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EXHIBIT 10.37
HCC PARTICIPANT AGREEMENT
This Agreement (the "Agreement") is entered into by and between THE
HOTEL CLEARING CORPORATION, a Delaware corporation ("HCC"), and HILTON HOTELS
CORPORATION, a Delaware corporation, (hereinafter called "HILTON"), to be
effective the 13th day of January, 1998.
SECTION 1. DEFINITIONS
1.1 For purposes of this Agreement, the following definitions
shall apply:
(i) 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 results in a hotel stay and that are identified as "commissionable"
or "partially commissionable" on the transaction records provided by HILTON to
HCC and for which a travel agent commission is paid pursuant to this Agreement.
(ii) 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 travel agents and Participating Entities.
(iii) Participating Entity. A Participating Entity,
including its participating affiliates or franchisees, is an operator of a
hotel reservation system that has executed an HCC Participant Agreement.
(iv) HCC Travel Agents. An HCC Travel Agent is a travel
agency with a valid ARC or IATA number who has executed an HCC Subscriber
Agreement substantially in the form attached hereto as Exhibit C. A list of
current HCC Travel Agents will be periodically provided by HCC to HILTON.
(v) HCC Travel Agent Commissions. HCC Travel Agent
Commissions are the commissions paid by HILTON to HCC Travel Agents pursuant to
this Agreement. HCC Travel Agent Commissions will be based on commission rates
provided to HCC by HILTON.
(vi) Non-HCC Travel Agent. A Non-HCC Travel Agent is any
person or entity with a valid ARC, IATA or pseudo number who has not executed
an HCC Subscriber Agreement who makes reservations with a Participating Entity
for a Non-HCC Travel Agent Commission.
* 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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(vii) Non-HCC Travel Agent Commissions. Non-HCC Travel
Agent Commissions are the commissions paid pursuant to this Agreement by HILTON
to Non-HCC Travel Agents for reservations made with HILTON. Non-HCC Travel
Agent Commissions will be based on commission rates provided to HCC by HILTON.
SECTION 2. THE HCC SYSTEM
2.1 Schedule of Implementation. Hilton agrees to the following
Schedule of Implementation:
(i) HILTON will begin processing some of the commission
payments from its US properties that subscribe to HILTON's centralized
commission program during the month of April, 1998 and, no later than May 31,
1998, HILTON will include all of its properties located in the US that
subscribe to HILTON's 's centralized commission program in the HCC System and
will begin processing all HCC Travel Agent Commissions paid by its US
properties; and
(ii) No later than June 30, 1998, HILTON will include all
of its properties that subscribe to HILTON's centralized commission program in
the HCC System and will begin processing all HCC and Non-HCC Travel Agent
Commissions paid by all of its properties.
2.2 Duties of HCC. Subject to delays caused by HILTON or its
agents or a Force Majeure event described in Section 6.2 hereof, pursuant
Section 2.1 above, HCC will diligently and in good faith do all of the
following: provide, maintain and operate the HCC System for the use and benefit
of HILTON, its participating franchisees and affiliates, and other
Participating Entities. HCC will provide all reasonable and necessary
technical support, hardware and software, except as otherwise provided herein,
and modifications to the HCC System to provide clearinghouse services to
HILTON, its participating franchisees and affiliates, as described below. Upon
compliance with the terms of this Agreement by HILTON, its participating
franchisees and affiliates, and subject to Sections 5 and 6 hereof, HCC will
provide the following clearinghouse services to HILTON, its participating
franchisees and affiliates:
(i) identify HILTON (and designated affiliates and
franchisees of HILTON) to travel agents as being an HCC System Participating
Entity;
(ii) provide billing statements for HCC and Non-HCC Travel
Agent Commissions, * (as defined herein), * (as defined herein) and other fees,
costs and expenses to HILTON no later than the fifteenth (15th) business day
after the end of each month as provided in Section 3 below;
(iii) using electronic funds transmittal where commercially
reasonably, within five (5) business days of receipt, distribute collected HCC
and Non-HCC Travel Agent Commissions received from HILTON and its participating
affiliates and franchisees to the appropriate HCC and Non-HCC Travel Agents as
set forth in the travel agent commission information provided by
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HILTON, provided that, for Non-HCC Travel Agent Commissions there shall be a
maximum of one check issued per month for each ARC, IATA or pseudo number. All
funds shall be held by HCC for the benefit of HILTON until paid by HCC to the
travel agents as designated by HILTON. HCC shall not acquire any interest of
any type in such funds. All amounts due for each payment period to any one
location shall be made in one payment.
