(OVERRIDE AGREEMENT)
WORLD CHOICE TRAVEL PRIVATE LABEL AND XML INTERFACE AGREEMENT
00000 X.X. Xxxxxxx 0, Xxxxx 000
Xxxxx Xxxx Xxxxx, XX 00000
This Private Label and XML Interface Agreement ("Agreement") is made
and entered into as of the 11th day of June, 2004 ("Effective Date")
between World Choice Travel, a division of Xxxxxxxxxxx.xxx LP ("WCT"),
and the Customer listed below ("Customer")(each, a "Party",
collectively, the ""Parties").
CUSTOMER INFORMATION
Customer: Xxxxxxxxx.xxx Linked URLs
Address: 0000 X. Xxxxxxx Xxxxxxx xxx.xxxxxxxxxxxxxxx.xxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, XX 00000
Phone: 000-000-0000 Fax: 000-000-0000
Billing Contact: Xx. Xxxx Xxxxxxx
Title: President
Email address: Xxxxxxxx@xxxxxxxxx.xxx
BACKGROUND
Whereas, WCT provides on-line travel information and booking services
as further described in Exhibit A attached hereto and incorporated
herein by reference ("Reservation Services") and maintains and licenses
from third parties databases ("Databases") of information relating to
hotels, airlines, car rental, cruises and other travel-related products
and services; and
WHEREAS< Customer desires to extend to its end-users (the "End Users")
access to the Reservation Services through one or both of the
following: (i) a link (the "Link") to a web site hosted by WCT (the
"Web Site") or (ii) an XML interface (the "Interface") that allows
Customer to send search requests to, and to receive travel-related date
(the "Retrieved Data") from, WCT's servers (or those of its affiliated
third party suppliers).
NOW THEREFORE, in conclusion of the mutual covenants and agreements set
forth herein, the Parties agree as follows:
AGREEMENT
1. Reservations. Subject to the terms and conditions contained in the
Agreement, and solely for purposes providing End Users with access to
the Databases, Retrieved Data and Reservation Services to view, make or
cancel reservations through a Web Page (as defined below), WCT hereby
grants Customer a non-transferable, non-exclusive, limited, revocable
right and license to (a) publicly display the Link, (b) access publicly
display and use the Retrieved Data, and (c) if applicable, use the
Interface and related documentation. Customer shall participate in the
Reservation Services accompanied by a checkmark on Exhibit A or are
subsequently checked by Customer by logging into its account via the
Affiliate Bank Office. The Reservation Services may be updated by WCT
from time to time. All reservations requested by the End Users are
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subject to acceptance by WCT in accordance with WCT's policies then in
effect. By entering into this Agreement, Customer also agrees to the
terms and conditions of the Pegasus Systems, Inc. Agreement as set
forth in Exhibit B.
2. Web Pages. The term "Web Pages" shall mean each of the web pages
of Customer corresponding to the Uniform Resource Locator ("URL")
listed in the "Customer Information" section above. Customer agrees to
promptly notify WCT in writing of any changes of such URL's.
3. Customization. The Web site may be accessed by End Users through
the Link and shall consist of custom web pages addressable as a
separate directory under the URL xxx.xxxxxxxxxxxxxxxxx.xxx or such
other URL's that WCT may establish from time to time. Customer shall
be responsible for providing any desired Customer Content to WCT.
"Customer Content" means any and all headers, footers, trademarks,
service marks, logos, copyright materials, designs, artwork and any
other content provided by Customer to WCT for inclusion on the Web
Site. After receipt of Customers complete Customer Content, WCT may
provide additional customization services for Customer with respect to
the Web Site on such terms and for such compensation as the Parties may
mutually agree in writing.
4. Compensation. WCT shall pay Customer commission as set forth on
Exhibit A for the applicable Reservation Service.
5. Exclusivity Marketing. The Customer agrees that the Reservation
Services shall be the exclusive on-line hotel, last minute or
spontaneous deal, and packaging reservation service. Customer further
agrees to place the Link and/or the Retrieved Data in a prominent
position on the Web Pages, and to use due diligence to promote the Web
Site.
