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EXHIBIT 10.62
NETBOOKER AGREEMENT
This Agreement is entered into by and between PEGASUS SYSTEMS, INC., a
Delaware corporation, (hereinafter "Pegasus") and PROMUS HOTELS, INC.,
(hereinafter "Participant"), this 18th day of September, 1997.
1. DEFINITIONS
1.1 For purposes of this Agreement, the following definitions
shall apply:
(i) NetBooker. A service xxxx of Pegasus for its service to
provide web site hosting and a hotel information database access and
reservation capability to accessors of Internet sites.
(ii) Distribution Access Database. A database of hotel and lodging
information maintained by Pegasus.
(iii) Reservation Function. The capability to determine room
availability for specific dates and to make, change and cancel
reservations at Participant's hotels contained in the Distribution
Access Database.
(iv) Interface. All server and application software and hardware
reasonable and necessary for a dependable and operative online
connection between Participant's Web Site and Pegasus' Distribution
Access Database and Reservation Function.
(v) Participant's Web Site. An Internet site on the World Wide
Web created, maintained and hosted by Pegasus as specifically
provided in this Agreement in the
*CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE
COMMISSION.
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name of and for the use and benefit of Participant with an Interface
to Pegasus' Distribution Access Database and Reservation Function.
(vi) Net Reservation. Net Reservations are reservations by
accessors of Participant's Web Site within a particular time period,
less the number of canceled reservations by accessors of Participant's
Web Site during the same time period.
2. NETBOOKER SERVICES
2.1 Selected Services. Participant hereby contracts for the
following services to be provided by Pegasus:
Pursuant to the Promus NetBooker Hosting Requirements Specification
Revision 1.2 dated June 27, 1997 and subsequent mutually agreed
revisions thereto and a mutually agreed schedule of implementation,
Pegasus shall assist Participant in the creation, maintain and host on
a continual basis a dependable and operable Participant Web Site with
an Interface to the Distribution Access Database and the Reservation
Function all as more specifically set forth in the Promus NetBooker
Hosting Requirements Specification Revision 1.2 dated June 27, 1997
and subsequent mutually agreed revisions thereto and on Exhibit A
attached hereto which is incorporated herein by reference.
2.2 Duties of Participant. Participant shall use all reasonable
and necessary efforts to cooperate fully with and provide support for Pegasus'
personnel with respect to the provision of the services provided pursuant to
the terms of this Agreement.
2.3 Property Information Distribution Agreement. Prior to or
contemporaneous with the execution of this Agreement, Participant shall enter
into a Property Information Distribution Agreement with Pegasus. Participant's
property information transmitted pursuant to the Property Information
Distribution Agreement shall be the Distribution Access Database for
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purposes of this Agreement. Notwithstanding the above, Participant shall not
be charged a Net Reservation Fee pursuant to this Agreement for Net
Reservations originating on the web site owned and operated by Participant.
3. FEES
3.1 Monthly Maintenance Fee. For the continual provision of the
services as set forth herein, Participant shall pay to Pegasus a Monthly
Maintenance Fee each month during the term of this Agreement in the amount of
* per month.
3.2 Net Reservation Fee. Participant shall pay to Pegasus * for
each Net Reservation made by an accessor of Participant's Web Site provided
that Participant shall pay only one Net Reservation Fee for each Net
Reservation processed pursuant to this Agreement and the Property Information
Distribution Agreement. Notwithstanding the above, Participant shall not be
charged a Net Reservation Fee pursuant to this Agreement for Net Reservations
originating on the web site owned and operated by Participant.
3.3 Payment of Fees and Costs. Pegasus will provide a monthly
statement to Participant setting forth transactions and all fees and costs due
pursuant to this Agreement. Participant shall pay all amounts due upon receipt
of the statement and, in any event, within thirty (30) days of receipt of each
statement. Participant shall pay Pegasus all Net Reservation Fees within
thirty (30) days of receipt of such fees from the party with whom the Net
Reservation was made. In the event an amount due is not paid within thirty
(30) days of receipt of a statement setting forth the amount due, in addition
to each party's rights of termination provided herein, the non paying party
agrees to pay interest on all amounts over thirty (30) days old at an annual
rate of 15% or 1 1/4% per month. All fees and costs shall be paid in U.S.
dollars.
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4. TERM
4.1 Term of Agreement. The initial term of this Agreement, unless
earlier terminated pursuant to the provisions of this Agreement, shall begin
upon execution of this Agreement and shall continue thereafter for a period of
forty eight (48) months provided, however, the term of this Agreement shall be
automatically extended for additional one (1) year terms unless either party
shall, at least sixty (60) days prior to the expiration of the initial or any
extended term, give notice of termination of the Agreement at the end of the
term. Notwithstanding the above, this Agreement shall terminate on the date
the Property Information Distribution Agreement terminates.
