Exhibit 10.16
CONCESSION AGREEMENT
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THIS CONCESSION AGREEMENT ("Agreement") is made and executed this 17th day
of September, 1996 by and between SEAVISION INC., a Delaware corporation
("SEAVISION") and ROYAL CARIBBEAN CRUISES LTD., a Liberian corporation ("RCCL").
W I T N E S S E T H:
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RCCL operates the vessels MAJESTY OF THE SEAS and RHAPSODY OF THE SEAS
(which vessel is currently under construction and scheduled to be delivered in
April 1997) (collectively the "Vessel" or "Vessels");
SEAVISION has the expertise in providing interactive television and video
entertainment systems; and
RCCL desires to grant to SEAVISION a concession on the Vessels as described
herein and SEAVISION desires to accept the concession, on the terms set forth
herein:
1. Concession. RCCL hereby grants to SEAVISION and SEAVISION hereby accepts
the concession for providing an interactive television and video
entertainment system to RCCL, and passengers on each Vessel on the terms
and conditions set forth herein.
2. SEAVISION's Responsibilities.
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a) Services. SEAVISION hereby agrees to provide, at no charge to RCCL, an
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interactive television and video entertainment system (the "System")
consisting of the hardware and software described or listed on Exhibit
A attached hereto, and to provide the services (the "Services") set
forth on Exhibit B attached hereto. The System shall conform to the
technical performance standards set forth on Exhibit C and the
specifications set forth on Exhibit D attached hereto. RCCL may elect
to use customized graphic displays ("look and feel") for the System on
the television screens, which displays must be compatible with the
then existing technical standards of the System, provided that if RCCL
so elects, RCCL shall bear the cost of development of such graphics.
[Redacted - confidential treatment requested] If RCCL elects to use
such customized graphics displays, RCCL may either (i) develop such
customized graphics itself or contract for such development through a
third party, in which event SEAVISION will reasonably cooperate with
RCCL or such third-party, or (ii) request SEAVISION to develop such
customized graphics, in which event SEAVISION will undertake such
development on terms mutually agreeable to the parties. [Redacted -
confidential treatment requested]
b) Upgrades. SEAVISION agrees to provide upgrades to the hardware and/or
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software used in the System, at no cost to RCCL, at such times and in
such manner as is reasonably necessary or appropriate, in SEAVISION's
sole opinion,
to maintain the System. RCCL shall have the right to review and
approve any such upgrade prior to its installation on any Vessel,
which approval shall not be unreasonably withheld or delayed by RCCL.
c) Installation. The System shall be installed and fully functional
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onboard the MAJESTY OF THE SEAS on or before December 10, 1996. The
installation on RHAPSODY OF THE SEAS shall be completed and the System
fully operational prior to April 25, 1997.
d) Maintenance. SEAVISION shall be responsible for ensuring that the
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System is in good, proper working order at all times during the Term
of this Agreement. The System shall at all times meet the technical
specifications set out in Exhibit C to this Agreement. SEAVISION
shall coordinate all work on the System with each Vessel's Chief
Engineer and/or Chief Electrician.
e) Comment Cards. SEAVISION acknowledges that RCCL distributes to and
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collects from passengers comment cards requesting satisfaction ratings
of on-board services. SEAVISION agrees to address any issues raised
by such comment cards and to use reasonable efforts to comply with
RCCL requests to make changes to the System to correct deficiencies
noted in the System which are identified in the comment cards.