(iv) provide no later than the fifteenth (15th) business
day of each month, reports to HILTON and HCC and Non-HCC Travel Agents
reflecting the travel agent's reservation transactions with HILTON and
commissions owed based upon the data provided to HCC by HILTON and its
affiliates and franchisees who are participating in the HCC System;
(v) receive, and promptly review and respond to all
travel agent commission inquiries received by mail, phone, fax, via e-mail or
through the Internet.
(vi) provide toll free telephone customer support services
to HCC and Non- HCC Travel Agents from 8:00 a.m. to 5:30 p.m., Dallas, Texas
time, Monday through Friday, exclusive of legal holidays.
(vii) provide HILTON with combined monthly reporting along
with two separate reports showing HCC and Non-HCC Travel Agent transactions
containing the information set forth on Exhibit B hereto; and
(viii) be responsible, by mutually acceptable procedures to
be implemented by HCC, for complying with the laws and regulations relating to
the payment of funds and treatment of unclaimed property resulting from checks
issued to travel agents under this Agreement.
The procedures of the HCC System are subject to changes for enhancements from
time to time as reasonably determined by HCC.
2.3 Duties of HILTON. Subject to delays caused by HCC or its
agents or a Force Majeure event described in Section 6.2 hereof and upon
compliance with the terms of this Agreement by HCC, HILTON shall diligently and
in good faith do the following:
(i) Cooperate fully with HCC personnel with respect to
the implementation of the HCC System between travel agents and HILTON and its
participating affiliates and franchisees;
(ii) Provide HCC with all that is required by HCC to
process all travel agent commissions resulting from reservations (including all
reservations made electronically or by voice, whether directly to the property
or through the use of a central reservation "800" phone number, inclusive of
no-shows, cancellations and non-commissionable transactions) made by travel
agents with HILTON and its participating affiliates and franchisees no less
often than on a monthly basis, HILTON hereby acknowledging responsibility for
such data being complete and accurate and inclusive of all of the information
necessary for HCC to provide the clearinghouse services described
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in Section 2.2 hereof and, without limitation, being such information as set
forth on Exhibit A hereof; and permit and authorize HCC to obtain and use such
data concerning such reservations made with HILTON and its participating
affiliates and franchisees who are participating in the HCC System for purposes
permitted under this Agreement except such data designated as confidential
pursuant to Section 7 hereof;
(iii) Collect all HCC and Non-HCC Travel Agent Commissions
and fees owed by all HILTON's hotels and its participating franchisees and
affiliates and pay such commissions and fees to HCC pursuant to this Agreement
within 48 hours of receipt of the billing statement described in Section 3.4
hereof;
(iv) Use reasonable efforts to notify its franchisees and
affiliates of the relevant requirements of this Agreement;
(v) Permit HCC to use its name and that of any
participating affiliate or franchisee as an entity participating in the HCC
System (but not any logos or trademarks); and
(vi) Provide HCC will a monthly pseudo number file to
update the Non- HCC Travel Agent list with address information for check
processing.
2.4 Modification or Enhancement of the HCC System or HILTON
System. HCC may in its sole discretion modify the operation or enhance the
capability of the HCC System. In the event such modification or enhancement
would require HILTON to modify its central reservation system, property
management system or any other technology or system of HILTON, HILTON may, at
its sole option, (i) elect to accept the modification or enhancement and, in
such event HILTON shall make modifications to its systems as are necessary at
its sole expense, or (ii) elect to not accept the modification or enhancement.
HCC will provide at least ninety (90) days' prior notice to HILTON of such
modification or enhancement.
SECTION 3. FEES, COSTS, AND PAYMENTS
3.1 Implementation Fee. Upon completion of the implementation of
the HCC System as set forth in Section 2.1(i) hereof, * Upon completion of the
implementation of the HCC System as set forth in Section 2.1(ii) hereof, *
3.2 The HCC Fees. HILTON shall pay a fee of US * for each
payment per location issued in US Dollars to a Non-HCC Travel Agent on behalf
of HILTON pursuant to this Agreement. HILTON shall pay a fee of US * for
each payment per location not issued in US Dollars to a Non-HCC Travel Agent on
behalf of HILTON pursuant to this Agreement.