5. TERMINATION
5.1 Termination by Participant. Upon the occurrence of an Event
of Default (as hereinafter defined) by Pegasus and the failure of Pegasus to
cure such default after written notice and opportunity to cure as provided by
Section 6.3 hereof, Participant may terminate this Agreement at any time within
thirty (30) days after the expiration of the cure period provided in Section
6.3.
5.2 Termination by Pegasus. Upon the occurrence of an Event of
Default (as hereinafter defined) by Participant and the failure of Participant
to cure such default after written notice and opportunity to cure as provided
by Section 6.3 hereof, Pegasus may terminate this Agreement at any time within
thirty (30) days after the expiration of the cure period provided in Section
6.3.
6. DEFAULT
6.1 Events of Default. Subject to Section 6.2 hereof, any one of
the following listed occurrences shall be considered an Event of Default:
(i) The failure to pay any amount due hereunder within the time
required;
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(ii) The refusal or failure to diligently and in good faith perform
each and every material provision of this Agreement;
(iii) The breach of the Property Information Distribution Agreement;
(iv) The application by Participant or Pegasus for or the
consenting to the appointment of a receiver, a trustee or liquidator
of all or of a substantial portion of its assets; the making by
Participant or Pegasus of a general assignment for the benefit of
creditors; Participant or Pegasus being adjudicated a bankrupt or
becoming insolvent; Participant or Pegasus filing a voluntary petition
in bankruptcy or filing a petition or answer seeking reorganization or
an arrangement with creditors or seeking to take advantage of any law
(whether federal or state) relating to relief of debtors, or admitting
(by answer, by default or otherwise) the material allegations of a
petition filed against it in any bankruptcy, reorganization,
arrangement, insolvency or other proceedings (whether federal or
state) relating to relief of debtors; Participant or Pegasus admitting
in writing that it is unable to pay its debts as they matUre or that
it is generally not paying its debts as they mature; Participant or
Pegasus suffering or permitting to continue for ninety (90)
consecutive days any judgment, decree or order, entered by a court of
competent jurisdiction, which approves a petition seeking
reorganization of such party or which appoints a receiver, trustee or
liquidator of such party or of all or a substantial part of any of its
assets; attachment, execution or other judicial seizure of all or
substantially all of the assets of Participant or Pegasus, where such
seizure is not discharged within ninety (90) days; or the filing of
any involuntary petition in bankruptcy against Participant or Pegasus
which is not dismissed within ninety (90) days of its filing.
6.2 Force Majeure. It shall not constitute a default if an Event
of Default is caused by or results from acts of God, fire, war, civil unrest,
accident, or other events beyond the control of the defaulting party (except as
described in 9.2). However, if an Event of Default
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results from any such occurrence and continues for more than thirty (30)
consecutive days, either party may terminate this Agreement by providing notice
as required herein.
6.3 Notice of Default. Upon the occurrence of an Event of
Default, the non-defaulting party shall give written notice to the defaulting
party specifying the alleged default. The defaulting party shall then be
entitled to ten (10) days. after receipt of such notice within which to cure
any monetary default and thirty (30) days within which to cure any non-monetary
default. Notwithstanding the foregoing, in the event of a default by Pegasus
with respect to the repair of the web site operations as set forth in Section
9.2 hereof, Participant shall be entitled to provide notice and Pegasus shall
then be entitled to twenty-four (24) hours after receipt thereof within which
to cure the default.
7. CONFIDENTIALITY
7.1 Confidential Information. During the term of this Agreement,
it is acknowledged by Participant and Pegasus that each may receive or have
access to confidential and proprietary information of the other party
including, but not limited to, software, codes, specifications, data base 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 7 shall
survive the expiration or termination of this Agreement.
7.2 Use of Marks. Participant acknowledges that NetBooker,
UltraDirect, Click-It! Weekends, Pegasus and TravelWeb are each service marks
of Pegasus or its affiliates and Participant agrees to not use any of Pegasus'
marks in any way including, but not limited to, in any advertising or
promotional materials, without the prior written approval of Pegasus. Pegasus
agrees to not use any of Participant's marks in any way including, but not
limited to,
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in any advertising or promotional materials, without the prior written approval
of Participant.
8. INDEMNIFICATION
8.1 Indemnification in the Event of Certain Losses. Participant
agrees to indemnify and hold harmless Pegasus and Pegasus's affiliates,
directors, officers, employees and other stockholders, from and against any
losses, claims, liabilities, damages or expenses (including reasonable
attorney's fees) occurring on account of Participant's fault and through no
fault of Pegasus ("Pegasus' Losses"). Pegasus 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) occurring on account
of Pegasus's fault and through no fault of Participant ("Participant's
Losses"). 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 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 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. 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.
