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EXHIBIT 10.15
TRAVELWEB PARTICIPANT AGREEMENT
This Agreement is entered into by and between The Hotel Industry
Switch Company, a Delaware corporation (hereinafter called "THISCO") and HILTON
INTERNATIONAL CO., a Delaware corporation (hereinafter called "Participant") to
be effective on the latest date of execution by the parties hereto on the terms
and conditions as set forth herein (the "Agreement").
I.
DEFINITIONS
The following definitions shall be applicable to this Agreement:
1.1 TravelWeb. A tradename owned by THISCO for its service to
provide a catalog of information on hotels, resorts, cruise
lines and other travel and lodging subjects which is
accessible by a Client Computer (as hereinafter defined) on
the Internet.
1.2 Internet. A worldwide network of computers with information
which is accessible by Client Computers (as hereinafter
defined).
1.3 TravelWeb Participant. A person or entity who enters into an
agreement with THISCO for the creation and publishing of
Internet Pages (as hereinafter defined).
1.4 TravelWeb Publication. One or more pages of Materials (as
hereinafter defined) to be developed into Internet Pages (as
hereinafter defined).
1.5 TravelWeb Order. A written order form, reasonably acceptable
to THISCO and in the form prescribed by THISCO, executed by
THISCO and Participant setting forth the information necessary
for the publication of Internet Pages (as hereinafter defined)
from the Materials (as hereinafter defined) and the agreed
fees and costs to be paid for the order. A copy of the current
TravelWeb Order Form (with additional required documents
attached thereto) is attached hereto and marked Exhibit A.
1.6 Change Order. A written change, on a form prescribed by
THISCO, in the TravelWeb Order mutually agreed to and executed
by THISCO and Participant.
1.7 Client Computer. A computer with access to information on the
Internet.
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1.8 Materials. All of the information, in documentary form or
otherwise, provided to THISCO by Participant to be used by
THISCO to publish the Internet Pages.
1.9 TravelWeb Access Information. Information regarding TravelWeb
access by Client Computers as is gathered by THISCO and made
available to Participant which shall include daily transaction
statistics, hourly transaction statistics, total transfers by
client domain, total transfers by reversed sub domain, total
transfers from each archive section and previous full summary
period, which shall include the date, time, page number and
originating domain for all accesses to Participant's TravelWeb
Pages.
1.10 Internet Page. The finished informational product created and
published by THISCO from the Materials pursuant to this
Agreement and a TravelWeb Order or a Change Order which
appears on an individual Client Computer screen and which is
available on and is accessible by Client Computers on the
Internet.
1.11 Authorized Representative. An authorized representative is any
person or entity with the express written right, authority
and/or obligation to perform the obligations of or act on
behalf of THISCO or Participant with respect to this
Agreement.
1.12 Certificate of Acceptance. Written acceptance by Participant
of the Internet Pages and authorization to publish them. The
Certificate of Acceptance will be in a form prescribed by
THISCO.
II.
INTENT OF THIS AGREEMENT
2.1 Mutual Intent. It is intended by both parties to this
Agreement that this Agreement and all exhibits hereto set
forth, in its entirety, all of the terms, conditions, rights
and obligations of THISCO and Participant with respect to the
publishing of Internet Pages by THISCO for the benefit of
Participant as more specifically set forth herein. THISCO
agrees to enter into separate agreements on the same terms and
conditions with each of Participant's franchisees which may,
from time to time, notify THISCO of their intent to enter into
such an agreement.
III.
CREATION AND PUBLICATION OF A TRAVELWEB BROCHURE;
DUTIES AND OBLIGATIONS OF THISCO AND PARTICIPANT
3.1 TravelWeb Order. The TravelWeb Order shall be completed in the
form attached hereto and marked Exhibit A (the "TravelWeb
Order Form") and shall contain all of the information
requested on the form for THISCO to
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publish the Internet Pages requested by Participant. The
TravelWeb Order Form may be amended or replaced by THISCO at
any time without notice and such new or amended form need not
be attached hereto as a replacement for Exhibit A to be
effective and to supersede Exhibit A. To be effective, any
TravelWeb Order Form must be executed by an Authorized
Representative of THISCO and Participant. A new TravelWeb
Order Form shall be completed and agreed to with respect to
each TravelWeb Publication to be created and published by
THISCO for the benefit of Participant pursuant to this
Agreement.