3. RCCL's Responsibilities.
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a) Access to Vessel. RCCL hereby agrees to make available to SEAVISION in
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respect to each Vessel (a) the Vessel to the extent necessary for
SEAVISION's installation, operation and maintenance of the System,
including but not limited to granting SEAVISION personnel reasonable
access to the television studio and video distribution system, (b)
such personnel as are reasonably necessary or appropriate to assist in
the successful installation, operation and maintenance of the System,
including but not limited to appropriate on-board support for, and
oversight of, the installation, operation and maintenance of the
System by a designated officer on that Vessel (provided however,
primary responsibility for maintenance and upkeep shall be the
responsibility of SEAVISION), (c) all reasonably necessary systems
integration support to allow the System to communicate with RCCL's on-
board systems, and (d) appropriate accommodations on-board the Vessel
for the SEAVISION personnel who are engaged in installing, operating
or maintaining the System on the Vessel.
b) Executive Personnel. With the prior approval of RCCL, SEAVISION's
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executive personnel may travel from time to time on the Vessels as
needed to insure the performance by SEAVISION of its obligations
hereunder. In such cases, RCCL will make available, at no charge
(except for port charges, gratuities and personal items), passenger-
type accommodations for such executive personnel, unless all
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passenger facilities have been utilized by paying passengers. Such
executive personnel shall travel alone on a space available basis and
not with their families or other guests and shall be bound by and
subject to all the terms and conditions of RCCL's passenger ticket
contract.
c) Marketing. RCCL hereby agrees to provide reasonable marketing support
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for the System on-board the Vessels. Such marketing support shall
include, but not be limited to in-cabin collateral material, coverage
in the Cruise Compass and daily television guide (if any), mention by
the Cruise Director during his or her introductory remarks to
passengers on the Ship, and such other activities of a supporting
nature as are acceptable to both parties to this Agreement. RCCL
hereby agrees to work with SEAVISION's marketing personnel to develop
appropriate and effective means for testing and gauging passenger
reaction to the System on a regular basis. RCCL shall from time to
time, provide access to the Vessels while in their home port for
SEAVISION personnel and guests to demonstrate the System to potential
advertisers, marketers and clients. Such visits shall be requested in
advance and RCCL reserves the right to refuse to allow such visitors
onboard the Vessels on certain days. In addition, access to various
parts of the Vessel may be restricted.
d) Data. RCCL hereby agrees to provide the SEAVISION onboard manager with
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the following data in electronic form (i.e., diskettes, tapes or
similar means) with respect to each passenger onboard the Vessel:
name, cabin assignment, dining assignment and folio number. In the
event SEAVISION acquires any additional passenger information such as
addresses and phone numbers as a result of the passenger's use of the
System (e.g. through the purchase of items to be mailed to the
passenger's home), SEAVISION agrees to keep such information in
confidence and not to sell, exchange or otherwise provide such
information to any other party without the prior written consent of
RCCL. Without limiting the foregoing, SEAVISION shall not sell any
lists of RCCL passenger names or use such names in any manner other
than as may be required to fulfill its obligations under this
Agreement. In the event SEAVISION is required to provide the
information to a fulfillment house to process orders, SEAVISION shall
use commercially reasonable efforts to ensure that such information is
kept confidential by such fulfillment house.
e) Collection of funds. RCCL hereby agrees to collect all monies paid or
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payable by passengers in respect of Services provided on or through
the System and charged to the respective on-board account of such
passengers, except as set forth in Section 6 of this Agreement.
f) Equipment. RCCL hereby agrees to provide all in-cabin televisions and
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television control modules; [Redacted - confidential treatment
requested] RCCL shall retain title to all television sets and control
modules.
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4. [Redacted - confidential treatment requested]
5. Revenue-Sharing. [Redacted - confidential treatment requested]
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6. Payment Terms.
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a) Reports. On or before the twenty-first day of each calendar month
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during the Term of this Agreement, SEAVISION shall provide RCCL with a
written report detailing the Adjusted Gross Revenue from cruises
completed during the prior calendar month (any cruise commencing
before last day of month will be considered completed in that current
month). The report shall separately identify the Adjusted Gross
Revenue for each module and the cost of goods and shall be in the form
attached as Exhibit F. This report shall govern the determination of
fees to be retained by RCCL and the revenues to be remitted by RCCL to
SEAVISION under the terms of this Agreement. In addition, SEAVISION
shall provide the reports listed on Exhibit G, samples of which
reports are attached as part of Exhibit G. SEAVISION shall provide
any and all hardware and/or software reasonably necessary or
appropriate to interface SEAVISION's accounting software with the
Vessel's property management system in order for SEAVISION to obtain
accurate accounting information for such reports, as further discussed
in Section 3a)(c) above.
b) Settlement. Within thirty (30) days after RCCL's receipt of the
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monthly report delivered to RCCL by SEAVISION pursuant to the terms of
subsection a) above, RCCL shall remit to SEAVISION the Adjusted Gross
Revenue during the calendar month applicable to such report, less
RCCL's share of such Adjusted Gross Revenue as provided in Section 5.
