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EXHIBIT 10.33
FIRST AMENDMENT TO HCC PARTICIPANT AGREEMENT
This First Amendment to HCC Participant Agreement is entered into by
and between the HOTEL CLEARING CORPORATION, hereinafter called "HCC", and
PROMUS HOTELS, INC., hereinafter called "Participant", to be effective the 27th
day of August, 1993 (the "First Amendment").
AGREED FACTS
1. HCC and Participant have heretofore entered into an HCC
Participant Agreement dated effective ____________________
(hereinafter called the "Participant Agreement").
2. HCC and Participant have mutually agreed to amend the term of
the Participant Agreement and the provisions of the Participant
Agreement relating to the amount and payment of Participant
Commissions (as defined in the Participant Agreement).
3. HCC and Participant intend for this First Amendment to set
forth in its entirety their agreement to amend the term of the
Participant Agreement and the provisions relating to the amount
and payment of Participant Commissions.
AGREEMENT
FOR AND IN CONSIDERATION of the above stated facts, which are hereby
acknowledged as true and correct, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, HCC and
Participant hereby agree as follows:
1. Section 3.4 of the Participant Agreement is hereby deleted in
its entirety and is replaced with the following:
"3.4 [*] . In consideration of the benefits that [*] will
obtain from [*] processed by [*] through the HCC
System, [*] agrees to [*] certain [*] as hereinafter
provided. Such Participant [*] will be [*] at such
times and in such total amounts as [*] may determine to
be appropriate provided that [*] shall be [*] the
Participant Commission Amount (as hereinafter defined).
The [*] payable to [*] shall be determined by dividing
the total number of [*] for all stockholder [*] for the
applicable time period (as determined by [*]) into the
total amount of funds available [*] (as determined by
[*] and after making allowance for [*], as
hereinafter defined) and
*Confidential Treatment Requested
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE S.E.C.
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[*] by the number of [*] transactions [*] by
[*] for the applicable period. [*] are those amounts
due to [*] pursuant to agreements which require
payments [*] the [*] as [*] including, but not limited
to, amounts due to [*] and key [*] of [*]."
2. Section 4.1 of the Participant Agreement is hereby deleted in
its entirety and is replaced with the following:
"4.1 Term of Agreement. The initial term of this Agreement,
unless earlier terminated pursuant to the provisions of
this Agreement, shall expire December 31, 1998. This
Agreement will be automatically renewed and extended
for additional twelve (12) month periods unless, at
least thirty (30) days prior to the expiration of the
initial term or any additional twelve (12) month
period, either party provides written notice to the
other of its decision not to renew and extend."
3. Exhibit D to the Participant Agreement is deleted.
4. This First Amendment shall be and hereby is incorporated into
the Participant Agreement for all intents and purposes and all
terms, provisions and definitions of the Participant Agreement
shall apply.
5. Except for the provisions inconsistent with the terms of this
First Amendment, the Participant Agreement is hereby ratified
and affirmed in all respects.
This First Amendment is effective as of the date stated above and
executed on the dates indicated below.
HOTEL CLEARING CORPORATION
By: /s/ XXXX X. XXXXX, III
-----------------------------
Xxxx X. Xxxxx, III
President
Date:
---------------------------
PROMUS HOTELS, INC.
By: /s/ XXXX X. XXXXXX
-----------------------------
Its:
-----------------------------
Date:
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EXHIBIT 10.33
HCC PARTICIPANT AGREEMENT
This Agreement (the "Agreement") is entered into by and between THE HOTEL
CLEARING CORPORATION, a Delaware corporation ("HCC"), and Embassy Suites, Inc.,
____________corporation ("Participant"), to be effective the 27th day of
October, 1991.
SECTION 1. DEFINITIONS
1.1 For purposes of this Agreement, the following definitions
shall apply:
(i) Business Day. Business days shall be any day other
than Saturday, Sunday or other days that national banking associations in
Dallas, Texas are required or permitted to be closed.