6. Use of WCT's Intellectual Property. The use by Customer of any of
WCT's names, logos, trademarks, service marks, trade dress, slogans,
copyrights, trade secrets or other intellectual property in any manner
not expressly permitted herein is prohibited unless otherwise approved
in writing in advance by WCT. Other than as expressly provided in this
Agreement or unless otherwise agreed to in writing by WCT, WCT does not
grant any right to license, use, copy, lease, sell, publicly display,
publicly perform, distribute, modify, sublicense or otherwise transfer
any portion of the Link, Interface (or related documentation), Web
Site, Databases, Retrieved Data or Reservation Services. With the sole
exception of any artwork, marks, content or other intellectual property
provided by Customer to WCT for inclusion on the Web Site, all rights,
title, and interest, including without limitation, any and all
copyright, patent, trade secret, trademark and other intellectual
property rights in and to the Link, Web Site, Databases, Retrieved
Data, Interface (and related documentation), the Reservation Services
and all content WCT creates in connection with the Link or Web Site
under United States law and any foreign laws shall remain in WCT or its
respective owner or supplier where applicable. Without limiting the
generality of the foregoing, Customer agrees not to modify the
substance of any Retrieved Data; provided, however, that Customer may
modify the presentation of the Retrieved Data solely for placement on
Customer's Web Pages and in a manner that is consistent with this
Agreement.
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Customer acknowledges and agrees that in addition to any other right
WCT may have at equity or law, WCT shall be entitled to petition for an
injunction to prevent any unauthorized use by Customer of the Web Site,
Databases, Link, Interface, Retrieved Data or any intellectual property
or proprietary information of WCT. Customer shall reimburse WCT for
all costs and expenses of enforcing this Section 6, including
reasonable attorneys' fees.
7. WCT's Use of Customer's Intellectual Property. Customer grants WCT
a royalty-free, worldwide, non-exclusive right and license to use
Customer's name as a client reference in WCT's advertising or marketing
promotional materials and to display all Customer Content on the Web
Site. Customer shall have the exclusive right to sell banner
advertising on the Web Site. Customer agrees to assume full
responsibility for all Customer Content and representations of any such
banner advertising.
8. No Offensive Content or Conduct. Customer agrees to abide by all
local, state, national and foreign laws in connection with the
Reservation Services, Link, Web Site and Databases and Retrieved Data.
Customer agrees to assume full responsibility for all content, images,
third party links and representations on its web sites and Web Pages.
Customer covenants and agrees that (a) its web sites and Web Pages
shall not contain any content that promotes or engages in illegal
activities, is sexually explicit, obscene, violent or other wise deemed
offensive, or is libelous or invasive of another's privacy ("Offensive
Content"); (b) it shall not use URLs or transmit any material through
or on the Link, Web Site Web Pages or its web sites that may infringe
the intellectual property rights of a third party; (c) it shall not
knowingly transmit any material that contains software viruses or other
harmful or deleterious computer code, files or programs such as Trojan
horses, worms, time bombs, and cancelbots; or (d) it shall not hack
into or otherwise knowingly harm the Web Site, any Web sire of WCT or
its suppliers, or any servers or networks connected to the Web Site,
Reservation Services or Retrieved Data.
9. Liability for Errors. Customer using the Interface shall assume
full responsibility for any reservation errors or any other errors that
relate to or are caused by the Interface or any technical or
programming errors in the Interface. If WCT incurs any expenses
resulting from such errors or in remedying such errors (including,
without limitations, expenses paid by WCT to its third party suppliers
for booking errors), Customer agrees to fully reimburse WCT for all
such expenses.
10. AAA Ratings. Customer acknowledges that some Retrieved Data may
contain rating from the Automobile Association of America ("AAA
Ratings") as authorized or licensed by the AAA. Customer agrees to use
the AAA Ratings only in connection with using WCT engine to make a
reservation. In addition to the restrictions set forth in this
Agreement, Customer agrees not to (a) modify, distort, hide, misuse or
misrepresent any of the AAA Ratings, (b) transfer, distribute, assign
or lease any of the AAA Ratings to any material data not provided by
WCT, or (c) otherwise use the AAA Ratings in any manner not
contemplated by WCT of this Agreement.
11. Credit Card Rules and Policies. Customer using the Interface
hereby agrees that in connection with all credit card transactions
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relating to the Reservation Services or on its Web Pages, it shall
comply with the credit card transactions rules and policies set forth
in Exhibit C attached hereto and incorporated herein by reference.
Customer further agrees that it shall not directly or indirectly,
engage or participate in or otherwise be involved in any type of credit
card fraud.
12. End Users. Use of the Web Site or Web Pages by End Users is
governed by the posted privacy policy and any applicable terms and
conditions (including, for example, cancellation and refund policy)
specific to the particular Reservation Services ("T&Cs"). Customer
shall not modify any T&Cs without WCT's prior written approval.
Customer shall own all personally identifiable information regarding
End Users collected by Customer or WCT through the Reservation Services
or Web Site ("End User Information"), and the Parties acknowledge that
all such End User Information being collected is being collected on
behalf of and for the benefit of Customer. Customer shall be fully
responsible for collection and use of End User Information and for
compliance with its privacy policy and the T&Cs.
