EXHIBIT 10.5
TRAVEL SERVICES PROMOTION AGREEMENT
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This TRAVEL SERVICES PROMOTION AGREEMENT (hereinafter, the "Agreement") is made
and entered into as of the 30th day of November, 2002 by and between Hospitality
Group, Inc., a Florida company having a principal address of 0000 Xxxx Xxxxxxx
Xxxxxxxxx Xxxxxxx Xxxxx, XX 00000 (hereinafter, "Hospitality"), and BHC, Inc, a
Delaware corporation having a principal address of 00000 00xx Xxx X, Xxxxxxxxxx,
XX 00000 (hereinafter, "BHCI").
W I T N E S S E T H:
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WHEREAS, Hospitality is a franchisee of several Hampton Inn hotels located
in South Florida and wishes to offer its travel services on the Internet; and
WHEREAS, BHCI through its wholly owned subsidiary, Book Florida Xxxxxx.xxx, Inc.
provides online marketing and distribution of travel products and services to
leisure and small business travelers; and
WHEREAS, the parties wish to enter into an agreement whereby BHCI will market
and offer Hospitality's travel services to the public as further set forth
herein;
NOW THEREFORE, in consideration of the mutual benefits, obligations, terms and
conditions herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged by the parties, it is
hereby agreed as follows:
1. BOOKING ENGINE, USER REGISTRATION AND INFORMATION
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(a) During the term of the Agreement, BHCI will feature Hospitality's
travel services on its booking engine. For purposes of this Agreement "booking
engine" means a database containing availability, schedule, and price
information connected to a graphical user interface that allows users of the
World Wide Web to make reservations for travel and other services and complete
payment for such services.
(b) BHCI shall create a series of web pages on its booking engine (the
"Pages") that will guide its users through the booking process for Hospitality's
travel services.
(c) The Pages shall conform to the graphical user interface utilized by
BHCI and shall be jointly approved by the parties.
(d) Hospitality shall be solely responsible for providing BHCI with
complete and accurate information respecting product pricing and availability
and for fulfilling all booking requests from BHCI's site users through the
Pages.
(e) BHCI's website users shall not be required to register with or
otherwise provide any personal information to BHCI until such time in the
booking sequence as a BHCI website user chooses to book or purchase one or more
of Hospitality's travel services.
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(f) BHCI shall collect information from its website users who register
through the Pages (the "User Information") at such time as such users complete
the booking process. User Information shall include, without limitation, updates
and corrections to previously provided information as well as any new
information, such as usage information, as BHCI may solicit or collect from such
other users from time to time, and such other information as the parties may
agree from time to time. BHCI will use its best efforts to develop and implement
technological and policy safeguards to prevent any unauthorized access by third
parties to any User Information.
2. REPRESENTATION BY BHCI
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(a) BHCI represents and warrants that is duly organized and validly
existing under the laws of the state of Delaware and further represents and
warrants that it has full authority to enter into this Agreement and to transact
the business herein contemplated, and is fully willing, capable and experienced
to perform as provided for herein.
(b) BHCI shall, through its internet website, xxx.xxxxxxxxxxxxxxxxx.xxx
(the "Website") offer Hospitality's travel services, (hereinafter, the "Product"
or "Products"), to its customers. BHCI shall be fully and solely responsible for
the cost of operating the Website and securing qualified purchases of the
Product to its customers (the "Travel Customers"). Hospitality shall deliver to
BHCI, from time to time, written materials describing its Products to be
marketed and offered by BHCI on the Website and such materials shall include a
statement of the price and availability of the Products.
(c) BHCI acknowledges and agrees that Hospitality shall have no
responsibility or liability, in respect to any and all matters relating to the
identification, attainment, securing and solicitation of Travel Customers by
BHCI.
(d) BHCI shall deliver to Hospitality on a weekly basis all orders from
consumers for the sale of Products (hereinafter, "Orders"). BHCI shall provide
via facsimile to Hospitality each purchasing consumer's name, address, telephone
number, total amount of transaction, salesperson identification and the date and
time of the sale. All consumer payments shall be made directly to Hospitality.
(e) BHCI shall be fully responsible for all costs associated with the
marketing of the Products on the Website.