SEAVISION shall pay to RCCL its portion of the Adjusted Gross Revenue
associated with the advertising within thirty (30) days of the close
of each month.
c) [Redacted - confidential treatment requested]
d) [Redacted - confidential treatment requested]
7. Term. [Redacted - confidential treatment requested]
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8. Additional Vessels.
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a) Grandeur and Enchantment. RCCL has the option to add its vessels,
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GRANDEUR OF THE SEAS (delivery scheduled for December 1996) and
ENCHANTMENT OF THE SEAS (delivery scheduled for July 4, 1997), or
either one of them, as additional vessels under this Agreement. Such
additional vessels shall be governed by the same terms and conditions
contained in this
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Agreement and, if added, shall be considered a "Vessel" as said term
is defined in this Agreement. [Redacted - confidential treatment
requested]
b) [Redacted - confidential treatment requested]
c) [Redacted - confidential treatment requested]
9. Facilities and Equipment.
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a) "As is". SEAVISION accepts "as is" the existing facilities and
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fixtures on the Vessels for the Concession. SEAVISION accepts "as is"
the existing storage facilities and all water, electricity, television
cabling and air conditioning systems incident to SEAVISION's
operations on the Vessel with consideration given to the fact that the
Vessel's storage facilities are limited. SEAVISION shall have the
opportunity of making a detailed site inspection of the facilities
prior to installation of the System. SEAVISION has provided RCCL with
specifications regarding HVAC and electrical requirements, which
specifications are attached hereto as Exhibit H. RCCL agrees that it
shall be RCCL's obligation to ensure that the HVAC and electrical
specifications are met.
b) Damage. SEAVISION shall give RCCL prompt written notice of any damage
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to or defective condition in any part of the plumbing, electrical,
heating, air conditioning, television cabling or other system serving,
located in, or passing through the areas in which the Concession is
operating. Except as otherwise provided herein, SEAVISION shall, at
its own expense, keep the facilities under its control in good order
and condition during the term of this Agreement. SEAVISION shall not
make any alterations or additions to the such facilities without the
prior written consent of RCCL. Upon the termination of this Agreement,
RCCL shall have the option of requiring SEAVISION to remove any such
improvements at SEAVISION's cost and expense.
c) Storage. Subject to the provisions of subsection f) below, SEAVISION
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shall be solely responsible for its storage areas and facilities and
will bear the risk of loss caused by SEAVISION's breach of any
governmental regulation or for SEAVISION's failure to comply with
requirements relative for the manifesting of goods for customs
purposes and for loading or off-loading on Landed Goods Advice (LGAs).
d) Locks and Security. RCCL will provide normal locks, seals and security
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for storage areas and RCCL will cooperate in all efforts to provide
security for the property of SEAVISION, including all reasonable
efforts to see that said areas are not invaded or otherwise entered.
RCCL acknowledges that SEAVISION has no enforcement or disciplinary
power as to personnel other than SEAVISION's employees on board the
Vessel and RCCL agrees that the Vessel, through its
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Master, will cooperate with SEAVISION to enforce security of
SEAVISION's property through such disciplinary measures or procedures
as are reasonably necessary and required.
e) Safe Storage. Subject to the approval of the Master, SEAVISION shall
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safely stow for sea, and will maintain such safe stowage for sea, all
stores and other of its property, as well as all equipment, furniture,
or other items and any other property belonging to RCCL which
SEAVISION may use to perform its obligations hereunder, or which
otherwise may be in SEAVISION's control.
f) Unseaworthy Condition. SEAVISION shall not knowingly create an
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unseaworthy condition in the performance of its obligations hereunder.