3.3 Transaction Fee. For each HCC Travel Agent Commissionable
Reservation processed pursuant to this Agreement, the following fees shall be
paid:
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(i) For each of the first, * each month, *
(ii) For each of the next * each month, *
(iii) For each of the next * each month, *
(iv) For each of the next * each month, *
(v) For each of the next * each month, *
(vi) For each Commissionable Reservation * each month, *
Notwithstanding any other provision hereof, in the event HILTON's
travel agent commission rates become materially less favorable to
travel agents than the generally accepted industry standard commission
rates for hotel reservations that exist as of the date of this
Agreement, the parties agree to renegotiate the fees payable hereunder
or HCC may terminate this Agreement within thirty (30) days after
notice of the aforementioned commission rate change.
3.4 Commission Payments. HCC shall pay HCC and Non-HCC Travel
Agent Commissions in the travel agent's local currency or the currency of
choice of the travel agent.
3.5 Disputed Commissions. HCC will provide HILTON and HCC Travel
Agents with periodic reports indicated under Section 2.1(iv) that will indicate
any exceptions to HCC Travel Agent Commissions, based on discrepancies between
information given HCC by HILTON compared to other information available to HCC.
With respect to all exceptions for which HILTON provides supporting
documentation, HCC will forward such documentation to the appropriate HCC
Travel Agent(s), and the HCC Travel Agents involved may pursue such dispute
directly with HILTON, but, absent HCC negligence, error or intentional
misconduct, HCC will not have any liability to either HILTON or any travel
agent (HCC or Non-HCC) with respect to the resolution of any disputed
commission. No dispute concerning any travel agent commissions will in any way
affect or reduce the obligations of HILTON to (i) timely pay all other
undisputed travel agent commissions and (ii) timely pay to HCC all HCC Fees and
other undisputed fees, costs and additional expenses owed by HILTON under this
Agreement.
3.6 Billing Statements. Based upon the information provided HCC
by or with respect to HILTON and its participating affiliates and franchises
pursuant to Section 2.3, above, HCC will provide HILTON a monthly billing
statement detailing (i) HCC and Non-HCC Travel Agent Commissions to be paid by
HILTON for the period covered by such billing statement; (ii) HCC Fees to be
paid by HILTON for the period covered by such billing statement; (iii) * for
the period covered by such billing period; and (iv) all other costs and fees as
provided by this Agreement. All HCC Fees and other costs as provided herein
and all HCC and Non-HCC Travel Agent Commissions shall be paid by HILTON to HCC
in US Dollars.
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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
four (4) years after the date of this Agreement. However, this Agreement may
be renewed and extended for additional twelve (12) month periods by mutual
agreement signed by both parties.
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 HILTON or one of HILTON's affiliates or franchisees and the failure
of the defaulting entity 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 the defaulting entity as a
Participating Entity and to notify all travel agents of such default and
suspension through central reservation systems or otherwise.
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 failure of either party to satisfy the
obligations set forth in this Agreement;
(iii) The refusal or failure of either party (including
HILTON's participating affiliates and franchisees) to perform diligently and in
good faith each and every material provision of this Agreement;
(iv) 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
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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; or
(v) 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. In the case of a monetary default relating to
commission payments by HILTON or any of its participating affiliates or
franchisees, HILTON 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. In all other instances, the
defaulting party will be entitled to thirty (30) days from receipt of notice
within which to cure the default.
SECTION 7. CONFIDENTIALITY
7.1 Proprietary Information. During the term of this Agreement,
it is acknowledged by HILTON and HCC that each may 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 or where such information becomes part of the
public domain through no fault of the receiving party, is independently
developed by the receiving party or obtained by the receiving party from a
third party free to disclose such information. Such designation may be removed
by each party making the designation. HILTON 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 information concerning HILTON's and its affiliates' and franchisees'
internal operations shall be deemed confidential information hereunder. Any
use of the other party service marks or trade names is subject to prior written
approval of the other party, except that the Hilton logo may be used in the
graphics of any Registration Statement of the Company filed with the Securities
and Exchange Commission or in any annual report identical to past approved uses
and, provided, that HILTON 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
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confidential (other than by breach of this Agreement), notwithstanding the
expiration or termination of this Agreement at any time. All participating
affiliates and franchisees of either party shall be bound by this provision and
each party shall take all reasonable steps to notify its affiliates and
franchisees of such requirements.