(f) BHCI shall promptly forward to Hospitality any complaints, letters,
demands or other form of communication in respect to the Products or Hospitality
received from any consumer solicited by BHCI. BHCI shall be responsible for
answering and satisfying consumer complaints in connection with the marketing of
the Products up to the point that Hospitality receives and verifies an Order as
contemplated by this Agreement. Hospitality shall be responsible for answering
and satisfying consumer complaints thereafter. BHCI shall be liable for any
representations that are not specifically authorized by Hospitality in writing.
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(g) BHCI shall be responsible for complying with any and all applicable
registration and licensing requirements.
(h) BHCI shall perform its business activities in compliance with all
federal, state or local government laws, rules or regulations concerning the
marketing of the Products while performing its duties pursuant to this Agreement
and shall not violate such laws, rules or regulations, and BHCI shall not make
any material omission or misrepresentation in the marketing of the Products,
specifically including but not limited to the following prohibited activities:
(i) Making misrepresentations when describing the Products;
(ii) Failing to disclose in a clear and conspicuous manner,
before a customer pays, the total costs of a Product;
(iii) Misrepresenting, expressly or by implication, any
policy or practice relating to whether persons can cancel, rescind, or receive
refunds or credits of monies paid for a Product;
(iv) Misrepresenting, expressly or by implication, that a
Product cannot be purchased at some later time or may not otherwise be available
after the initial contact, when in fact, such restrictions or limitations do not
exist; and
(v) Representing, implying, or stating to any person that the
person has won any product, good or service or will receive any product, good or
service free of charge or at no cost, or words of similar meaning or intent,
when such representation, implication, or statement is not true.
(i) BHCI agrees and acknowledges that Hospitality will provide to BHCI
conceptual advice on the structure and design of the Website to be used by BHCI
in the marketing and sale of the Products (hereinafter, "Promotional
Materials"). Both parties agree that it is the intention of this Agreement that
all such Promotional Materials shall comply with applicable law.
(j) BHCI shall indemnify and hold Hospitality and its officers, directors,
shareholders and employees harmless from all damages, losses, causes of action,
costs and expenses, including reasonable attorney's fees, whether the same be
incurred as a result of investigation, defense or prosecution of any claim or
cause of action, or any other loss resulting as a consequence of a breach by
BHCI of the terms of this Agreement or a breach of any of its representations,
warranties or obligations under this Agreement or from any and all
misrepresentations or allegations of deceptive trade practices against BHCI or
any of its officers, directors, employees, or agents in the offering of the
Products.
(k) Except as otherwise provided herein, BHCI warrants and represents that
neither it nor any of its officers, directors, shareholders or employees have
ever: (1) been convicted of a felony or misdemeanor involving an alleged
violation of any seller of travel or travel agency statute, or fraud, theft,
embezzlement, fraudulent conversion or misappropriation of property (for such
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purposes, a plea of nolo contendere is a conviction); (2) had entered against
it, him or her a final judgment or order in a civil or administrative action,
including but not limited to a stipulated judgment or order, if the complaint or
petition in the civil or administrative action alleged acts constituting a
violation of any federal or state telemarketing or telephone solicitation
statute, fraud, theft, embezzlement, fraudulent conversion or misappropriation
of property, the use of untrue or misleading representations in an attempt to
sell or dispose of real or personal property, or the use of unfair, unlawful or
deceptive business practices; or (3) been subject to any currently effective
injunction or restrictive court order relating to business activity as a result
of an action brought by a federal, state or local publication or unit thereof,
including, but not limited to, an action affecting any vocational license.
(l) BHCI agrees and acknowledges that it does not and shall not receive a
fee, commission or other consideration directly from any consumer for the sale
of a Product. BHCI shall not issue any documents in respect to the Products or
Hospitality to consumers without the express written consent of Hospitality.
(m) BHCI agrees and acknowledges that it shall not, at any time during the
term of this Agreement and after termination of same, divulge or use for BHCI's
own purposes, or for the purposes of any third party, any trade secrets,
confidential or business information relating to the business affairs of
Hospitality. The parties, by execution hereof, acknowledge that Hospitality has
disclosed to BHCI in confidence certain information relating to the business of
Hospitality. BHCI, by execution hereof, acknowledges and agrees that disclosure
of all such information disclosed by Hospitality to BHCI has been in confidence
and is of a confidential nature. BHCI acknowledges and agrees that BHCI, except
in pursuit of BHCI's responsibilities and rights hereunder, shall not use such
information under this Agreement, during the duration of this Agreement and
after termination of this Agreement.