3.2 Materials for Creation and Publication of the Internet Pages.
Participant shall be solely responsible for providing to
THISCO all Materials reasonable and necessary for THISCO to
create and publish the Internet Pages pursuant to the
TravelWeb Order. All Materials shall be in form, substance,
condition and format as mutually agreed and shall meet or
exceed all of the requirements set forth on Exhibit A hereto
and all other reasonable and necessary requirements requested
by THISCO and mutually agreed with Participant. Exhibit A may
be amended by THISCO at any time. THISCO is hereby authorized
to utilize, consistent with the TravelWeb Order, all
copyrights, trademarks, trade names, service marks or other
proprietary marks or symbols contained within the Materials
(collectively, "Participant's Marks"), provided that THISCO
hereby acknowledges and agrees that it does not have and shall
not gain any usage or other rights or interests of any kind in
and to any Materials or Participant's Marks at any time.
3.3 Processing the Order; Creation of the Internet Pages;
Approvals. THISCO shall process the TravelWeb Order pursuant
to the schedule set forth therein but no later than fourteen
(14) business days from the date of receipt thereof. Upon
creation of the Internet Pages to be published pursuant to the
TravelWeb Order and this Agreement (but prior to such
publication), THISCO shall (i) deliver to Participant a
printed black and white copy of the completed Internet Pages
and (ii) notify Participant of and permit Participant access
to the TravelWeb server via its Client Computer to view the
completed Internet Pages. Participant shall, within seven (7)
business days of such delivery and notification, make any and
all written corrections or proposed amendments it may have to
the Internet Pages and shall provide THISCO with written
notice detailing such corrections and/or proposed amendments.
In the event the Internet Pages are approved, Participant
shall, within seven (7) business days of receipt of the
Internet Pages, provide THISCO with a Certificate of
Acceptance. In the event Participant does not provide written
notice to THISCO of corrections or proposed amendments or
approving the Internet Pages within seven (7) business days of
receipt of the Internet Pages, the Internet Page shall be
deemed disapproved by Participant and THISCO shall not publish
the Internet Pages on the Internet.
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3.4 Authority to Publish. Participant hereby authorizes and
directs THISCO to publish on the Internet as part of TravelWeb
the approved Internet Pages. No Internet Page may be changed
or revised without Participant's express written permission.
IV.
FEES AND COSTS
4.1 Creation and Publication Fees. For the creation and
development of the Internet Pages from the Materials provided
by Participant to THISCO, Participant shall pay to THISCO the
fees and costs set forth on each TravelWeb Brochure Order
and/or Change Order provided however the price for page
construction shall not exceed Seventy Five Dollars ($75.00)
per page, the price for picture processing shall not exceed
Forty Five Dollars ($45.00) per picture and the price for data
entry shall not exceed Twenty Dollars ($20.00) per page. Fees
and costs charged in connection with each TravelWeb Brochure
Order are subject to change only by mutual agreement.
4.2 Monthly Maintenance Fees. For maintaining the Internet Pages
on the Internet and the management and operation of the
TravelWeb, Participant shall pay to THISCO a monthly
maintenance fee as follows:
1 - 50 properties $3.00 per property
51 - 200 properties $2.75 per property
201 - 400 properties $2.50 per property
over 400 properties $1,000
The monthly maintenance fee is due on or before the fifth
(5th) day of each month following a month during which
Internet Pages have been published on the Internet pursuant to
this Agreement.
4.3 Additional Hypertext Connections. For all hypertext
connections to computers or servers connected to Internet not
on TravelWeb, Participant shall pay to THISCO Five Dollars
($5.00) per additional hypertext connection to computers or
servers connected to Internet not on TravelWeb.
4.4 Payment of Fees and Costs. THISCO shall invoice Participant
for all fees and costs and Participant shall pay each invoice
upon receipt and each invoice shall be past due thirty (30)
days thereafter.
V.
TERM AND TERMINATION
5.1 Term. Unless terminated as provided herein, the term of this
Agreement shall begin on the date this Agreement is executed
by both parties and shall terminate on the date of its first
(1st) anniversary hereof. This
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Agreement shall be automatically renewed and extended on the
same terms and conditions for additional one (1) year terms
thereafter unless, at least sixty (60) days prior to the
expiration of the initial one (1) year 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.
5.2 Termination. This Agreement may only be terminated prior to
the expiration of the initial one (1) year term or any
extended term (if applicable) on the occurrence of an Event of
Default set forth in Section 7.1 and the failure to cure
within the applicable time period as provided herein or in the
event this Agreement is not performable as the result of an
event of force majeure as set forth in Section 7.2 hereof.