13. Confidentiality. Each Party hereby agrees to protect the other
Party's confidential information that comes into its possessions, from
improper use and unauthorized disclosure to third parties, utilizing
the same degree of care such Party uses to protect its own confidential
or proprietary information of like importance, but in any case using no
less than a reasonable degree of care. An example of WCT's
confidential information includes, but should not be construed to be
limited to, WCT's software, specifications, code and documentation
relating to the Interface. Each Party further agrees to use the
confidential information only for the purposes authorized in this
Agreement and to not disclose same to any third party, other than for
such purposes. Customer expressly acknowledges that in many cases
confidential information such as End User Information, will not be in
the possession of WCT but will be transmitted directly to WCT's
supplies and, therefore, Customer holds WCT harmless with respect to
such End User Information.
14. Term. Unless sooner terminated in accordance with the terms set
forth in this Agreement, the term of this Agreement shall begin as of
the Effective Date hereof and shall continue for a period of one year.
The term of this Agreement shall be automatically renewed for
successive periods of one year each unless terminated by either party
at least thirty (30) days before the end of the initial term or any
successive term thereafter.
15. Termination. WCT may terminate access to all or any portion of
the Reservation Services immediately and without prior notice upon
termination of any agreement with WCT's suppliers. Further WCT may
suspend or terminate the Agreement, access to all or any portion of the
Reservation Services and/or the licenses granted herein immediately and
without prior notice in the event that (a) Customer earns commissions
totaling less that fifty dollars ($50.00) for six (6) consecutive
months ay any time after an initial six (6) month period from the
Effective Date; or (b) WCT determines, or a third party alleges that
(i) Customer or any web site owned or controlled by Customer infringes
the intellectual property rights of any third party or violates any
provision in Section 6 (Use of WCT's Intellectual Property), 8 (No
Offensive Content or Conduct), 10 (AAA Ratings), 11 (Credit Card Rules
5
and Policies), 12 (End Users), or 13 (Confidentiality), (ii) Customer
knowingly violates any provision in the Agreement, or (iii) Customer
uses or permits the use of the Interface, Retrieved Data, Databases or
Reservation Services for any improper or illegal purpose or any purpose
not authorized by this Agreement. In addition, either Party will have
the right to terminate this Agreement after a material breach of the
Agreement by the other Party which breach has not been cured thirty
(30) days after the date that the breaching Party received written
notice from the other Party of the breach.
16. Representations and Warranties. Either party represents and
warrants that it has the right, power and authority to enter into this
Agreement and to perform all of its respective obligations under this
Agreement and that the performance of such obligations shall not
conflict with or result in a breach of any agreement to which it is a
party or is otherwise bound. Customer further represents and warrants
that (a) it owns or possesses all rights and licenses to use, copy,
display and distribute any and all of Customer Content; and (b) it
shall not make any representations or warranties to End Users about the
Reservation Services, Retrieved Data, Databases, Link or interface,
other than those expressly authorized by WCT in writing. If an
individual, Customer represents and warrants that he or she is at least
18 years old.
17. Disclaimer of Warranties. WCT MAKES NO, AND HEREBY EXPRESSLY
DISCLAIMS ALL, WARRANTIES, REPRESENTATION AND CONDITIONS IN CONNECTION
WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING, WITHOUT LIMITATIONS, ANY WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY
RIGHTS, OR TITLE. WCT MAKES NO WARRANTY THAT THE RESERVATION SERVICES,
THE WEB SITE, THE LINK OR THE DATABASES WILL BE CONTINUOUSLY AVAILABLE
OR ERROR-FREE OR COMPLETELY SECURE, OR THAT ANY DEFECTS IN THE
RESERVATION SERVICES, THE WEB SITE, THE LINK OR DATABASES WILL BE
CORRECTED.
18. Indemnification. Customer agrees to indemnify WCT, its parents,
subsidiaries, affiliates and suppliers and their successors and assigns
against and hold them harmless from any and all claims, liabilities,
damages, costs and expenses, including reasonable attorneys' fees and
experts' fees, resulting directly or indirectly from: (a) any portion
of the Customer Content; (b) breach of any representation, warranty or
covenant contained in the Agreement or in WCT's applicable published
policies; (c) a violation by Customer of any applicable law, rule or
regulation, (d) a violation of Section 6 (Use of WCT's Intellectual
Property), 8 (No Offensive Content or Conduct), 10 (AAA Ratings), 11
(Credit Card Rules and Policies), 12 (End Users), or 13
(Confidentiality); (e) any reservation or other error caused by
Customer or its Interface; (f) improper use or application of the Web
Site, Databases, Link Interface, Retrieved Data or Reservation
Services. The indemnity obligation s hereunder shall survive the
termination of the Agreement.