(n) BHCI expressly understands and agrees that the names of and all
information related to consumers who agree to purchase Products are the
exclusive property of both BHCI and Hospitality, and BHCI and its officers,
directors, shareholders, partners, members and employees, represent and warrant
that he, she and it will not (i) use, sell or otherwise make available to others
or transfer such consumer names or information related to such consumers in any
manner or for any purpose other than as expressly provided for herein or (ii)
solicit or attempt to solicit such consumer names for the purchase of any goods,
services and programs other than those offered by BHCI, those expressly provided
for herein, or those expressly consented to in writing by Hospitality for the
term of this Agreement and for a period of one (1) year thereafter.
3. REPRESENTATIONS BY HOSPITALITY
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(a) Hospitality represents and warrants that it is duly organized and
validly existing under the laws of the state of Florida, and has full authority
to enter into this Agreement and to transact the business herein contemplated.
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(b) Hospitality agrees and acknowledges that it shall not intentionally or
knowingly violate any federal, state or local governmental laws, rules or
regulations concerning the furnishing of Products to the public while performing
its duties pursuant to this Agreement.
4. COMPENSATION TO BHCI.
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(a) Hospitality shall pay BHCI on a monthly basis, commissions for
booking of Hospitality travel services by BHCI website users through BHCI's
booking engine ("Qualified Bookings") in accordance with the commission schedule
set forth in Exhibit 4(a). Payments shall be due and payable on or before the
10th day following the end of each month during which Hospitality shall have
received payments for Qualified Bookings. All payments shall be accompanied by
a report setting forth in sufficient detail, the calculation of BHCI's
commissions and any such other information relating to commissions as BHCI may
reasonably request from time to time. To insure compliance with this Section
4(a), Hospitality shall establish reasonable reporting mechanisms concerning
Qualified Bookings and the payments due BHCI hereunder.
(b) BHCI understands and agrees that Hospitality has the right to
facilitate all customer requests for cancellation and/or refund demands and/or
chargebacks of any Order submitted for funding (hereinafter, "Chargebacks").
BHCI understands and agrees that Hospitality shall deduct the amount of any such
Chargebacks from BHCI's next scheduled payments. If there are no such funds in
process, BHCI shall automatically assume the financial responsibility for its
proportionate amount of consumer refund. Hospitality shall use reasonable
business judgment as to what constitutes a valid Chargeback to BHCI.
Hospitality shall provide BHCI with the consumer name and reason for such
Chargeback.
(c) BHCI acknowledges and agrees that Hospitality has no control over the
acts and omissions of any credit card agency. BHCI further acknowledges that if
for any reason a credit card is frozen or cancelled, all funds due to BHCI still
being held by such credit card company or other credit card merchant bank in
that account, shall not be due and payable to BHCI until such time as the credit
card company or credit card merchant bank releases those funds to Hospitality.
BHCI shall not contact or attempt to contact any customer of Hospitality for any
reason whatsoever except in accordance with the terms of this Agreement.
5. TERM OF AGREEMENT. This Agreement shall be in full force and effect from
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the date hereof and shall continue for two (2) years thereafter; provided,
however, this Agreement may be earlier terminated pursuant to Section 6
hereinbelow. This Agreement shall be automatically renewed for additional terms
of one (1) year unless, at least sixty (60) days prior to the expiration of the
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initial term or any renewal term, either party delivers written notification to
the other of termination of this Agreement.
6. TERMINATION. The parties shall have the right to terminate this
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Agreement as follows:
(a) By mutual written consent of both of the parties;
(b) The failure of BHCI to comply with any term or provision of this
Agreement shall permit Hospitality to immediately terminate this Agreement;
(c) The failure of Hospitality to comply with any term or provision of this
Agreement shall permit BHCI to immediately terminate this Agreement; provided,
however, this failure of compliance may be cured if Hospitality remedies such
failure of compliance (satisfactory to BHCI) within seven (7) days after
receiving written notice of its occurrence;
(d) The failure of BHCI to perform its duties hereunder in compliance with
any federal, state, county or city law, ordinance or code shall permit
Hospitality to immediately terminate this Agreement;
(e) If any representation or warranty of BHCI shall be shown to be untrue
or misleading then Hospitality may immediately terminate this Agreement;
(f) If any representation or warranty of Hospitality shall be shown to be
untrue or misleading then BHCI may terminate this Agreement upon delivery to
Hospitality of ten (10) days written notice;
(g) Hospitality may immediately terminate this Agreement without notice
upon the filing of voluntary petition of bankruptcy by BHCI if BHCI shall be
adjudicated bankrupt or insolvent, or upon the execution BHCI of an assignment
for the benefit of creditors, or upon the appointment of a receiver for BHCI, or
upon the commencement of any action against BHCI by any state or Federal
regulatory agency; and
(h) BHCI may immediately terminate this Agreement without notice upon the
filing of voluntary petition of bankruptcy by Hospitality or if Hospitality
shall be adjudicated bankrupt or insolvent, or upon the execution of Hospitality
of an assignment for the benefit of creditors, or upon the appointment of a
receiver for Hospitality.