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
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9. DISCLAIMER AND LIMITATION OF LIABILITIES
9.1 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 DISPLAYED ON THE WEB SITE, (ii) ANY ACT
OR FAILURE TO ACT WITH RESPECT TO THE PUBLICATION OF THE INFORMATION ON THE
INTERNET AS DIRECTED BY PARTICIPANT OR THE CREATION OR FUNCTIONALITY OF
RESERVATION CAPABILITIES UNLESS EXPRESSLY SET FORTH HEREIN, (iii) ANY CLAIM,
DAMAGE, OR LIABILITY OF ANY NATURE ARISING OUT OF ACCESS TO THE WEB SITE 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 (v) 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 THE OPERATION OF A SITE ON THE
INTERNET IS AT PARTICIPANT'S OWN RISK. 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, terminate this Agreement with ninety (90) days
written notice without such action constituting an event of default.
* CONFIDENTIAL TREATMENT REQUESTED BY PEGASUS SYSTEMS, INC.
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9.2 Repair of Web Site Operations. Notwithstanding any other
provision of this Agreement, the only obligation of Pegasus in the event of a
material failure in the operation or performance of Participant's Web Site
shall be to repair the malfunction within twenty four (24) hours of receipt of
written, facsimile or telecopy notice from Participant requesting such repair.
10. MISCELLANEOUS
10.1 Arbitration of Disputes. Any controversy or claim arising out
of or relating to this contract, or the breach thereof, shall 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 shall select one arbitrator
and the two arbitrators selected shall select a third neutral arbitrator. All
reasonable and necessary costs and fees (including attorney's fees) incurred in
connection with the arbitration shall be borne by the losing party or assessed
in the award as otherwise deemed appropriate by the arbitrators.
10.2 Status of Parties. This Agreement shall 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.
10.3 Assignment. This Agreement is not assignable by Pegasus or
Participant without the prior written consent of the non-assigning party (and
such consent shall not be unreasonably withheld), provided that either party
may assign this Agreement to an affiliate or in the event of an acquisition,
merger or sale of substantially all assets.
10.4 Notices. All notices, requests, consents, payments and other
communications contemplated hereby shall be in writing and (a) personally
delivered, (b) deposited in the United States mail, first-class, registered or
certified mail, return receipt requested, with postage
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prepaid, (c) sent by overnight courier service (for next business day
delivery), shipping prepaid, or (d) by facsimile transmission, as follows:
If to PEGASUS: If to PROMUS:
0000 Xxxxxx Xxxxx Xxxx., Xxx. 0000 000 Xxxxxxxxx Xxxx
Xxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx Attention: Xxxx Xxxxx
(Facsimile: (000) 000-0000) (Facsimile: (000) 000-0000)
or such persons or addresses as any party may request by notice duly given
hereunder. Except as otherwise specified herein, notices shall be deemed given
and received at the time of personal delivery or facsimile or, if sent by U.S.
mail, three (3) business days after mailing, or, if sent by overnight courier,
one (1) business day after such sending.
10.5 Controlling Law. This Agreement shall be interpreted pursuant
to the laws of the State of Texas. The venue for any arbitration or suit
brought with respect to or arising out of this Agreement shall be in the City
of Dallas, Texas or in the state or federal courts situated in Dallas County,
Texas. The parties hereto hereby waive all objections, and they hereby consent
to such jurisdiction and venue.
10.6 Entire Agreement. This Agreement constitutes the entire
agreement between Pegasus and Participant with respect to the implementation
and operation of Participant's Web Site 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 which are not contained in this Agreement.
10.7 Successors and Assigns. This Agreement shall be binding upon
and shall 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.
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10.8 Confidentiality of the Agreement. The parties agree that the
terms and provisions of this Agreement shall 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.
11. PROPRIETARY RIGHTS.
11.1 Distribution Access Database and Reservation Function. The
Reservation Function, all other functionality and any other content provided as
part of the Distribution Access Database is the property of Pegasus or its
licensors and may not be downloaded, copied or redistributed in whole or in
part nor shall such content or functionality be used in any manner except as
permitted by this Agreement.
PEGASUS SYSTEMS, INC. PROMUS HOTELS, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxx Xxxxx
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Its: President Its: Senior Vice President
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Date: September 19, 1997 Date: September 18, 1997
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EXHIBIT A
REQUIREMENTS FOR PARTICIPANT WEB SITE
1. Content. Participant's Web Site shall access the following
Participant brands property information contained in the Distribution Access
Database: Embassy Suites, Embassy Vacation Resorts, Homewood Suites, Hampton
Inn and Suites, Hampton Inn and Hampton Vacation Resorts. Participant's Web
Site will also contain mutually agreed Participant corporate content.