SEAVISION shall operate the Concession in a safe, careful and
businesslike manner.
g) Carrier's Release. Upon expiration or termination of this Agreement
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for whatever reason, RCCL agrees to provide SEAVISION with a carrier's
release releasing all of SEAVISION's goods, equipment and wares for
off-loading, at the regularly scheduled port or port(s), as SEAVISION
may select, and that it will, in no way, inhibit or hamper SEAVISION's
right to take possession of the goods, equipment and wares and remove
the same from the Vessel, provided that all sums due RCCL or the
Vessel have been paid or placed in escrow or a bond for said amount is
purchased by SEAVISION. Notwithstanding anything to the contrary
herein, SEAVISION shall at all times retain title to all components of
the System which are provided by SEAVISION.
10. On-Board Personnel.
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a) Training. SEAVISION will engage in its service aboard the Vessel one
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(1) employee sufficiently trained and licensed in his/her duties who
will perform SEAVISION's obligations hereunder and in accordance with
the terms of this Agreement in a courteous and efficient manner so as
to meet high standards of operation ("SEAVISION's Operator(s)").
[Redacted - confidential treatment requested]
b) [Redacted - confidential treatment requested]
c) Meals. SEAVISION's Operator shall eat staff food in the appropriate
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staff dining areas.
d) Appearance. SEAVISION's Operator shall, at all times, keep
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himself/herself neatly groomed, well spoken and suitably attired in
compliance with Master's Standards.
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e) Control. Subject to the provisions of Section 12, SEAVISION, at all
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times, has the obligation and right to control all of the personnel
engaged by SEAVISION to perform its obligations hereunder.
11. Experience. SEAVISION represents that it is an experienced concessionaire
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fully qualified to supervise and operate the Concession. SEAVISION shall
obtain and maintain in full force and effect throughout the term of this
Agreement, any and all permits or licenses necessary to operate the
Concession, including but not limited to trademark and copyright licenses.
12. Certain Obligations
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a) Health and Moral Character. SEAVISION shall only employ persons who
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are in good health, sober and of good moral character. Each of
SEAVISION's Operators must hold a doctor's health report on a form
approved by RCCL indicating that the employee is medically fit for
service on board the Vessel in accordance with standards established
by RCCL and which are the same as for RCCL's own employees. It shall
be SEAVISION's sole responsibility to employ persons who have valid
passports, visas and all other permits required by any governmental
authority whether United States or foreign in order that they might
enter and leave the ports of call of the Vessel.
b) SEAVISION Employees. SEAVISION's Operators are solely the employees of
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SEAVISION and shall, under no circumstances, be deemed employees of
RCCL. SEAVISION is solely responsible for the payment of all wages,
vacation pay, commissions, benefits and repatriation expenses of each
of its employees. SEAVISION shall comply with all applicable laws,
governmental regulations or other governmental requirements relating
to wages, tax withholding and benefits paid to employees and governing
SEAVISION's conduct in connection therewith.
c) Independent Contractor and Waiver of Maritime Lien. SEAVISION
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understands that it is not the agent of RCCL but is an independent
contractor and has no right to pledge the credit of RCCL or any Vessel
in any manner or sum whatsoever. SEAVISION shall not contract with
any supplier of merchandise unless the supplier executes a purchase
order containing a conspicuous notice to the effect that SEAVISION has
no right or authority to bind any Vessel or create a lien upon them
and that by acceptance of such purchase order, the supplier
acknowledges that he/she looks solely to SEAVISION and not the Vessel
for payment of goods ordered. Neither SEAVISION nor SEAVISION's
Operator shall have the right to assert maritime liens on any Vessel
for any payments due to them and SEAVISION, on behalf of itself and
its employees, hereby waives any rights that SEAVISION or its
employees may have to assert claims against RCCL under the Xxxxx Act,
U.S. Code Section 688 et seq, or any other applicable law. In the
event that a lien is placed on any Vessel in contradiction
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of the terms hereof or as a result of any act, omission or neglect by
SEAVISION or its employees, SEAVISION shall remove immediately, by
bond or otherwise, any such lien or reimburse RCCL for the cost
incurred by RCCL in obtaining its removal. Neither this Concession
Agreement nor the relationship of the parties hereby created
constitutes a partnership or a joint venture.
