1
EXHIBIT 10.52
PROPERTY INFORMATION DISTRIBUTION AGREEMENT
This Agreement is entered into by and between Pegasus Systems, Inc.
(hereinafter called "Pegasus") and Best Western International, Inc.
(hereinafter called "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, Best Western
will be given thirty (30) days prior notification of any
distribution system that Pegasus contracts with and Best
Western may elect not to participate in said distribution
system 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 per the terms of this Agreement.
3. TravelWeb. Pegasus agrees during the term hereof to distribute
Participant's database and provide the capability to make,
amend and cancel reservations with Participant via its
TravelWeb Internet site. In the event an update in the
functionality or the creation of new functionality for
TravelWeb results in any material failure of the TravelWeb site
to permit accessors of the site to view Participant's database
and make, amend and cancel reservations with Participant, it
shall constitute a breach of this Agreement.
4. 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.
5. 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 providing reservation functionality to accessors of
the database, Participant agrees to pay Pegasus the
following:
(i) For each Net Reservation processed through the
on-line reservation functionality developed by
Pegasus and 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.
(ii) In the event a distribution system with whom
Pegasus contracts charges a fee for Net
Reservations originating with their system and
there is no commission or other fee charged to
Participant by the distribution system for the
Net Reservation, Participant agrees to pay to
Pegasus the fee charged, provided the fee to
Participant shall not exceed [*] per Net
Reservation.
(c) 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 forty five (45) days
after the date of the invoice. All payments to Pegasus
shall be made in U.S. Dollars. Pegasus may, once each
anniversary date of the contract, increase the fees set
forth in (a) and (b) above up to 10% of the
then-existing fee within thirty (30) days prior notice.
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.
6. 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. After the initial [*], this contract may
be terminated at any time by either party within ninety (90)
days notice.
7. 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.
8. 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) ANY CLAIM, DAMAGE, OR LIABILITY OF ANY NATURE ARISING OUT
OF A COMPUTER OPERATOR'S OR DISTRIBUTION SYSTEM'S ACCESS TO
PARTICIPANT'S 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 OTHERWISE 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
participant's database being
*Confidential Treatment Requested
2
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 or Participant 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.
9. Breach; Limitation of Liability. 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 Participant's
database on distribution systems. Notwithstanding and without waiving any
other provision hereof, the parties hereto acknowledge and agree that a
determination of the damages to be suffered by a breach of this Agreement
by either party (other than a breach resulting from non-payment by
Participant) would be difficult, if not impossible, to determine and,
therefor, the parties hereto agree that the full extent of any liability of
Pegasus for a breach hereof and failure to cure shall not exceed an amount
equal to twenty five percent (25%) of the fee paid by Participant to
Pegasus for the immediately preceding month.
10. 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 Participant's
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: BEST WESTERN INTERNATIONAL, INC.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. #▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By: /s/ M. ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ [ILLEGIBLE]
--------------------------- ------------------------------------------
M. ▇▇▇▇▇▇▇▇ ▇▇▇▇
Vice President, Sales ------------------------------------------
Its: Best Western International
-----------------------------------------
Date: 5/2/97 Date: 5/2/97
-------------------------- -----------------------------------------
-2-
3
SCHEDULE A
1. Fees. Participant shall pay to Pegasus the following fees:
(i) During 1997, [*] per property per month for each property in
the database; and
(ii) From January 1, 1998 to the date of termination of this
Agreement, [*] per property per month for each property
in the database.
The fees for this service shall be paid quarterly in advance.
*Confidential Treatment Requested
-3-
