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EXHIBIT 10.48
PROPERTY INFORMATION DISTRIBUTION AGREEMENT
This Agreement is entered into by and between Pegasus Systems, Inc. and
the below named Participant on the following terms and conditions:
1. Property Information Database. Pegasus will provide Participant with
the ability to create a digital database of Participant's properties which is
(i) capable of being accessed by distribution systems with whom Pegasus
contracts and (ii) where functionality exists, capable of permitting the
accessor of the database to make, amend and cancel reservations with
Participant. Participant shall be solely responsible for the creation and
editing of the property database pursuant to Pegasus' prescribed methods.
2. Distribution of the Database. Pegasus will contract and develop
interfaces with distribution systems to access Participant's database.
Participant may elect to exclude certain distribution systems access to its
database.
3. Distribution Systems Interface. For each distribution system, Pegasus
will create an operable interface providing access to Participant's database
and maintain the interface during the term of the Distribution Agreement. All
updates and edits of the database shall be accessible by the distribution
systems within two (2) business days of receipt by Pegasus.
4. Fees.
(a) For the services provided by Pegasus as set forth herein,
Participant shall pay to Pegasus the fees set forth on Schedule
A.
(b) For each hypertext link from Participant's database to a site
with whom Pegasus has not contracted to receive Participant's
database, Participant shall pay Pegasus a fee of [*] per year
(c) For each Net Reservation originating with a distribution system
with whom Pegasus contracts, Participant shall pay to Pegasus a
fee of [*]. Net Reservations within a particular time period
equal the number of reservations made by an accessor of a
distribution system exhibiting Participant's database within
such time period less the number of reservations to which notice
of cancellation is received by the distribution system within
such time period.
(d) Pegasus will invoice Participant for all fees as set forth
herein and as provided on Schedule A including any taxes
applicable to such fees and Participant agrees to pay each
invoice upon receipt. Each invoice shall be past due and it
shall be a breach of this Agreement if it is not paid within
thirty (30) days after the date of the invoice. All payments to
Pegasus shall be made in U.S. Dollars. Pegasus may, once each
year, increase the fees set forth in (a), (b) and (c) above up
to 10% of the then-existing fee. Any fee changes resulting from
an increase in the services or number of properties in the
database will be invoiced upon notice of such increase or at the
next scheduled invoice, at Pegasus' option.
5. Term. The initial term of this Agreement shall be for [*] from the
date hereof provided that the Agreement shall be automatically renewed and
extended for additional one (1) year terms thereafter unless, at least sixty
(60) days prior to expiration of the initial [*] term or the expiration of any
additional one (1) year term, either party hereto shall give notice of its
intent not to renew and extend this Agreement.
6. Property Rights. The information provided by Participant is
acknowledged to be the sole property of Participant and Pegasus may not
distribute or allow access to any of the information in any manner other than
pursuant to this Agreement. Participant shall be solely and exclusively
responsible for the protection of any and all of its intellectual property
including, but not limited to, the inclusion of any and all statutory or other
notices customarily used or required for purposes of providing notice of
ownership or protection of Participant's trademarks, trade names, service marks
or copyrights.
7. Disclaimer, Limitation of Liabilities and Risk of Internet Usage.
PEGASUS WILL NOT BE RESPONSIBLE OR LIABLE FOR (i) ANY FALSIFICATIONS OR
INACCURACIES IN ANY OF THE INFORMATION, (ii) ANY ACT OR FAILURE TO ACT WITH
RESPECT TO THE PUBLICATION OF THE INFORMATION ON THE INTERNET OR CREATION OR
FUNCTIONALITY OF RESERVATION CAPABILITIES UNLESS EXPRESSLY SET FORTH HEREIN,
(iii)
*Confidential Treatment Requested
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ANY CLAIM, DAMAGE, OR LIABILITY OF ANY NATURE ARISING OUT OF A COMPUTER
OPERATOR'$ OR DISTRIBUTION SYSTEM'S ACCESS TO PARTICIPANTS RESERVATION SYSTEM
AND/OR THE MAKING, CHANGING OR CANCELING OF A RESERVATION AND THE USE OF A
CREDIT CARD OR OTHER DEBIT DEVICE IN CONNECTION THEREWITH, OR (iv) ANY CLAIM
RESULTING FROM ANY INTERRUPTION, MALFUNCTION OR CHANGE IN THE USE OF THE
INTERNET OR A DISTRIBUTION SYSTEM, EXCEPT TO THE EXTENT RESULTING FROM
PEGASUS' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ALL WARRANTIES, EXPRESS OR
IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PRODUCT
OR SERVICE OR OTHER WISE ARE DISCLAIMED BY PEGASUS AND WAIVED BY PARTICIPANT.