(ii) Commissionable Reservations. Commissionable Reservations
within a particular time period equals the number of reservations (both voice
and electronic) processed through the HCC System within such time period that
are identified as "commissionable" or partially "commissionable" on the
transaction records provided by Participant to HCC.
(iii) HCC System. The HCC System is an automated clearinghouse
system to provide for the coordination of reservation information, transfer of
hotel reservation commissions and ancillary services to Subscribers and
Participating Properties.
(iv) [*]. [*] are the [*] paid by [*] for [*] processed [*].
(v) Participating Entity. A Participating Entity is an
operator of a hotel reservation system that has executed a HCC
Participant Agreement.
(vi) Subscriber. A Subscriber is any person or entity who has
executed an HCC Subscriber Agreement and makes reservations with a
Participating Entity. A list of current Subscribers will be provided by HCC to
Participant by the twenty-fifth (25th) of each month.
(vii) Subscriber Commissions. Subscriber Commissions are the
commissions paid by Participant to Subscribers for reservations made with
Participant. Subscriber Commissions will be based on commission rates provided
to HCC by the Participant.
(viii) UltraSwitch. UltraSwitch is a service of The Hotel
Industry Switch Company ("THISCO"), which has certain common ownership with
HCC, to provide an interface between Subscribers and hotel reservation systems
with the capability to provide immediate room confirmation numbers for each
hotel property participating in UltraSwitch.
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SECTION 2. THE HCC SYSTEM
2.1 Duties of HCC. HCC will provide and operate the HCC System for
the use and benefit of Participant and other Participating Entities. HCC will
provide all reasonable and necessary technical support, hardware and software,
and modifications to the HCC System to provide clearinghouse services to
Participant as described below. Upon compliance with the terms of this
Agreement by Participant, HCC will provide the following clearinghouse services
to Participant:
(i) identify Participant (and designated affiliates and
franchisees of Participant) to Subscribers as being a HCC System Participant
through the use of UltraSwitch or other central reservation system services
(and, at the discretion of HCC, by distribution of other promotional
materials), subject to the provisions of Section 5.2;
(ii) provide billing statements for Subscriber Commissions,
[*] (as defined below) and other fees, costs and expenses to [*] on a regular
(normally monthly) basis as provided in Section 3 below;
(iii) distribute collected Subscriber Commissions to the
appropriate Subscribers based upon HCC Subscriber Agreements with such
Subscribers;
(iv) provide periodic (normally monthly) reports to
Participant and Subscribers reflecting exceptions to Subscriber Commissions
based upon the data available to HCC through UltraSwitch; and
(v) provide telephone customer support services from
8:00 a.m. to 8:00 p.m., Eastern time, Monday through Friday, exclusive of
legal holidays.
A description of the currently anticipated procedures to be followed in the
payment process is given on Exhibit "F" attached, although the timing and exact
details of such procedures as implemented by HCC in operation of the HCC system
may be different due to computer-related and other operational constraints.
Such procedures are subject to change from time to time as circumstances
require or as otherwise determined by HCC.
2.2. Duties of Participant. Participant will cooperate fully with HCC
personnel with respect to the implementation of the HCC System between the
Subscribers and Participant. Participant specifically authorizes HCC to obtain
information concerning reservations made with Participant from the UltraSwitch
system and to use such information (i) as provided in the procedures described
in Exhibit "F" and (ii) as otherwise approved in writing by the Board of
Directors of HCC. Participant agrees to provide HCC all appropriate reservation
information (including all reservations made electronically or by voice,
whether directly to the property or through the use of a central reservation
"800" phone number) no less often than on a weekly basis. All information
provided by Participant with respect to reservations, Subscribers and
Subscriber Commissions must be complete and accurate to the best of
Participant's ability, and must be inclusive of all the information necessary
to permit HCC to provide the clearinghouse services described in Section 2.1.