5.3 Effect of Termination. In the event this Agreement is
terminated as permitted herein or the term of this Agreement
expires without being renewed and extended, the publication of
all Internet Pages shall immediately cease and all duties and
obligations as set forth herein shall immediately cease and
terminate except for the provisions set forth in Article 6,
Sections 7.6, 7.7, 9.1 and Articles 10 and 11 hereof and any
payments which may be due after the date of termination and
all Materials shall be returned to Participant.
VI.
INTELLECTUAL PROPERTY AND MATERIALS
6.1 Ownership of Materials. Participant represents and warrants
that it is the sole and exclusive owner, or has the authorized
right of use in connection herewith, of all Materials, and
Participant's Marks to be used hereby, by virtue of common or
statutory law, used in connection therewith and that the
publication of same on the Internet Pages is and shall be, at
all times material hereto, legal and shall not, in any manner,
violate any applicable law or the rights of any third party.
6.2 Protection of Intellectual Property Rights. Participant shall
be solely and exclusively responsible for the protection of
any and all of its intellectual property including, but not
limited to the inclusion of any and all statutory or other
notices customarily used or required for purposes of providing
notice of ownership or protection of Participant's Marks in
connection with the Materials and the Internet Pages.
6.3 Ownership of Internet Pages. Subject to Section 3.2 hereof,
the Internet Pages, shall, at all times material to this
Agreement, be and remain the property of Participant and may
be used by Participant to be available for receiving on the
Internet via a server other than TravelWeb. THISCO may not use
or publish the Internet Pages or any portion thereof or
elements
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contained therein in any manner other than pursuant to this
Agreement without the prior written consent of Participant.
VII.
DEFAULT
7.1 Events of Default. Subject to Section 7.2 below, any one of
the following will be considered an Event of Default:
(i) The failure of either party to pay any amount due
hereunder within the time required;
(ii) The refusal or failure of either party (including
Participant's participating affiliates or
subsidiaries) to perform diligently and in good faith
each and every material provision of this Agreement;
or
(iii) The commencement by either party of a voluntary case
under Chapters 11 or 7 of the United States
Bankruptcy Code, as from time to time in effect, the
commencement against either party of an involuntary
case under said Chapters 11 or 7, either party
seeking relief as a debtor under any applicable law,
other than said Chapters 11 or 7, of any jurisdiction
relating to the liquidation or reorganization of
debtors or the modification of the rights of
creditors, the entry of a court order adjudging the
party bankrupt or insolvent, ordering its liquidation
or reorganization or assuming custody or appointing a
receiver or other custodian of its property, or its
making an assignment for the benefit of, or entering
into a composition with, its creditors.
7.2 Force Majeure. It will not constitute an Event of Default if
such event listed in Section 7.1 is caused by or results from
acts of God, fire, war, civil unrest, accident, power
fluctuations or outages, telecommunication fluctuations,
outages or delays, utility failures, mechanical defects, or
other events beyond the control of the defaulting party.
However, if any such occurrence results in any of the events
described in Section 6.1, and the same continues for more than
thirty (30) consecutive days, either party may terminate this
Agreement by providing notice as required herein.
7.3 Notice of Default and Opportunity to Cure. Upon the
occurrence of an Event of Default, the non-defaulting party
shall give notice of such default to the defaulting party and,
in the event of a monetary default, the defaulting party shall
have ten (10) business days from the date of such notice
within which to cure such default or, in the event of a
non-monetary default, the defaulting party shall have twenty
(20) business days within which to cure such default. In the
event such default is not cured within the time required
herein, this Agreement may then be terminated.
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7.4 Effect of Default.
(i) By Participant. In the event of a default of this
Agreement by Participant and the failure of
Participant to cure such default after notice and
opportunity to cure as provided herein, THISCO shall
be entitled (i) to terminate this Agreement and
THISCO's obligations and duties set forth herein
shall cease (ii) to cease use of all Materials, the
Internet Pages and any and all other Materials used
by, developed, or created by THISCO in the
performance of this Agreement, and (iii) pursue any
and all claims for fees and costs agreed to be paid
pursuant to this Agreement with offset for mitigation
resulting from THISCO's terminated obligation to
continue to develop and create Internet Pages as
required by the TravelWeb Order Form. It is
acknowledged and agreed by Participant that the
damages to THISCO for a default on this Agreement by
Participant would be difficult, if not impossible, to
measure and that the balance unpaid on any TravelWeb
Order Form is a fair and reasonable estimate of
THISCO's damages in the event of such default and
shall be the total amount due THISCO in such event.