19. Limitations of Liabilities and Risk of Internet Usage. EXCEPT FOR
THE INDEMNIFICATION OBLIGATIONS IN SECTION 18, IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY NATURE, SUCH AS, BUT NOT
LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST PROFITS, OR
LOSS OF DATA OR USE, EVEN IF SUCH PARTY SHALL HAVE BEEN ADVISED OF THE
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POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL APPLY REGARDLESS OF
THE NEGLIGENCE OR OTHER FAULT OF ANY PARTY AND REGARDLESS OF WHETHER
SUCH LIABILITY ARISES IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY
OR ANY OTHER THEORY OF LIABILITY.
IN NO EVENT SHALL THE MAXIMUM AMOUNT OF DAMAGES PAYABLE BY WCT FOR ANY
BREACH OF THIS AGREEMENT OR ANY DAMAGE OR INJURY RESULTING FROM WCT'S
PROVISION OF THE RESERVATION SERVICES EXCEED THE AMOUNT OF COMMISSIONS
PAID TO WCT FROM ITS TRAVEL SUPPLIERS WITH RESPECT TO END USERS OF THE
WEB SITE DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING ANY SUCH CLAIM.
20. Compatibility; Updates. Customer acknowledges and agrees that it
shall be solely responsible for determining whether its systems are
compatible with the Interface, for providing all software necessary for
use thereof and for all maintenance of its systems.
21. Modifications of Reservation Service Programs. WCT may add,
delete or otherwise modify any of the Reservation Services. If any
material modification is unacceptable to Customer, Customer may (a)
refuse (if feasible or practicable as reasonably determined by WCT) the
portion of the Reservation Services affected by the modification, or
(b) if refusal is not feasible or practicable as reasonably determined
by WCT, terminate the Agreement, by notifying WCT in writing with ten
(10) days after receipt of notice of such modification. Customer's
failure to act within such ten (10) days period shall constitute
Customer's binding acceptance of the modification.
22. Force Majeure. Neither WCT not Customer will be liable for any
delay or failure in performance under this Agreement due to any cause
beyond its reasonable control.
23. Governing Law, Jurisdiction and Venue. This Agreement and all
matters or issues related to this Agreement shall be governed by and
construed under the laws of the State of Florida without application of
principles of conflicts of laws. Each of the Parties irrevocable and
unconditionally agrees that any legal proceeding arising out of or
relating to the Agreement may be brought in the in the United State
District Court for the Southern District of Florida, West Palm Beach
Division, or, if that court lacks jurisdiction, in any court of
competent jurisdiction in Palm Beach County; and (b) consents to the
jurisdiction of each court in any proceeding.
24. Assignment. Customer may not assign or sublicense, by operation
of law or otherwise, this agreement or any duties, rights or
obligations under this Agreement without WCT's prior written consent.
For purposes of this provision, a change of control or management, sale
of all or substantially all of Customer's assets, or sale of stock
constitutes an assignment. WCT may assign this Agreement or the
rights, duties or obligations under the Agreement without notice to
Customer. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective successors and permitted
assigns.
25. Severability; No Waiver. If any provision of this Agreement is
found by a court of competent jurisdiction to be invalid, then such
provision shall be construed, as nearly as possible, to reflect the
intentions of the Parties with the other provisions remaining in full
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force and effect. The failure of either party to exercise or enforce
any right or provision of this Agreement will not constitute a waiver
of such rights or provision, unless such waiver is in writing and is
executed by the Party against whom such waiver is claimed.
26. Notices. Any notice required or permitted under this Agreement
shall be given in writing and shall be delivered; (i) by hand delivery;
(ii) by facsimile (with written confirmation of delivery; (iii) by
overnight express mail; or (iv) certified or registered U.S. mail (with
postage paid and return receipt requested). Notices shall be
effective, in the case of (a) hand delivery or facsimile transmission,
upon receipt, (b) overnight express mail, on the next business day
after timely delivery to a recognized overnight delivery service, and
(c) U.S. mail, upon the third business day after deposit with the U.S.
postal service. Notices shall be delivered to each Party at its
respective facsimile number or address specified in the Agreement, or
at such other facsimile number or address as such Party may specify by
written notice to the other.
27. No Agency or Third Party Beneficiary. Customer and WCT are
independent contractors, and nothing in this Agreement shall be
construed to create a partnership, joint venture, franchise, or agency
relationship between Customer and WCT. Neither Party has any authority
to enter into agreements of any kind on behalf of the other Party. WCT
and Customer agree that there should be no third party beneficiary to
this Agreement, including, but is not limited to, End Users.
28. Tax Forms. Customer agrees, as a condition to this Agreement, to
deliver to WCT a true and correct copy of Customer's (i) Internal
Revenue Service ("IRS") form W-9, if Customer is a "U.S. Person"
(including a resident alien) as defined by the IRS or (ii) IRS X-0 XXX,
X-0 ECI, W-8 EXP or W-8 IMY, as applicable, if Customer is a "Foreign
Person" as defined by the IRS.