The initial information that Participant must provide to HCC is indicated on
Exhibit "A". Because efficient and reliable operation of the clearinghouse
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services offered by the HCC System is dependent on the use of data from
transactions carried by UltraSwitch, Participant agrees to run all of its
electronic reservation transactions through the UltraSwitch system so long as
it is a party to this Agreement, unless marketing or operational reasons cause
Participant to use additional distribution channels.
2.3 Schedule of Implementation of HCC System. HCC will proceed with
the implementation of the HCC System, with a proposed HCC System activation
date of April 1, 1992, but not later than September 30, 1992. For the purposes
of this Agreement, the actual activation date (the "Activation Date") will be
the date that HCC notifies Subscriber that the HCC Board of Directors has
determined that the HCC System is operational and capable of processing
sufficient aggregate transaction volume of the Participating Entities. HCC will
provide Participants with at least thirty (30) days' prior notice of activation
of the HCC System. HCC will provide Participant with appropriate specifications
to assist Participant in preparing for utilization of the HCC System at least
one hundred twenty (120) days prior to the Activation Date.
2.4 Modification or Enhancement of the HCC System or Participant
System. HCC may in it sole discretion modify the operation or enhance the
capability of the HCC System, and Participant agrees to cooperate with HCC in
all modifications and enhancements of the HCC System. All significant
modifications or enhancements will require the approval of the Board of
Directors of HCC. If HCC determines that such modification or enhancement is
likely to require Participant to make significant modifications to its central
reservation system (any such modifications to be at Participant's sole
expense), HCC will provide at least ninety (90) days' prior notice to
Participant of such modification or enhancement. If Participant modifies its
central reservation system after the Activation Date and such modification
requires HCC to modify the HCC System, or to provide additional services to
utilize information supplied by Participant as required by Section 2.2,
Participant will pay HCC such additional amount agreed to by the parties based
on HCC's standard consulting rate and all expenses incurred.
2.5 Audit by Participant. Participant shall have the right, upon ten
(10) days' written notice to HCC, to audit the subscriber participation
process.
SECTION 3. FEES, COSTS, AND PAYMENTS
3.1 Fees. In order to permit HCC to obtain financing, to permit the
development of the HCC System, Participant agrees to pay the monthly
contingency fee (the "Contingency Fee") of [*] multiplied by the Monthly Base
Transactions indicated on Exhibit "B". The Contingency Fee will be payable on
the first business day of each month for a six (6) month period beginning on
the later of April 1, 1992, or the Activation Date, and will be paid by wire
transfer of good funds to HCC's account on such dates, without invoice or
notice from HCC to Participant. Provided that the Activation Date has occurred,
Participant's obligation to pay the Contingency Fee is absolute and shall
continue until Participant is capable of and ready to deliver to the HCC System
reservation commission data from at least seventy-five percent (75%) of its
properties in the United States (calculated based on total number of rooms
rather than number of individual hotels) in a regular and timely manner as
contemplated by this Agreement ("Participant Readiness") and continues and
delivers to HCC the volume of reservation commissions required for Participant
Readiness after the Activation Date. At such time,
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Participant will begin paying transaction fees ("Transaction Fees") of [*] per
Commissionable Reservation, and upon payment of such Transaction Fees, will be
relieved of its obligations to pay any further Contingency Fees under this
section. For the remainder, if any, of the six (6) month period referred to
above, the Transaction Fees payable by Participant will be subject to a minimum
monthly Transaction Fee of [*] multiplied by the Monthly Base Transactions
indicated on Exhibit "B". If Participant Readiness (or the Activation Date, if
later) occurs other than at the beginning of a month, Participant will receive
a credit against the fees otherwise payable by Participant under this
Agreement, in the amount of a pro rata portion of the Contingency Fee paid to
HCC for that month, based upon the number of days in the month following
Participation Readiness (or the Activation Date, if later). HCC may, at its
sole discretion, change the Transaction Fees charged to Participant as provided
above, upon ninety (90) days notice to Participant.