(ii) By THISCO. In the event of a default of this
Agreement by THISCO and the failure of THISCO to cure
such default after notice and opportunity to cure as
provided herein, Participant may terminate this
Agreement and THISCO shall deliver to Participant all
Materials and all other materials used, developed
and/or created by THISCO in the development and
creation of the Internet Pages and THISCO shall
refund to Participant all amounts paid pursuant to
the TravelWeb Brochure Order less a reasonable amount
no greater than the price set forth on the applicable
TravelWeb Order Form for such parts of the
development and creation of the Internet Pages
accomplished by THISCO as represented by the
Materials delivered to Participant.
7.5 Errors on Internet Pages. Notwithstanding any other provision
hereof, in the event an Internet Page published pursuant to
this Agreement contains an error caused by THISCO, its
employees, agents, or subcontractors, other than an error
arising from THISCO's, its employees, agents or
subcontractors gross negligence or willful misconduct,
Participant's sole and exclusive remedy for such error shall
be THISCO's obligation to remove such Internet Page from the
Travel Web within twenty-four (24) hours of becoming aware, or
notified of, such error, and shall then cure such error by
correcting the information contained on the Internet Page and
restoring the corrected and approved Internet Page to the
TravelWeb as promptly as possible but in no event later than
seven (7) days of the date of notice from Participant of such
error, each at THISCO's sole cost and expense.
7.6 Waiver of Consequential Damages. Neither party shall be liable
to the other for any consequential damages proximately caused
or resulting from
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any default of this Agreement or arising out of the
performance of this Agreement, and each party hereby expressly
waives such damages.
7.7 Disclaimer and Limitation of Liabilities. THISCO WILL NOT BE
RESPONSIBLE OR LIABLE FOR ANY FALSIFICATIONS OR INACCURACIES
IN THE MATERIAL OR THE INTERNET PAGES NOR WILL IT HAVE ANY
LIABILITY FOR ANY ACT OR FAILURE TO ACT WITH RESPECT TO THE
INTERNET PAGES UNLESS EXPRESSLY SET FORTH HEREIN, OR EXCEPT TO
THE EXTENT RESULTING FROM THISCO'S, ITS EMPLOYEES', AGENTS',
OR SUBCONTRACTORS' GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. ALL
WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE
PRODUCT OR SERVICE OR OTHERWISE, ARE DISCLAIMED BY THISCO AND
WAIVED BY PARTICIPANT.
VIII.
TRAVELWEB ACCESS INFORMATION
8.1 TravelWeb Access Information. There shall be available to
Participant via TravelWeb current on line reports containing
TravelWeb Access Information.
IX.
INDEMNIFICATION
9.1 Indemnification in the Event of Certain Losses. Participant
agrees to indemnify, defend and hold harmless THISCO and
THISCO's partners, successors, assigns, subsidiaries,
affiliates, and each such entity's directors, officers,
employees and stockholders, from and against any losses,
claims, liabilities, damages or expenses (including reasonable
attorney's fees) ("THISCO's Losses") occurring on account of
Participant's fault except to the extent due to the fault of
THISCO. THISCO agrees to indemnify, defend and hold harmless
Participant, and Participant's partners, successors, assigns,
subsidiaries, affiliates, and each such entities' directors,
officers, employees and stockholders, from and against any
losses, claims, liabilities, damages or expenses (including
reasonable attorney's fees) ("Participant's Losses") occurring
on account of THISCO's, its employees', agents', or
subcontractors' fault except to the extent due to the fault of
Participant. Promptly after receipt by an indemnified party of
notice of the commencement of any action or the presentation
or other assertion of any claim which could result in any
indemnification claim pursuant to this Section 9.1, such
indemnified party shall give prompt notice thereof to the
indemnifying party and the indemnifying party shall be
entitled to participate therein or, to the extent that it
shall wish, assume the defense thereof with its own counsel.
If the indemnifying party elects to assume the defense of any
such action or claim, the indemnifying party
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shall not be liable to the indemnified party for any fees of
other counsel or other expenses, in each case subsequently
incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs of investigation
and preparation, unless representation of both parties by the
same counsel would be inappropriate due to actual or potential
differing interests between them. Whether or not an
indemnifying party elects to assume the defense of any action
or claim, the indemnifying party shall not compromise or
settle any such action or claim without the indemnified
party's written consent (which consent shall not be
unreasonably withheld). The parties agree to cooperate to the
fullest extent possible in connection with any claim for which
indemnification is or may be sought under this Agreement.
X.