d) Picket Lines. SEAVISION shall immediately take all lawful action, at
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its sole expense, to effect removal of any picket line or other
impediment to a Vessel's sailing resulting from any labor dispute
between SEAVISION and its employees or subcontractors.
e) Agent. SEAVISION irrevocably appoints the Master and Vessel's Hotel
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Manager as its agent, with the power of overall supervision of
SEAVISION's Operator for purposes of health, safety and discipline of
each Vessel. For this purpose, SEAVISION's Operator will sign on
Ship's Articles and obey the Master's Rules and Regulations. The
foregoing will not in any way detract from or modify SEAVISION's
status as an independent contractor or its employer-employee
relationship with its personnel, and its right to control its
employees as described herein.
f) Repatriation. In the Master's discretion, and for purposes of health,
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safety and discipline, the Master of any Vessel may require any
employee of SEAVISION to be removed with the employee's belongings
from the Vessel at any time when the Vessel is in port. If for any
reason any of SEAVISION's Operator is unable to be on board a Vessel
upon its scheduled departure from any port, SEAVISION shall be
responsible for the repatriation of said party, and SEAVISION shall be
fully responsible for any and all fines, penalties, and assessments
levied by any third party in connection with any violation of the
immigration laws of any government, nation, or country.
g) Prohibited Acts. SEAVISION's Operator are not permitted:
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i) To carry or consume on board any Vessel any narcotic or other
drug which is prohibited, or for which a doctor's prescription
would be required, except pursuant to a program of medical care
under the direct supervision of the Vessel's doctor;
ii) To board the Vessel in an intoxicated state or to consume
alcoholic beverages aboard the Vessel to the point of
intoxication or to the point where during the subsequent
performance of their duties such consumption could become
apparent to the passengers;
iii) To engage in any form of gambling aboard the Vessel; and
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iv) To sell any merchandise to passengers or crew members except in
the course of their duties and only during the agreed hours of
operation of SEAVISION's Concession thereunder.
13. Insurance.
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a) Marine Hull and Machinery. RCCL agrees that the Vessel's owners shall,
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at their own expense, provide and maintain marine hull and machinery
and war risk hull and machinery insurance covering the Vessel, with
first class marine underwriters, which insurance shall be endorsed to
designate the owners as the sole loss payee. In the event that
SEAVISION or its employees cause any loss or damage covered by this
insurance, or which would have been covered by this insurance but for
any deductible, SEAVISION agrees to reimburse owners for the
deductible applicable to such loss or damage; provided however,
SEAVISION's obligation to reimburse shall not exceed [Redacted -
confidential treatment requested]. While SEAVISION will not be named
in this insurance as an additional assured, neither the owners nor the
underwriters shall have any further right of recovery or subrogation
in excess of said deductible against SEAVISION on account of any loss
or any damage covered by such insurance.
b) Protection and Indemnity. RCCL shall, at its own expense, obtain and
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maintain protection and indemnity insurance with first-class Marine
Underwriters which shall provide coverage to RCCL and SEAVISION. In
the event that SEAVISION or its employees cause any loss or damage
covered by this insurance, or which would have been covered by this
insurance but for any deductible, SEAVISION agrees to reimburse owners
for the deductible applicable to such loss or damage; provided however
such reimbursement shall not exceed [Redacted - confidential treatment
requested].