SECTION 8. INDEMNIFICATION
8.1 Indemnification in the Event of Certain Losses. Subject to
Section 9.2, HILTON agrees to indemnify and hold harmless HCC and HCC's
affiliates, directors, officers, employees and stockholders, from and against
any losses, claims, liabilities, damages or expenses (including reasonable
attorney's fees) occurring as a result of or arising out of a material breach
of this 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 HILTON, and HILTON's
affiliates, franchisees, directors, officers, employees and stockholders, from
and against any losses, claims, liabilities, damages or expenses (including
reasonable attorney's fees) ("HILTON's Losses") occurring as a result of or
arising out of a material breach of this Agreement on account of non-payment to
travel agents of funds received by HCC for such payment or HCC's (or its
affiliates or franchisees) fault to the extent not caused by the fault of
HILTON. 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. EXCEPT TO THE EXTENT RESULTING FROM
HCC'S BREACH OF THIS AGREEMENT OR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT,
HCC WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY FALSIFICATIONS OR INACCURACIES IN
THE HILTON OR THIRD PARTY DATA OR THE INFORMATION PROCESSED BY OR THROUGH THE
HCC SYSTEM NOR WILL IT HAVE ANY LIABILITY FOR ANY ACT OR FAILURE TO ACT WITH
RESPECT TO THE DATA OR THE PAYMENT OF COMMISSIONS UNLESS EXPRESSLY SET FORTH
HEREIN. ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
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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 HILTON.
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.
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 attorney's 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
HILTON, 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 HILTON.
10.2 Exclusive Agreement. HILTON acknowledges and agrees that this
is an exclusive agreement with respect to travel agent commissions
clearinghouse services for hotels that subscribe to HILTON's centralized
commission program and that it may not 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 HILTON with respect to 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 HILTON
without the prior written consent of the nonassigning party and such consent
shall not be unreasonably withheld or delayed, provided however either party
may assign this Agreement in the event of a merger, acquisition, or sale of
substantially all of the party's assets.
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
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prepaid, (d) sent by telecopy with confirmation of receipt of telecopy to the
number indicated, or (e) transmitted directly to the recipient by electronic
data transmission pursuant to arrangements made between the parties. Such
notices and other communications (except in the case of electronically
transmitted data) shall be addressed as follows:
If to HCC: If to HILTON:
Hotel Clearing Corporation Hilton Hotels Corporation
0000 Xxxxxx Xxxxx Xxxx., Xxxxx 0000 0000 Xxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000 Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, III Attention: Xxxxx Xxxxxxxxx
(Facsimile: (000) 000-0000) (Facsimile: (000) 000-0000)
cc: Executive Vice President and General Counsel
or such persons or addresses as any party may request by notice duly given
hereunder. Except as otherwise specified herein, notices will be deemed given
and received when received.
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.
10.7 Entire Agreement. This Agreement and the Exhibits attached
hereto constitute the entire agreement between HCC and HILTON 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 and this Agreement may be disclosed, to
the extent required, in connection with filings with the Securities and
Exchange Commission.
10.10 Software and Intellectual Property. Each of the parties
hereto represents and warrants to the other that, with respect to all software
and other intellectual property in connection with the operation of the
Interface furnished or required to be furnished pursuant to this Agreement
(collectively, the "Intellectual Property"), each either owns the Intellectual
Property furnished by it or is fully authorized to deliver the Intellectual
Property and to allow the Intellectual Property to be used in connection with
the Interface, as contemplated by this Agreement. Should any claim be
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raised by any third party that the use of any of the Intellectual Property or
the delivery of any of the Intellectual Property in connection with this
agreement constitutes infringement of any patent, copyright, license or other
property right (a "Claim"), the party furnishing such Intellectual Property
shall, at its expense, defend any such Claim in accordance with the provisions
of Section 8.1 of this Agreement. Should either party be temporarily or
permanently enjoined from using any of the Intellectual Property as a result of
any Claim, the other party, at its option and own expense, shall either procure
the right to continue to use the Intellectual Property free from any Claim or
replace or modify the offending Intellectual Property so that its use becomes
non-infringing, within 15 days of the date on which it receives notice of the
claim (either such corrective action being referred to herein as a
"Correction"). If a Correction is not accomplished, the party who furnished
the Intellectual Property resulting in the Claim shall be deemed to be in
default of this Agreement, and in such event, Sections 5.1 and 6.1 of this
Agreement shall control; provided, however, that the 15 day period specified
above shall be deemed to be the applicable cure period under Section 6.3, and
once that 15 day period has expired without a Correction having occurred, the
applicable cure period under Section 6.3 shall be deemed to have expired.