In the event of termination of this Agreement, BHCI shall surrender all of
BHCI's rights granted hereunder and shall thereafter refrain from exercising any
of the rights and privileges granted hereunder, including, without limitation,
the marketing and selling of the Products. All advertising materials,
Promotional Materials, signs, contract forms, and all other documents which
Hospitality has made available to BHCI for the purpose of promoting the
marketing and sale of its Products shall be returned to Hospitality immediately.
The termination of this Agreement shall not affect BHCI's right to receive
compensation earned and yet unpaid in accordance with this Agreement.
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7. NON-EXCLUSIVITY. Both parties acknowledge and agree that this
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Agreement is a non-exclusive agreement and each party may perform all services
set forth herein for unrelated entities without the consent of the other party.
8. AGREEMENT NOT TO COMPETE. BHCI shall devote its best efforts, skill
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and diligence to the conduct of the business contemplated hereunder and shall
not provide access to any Travel Customers or information regarding such Travel
Customers to third parties which might be confused with or otherwise compete
with Hospitality during the term of this Agreement and for a period of one (1)
year following the termination of this Agreement.
9. AGREEMENT NOT TO SOLICIT EMPLOYEES. BHCI agrees that during the
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term of this Agreement and for a period of one (1) year after the termination of
this Agreement, it shall not, either directly or indirectly, on its own behalf
or on behalf of others, solicit, divert, or hire away, or attempt to solicit,
divert or hire away, to its own business or any other business in competition
with Hospitality or any person retained by Hospitality now or in the future as a
full-time employee, as a part-time employee, or as an Internet promoter.
10. NO AFFILIATION. The parties agree and acknowledge that neither has
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any affiliation with the other, nor is either involved in the business or
affairs of the other. BHCI agrees and acknowledges that it shall be prohibited
from using Hospitality's name in any manner and in any media whatsoever,
including but not limited to, written or oral advertising material, unless the
same is approved, in advance and in writing, by Hospitality. Hospitality
acknowledges that BHCI may be required to publicly file this document with the
Securities and Exchange Commission pursuant to its obligations as a public
reporting company. BHCI agrees and acknowledges that it shall be prohibited
from representing itself to be or holding itself out as affiliated with
Hospitality in any manner.
11. RELATIONSHIP OF THE PARTIES. It is specifically agreed that the
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relationship of the parties hereto shall not be that of an employer and employee
or principal and agent. The parties agree that Hospitality shall not have a
right of control over and to BHCI. However, Hospitality and BHCI mutually agree
as to the objectives and the scope of services required, all as herein set
forth. BHCI shall have full power and authority to select the means, manner,
and method of performing the work and accomplishing those objectives without
detailed direction or control by Hospitality. The parties hereto recognize and
agree that no joint venture or partnership arrangement or agreement is intended
or created hereby. No agent, employee or servant of BHCI shall be or shall be
deemed to be the employee, agent or servant of Hospitality nor shall any agent,
employee or servant of Hospitality be or be deemed to be the employee, agent or
servant of BHCI. BHCI shall be solely and entirely responsible for its acts and
for the acts of its agents, employees, servants and subcontractors during the
performance of this Agreement, unless otherwise excepted under the terms of this
Agreement. BHCI shall be solely responsible with respect to the compensation
payable to its agents, employees, servants and subcontractors and Hospitality
shall have no responsibility with respect to the same. Hospitality shall be
solely and entirely responsible for its acts and for the acts of its agents,
employees, servants and subcontractors during the performance of this Agreement,
unless otherwise excepted under the terms of this Agreement. Neither BHCI nor
Hospitality shall act on behalf of or represent itself directly or by
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implication as having authority to act on behalf of the other party except as
specifically set forth in this Agreement. Neither party shall have the authority
to create any obligation for or on behalf of or in the name of the other party,
except as specifically set forth herein.