2. Design and Functionality. The parties will mutually agree to
the design and functionality of Participant's web site consistent with the
Promus NetBooker Hosting Requirements Specification Revision 1.2 dated June 27,
1997 and subsequent mutually agreed to revision thereof.
3. System Reliability. Subject to Sections 6.2, 9.1 and delays
caused by third parties or persons or entities not under the control of
Pegasus, Participant's web sites and the Interface to the distribution access
database and the reservation functionality shall be operable ninety nine point
five percent (99.5%) of the time each month unless otherwise agreed.
4. Review and Enhancements. Pegasus shall provide Participant
with all enhancements to the Distribution Access Database and Reservation
Functionality provided to all other participants in the Distribution Access
Database on terms commensurate with other participants. If requested by
Participant, Pegasus agrees to conduct a functional review of Participant's Web
Site with Participant within thirty (30) days of execution of this Agreement
and at least once each six (6) months during the term of this Agreement. The
purpose of the review shall be to discuss plans, strategy and enhancements with
respect to Participant's Web Site. In the event Pegasus and Participant agree
on modifications or enhancements to Participant's Web Site encompassing
services beyond the scope of services set forth herein, the parties shall
mutually agree to the additional requirements, implementation schedule and the
payment terms for such modifications and enhancements which must be executed by
each party
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hereto and attached to this Agreement to be effective. In the event Pegasus is
unable to implement an agreed upon web site enhancement within a mutually
agreed time frame, Participant may elect to terminate the Agreement with thirty
(30) days written notice. Except as otherwise agreed in writing, in the event
Participant requests an enhancement which is performed by Pegasus at Pegasus'
expense, such enhancement shall be the sole, exclusive and unrestricted
property of Pegasus. In the event an enhancement developed by Pegasus is paid
for by Participant, such enhancement shall be the property of Participant;
provided that Pegasus, at its sole discretion, shall have the right, beginning
ninety (90) days after implementation of such enhancement, to pay Participant a
mutually agreed price, not to exceed the development cost paid by Participant,
for such enhancement, for all rights to such enhancement and, upon such
payment, the enhancement shall become the sole property of Pegasus. On the
date of such reimbursement, Participant shall begin paying mutually agreed upon
fees, if any, for use of such enhancement. In the event an agreement cannot be
reached with respect to such fees, such enhancement shall no longer be provided
to Participant. Pegasus shall use commercially reasonable efforts to provide
hardware, software and services commensurate with the highest level of
technology reasonably available and as reasonable and necessary to ensure that
Participant's Web Site is competitive in the marketplace.
5. Year 2000 Compliance. Pegasus will ensure that all hosting
and development environments, operating systems, server and ancillary
applications provided pursuant to this Agreement are fully year 2000 compliant.
Pegasus will provide Participant with all reasonable and necessary
documentation to verify Pegasus' year 2000 compliance no later than August 1,
1998. All development work performed by Pegasus or third parties contracted
with by Pegasus for Participant shall conform to generally accepted software
development principals regarding year 2000 compliance.
6. Reporting. Pegasus shall provide to Participant on-line
reports as described in the Property Information Distribution Agreement.
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7. Operational Support. Pegasus shall provide operational
support for Participant's web site seven (7) days a week, twenty four (24)
hours a day during the term hereof. Pegasus agrees that it shall provide such
support personnel and ancillary tools for maintaining the availability of the
servers as is commercially reasonable and necessary.
8. Specific Requirements. Subject to Section 6.2 of the
Agreement and delays caused by Participant, Pegasus will complete the
implementation of the following requirements of Participant's Web Site no later
than December 31, 1998:
a. Accessors shall have the capability to retrieve and
cancel previously made reservations regardless of the
distribution system through which the reservation was
processed.
b. Accessors shall have the capability to retrieve and
change reservation information.
c. Accessors shall have the capability to view daily
rates for multiple day reservations.
d. Accessors shall have the capability to make
reservations which include booking multiple rooms,
multiple room types, multiple stays, and multiple
locations with one transaction.
e. Accessors shall have the capability to store personal
information on the site to allow for retrieval and
use during subsequent site visits.
f. Accessors shall have the capability to store travel
itineraries on the site to allow for retrieval and
use during subsequent site visits.
Completion of these requirements is specifically contingent upon
Participant's completion of any modifications and enhancements to its
reservation system sufficiently in
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advance of the scheduled implementation date to allow Pegasus a reasonable
period of time thereafter to complete the implementation.
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