c) Medical. RCCL shall provide, at no charge to SEAVISION, the use of its
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shipboard medical facilities for employees of SEAVISION while working
on the vessel. In addition, RCCL will permit SEAVISION to use the
shoreside medical facilities with which RCCL has provider agreements
for medical care for SEAVISION's employees who are working on RCCL's
vessels; provided, however, if SEAVISION elects to use such shoreside
facilities, SEAVISION shall reimburse RCCL for all expenses associated
with such medical care.
d) SEAVISION's Insurance. SEAVISION shall maintain general liability
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insurance, in form and content acceptable to RCCL. Such insurance
shall name RCCL as an additional named insured and shall provide that
the insurance may not be canceled or modified without at least thirty
(30) days prior written notice to RCCL. [Redacted - confidential
treatment requested]
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e) Limitation of Liability. Except as expressly provided elsewhere in
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this Agreement, no party shall be liable for any indirect, special or
consequential damages arising out of this Agreement. SEAVISION's
liability shall not exceed [Redacted - confidential treatment
requested] in the aggregate, provided however, that the foregoing
limitations shall not apply to damages resulting from the gross
negligence or willful misconduct or SEAVISION, its employees or
agents. The warranties expressly set out in this Agreement are
exclusive and are in lieu of all other warranties, express or implied,
including without limitation the implied warranty of merchantability
and fitness for a particular purpose or any implied warranties arising
from course of performance, course of dealing or usage of trade.
14. Itinerary Changes, [Redacted - confidential treatment requested]. RCCL,
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in its sole discretion and without liability to SEAVISION, may change the
itineraries of the Vessels. [Redacted - confidential treatment requested]
15. Force Majeure. RCCL shall not be liable to SEAVISION for any cruise
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delays, cancellations or deviations, or any loss or damage to SEAVISION's
property, caused by acts outside the reasonable control of RCCL, including
Acts of God, acts of war, public enemies, government restrictions, perils
of the sea, mechanical difficulties, seizure or arrest of the Vessel, or
acts of passengers or other third parties.
16. Indemnification.
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a) SEAVISION. SEAVISION shall indemnify and hold harmless RCCL, the
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Vessels' owners, the successors and assigns of the foregoing, and
their respective officers, directors, employees and agents from and
against all damages, liabilities, claims and expenses (including
attorneys' fees and payments for deductibles under any insurance
policies) arising from or based upon SEAVISION's operations, or any
act, omission or neglect by SEAVISION or its employees or agents.
b) RCCL. RCCL shall indemnify and hold harmless SEAVISION, its successors
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and permitted assigns, and their respective officers, directors,
employees and agents from and against all damages, liabilities, claims
and expenses (including attorneys' fees and payments for deductibles
under any insurance policies) arising from or based upon RCCL's
operations or any act, omission or neglect by RCCL or its employees or
agents.
17. Default.
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a) Termination Upon Default. Either party may terminate this
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Agreement immediately upon the occurrence of an event of default
by the other party. The following shall constitute events of
default under this Agreement:
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i) Breach by either party of its obligations under this Agreement,
which such breach shall not be remedied within thirty (30) days
after receipt by the breaching party of written notice thereof
from the other party; provided, however, if such breach is as a
result of software errors or malfunctions, the cure period shall
be [redacted-confidential treatment requested] from receipt of
written notice and Seavision shall provide RCCL with a written
plan and timetable to remedy such software problem within
fifteen (15) days of receipt of written notice of such breach;
or
ii) The making by either party of any statement, representation or
warranty in this Agreement or in any document furnished or to be
furnished to the other party in connection herewith which shall
prove to be knowingly or recklessly untrue or incorrect in any
material respect, when made; or
iii) Either party (A) applying for or consenting to the appointment
of a receiver, trustee or liquidator of all or a substantial
part of its assets; (B) being unable or failing to pay or
admitting in writing its inability or failure to pay its debts
as they mature; (C) making a general assignment for the benefit
of creditors; (D) being adjudicated a bankrupt or insolvent or
being dissolved; (E) filing a petition in bankruptcy or for
reorganization or for an arrangement pursuant to a bankruptcy
act or any insolvency law; or (F) filing an answer admitting the
material allegation of, or consenting to, or defaulting in
answering a petition filed against it, in any bankruptcy,
reorganization or insolvency proceeding.
b) Rights and Remedies. Termination of this Agreement upon an event
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of default shall be without prejudice to any other rights and
remedies available to the terminating party.