29. Miscellaneous. This Agreement, along with the attached Exhibits,
constitutes the entire agreement of the parties with respect to its
subject matter, superseding all prior or contemporaneous oral and
written communications, proposals, negotiations, representations,
understandings, courses of dealing, agreements, contracts and the like
between the Parties in such respect. The section headings in this
Agreement are for convenience only and have no legal or contractual
effect. This Agreement: (i) may be executed in any number of
counterparts, each of which, when executed by both Parties to this
Agreement shall be deemed to be an original, and all of which
counterparts together shall constitute one and the same instrument; and
(ii) may not be amended or modified by Customer unless such amendment
or modification is in writing signed by both parties. The terms of any
sections that, by their nature, are intended to extend beyond
termination shall survive termination of the Agreement for any reason.
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THIS AGREEMENT is a binding contract between Customer and WCT.
CUSTOMER WORLD CHOICE TRAVEL
Signed by: Signed by:
------------------------- -------------------------
Name: Xxxx Xxxxxxx Name: Xxxxxxx Xxxxxxxxx
Title: President Title: Vice President, Global
Business Development
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EXHIBIT A
---------
WCT RESERVATION SERVICES AND COMPENSATION STRUCTURE
---------------------------------------------------
Customer hereby agrees to participate in the following Reservation
Services, as indicated by a checkmark, and to promptly fulfill the
obligations required of the Customer as set forth in this Agreement:
( X ) A. Hotel Reservations Service
( X ) B. Global Car Rental Reservation Service
( X ) C. Global Airline Reservation Service
( X ) D. Global Golf Vacation Reservation Service
( X ) E. Cruise Booking Service
( X ) F. Travel Insurance Service
( X ) G. Last Minute Deals Reservation Service
( X ) H. CustomTrip Reservation Service
Customer at any time during the term of this Agreement may opt-in or
opt-out of any Reservation Service listed above by logging into the
Affiliate Back Office and check or uncheck, as applicable, the proper
box associated with the applicable Reservation Service; provided that
Customer must at all time participate in at least one of the following
Services: Hotel, Last Minute Deals or CustomerTrip. By selecting or
opting-in to participate in any Reservation Service, Customer agrees to
the terms and conditions set forth in this Agreement, including,
without limitation, the compensation structure ser forth in this
Exhibit A or any subsequent amendments.
COMPENSATION STRUCTURE:
-----------------------
PAYMENT:
--------
Commission funds shall be paid by WCT on the fifteenth (15th) business
day of each month for undisputed commissions due to Customer and
accruing up to the twelfth (12th) business day of such month (the
monthly period in which the commissions accrued shall be hereafter
referred to as the "Commission Period"); provided that WCT has received
such commissions from the respective third party supplier or licensor.
Commissions shall be paid monthly for accrued commissions totaling
$100.00 or ore. Accrued commissions totaling less that $100.00 shall
carry over to the following month's payment period or until such time
accrued commissions total at least $100.00. If WCT has unintentionally
failed to pay Customer a commission during the month it became due, WCT
shall be entitled to accrue such amount and submit it with the next
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monthly payment due and if necessary, final payment to Customer may be
retained for a reasonable period of time to ensure full and complete
settlement with the End User. WCT makes no guarantee as to the amount
or frequency of commissions that may be generated hereunder.
DEFINITIONS:
------------
As used herein, the following terms have the meaning set forth below:
Applicable Charges: means (i) any and all applicable amounts owed for
domestic or foreign taxes, mandatory charges and surcharges (including
port charges and airport facility charges), mandatory surcharges for
gratuities, fuel increases, other surcharges, duties, shipping and
handling, and credit card fees; (ii) any refunds, cancellations,
rebates, cancellation fees, commissions, commission collection fees,
service and credit card fees; (iii) any and all applicable amounts not
actually received by WCT due to credit card fraud, bad debts or similar
events; (iv) any applicable amount not actually received by WCT due to
cruise credit certificates, coupons or similar discounts: and (v) any
other amounts representing non-commissionable sales.
Collected Fees: means the amount actually collected and received by WCT
from the respective supplier for a Qualifying Sale.
Gross Hotel Sales: means the total amount of face value of Qualifying
Sales for hotel bookings which are actually booked by End Users,
including those booked through the Global Distribution System ("GDS
Bookings") and "Hot Rate" or "Hot Deals" bookings(1) ("Hot Rate
Bookings").
Net Gross Sales: means the sum of the amounts collected from End Users
for Qualifying Sales, less all Applicable Charges; provided that
commission based on Net Gross Sales shall be paid for a booking only if
(a) the product or service purchased has been paid for in full upon
consumption and has not been exchanged, refunded or rebated, and (b)
amounts due to the respective supplier for the booking has been settled
with such supplier.