12. DEFAULT/REMEDIES. In the event of breach of this Agreement or default
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of the obligations hereunder, by either party, then, each party shall be
entitled to all rights and remedies as may be available under law or in equity
as applicable hereto. Specifically, by way of example and not limitation, any
party upon breach hereof, shall be liable to the other party for any and all
damages provable as a consequence thereof; however, notwithstanding the
foregoing, the parties hereto agree that, to the extent that damages are an
insufficient remedy in respect to such breach, including but not limited to a
breach of the provisions hereof concerning exclusivity, agreements not to
compete, agreements not to solicit employees, divulging of confidential or
business information, or otherwise engaging in activity which is not able to be
remedied by the payment money, then, the parties acknowledge that remedies of
specific performance, injunction or other equitable relief may be appropriately
sought.
13. NOTICES. Notices required or permitted to be given pursuant to the
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terms and conditions of this Agreement shall be deemed given upon receipt or
five (5) days after deposit in the United States Mail, postage prepaid,
certified, return receipt, and addressed as follows:
To Hospitality: Hospitality Group, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
To BHCI: BHC, Inc.
00000 00xx Xxx X
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxx
with a copy to Xxxxxx Xxxxxxxxxx & Xxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000
Attention: Xxxx X. Xxxxxxxxxx
14. ASSIGNMENT. This Agreement shall be binding upon the parties and
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their respective successors and assigns and neither party shall have the power
and right to assign any right or interest in this Agreement without the prior
written consent of the other party; provided, however, that BHCI agrees and
acknowledges that Hospitality shall have the power and right to assign any right
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or interest in this Agreement to a company controlled or operated by any
affiliate of Hospitality without the prior written consent of BHCI.
15. NO WAIVER OF RIGHTS. No failure or delay on the part of either
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party to enforce or exercise any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof, or of
any other right, power or privilege. All rights and remedies existing under
this Agreement are cumulative to and not exclusive of any rights or remedies
otherwise available.
16. BENEFIT OF OTHERS. Except as otherwise provided herein, this
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Agreement, together with its amendments as may hereafter be adopted shall inure
to the benefit of Hospitality and BHCI, but shall not be deemed to create rights
in any other party.
17. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
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between the parties with respect to the subject matter herein contained. Any
agreements, promises, negotiations, representations or other terms not set forth
or referred to in this Agreement are of no force and effect.
18. MODIFICATION. This Agreement may not be modified or amended except in
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writing signed by both parties. The parties agree to fully cooperate in
negotiating any changes or modifications to this Agreement as may be necessary
to fully comply with any statute or code as may be applicable to matters herein
contemplated.
19. INTERPRETATION. Should a provision of this Agreement require judicial
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interpretation, it is agreed that the judicial body interpreting or construing
the same shall not apply the assumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of construction that
an instrument is to be construed more strictly against the party which itself or
through its agents prepared the same, it being agreed that the agents of all
parties have participated or had the opportunity to participate equally in the
preparation of this Agreement.
20. SURVIVAL. If any part of this Agreement shall be deemed invalid under
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applicable law, the remaining parts of this Agreement shall be in full force and
effect as though any unenforceable part or parts were not written into this
Agreement.
21. SECTION HEADINGS. The section headings appearing in this Agreement
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have been inserted for the purpose of convenience and ready reference. They do
not purport to, and shall not be deemed to, define, limit or extend the scope of
intent of the sections to which they appertain.
22. ATTORNEY'S FEES. In the event either party is required to resort
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to legal action to enforce any of the covenants of this Agreement, then the
Court shall award reasonable attorney's fees and costs to the prevailing party.
23. APPLICABLE LAW. This Agreement shall be governed by and construed
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according to the laws of the State of Florida. Any action to enforce this
Agreement shall be brought in the State of Florida, County of Palm Beach, which
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shall be deemed the proper venue for all purposes.
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IN WITNESS WHEREOF, this Agreement is executed as of the day and year first
above written.
HOSPITALITY:
HOSPITALITY GROUP, INC., a Florida
corporation.
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, President
BHCI:
BHC, Inc, a Delaware corporation
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx, President
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