Without limiting Article 8 of this Agreement, the party who furnished the
Intellectual Property resulting in the Claim shall also be obligated to
indemnify the other party for any of its losses (such losses being THISCO's
Losses or HOTEL's Losses, as the case may be, as defined in section 8.1 hereof)
in connection with any Claim for which a Correction is not made within such 15
day period, in accordance with Article 8.
10.11 Other HCC Participant Agreements. In the event any other HCC
Participant Agreement shall contain provisions regarding fees as specified in
Sections 3.2 and 3.3 hereof, rights of termination as set forth in Section 5
hereof, indemnification as set forth in Section 8 hereof or disclaimer of
warranties as set forth in Section 9 hereof, any of which are substantially and
materially more favorable than those provisions contained herein, HCC shall
promptly provide notice to HILTON of such provision(s) and HILTON shall have
the right to amend this Agreement to include the affected provisions.
AGREED to as of the date first written above.
THE HOTEL CLEARING CORPORATION
By: /s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx, III
President
HILTON HOTELS CORPORATION
By: /s/ Xxxxxxx Xxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxx Xxxxxxxx
Senior Vice President
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EXHIBIT "A"
Initial Information to be Provided by HILTON 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
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EXHIBIT B
INFORMATION CONTAINED IN TWO REPORTS SHOWING
HCC AND NON-HCC TRAVEL AGENT TRANSACTIONS.
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HOTEL CLEARING CORPORATION
SUBSCRIBER AGREEMENT
SUBSCRIBER hereby contracts with THE HOTEL CLEARING CORPORATION ("HCC") to
provide records of hotel reservation bookings and to process hotel reservation
commissions on the following terms and conditions:
Definitions:
"SUBSCRIBER" is the travel agency and all of its participating travel agent
locations.
"HCC System" is HCC's clearing house system which accounts for reservations
made by travel agents with HCC Hotels and processes commissions payable to
those travel agents for the reservations.
"HCC Hotel" is a hotel property who is a participant in the HCC System.
"HCC Reservation" is a reservation at an HCC Hotel originated by SUBSCRIBER for
which the HCC Hotel has been paid for all or a part of the reserved stay,
including non-refundable deposits for reservations originated by SUBSCRIBER,
for which SUBSCRIBER is entitled to a commission. HCC Reservations include
reservations made by telephone or electronically.
"HCC Reconciliation Report" is a record of all HCC Reservations for a specified
month and a computation of the commission due SUBSCRIBER for those
reservations.
"Subscriber Commission" is the commission payment owed to SUBSCRIBER by an HCC
Hotel as reported in the HCC Reconciliation Report less the HCC Fee.
1. Term and Termination. The initial term of this Agreement shall be
three (3) years but it shall continue in effect thereafter for successive one
(1) year terms unless terminated by notice at least ninety (90) days prior to
the expiration of the initial term or any additional one (1) year term.
2. "HCC Fee". This is the amount paid by SUBSCRIBER to HCC for the
services set forth herein which shall be (i) during the first eighteen (18)
months of this Agreement, an amount equal to * of the total monthly commission
paid by HCC Hotels to SUBSCRIBER as set forth on the HCC Reconciliation Report
and (ii) for the remainder of the term of this Agreement, an amount equal to *
of the total monthly commission paid by HCC Hotels to SUBSCRIBER as set forth
on the HCC Reconciliation Report, plus all fees for Optional Services, if any,
requested by SUBSCRIBER.
3. The HCC System. During the term of this Agreement, HCC shall within
fifteen (15) business days after the end of each calendar month (the "Month"),
(i) submit a HCC Reconciliation Report to each HCC Hotel for payment to HCC of
all commissions the HCC Hotel owes to
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SUBSCRIBER for HCC Reservations for the Month, (ii) transmit to SUBSCRIBER by
mail the monthly HCC Reconciliation Report and (iii) pay to SUBSCRIBER by check
in the local currency of SUBSCRIBER the total Subscriber Commissions paid by
all HCC Hotels pursuant to the HCC Reconciliation Report for the Month
(converted to U.S. dollars if necessary).