Opti Fee means a service fee, an additional fee or the like charged by
Customer to an End User for each online Qualifying Sale.
Qualifying Sale: means the sale of a product or service made by an End
User through WCT's Reservation Services via online (through the Link or
Interface) and, if available, via the customer call center or what is
referred herein as "offline".
COMMISSION PERCENTAGE:
----------------------
Customer shall earn commission for each Qualifying Sale based on the
percentage commission structure set forth below for the respective
Reservation Service.
Hotels: The commission level shall be determined based on the amount of
Gross Hotel Sales generated by Customer during the applicable
Commission Period(2) as set forth in the Hotel Commission Table below:
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Hotel Commission Table
----------------------
Opti- Fee
(Percent
of Total
Opt-Fees,
Hot Rate Bookings(1) less 50
GDS Booking Commission Commission percent of
Percentage Payable Percentage Payable Credit Card
Range of Gross Hotel (Percent of (Percent of Merchant
Sales in the Applicable Collected Fees) Net Gross Sales) Fee)
Commission Period Online Offline Online Offline Online
----------------------- ---------- ---------- ---------- ---------- ----------
Level One 50 percent 30 percent 10 percent 6 percent 50 percent(3)
$1 to $500,000
Level Two
$500,000 to $750,000 55 percent 30 percent 10 percent 6 percent 50 percent(3)
Level Three
$750,001 plus 60 percent 30 percent 10 percent 8 percent 50 percent(3)
Opti Fees: If Customer charges an Opti-Fee, Customer agrees, as a
material inducement to WCT to enter into this Agreement, to utilize
WCT's Opti Fee services as the sole and exclusive method of charging
such Opti-Fees. For hotel bookings, the Customer will earn a
commission based on a percentage of the online Opti-Fees as set forth
in the Hotel Commission Table above, minus fifty percent of the
applicable credit card merchant fee charged by credit card companies.
For car bookings, the Customer will earn fifty percent of the online
Opti-Fees, minus fifty percent of the applicable credit card merchant
fee charged by credit card companies.
On-line Opti Fees that Customer may assess are calculated based on the
standard Opti-Fee schedule posted in the Partner Back Office and may be
subject to change from time to time by WCT. Customer may elect to vary
the standard online Opti-Fee schedule for online hotel Qualifying Sales
by using WCT's online Customer back office rates. In the event that
Customer customizes the online Opti-Fee schedule, the minimum online
Opti-Fee that can be charges is $1.50 per night and the maximum
allowable charge is $30.00 per booking.
Fees are charged to End Users at the time of booking. The online Opti-
Fee will appear on the End User's credit card statement as being
charged to "Travel Reservation Center" or, when possible and available,
Customer's name.
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For Last Minute Deals and Custom Trip Reservation Services, Customer
shall earn the following commission:
Commission
Commission Percentage
Percentage Payable
Monthly Payable For Offline
Commission Qualifying Qualifying For Online Qualifying Sales
Level Time Period Sales Minimum Qualifying Sales (when available)
------------ --------------- ---------------- ---------------- ----------------
Level 1 Through 5 percent of 3 percent of
Nov. 30, 2004 None Net Gross Sales Net Gross Sales
Level 2 Beginning 4 percent of 2.5 percent of
Dec. 1, 2004 None Net Gross Sales Net Gross Sales
Level 3 Beginning 5 percent of 3 percent of
Dec. 1, 2004 $100,001 plus(4) Net Gross Sales Net Gross Sales
For Car, Air, Golf, Cruise, Travel Insurance Reservation Services,
Customer shall earn the following commission:
Commission Commission
Percentage or Fee Percentage or Fee
Payable for Online Payable for Offline
Reservation Service Qualifying Sales Qualifying Sales
-------------------- -------------------- --------------------
Global Car Rental 50 percent Non-commissionable
of Collected Fees at this time
Global Airline $5.00 per air ticket Non-commissionable
booking for which the at this time
airfare amount has
been collected by WCT
from the respective
supplier(5)
Global Golf Vacation 5 percent of 5 percent of
Collected Fees(5) Collected Fees
Cruise Booking 5 percent of 3 percent of
Collected Fees, less Collected Fees, less
all Applicable all Applicable Charges
Charges(5)
Travel Insurance $7.50 for each $7.50 for each
completed transaction completed transaction
made by an End User made by an End User
(1) The Hotel "Hot Deals" program features specially discounted rates,
and hotels participating in this program provide what is known as
"merchant inventory". The program will be featured or designated as
"hot rate" or "hot deals". These merchant hotels often require
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consumers to pay in advance for booked room nights. Cancellation fees
are also applicable. Cancellation fees and policies will vary.
