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EXHIBIT 10.53
PROPERTY INFORMATION DISTRIBUTION AGREEMENT
This Agreement is entered into by and between Pegasus Systems, Inc. and
the below named Participant on the following terms and conditions:
1. Property Information Database. Pegasus will provide
Participant with the ability to create a digital database of Participant's
properties which is (i) capable of being accessed by distribution systems with
whom Pegasus contract and (ii) where functionality exists, capable of permitting
the accessor of the database to make, amend and cancel reservations with
Participant. Participant shall be solely responsible for the creation and
editing of the property database pursuant to Pegasus' prescribed methods.
2. Distribution of the Database. Pegasus will contract and
develop interfaces with distribution systems to access Participant's database.
Participant may elect to exclude certain distribution systems access to its
database.
3. Distribution Systems Interface. For each distribution system,
Pegasus will create an operable interface providing access to Participant's
database and maintain the interface during the term of the Distribution
Agreement. All updates and edits of the database shall be accessible by the
distribution systems within two (2) business days of receipt by Pegasus.
4. Fees.
(a) For the services provided by Pegasus as set forth
herein, Participant shall pay to Pegasus the fees set
forth on Schedule A.
(b) For each Net Reservation originating with a
distribution system with whom Pegasus contracts,
Participant shall pay to Pegasus a fee of [*]. Net
Reservations within a particular time period equal the
number of reservations made by an accessor of a
distribution system exhibiting Participant's database
within such time period less the number of reservations
to which notice of cancellation is received by the
distribution system within such time period.
(c) Pegasus will invoice Participant for all fees as set
forth herein and as provided on Schedule A including any
taxes applicable to such fees and Participant agrees to
pay each invoice upon receipt. Each invoice shall be
past due and it shall be a breach of this Agreement if
it is not paid within thirty (30) days after the date of
the invoice. All payments to Pegasus shall be made in
U.S. Dollars. Pegasus may, once each year, increase the
fees set forth in (a), (b) and (c) above up to 10% of
the then-existing fee. Any fee changes resulting from an
increase in the services or number of properties in the
database will be invoiced upon notice of such increase
or at the next scheduled invoice, at Pegasus' option.
Any notice must be provided at least 60 days in advance
of any fee increase being incorporated.
5. Term. The initial term of this Agreement shall be for [*] from
from the date hereof provided that the Agreement shall be automatically renewed
and extended for additional [*] terms thereafter unless, at least thirty (30)
days prior to expiration of the initial [*] term or the expiration of any
additional one (1) year term, either party hereto shall give notice of its
intent not to renew and extend this Agreement.
6. Property Rights. The information provided by Participant is
acknowledged to be the sole property of Participant and Pegasus may not
distributed or allow access to any of the information in any manner other than
pursuant to this Agreement. Participant shall be solely and exclusively
responsible for the protection of any and all of its intellectual property
including, but not limited to, the inclusion of any and all statutory or other
notices customarily used or required for purposes of providing notice of
ownership or protection of Participant's trademarks, trade names, service marks
or copyrights.