The Board of Directors of HCC will have the right to verify
Participant Readiness (whether through HCC personnel or independent third
parties) and will have the right to modify or adjust the requirements for
Participant Readiness, as long as it makes such determination in a uniform
manner among, other Participating Entities. Participant has been informed that
HCC is reliant upon, and the obtaining by HCC of certain critical financing is
dependent upon, Participant's agreement to and performance of Participant's
obligations under this section. Participant acknowledges that the failure of
Participant to meet its payment obligations under this section would
substantially and materially damage the business of HCC and waives any and all
defenses that it may have to the performance of such obligations. Participant
hereby irrevocably consents to having the provisions of this Section 3.1
immediately and fully enforced in a court of law or equity and waives any and
all defenses thereto.
Participant agrees to pay all such fees by wire transfer of good funds
to HCC's account within two (2) business days after receipt by Participant of
the billing statements described in Section 3.5, below. Participant is
responsible for collection and payment to HCC of all such fees that are
attributable to Participant and all of Participant's affiliates and franchisees
that utilize the HCC System under this Agreement.
3.2 Subscriber Commissions. Participant agrees to pay to HCC all
Subscriber Commissions (as provided in Exhibit "C") shown on the billing
statements described in Section 3.5, by wire transfer of good funds to HCC's
account within two (2) business days after receipt by Participant of such
billing statements. Participant is responsible for collection and payment to
HCC of all such Subscriber Commissions that are attributable to Participant and
all of Participant's affiliates and franchisees that utilize the HCC System
under this Agreement. Payments to Subscribers will be made in appropriate local
currency.
3.3 Other Fees, Costs and Expenses. Participant also agrees to pay
HCC at its standard consulting rate plus all expenses incurred for set up,
handling, conversion and other services required for processing of information
transmitted to HCC to satisfy the requirements of Section 2.2, above, unless a
different fee arrangement with respect to such services is indicated on Exhibit
"B". All of such fees must be approved in writing, in advance by Participant.
Participant agrees to pay all such fees by wire transfer of good funds to HCC's
account within two (2) business days after receipt by Participant of the
billing statements described in Section 3.5, below. Participant is responsible
for collection and payment to HCC
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of all such fees, costs and other expenses that are attributable to Participant
and all of Participant's affiliates and franchisees that utilize the HCC System
under this Agreement.
3.4 [deleted by amendment]
3.5 Billing Statements. Based upon the information provided HCC by
or with respect to Participant pursuant to Section 2.2, above, HCC will provide
periodic (normally monthly) billing statements detailing (i) Subscriber
Commissions to be paid by Participant for the period covered by such billing
statement; (ii) Transaction Fees to be paid by Participant, based on
Commissionable Reservations for the period covered by such billing statement;
(iii) other fees, costs and additional expenses to be paid by Participant for
the period covered by such billing statement; and (iv) [*] to be paid to [*]
for the most recent quarterly period preceding such billing statement, which
[*] will be calculated and included in billing statements only on a quarterly
basis. Items (i) through (iv) may be included on separate billing statements.
3.6 Disputed Commissions. HCC will provide Participant and
Subscribers with periodic reports indicated under Section 2.l(v) that will
indicate any exceptions to Subscriber Commissions, based on discrepancies
between information given HCC by Participant compared to other information
available to HCC through UltraSwitch. With respect to all exceptions as to
which Participant provides supporting documentation, HCC will forward such
documentation to the appropriate Subscriber(s), and the Subscribers involved
may pursue such dispute directly with Participant, but HCC will not have any
liability to either Participant or such Subscriber with respect to the
resolution of any disputed commission. No dispute concerning any Subscriber
Commissions will in any way affect or reduce the obligations of Participant to
(i) timely pay all other Subscriber Commissions and (ii) timely pay to HCC all
Transaction Fees and other fees, costs and additional expenses owed by
Participant under this Agreement.