CONFIDENTIALITY
10.1 Confidential Information. During the term of this Agreement,
it is acknowledged by Participant and THISCO that each may
receive or have access to confidential and proprietary
information of the other party including, but not limited to,
marketing information, business plans, financial information,
and trade secrets ("Confidential Information"). Each party
acknowledges that it shall not acquire any ownership or other
rights in or to Confidential Information of the other, and
shall use the Confidential Information only for the purposes
of the performance of this Agreement, and shall keep
confidential and not disclose the Confidential Information to
any other person, firm or corporation without the prior
written consent of the other party. Any Confidential
Information transmitted in writing or by other tangible media
shall remain the property of the owner and shall be returned
to the owner at its request, together with all copies made
thereof, at the conclusion of this Agreement. The parties
agree that the provisions of this Section 10 shall extend
without limitation beyond the date of the expiration or other
conclusion of this Agreement. THISCO agrees to take all
reasonably avoidable measures at THISCO's sole cost and
expense to ensure that Participant's Confidential Information
is not accessible to other persons, and to upgrade such
measures as often as necessary and practicable.
10.2 Use of Marks. Participant acknowledges that "TravelWeb" is a
service xxxx of THISCO and that it shall not use such xxxx
without the prior written approval of THISCO, which shall not
be unreasonably withheld or delayed and which shall not be
required for internal uses and uses consistent with this
Agreement and the promotion of TravelWeb to prospective
viewers of Internet Pages. Except as otherwise permitted
herein, THISCO agrees that it shall not use any of
Participant's Marks or any portion thereof or elements
contained therein without Participant's prior written consent.
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XI.
MISCELLANEOUS
11.1 Controlling Law. This Agreement will be interpreted pursuant
to the laws of the State of Texas without reference to its
conflict of laws principles. Any action brought relating to or
arising out of this Agreement must be brought in the state or
federal courts situated in the county and state of the
residence or principal place of business of the party against
whom the action is brought (or any of them, if more than one).
11.2 Notice. All notices and other communications contemplated
hereby must be in writing (except in the case of
electronically transmitted data) and (a) personally delivered,
(b) deposited in the United States mail, first-class,
registered or certified mail, return receipt requested, with
postage prepaid, (c) sent by overnight courier service (for
next business day delivery), shipping prepaid, (d) sent by
telecopy with confirmation of receipt of telecopy to the
number indicated, or (e) transmitted directly to the recipient
by electronic data transmission pursuant to arrangements made
between the parties. Such notices and other communications
(except in the case of electronically transmitted data) shall
be addressed as follows:
IF TO THISCO: IF TO PARTICIPANT:
0000 Xxxxxx Xxxxx Xxxx. Hilton International Co.
Suite 0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000 2 - 0 Xxxxxx Xxx
Attention: Xxxx X. Xxxxx, III Watford, Herts WD24YW
(if by telecopy to: Attention: Legal Department
(000) 000-0000) with a copy to Xxxxxxxx Xxxxxx
(if by telecopy to:
44 1923 817319)
or such persons or addresses as any party may request by
notice duly given hereunder. Except as otherwise specified
herein, notices will be deemed given and received when
received.
11.3 Binding Effect. This Agreement will be binding upon and will
inure to the benefit of the legal representatives, successors
and duly authorized assigns of each party whether resulting
from merger, acquisition, reorganization or assignment
pursuant to the terms hereof.
11.4 Assignment; Authorized Agents. This Agreement is not
assignable by either party without the prior written consent
of the other and such consent shall not be unreasonably
withheld or delayed. Provided however, it is acknowledged and
agreed that the obligations of THISCO as set forth in
Paragraphs 3.2 and 3.3 herein may be performed by Cyber
Publishing, Inc.
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or such other third party with whom THISCO may contract to
perform such services.
11.5 Entire Agreement. This Agreement and the Exhibits hereto
shall constitute the entire, sole and exclusive agreement
between THISCO and Participant with respect to the subject
matter set forth herein and shall supersede any and all other
agreements, oral or written. Each party hereto acknowledges
that it has not relied upon any representation or promise not
set forth herein.
11.7 Parties' Independence. This Agreement will not constitute a
partnership, joint venture or similar arrangement. The parties
hereto are separate and distinct entities independently
contracting with each other at arms length.
THE HOTEL INDUSTRY SWITCH COMPANY
a Delaware corporation
BY: /s/ XXXX X. XXXXX, III
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Xxxx X. Xxxxx, III
President
DATE: 30th May 1995
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PARTICIPANT:
HILTON INTERNATIONAL CO.
a Delaware corporation
BY: /s/ XXXXXXXX X. BREEZE
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Xxxxxxxx Xxxxxx
Vice President - Corporate Marketing
DATE: 18 May 1995
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