7. Disclaimer, Limitation of Liabilities and Risk of Internet
Usage. PEGASUS WILL NOT BE RESPONSIBLE OR LIABLE FOR (i) ANY FALSIFICATIONS OR
INACCURACIES IN ANY OF THE INFORMATION, (ii) ANY ACT OR FAILURE TO ACT WITH
RESPECT TO THE PUBLICATION OF THE INFORMATION ON THE INTERNET OR CREATION OR
FUNCTIONALITY OF RESERVATION CAPABILITIES UNLESS EXPRESSLY SET FORTH HEREIN,
(iii) ANY CLAIM, DAMAGE, OR LIABILITY OF ANY NATURE ARISING OUT OF A COMPUTER
OPERATOR'S OR DISTRIBUTION SYSTEM'S ACCESS TO PARTICIPANT'S RESERVATION SYSTEM
AND/OR THE MAKING, CHANGING OR CANCELING OF A RESERVATION AND THE USE OF A
CREDIT CARD OR OTHER DEBIT DEVICE IN
*Confidential Treatment Requested
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CONNECTION THEREWITH, OR (iv) ANY CLAIM RESULTING FROM ANY INTERRUPTION,
MALFUNCTION OR CHANGE IN THE USE OF THE INTERNET OR A DISTRIBUTION SYSTEM,
EXCEPT TO THE EXTENT RESULTING FROM PEGASUS' GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT. ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,
MERCHANTABILITY, GOOD AND WORKMANLIKE PRODUCT OR SERVICE OR OTHERWISE
ARE DISCLAIMED BY PEGASUS AND WAIVED BY PARTICIPANT. PARTICIPANT ACKNOWLEDGES
AND AGREES THAT ALLOWING ACCESS TO ITS DATABASE AND RESERVATION SYSTEM TO
COMPUTERS ACCESSING THE INTERNET VIA ANY DISTRIBUTION SYSTEM IS AT
PARTICIPANT'S OWN RISK. Pegasus shall not be responsible for the order,
completeness or format of Participant's database being published by
distribution systems. Participant acknowledges and agrees that the Internet is
a communication medium over which Pegasus has no control and that its continued
utilization in its present form at current costs is uncertain. Therefore, if at
any time during the term of this Agreement, the cost of access to the Internet
increases or there is imposed a fee or cost for access to or use of the
Internet communication lines, or there is imposed any law, governmental ruling,
or regulation the result of which increases the cost of access to or usage of
the Internet or otherwise makes it impractical, in Pegasus' sole discretion, to
continue to perform this Agreement, Pegasus may, upon notice to Participant,
immediately terminate this Agreement without such action constituting an event
of default. Pegasus shall not be liable for any breach of this Agreement
resulting from an act of God, accidents, power or telecommunication outages or
delays, mechanical defects or other events beyond its control.
8. Breach. In the event of a breach of this Agreement, the
non-breaching party may terminate this Agreement after providing notice to the
other party of such breach and the failure of the breaching party to cure the
breach within ten (10) days of receipt of the notice. Upon breach by
Participant and failure to timely cure Pegasus may immediately cease the
distribution and/or publication of Participant's database on distribution
systems.
9. Miscellaneous. This Agreement shall be interpreted in
accordance with the laws of the State of Texas and any legal proceeding arising
out of this Agreement shall have venue in Dallas County, Texas. This Agreement
shall be binding upon and inure to the benefit of the legal representatives,
successors and assigns of the parties hereto. This Agreement contains all the
provisions of any agreement between Pegasus and Participant with respect to the
creation, maintenance and distribution of Participant's database and
Participant has not relied upon any promises or representations by Pegasus with
respect to the subject matter except as set forth herein. This Agreement shall
terminate and replace any existing agreement between Participant and TravelWeb,
Inc. The parties hereby agree to accept a facsimile signature as evidence of
acceptance of these terms Hyatt Hotels Corporation, on behalf of its
Hotels, owned, operated, leased and/or franchised by Hyatt Corporation, its
affiliates, or subsidiaries.
PEGASUS SYSTEMS, INC. PARTICIPANT: Hyatt Hotels Corporation
BY: [Illegible] BY:
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Xxxx X. Xxxxx III
President ITS: [ILLEGIBLE]
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DATE: [Illegible] DATE: Associate General Counsel
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SCHEDULE A
1. Fees. Participant shall pay to Pegasus the following fees:
(i) For 1 to 25 Participant properties in the database, [*] per
Participant properly per month;
(ii) For 26 to 100 Participant properties in the database, [*]
per Participant property per month;
(iii) For 101 to 200 Participant properties in the database, [*]
per Participant property per month;
(iv) For 201 to 500 Participant properties in the database, [*]
per Participant property per month;
(v) For 501 to 1000 Participant properties in the database, [*]
per Participant property per month;
(vi) For 1001 to 2000 Participant properties in the database, [*]
per Participant property per month;
(vii) For in excess of 2000 Participant properties in the database,
[*] per Participant property per month.
The fees for this service shall be paid quarterly in advance.
*Confidential Treatment Requested