SECTION 4. TERM
4.1 Term of Agreement. The initial term of this Agreement, unless
earlier terminated pursuant to the provisions of this Agreement, shall expire
five (5) years after the date of this Agreement. This Agreement will be
automatically renewed and extended for additional twelve (12) month periods
unless, at least thirty (30) days prior to the expiration of the initial term or
at least thirty (30) days prior to the expiration of any additional twelve (12)
month period, either party provides written notice to the other of its decision
not to renew and extend.
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SECTION 5. TERMINATION
5.1 Termination Upon Default. Upon the occurrence of an Event of
Default (as defined below) by either party and the failure of such party to
cure such default after notice and opportunity to cure as provided by Section
6.3 below, the nondefaulting party may terminate this Agreement at any time.
5.2 Suspension of Status. Upon the occurrence of an Event of Default
by Participant and the failure of Participant to cure such default after notice
and opportunity to cure as provided by Section 6.3 below, then, if HCC does not
terminate this Agreement under Section 5.1, until such time as such Event of
Default is cured HCC shall have the right to suspend the status of Participant
as a Participating Entity and to notify any and all Subscribers of such default
and suspension, whether through the UltraSwitch system, central reservation
systems, or otherwise. Upon notification by Participant to HCC of any default
in payment by any affiliate or franchisee of Participant of payments due under
this Agreement and until notification by Participant of the cure of such
default, HCC shall have the right to suspend the status of such affiliate or
franchisee as a Participating Entity and to notify all Subscribers of such
default and suspension.
Section 6. DEFAULT
6.1 Events of Default. Subject to Section 6.2 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 to perform
diligently and in good faith each and every material provision of this
Agreement;
(iii) The commencement by either party of a voluntary case
under Chapter 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 Chapter 11 or 7, either party seeking relief as a debtor under any
applicable law, other than said Chapter 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;
(iv) The deferral [*] of payment of all [*] provided in Section
3.4, for more than two (2) consecutive calendar quarters; or
(v) The failure by HCC to have obtained HCC Subscriber
Agreements with respect to at least twelve thousand (12,000) travel
agent/reservation provider locations within thirty-six (36) months following
the Activation Date.
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Any such Event of Default shall not relieve the defaulting party from
any of its obligations hereunder, and the non-defaulting party shall, except as
provided in this Agreement, be entitled to whatever remedies at law or in
equity are available to it.
6.2 Force Majeure. It will not constitute an Event of Default if
such event listed in Section 6.1 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.
6.3 Cure Period. Upon the occurrence of an Event of Default, the
non-defaulting party will give written notice to the defaulting party
specifying the alleged default. The defaulting party will then be entitled to
thirty (30) days from receipt of such notice within which to cure such default;
provided, that in the case of a monetary default by Participant, Participant
will only be allowed to cure such default within two (2) business days after
receipt of such notice, by delivering that amount owed to HCC in good funds
into HCC's bank account.
SECTION 7. CONFIDENTIALITY
7.1 Proprietary Information. During the term of this Agreement, it
is acknowledged by Participant and HCC that each will receive confidential and
proprietary information that is the property of the other party. All such
confidential and proprietary information will be marked or otherwise identified
as such and will be treated as confidential and proprietary subject only to
disclosure where required by law. Such designation may be removed by each party
making the designation. Participant acknowledges that it will have no access to
and will not use UltraSwitch software or related property by reason of this
Agreement, and that use of such UltraSwitch services by Participant would be
permitted only under a separate agreement with THISCO. Participant acknowledges
that it will have no access to and will not use the HCC System or related
property, other than as specifically provided for in this Agreement, and that
such system and related property is confidential and proprietary property of
HCC. HCC acknowledges that the specific information concerning Participant's
reservations, whether processed through the UltraSwitch system or otherwise
provided by Participant to HCC outside of the UltraSwitch system, is the
property of Participant, although Participant acknowledges HCC may use such
information (1) as provided in the procedures described in Exhibit "F" and (ii)
as otherwise approved in writing by the Board of Directors of HCC, as long as
HCC removes any information that indicates the customer is a customer of
Participant. The aggregate data from the HCC System will become the property of
HCC. Any use of HCC service marks or tradenames by Participant is subject to
prior written approval of HCC, provided, that Participant may describe the HCC
System contemplated by this Agreement in its franchise offering circular and
other materials as required by state or federal law. The provisions of this
Section 7.1 will remain binding and in force and effect as long as such
information remains confidential (other than by breach of this Agreement),
notwithstanding the expiration or termination of this Agreement at any time.