(2) For example, if commission payment is due on the 15th business day
of February, then the Gross Hotel Sales used to determine the
commission percentage payable to Customer for such payment will be the
Gross Hotel Sales for the previous calendar month, which would be
January.
(3) Less fifty percent of the applicable credit card merchant fee
charged by credit card companies.
(4) In order to earn this commission level, Customer must separately
generate monthly online or offline (as applicable and measured
separately) Qualifying Sales valued in excess of $100,000 for any
applicable commission month.
(5) The commission fee for these bookings is subject to changes at any
time due to changes in suppliers.
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EXHIBIT B
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PEGASUS SYSTEMS, INC AGREEMENT
------------------------------
By entering into the Agreement, Customer also agrees to the following
terms and conditions:
Customer acknowledges that Pegasus Systems, Inc. (hereinafter,
"Pegasus") has provided WCT the following: (i) a digital database of
hotel and lodging information created and maintained by Pegasus (the
"Distribution Access Database") and (ii) the capability to determine
room availability for specific dates and to make and cancel
reservations at a hotel contained in the Distribution Access Databases
(the "Reservation Function"). Customer further acknowledges and agrees
that the Distribution Access Databases and Reservation Function are the
sole exclusive property of Pegasus or the hotels participation in the
Distribution Access Databases and may not be copied, downloaded,
hyperlinked or in any manner used, reproduced or redistributed in whole
or in part except by an End User of Customer for the sole purpose of
making or canceling a reservation at a hotel contained in the
Distribution Access Databases. Customer agrees that it will not
create, utilize, participate in or knowingly permit the occurrence of
non-manual repetitive search requests of the Distribution Access
Databases. Customer agrees that, if information regarding a lodging
establishment is provided from the Distribution Access Databases,
reservation for such establishment shall be made, changed or cancelled
exclusively through the Reservation Function.
PEGASUS WILL NOT BE RESPONSIBLE OR LIABLE FOR (i) ANY FALSIFICATIONS OR
INACCURACIES IN ANY OF THE INFORMATION DISPLAYED ON THE WEB PAGES OR
WEB SITE, (ii) ANY ACT OR FAILURE TO ACT WITH RESPECT TO THE
PUBLICATION OF INFORMATION ON THE INTERNET OR THE CREATION OR
FUNCTIONALITY OF RESERVATION CAPABILITIES, (iii) SERVICE AND/OR THE
MAKING, CHANGING OR CANCELING OF A RESERVATION AND THE USE OF A CREDIT
CARD OR OTHER DEBIT DEVICE IN CONNECTION THEREWITH, (iv) ANY CLAIM
RESULTING FROM ANY INTERRUPTION, MALFUNCTION OR CHANGE IN THE USE OF
THE INTERNET OR A DISTRIBUTION SYSTEM, (v) ANY CLAIM, DAMAGE OR
LIABILITY OF ANY NATURE ARISING OUT OF THE DISTRIBUTION ACCESS
DATABASE, TRANSLATED INTO ANY OTHER LANGUAGE, 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 CUSTOMER. CUSTOMER
ACKNOWLEDGES AND AGREES THAT THE OPERATION OF A WEB SITE ON THE
INTERNET IS AT CUSTOMER'S OWN RISK. Customer 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 t perform this Agreement, Pegasus may
immediately terminate this Agreement without consequence. Customer
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agrees to indemnify and hold harmless Pegasus from and against any and
all claims of any nature arising out of access to or use of the
Distribution Access Databases and/or the Reservation Function by
Customer of any of the End Users.
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EXHIBIT C
---------
CREDIT CARD RULES AND POLICIES
------------------------------
1.0 Definitions:
------------
1.1 "Association" means any entity formed to administer and promote
Cards, including VISA, MasterCard, American Express, Discover Card, and
any other entity as specified by WCT.
1.2 "Authorization" means the process by which Customer
electronically accesses Servicers' computerized system, unless such
system is inoperable or otherwise not accessible to Customer, in which
case Customer shall utilize the designated toll-free telephone number,
to obtain credit approval from the Card issuing bank before completion
of the Card transaction.
1.3 "Card" means a valid credit card or valid off=line debit card
bearing the service xxxx of VISA or MasterCard and any valid card
issued by any other Associations or is then currently accepted by WCT
for payment of a booking made through the Reservation Services.
1.4 "Cardholder" means the individual whose name is embossed on the
Card and any authorized user of such Card.
1.5 "Card Security ID" is a unique number that is either on the
front or back of the Card and that serves as an additional level of
security to help protect from Internet or credit card fraud.
1.6 "Chargeback" means the procedure by which a Transaction Record
or other indicia of a Card transaction (or disputed portion thereof) is
returned to the Card issuing bank for whatever reason, the liability of
which is the Customer's responsibility.
