Inc., Washington corporation d/b/a
Windstar Cruises ("HA"), and Starboard Holdings Ltd., a Barbados corporation
("Starboard").
R E C I T A L S:
1. HA and Nuance Global Traders (USA) Inc. (f/k/a Allders International
(USA) Inc.), a California corporation ("Nuance'), entered into that certain
Concession Agreement - Windstar, dated as of January 18, 1996 (the "Agreement"),
the terms of which are incorporated herein by this reference. All terms defined
in the Concession Agreement shall have the same meaning herein as therein
specified.
2. Nuance assigned its lights and obligations under the Concession
Agreement to Starboard, which assignment was consented to by HA pursuant to that
certain Consent to Assignment signed by HA on December 11, 1998 and by Starboard
on December 14, 1998. As a result, Starboard is now the Concessionaire under the
Agreement.
3. HA and Starboard desire to amend the Agreement including an
extension of the term of the Agreement.
4. The parties intend that this Amendment shall be effective as to all
sailings ending after the date first above written.
A G R E E M E N T S:
1. SECTION 2: Section 2 of the Agreement is amended by substituting
"November 30, 2004" for "November 30, 2001" in the second sentence.
2. SECTION 3. Section 3 of the Agreement is amended to read in its
entirety as
Either party shall have the right to terminate the term of this
Agreement prior to the expiration of the term above stated by giving at
least six (6) months advance notice to the other party, provided,
however, such notice must include all Vessels and further provided,
however, if such notice provides for a termination date prior to
November 30, 2001, it must be given at least twelve (12) months in
advance.
3. SECTION 5(N). Section 5(N) of the Agreement is amended to read in
its entirety as follows:
26
N. Concessionaire will, from time to time and as requested by
HA, prepare a list of merchandise and services then being offered by
Concessionaire under this Agreement that will be available for purchase
at a discount to Vessel officers and crew. Discount amounts and
policies for officers and crew will be determined by HA.
4. SECTION 6(A). Section 6(A) of the Agreement is amended to read in
its entirety as follows:
As used in this Agreement, the term "Sales Revenue" refers to
the gross revenues earned from sales by Concessionaire under this
Agreement determined without regard to any crew discounts requested by
HA pursuant to Section 5(N) but after deducting Administrative Charges
payable by Concessionaire under Section 7 (I.E., the Sales Revenue is
computed on the basis of the original sales price before discounts).
Concessionaire will pay HA in U.S. Dollars a rental fee equal to: (i)
[* ] of Sales Revenue from the Vessels; MINUS (ii) the aggregate
reduction in revenues as a result of crew discounts requested by HA
pursuant to Section 5(N). For purposes of this Article 6, Sales Revenue
from a Vessel includes sales made to passengers by Concessionaire
following conclusion of the voyage and after the passengers have
disembarked the Vessel but which are attributable to events that
occurred during the voyage ("Post-Voyage Sales").
5. SECTION 7. Section 7 of the Agreement is amended to read in its
entirety as follows:
7. As to each voyage, Concessionaire shall pay HA an
administrative charge equal to [* ] of all Concessionaire sales paid
for by credit or debit card plus [* ] of all Concessionaire sales paid
for other than by credit or debit card ("Administrative Charges").
Administrative Charges do not apply to Post-Voyage Sales.
Administrative Charges are computed on actual revenues (after all
discounts).
6. SECTIONS 10(A). Section 10(A) of the Agreement is amended to read in
its entirety as follows:
As HA under its "no cash" policy collects and holds all revenues
generated by Concessionaire on board and since all NSA Sales (as that
term is defined in Section 5(M) above) will be processed through HA's
credit card processing system, HA shall remit to Concessionaire, at the
end of each voyage, an amount computed as follows: (i) [* ]of the Sales
Revenue for that voyage from Vessel sales (excluding Post-Voyage
Sales); minus (ii) messing charges, Administrative Charges and other
unpaid amounts
___________________________
* This confidential portion has been omitted and filed separately
with the Commission.
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due to HA for that voyage. Credit card service charges for on-board
sales (including NSA Sales) shall be for the account of HA. Credit card
service charges for Post- Voyage Sales shall be for the account of
Concessionaire.
7. SECTIONS 10(C). Section 10(C) of the Agreement is amended by
substituting [* ] in the first sentence.
8. SECTION 31. Section 31 of the Agreement is amended by adding the
following to the end thereof.
Concessionaire acknowledges that lists of HA's customers and lists of
Vessel passengers, whether past, present, future or prospective, or any
information of whatever nature relating to the names, addresses,
telephone numbers or other information regarding Vessel passengers
derived by Concessionaire in connection with its performance under this
Agreement (collectively, "Customer Lists") are and shall remain at all
times the exclusive property of HA. The Customer Lists represent a
special, valuable and unique asset of HA that has been developed at
considerable expense to HA. Accordingly, Concessionaire agrees that it
shall not disclose or furnish to any third party any Customer Lists
during or after the term of this Agreement, other than with HA's
express written consent, which may be withheld in HA's sole discretion.
Concessionaire further agrees to use the Customer List information
solely for the purpose of fulfilling orders and completing transactions
arising under this Agreement and will not use the Customer List
information for any other business operated by it or its affiliates.
Upon termination of this Agreement, or at such other times upon HA's
request, Concessionaire will return to HA all Customer Lists or any
information related thereto. Concessionaire recognizes that any
violation of this Section shall cause HA substantial and irreparable
harm and shall entitle HA to seek immediate injunctive relief, in
addition to such other remedies afforded by law or equity. The
obligations under this Section shall survive the expiration or
termination of this Agreement.
9. NO OTHER AMENDMENTS. Except as above provided, the Agreement shall
remain in full force and effect in accordance with its original terms.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day and year first above written.
STARBOARD HOLDINGS LTD. HOLLAND AMERICA LINE-WESTOURS INC.
By: /s/ By: /s/
----------------------------- ---------------------------------
Its President Its President and CEO
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