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SECTION 8. INDEMNIFICATION
8.1 Indemnification in the Event of Certain Losses. Subject to
Section 9.2, Participant agrees to indemnify and hold harmless HCC and HCC's
affiliates, directors, officers, employees and stockholders (other than
Participant), from and against any losses, claims, liabilities, damages or
expenses (including reasonable attorneys' fees) occurring as a result of or
arising out of a material breach of this Agreement on account of Participant's
fault, to the extent not caused by the fault of HCC ("HCC's Losses"). Subject
to Section 9.2, HCC agrees to indemnify and hold harmless Participant, and
Participant's affiliates, directors, officers, employees and stockholders, from
and against any losses, claims, liabilities, damages or expenses (including
reasonable attorney's fees) ("Participant's Losses") occurring as a result of
or arising out of a material breach of this Agreement on account of HCC's
fault, to the extent not caused by 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 8.1, such indemnified party will
give prompt notice thereof to the indemnifying party and the indemnifying party
will be entitled to participate therein or, to the extent that it wishes,
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 shall not be liable to the indemnified party for any fees of other
counsel or other expenses 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. 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. Whether or not the indemnifying party elects to
assume the defense of any such action or claim, the indemnifying party shall
not be liable for any compromise or settlement of any such action or claim
effected without its consent (which shall not be unreasonably withheld).
SECTION 9. DISCLAIMER OF WARRANTIES
9.1 Waiver of Warranties. HCC WILL NOT BE RESPONSIBLE OR LIABLE
FOR ANY INACCURACIES IN THE DATA OR THE INFORMATION PROCESSED BY OR THROUGH THE
HCC SYSTEM NOR WILL IT HAVE ANY LIABILITY FOR ANY ACT OR FAILURE TO ACT UNLESS
EXPRESSLY SET FORTH HEREIN, EXCEPT TO THE EXTENT RESULTING FROM HCC'S 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 HCC AND WAIVED BY PARTICIPANT.
9.2 No Consequential Damages. Neither party will be liable to the
other for any consequential damages caused or resulting from any breach of this
Agreement or arising out of the performance of this Agreement, and each party
hereby expressly waives such damages.
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SECTION 10. MISCELLANEOUS
10.1 Arbitration of Disputes. Any controversy or claim arising out
of or relating to this contract, or the breach thereof, will be settled by
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the
arbitrators may be entered in any court having jurisdiction thereof. There
shall be a panel of three arbitrators. Each party will select one arbitrator
within thirty (30) days of notice of the dispute, and the two (2) arbitrators
selected shall select a third neutral arbitrator within thirty (30) days after
the second arbitrator is chosen. All reasonable and necessary costs and fees
(including attorneys' fees) incurred in connection with the arbitration will be
borne by the losing party or assessed in the award as otherwise deemed
appropriate by the arbitrators. If the demand for arbitration is initiated by
Participant, venue of the arbitration proceedings will be determined by HCC. If
the demand for arbitration is initiated by HCC, venue of the arbitration
proceedings will be determined by Participant.
10.2 Non-Exclusive Agreement. Each party acknowledges that this is
not an exclusive agreement with respect to reservations commissions
clearinghouse services and that each party may contract with other parties
providing same or similar services.
10.3 Status of Parties. 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. HCC will not be deemed by this Agreement to be granting a license
to Participant, with respect to UltraSwitch, the HCC System or any software or
service xxxx related thereto, or otherwise, this being, a contract for the use
and rendering of services only.