1.7 "Services" means the activities undertaken by Servicers to
authorize, process and settle all United State Dollar denominated VISA,
MasterCard Card and any other Card transactions undertaken by
Cardholders at Customer's location(s) in the United Stated, and all
other activities necessary for Servicers to perform the functions
specified in this Agreement for all other Cards than currently accepted
by WCT.
1.8 "Servicers" means the financial institutions who are responsible
for their respective bankcard programs and perform authorization,
processing and settlement services for merchants participating in such
bankcard programs (including MasterCard, VISA, American Express and
Discover). Servicers currently include JPMorgan Chase Bank, Chase
Merchant Services L.L.C., and any entity issuing a Card then currently
accepted by WCT.
1.9 "Transaction Record" means evidence of a purchase of goods or
services by a Cardholder from Customer using a Card, regardless of
whether the form of such evidence is in paper, electronic or otherwise,
all of which must conform to Association Rules.
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2.0 Acceptance of Cards:
--------------------
2.1 Customer acknowledges that Servicers shall perform the Services
as they may determine.
2.2 Customer will accept any Card properly tendered, without
imposing any special conditions. Customer will assess no special
charge or extract any special agreement, condition (including any
minimum or maximum transaction amounts) or security from a Cardholder
in connection with any Card transaction. Customer shall not make any
statements indicating that Customer will refuse to honor Card
transactions below or above specified amount. Customer shall not
engage in acceptance practices or procedures that discriminate against
or discourage the offered use of any particular Card accepted by
Customer. Nothing contained in this Agreement shall prohibit Customer
from entering into any Card specific promotions whether or not in
conjunction with any Card issuer or co-branding a Card with any Card
issuer, provided such promotion does not violate any rules set forth in
this Exhibit C.
2.3 If the Cardholder is not present at the point-of-sale, Customer
shall be responsible for identifying and verifying the Cardholder by
request the following information: (a) Cardholder's first name and last
name, (b) the billing address as it appears on the Cardholder's Card
statement, (c) Card type, number and expiration date and year, and (d)
the Card Security ID. By asking for the Card Security ID when the
Cardholder makes a Card Transaction, it becomes more difficult for
unauthorized individuals to use the Cardholder's Card. Customer will
not honor a Card that appears to Customer otherwise has reason to
believe to be invalid or expired.
2.4 Customer will not store, print or save on any media type the
Cardholder's Card Security ID. Customer shall not store the Card
Security ID in any database.
2.5 Customer shall disclose to the Cardholder the following
information (e.g. in a booking confirmation page or/and follow-up
email): (i) the transaction date; (ii) a brief description of the goods
or services sold, returned or cancelled; (iii) the price of the goods
or services, including applicable taxes, or amounts of any credit or
adjustment; (iv) the Cardholder name; (v) Customer's name in a manner
recognizable to Cardholders; (vi) Customer's address; (vii) a customer
service telephone number; (viii) any applicable terms and condition of
the sale; (ix) exact date any free trials end; and (x) any other
information which the applicable Association may require.
3.0 Authorization:
--------------
Customer acknowledges that Authorization, (i) indicates only the
availability of credit at the time of Authorization; (ii) does not
warrant that the person presenting the Card is the rightful Cardholder:
and (iii) is not an unconditional promise or guarantee by Servicers or
WCT that any Card transaction will not be subject to Chargeback.
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4.0 Internet and Telephone Orders:
------------------------------
4.1 For each Internet or telephone order, an Authorization must be
obtained by WCT, regardless of the face amount, and Customer must
complete the Transaction Record as described in the XML Interface
documentation. Customer assumes all responsibility for identification
of the Cardholder and the validity of the Card Information for internet
and telephone orders. For Internet and telephone order Card
transactions where merchandise or product is to be shipped or delivered
to or for the Cardholder, the shipping date shall not be more than
seven (7) calendar days after the Authorization is obtained, and any
shipping costs not included in the Authorization amount must not exceed
15 percent of the amount authorized.
4.2 Customer Web site must contain a complete description of the
goods or services offered, returned merchandise and refund policy,
customer service contact information (including an email address or
telephone number), known export or legal restrictions, and Customer's
delivery policy.
4.3 For Internet transactions, copies of Transaction Records may be
delivered to Cardholder in electronic or paper format. Customer may
not transmit Cardholder account numbers to Cardholders for Internet
transactions.
4.4 Customer agrees to follow the VISA Cardholders Information
Security Guidelines (presently available online at VISA's Web site
(xxx.xxxx.xxx) as well as any other security guidelines or requirements
established by any applicable Association or by Servicers.
5.0 Chargebacks:
------------
Customer shall assume all liability and responsibility for Chargeback
transactions equal to the amount of the Customer's compensation for
that transaction.