4. Optional Services. HCC will provide the following services selected
by SUBSCRIBER for the fee indicated:
[ ] Electronic fund transfer of the Subscriber Commission to
SUBSCRIBER's U.S. bank account. Monthly Fee: ______________.
[ ] Electronic media transfer to SUBSCRIBER of the HCC
Reconciliation Report. Monthly Fee: ______________.
[ ] Quarterly and annual executive summary reports (by ARC number,
HCC assigned customer number or payment location) of
Subscriber Commission transactions which includes information
by hotel, number of room nights, commissionable revenue and
average commission per stay. Monthly Fee: ______________.
5. Acknowledgment and Disclaimer. SUBSCRIBER acknowledges that the
services rendered by HCC are those of a clearing house and, except as expressly
set forth herein, under no circumstances shall HCC be responsible for the
collection of commissions owing SUBSCRIBER. HCC shall not be responsible or
liable for any inaccuracy in the information provided to SUBSCRIBER in the HCC
Reconciliation Report or any other report. HCC shall only be liable to
SUBSCRIBER for Subscriber Commissions actually collected by HCC. In the event
HCC shall fail in any respect to perform the services set forth herein, it
shall, under no circumstances, be liable for uncollected commissions to
SUBSCRIBER or any other liability resulting therefrom including, without
limitation, consequential damages. SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY FOR
ANY BREACH OF THIS AGREEMENT BY HCC SHALL BE TERMINATION OF THIS AGREEMENT AND
THE ENTITLEMENT TO SUBSCRIBER COMMISSIONS ACTUALLY COLLECTED AND NOT PAID. ALL
WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATIONS, ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, GOOD AND WORKMANLIKE PRODUCT
OR SERVICE, OR OTHERWISE, ARE DISCLAIMED AND WAIVED. In the event a failure or
delay in the performance of this Agreement results from an act of God, labor
strike or other events beyond the control of the party obligated to perform,
such failure or delay shall not constitute a breach of this Agreement nor shall
the parties hereto be liable for damages resulting from such event.
6. Dispute Resolution. In the event of any dispute between HCC and
SUBSCRIBER arising out of this Agreement, the parties agree that the laws of
the State of Texas, USA shall control and that venue of any legal proceeding
shall be in Dallas, Texas USA. In the event a dispute arises between
SUBSCRIBER and a HCC Hotel with respect to a HCC Reconciliation Report or a
commission, HCC shall have no obligation or liability with respect to such
dispute and
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SUBSCRIBER agrees that SUBSCRIBER shall be solely responsible for any action to
resolve the dispute and/or to collect its commission and agrees to indemnify
HCC for any liability arising therefrom.
7. Miscellaneous.
a) Any notice to be provided with respect to any matter arising
out of this Agreement shall be in writing and shall be
delivered by certified mail or next day delivery.
b) HCC and SUBSCRIBER may disclose the existence of this
Agreement in releases to the public or otherwise. HCC may use
SUBSCRIBER'S name and address in any listing, advertisement or
promotional material to indicate that SUBSCRIBER has signed
this Agreement and endorses the HCC System.
c) Any proprietary information disclosed to SUBSCRIBER by HCC or
its representatives shall be so designated and shall be
treated as confidential.
d) This Agreement contains all of the provisions of any agreement
between HCC and SUBSCRIBER with respect to the subject matter
set forth herein and all agreements in effect prior to the
date hereof with respect to the subject matter hereof,
including but not limited to HCC Subscriber Agreements
executed prior to the date hereof, are hereby terminated.
SUBSCRIBER has not relied upon any promises or representations
by HCC except as set forth herein.
e) This Agreement shall be binding upon and shall inure to the
benefit of the heirs, successors and assigns of the parties
hereto.
THE HOTEL CLEARING CORPORATION
0000 XXXXXX XXXXX XXXX., XXXXX 0000 --------------
XXXXXX, XXXXX 00000 (AGENCY NAME)
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(Signature) (Signature)
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Printed Name Printed Name
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Date Date
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