10.4 Assignment. This Agreement is not assignable by HCC or
Participant without the prior written consent of the nonassigning party, and
such consent shall not be unreasonably withheld or delayed.
10.5 Notices. 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 commissions (except in the case of
electronically transmitted data) shall be addressed as follows:
IF TO HCC: IF TO PARTICIPANT:
0000 Xxxxxx Xxxxx Xxxx. Embassy Suites, Inc.
Xxxxx 0000 0000 Xxxxxx Xx.
Xxxxxx, XX 00000 Attention: Xxxxx Xxxxxxx
Attention: Xxxx X. Xxxxx, III (if by telecopy to: (000) 000-0000)
(if by telecopy to: (000) 000-0000)
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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 (i) at the time of personal delivery, (ii) if sent by U.S. mail,
three (3) business days after mailing, (iii) if sent by overnight courier, one
(1) business day after such sending, (iv) if sent by telecopy, upon receiving
of confirmation of receipt of the telecopy at the number indicated, or (v) in
the case of electronically transmitted data, when received.
10.6 Controlling Law. This Agreement will be interpreted pursuant
to the laws of the State of Texas without reference to its conflict of laws
principles. Subject to the agreement to arbitrate and the jurisdiction and
venue provisions set forth in section 10.1 hereof, 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).
10.7 Entire Agreement. This Agreement and the Exhibits attached
hereto constitute the entire agreement between HCC and Participant with respect
to the provision of services under the HCC System, and supersedes and replaces
any and all other agreements and representations, verbal or written, with
respect to the subject matter of this Agreement. There are no representations,
warranties or agreements made or relied upon by either party with respect to
the subject matter of this Agreement that are not contained in this Agreement.
10.8 Successors and Assigns. 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.
10.9 Confidentiality of the Agreement. The parties agree that the
terms and provisions of this Agreement will be kept confidential and shall be
disclosed only to those persons and entities as required by law or as permitted
by the other party hereto. The parties may, however, disclose the existence of
this Agreement to any person or entity.
AGREED to as of the date first written above.
THE HOTEL CLEARING CORPORATION EMBASSY SUITES, INC.
By: /s/ XXXX X. XXXXX, III By: /s/ XXXXX XXXXXXX
----------------------------- -------------------------------
Xxxx X. Xxxxx, III, President Title: V.P. Information Technology
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13
EXHIBIT "A"
Initial Information to be Provided by Participant to HCC
The fields in each commission record are the following:
- Record identifier required validated
- Chain record number required check for duplicates
- Chain/Brand code required validated
- Booking source required validated
- Property ID required validated
- PNR Number optional no checks
- Confirmation number required validated presence
- Cancellation number optional no checks
- Corporate ID number optional no checks
- Subscriber IATA number required validated HCC user
- Group/Guest last name required validated presence
- Group/Guest first name optional no checks
- Status code required validated
- Reason code optional if present, validate
- Arrival date required validated, no future
- Departure date required validated, no future
- Number of nights required validated presence
- Number of rooms required validated presence
- Commissionable revenue required validated, no neg.
- Gross Commission required validated, no neg.
- Adjustment amount required validated presence
- Net Commission due required validate computation
- Currency code required validated
- Comments optional no checks
14
EXHIBIT "B"
Participant Fees
1. Contingency Fees and minimum Transaction Fees as provided in
Section 3.1 of the Agreement will be based upon [*] Annual Base Transactions,
or Monthly Base Transactions of [*] (Annual Base Transactions divided by 12).
*Confidential Treatment Requested
15
EXHIBIT "C"
Subscriber Commissions
1. Subscriber Commissions are specified in the record field "Net
Commission Due" as described on Exhibit "A".
16
EXHIBIT "D"
[deleted by amendment]
17
EXHIBIT "E"
[INTENTIONALLY DELETED]
18
EXHIBIT "F"
PROPOSED PROCEDURES
(attached)