PARTICIPANT ACKNOWLEDGES AND AGREES THAT ALLOWING ACCESS TO ITS DATABASE AND
RESERVATION SYSTEM TO COMPUTERS ACCESSING THE INTERNET VIA ANY DISTRIBUTION
SYSTEM IS AT PARTICIPANT'S OWN RISK. Pegasus shall not be responsible for the
order, completeness or format of Participants database being published by
distribution systems. Participant acknowledges and agrees that the Internet is
a communication medium over which Pegasus has no control and that its continued
utilization in its present form at current costs is uncertain. Therefore, if
at any time during the term of this Agreement the cost of access to the
Internet increases or there is imposed a fee or cost for access to or use of
the Internet communication lines, or there is imposed any law, governmental
ruling, or regulation the result of which increases the cost of access to or
usage of the Internet or otherwise makes it impractical, in Pegasus' sole
discretion, to continue to perform this Agreement, Pegasus may, upon notice to
Participant, immediately terminate this Agreement without such action
constituting an event of default Pegasus shall not be liable for any breach of
this Agreement resulting from an act of God, accidents, power or
telecommunication outages or delays, mechanical defects or other events beyond
its control.
8. Breach. In the event of a breach of this Agreement, the non-breaching
party may terminate this Agreement after providing notice to the other party of
such breach and the failure of the breaching party to cure the breach within
ten (10) days of receipt of the notice. Upon breach by Participant and failure
to timely cure Pegasus may immediately cease the distribution and/or
publication of Participants database on distribution systems.
9. Miscellaneous. This Agreement shall be interpreted in accordance with
the laws of the State of Texas and any legal proceeding arising out of this
Agreement shall have venue in Dallas County, Texas. This Agreement shall be
binding upon and inure to the benefit of the legal representatives, successors
and assigns of the parties hereto. This Agreement contains all the provisions
of any agreement between Pegasus and Participant with respect to the creation,
maintenance and distribution of Participants database and Participant has not
relied upon any promises or representations by Pegasus with respect to the
subject matter except as set forth herein. This Agreement shall terminate and
replace any existing agreement between Participant and TravelWeb, Inc.
PEGASUS SYSTEMS, INC. PARTICIPANT: ANASAZI INC.
By: /s/ XXXX X. XXXXX, III By: /s/ XXXX X. XXXXXX
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Xxxx X. Xxxxx, III Xxxx X. Xxxxxx
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President Its: Executive Vice President & CFO
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Date: 3/7/97 Date: 2/21/97
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SCHEDULE A
1. Fees. Participant shall pay to Pegasus the following fees:
(i) For 1 to 25 Participant properties in the database, [*] per
Participant property per month;
(ii) For 26 to 100 Participant properties in the database, [*]
per Participant property per month;
(iii) For 101 to 200 Participant properties in the database, [*]
per Participant property per month;
(iv) For 201 to 500 Participant properties in the database, [*]
per Participant property per month;
(v) For 501 to 1,000 Participant properties in the database,
[*] per Participant property per month;
(vi) For 1,001 to 2,000 Participant properties in the database,
[*] per Participant property per month; and
(vii) For in excess of 2,000 Participant properties in the database,
[*] per Participant property per month.
The fees for this service shall be paid quarterly in advance.
April 21, 1997
*Confidential Treatment Requested