18. Applicable Law. This Agreement shall be governed by and interpreted in
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accordance with the laws of Florida to the exclusion of all choice-of-law
rules which might otherwise be applicable except to the extent that
circumstances would reasonably require application of the admiralty and
maritime laws of the United States or the maritime laws of some other
jurisdiction to resolve specific issues pertaining solely to health and
safety or to mandatory requirements imposed by the laws of the state of the
Vessel's registry. Venue for all matters hereunder shall be in the courts
in Miami, Florida.
19. Confidentiality. Except as permission may be specifically granted to
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SEAVISION in writing and in accordance with RCCL's rules, SEAVISION agrees
to hold in confidence and not disclose to any third party, except to
authorized persons in the course of its work for RCCL, any and all
information or data of a confidential nature not generally available to the
public that is delivered to SEAVISION, or that SEAVISION obtains, in the
course of its work for RCCL, relating to the business or operations of RCCL
or its associated
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companies, including, but not limited to, financial information, marketing
plans, passenger names, personal data and addresses, designs, processes and
agreements. SEAVISION further agrees to comply with all confidentiality
agreements between RCCL and third parties (to the extent SEAVISION is
notified of such agreements) and understands that its obligations under
this confidentiality provision shall continue after the expiration of this
Agreement and until RCCL specifically releases such obligations in writing.
Except as permission may be specifically granted to RCCL in writing and in
accordance with SEAVISION's rules, RCCL agrees to hold in confidence and
not disclose to any third party, except to authorized persons in the course
of its work, any and all information of a confidential nature not generally
available to the public that is delivered to RCCL, or that RCCL obtains, in
the course of its work with SEAVISION, or as a result of SEAVISION's
performance of its obligations under this Agreement, relating to the
business or operations of SEAVISION or its associated companies, including,
but not limited to, (i) any knowledge gained by RCCL of SEAVISION's
proprietary application software or the configuration of the System; (ii)
SEAVISION's marketing and sales materials; (iii) the format of SEAVISION's
reports, including those for data management, revenue remittance and
marketing surveys; and (iv) SEAVISION's marketing and financial
information. RCCL further agrees to comply with all confidentiality
agreements between SEAVISION and third parties (to the extent RCCL is
notified of such agreements) and understands that its obligations under
this confidentiality provision shall continue after the expiration of this
Agreement and until SEAVISION specifically releases such obligations in
writing.
RCCL acknowledges that the System represents and will continue to represent
the valuable, confidential and proprietary property of SEAVISION.
SEAVISION is not by this Agreement conveying to RCCL any exclusive
proprietary or ownership rights in the System, including, but not limited,
to any patent, copyright, trademark, service xxxx, trade secret, trade name
or other intellectual property rights, except that RCCL will have the
limited rights expressly set forth in this Agreement. Accordingly, RCCL
acknowledges that, except as expressly provided for in this Agreement, RCCL
possesses no title to or ownership of any System or any portion thereof.
RCCL will keep the System free and clear of all claims, liens and
encumbrances resulting from actions or omissions of RCCL.
Each party agrees, during the Term of this Agreement and thereafter, to
maintain the confidential nature of the terms and conditions of this
Agreement.
Each party acknowledges that its violation of its confidentiality or non-
disclosure obligations under this Agreement may cause irreparable damage to
the other that cannot be fully remedied by money damages. Accordingly, in
the event of any such violation or threatened violation, the injured party
will be entitled, in addition to pursuing any other remedy available to it
under this Agreement or at law, to obtain injunctive or other
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equitable relief from any court of competent jurisdiction as may be
necessary or appropriate to prevent any further violations thereof.
20. Miscellaneous.
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a) Entire Agreement. This Agreement shall constitute the entire agreement
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between the parties relative to concessions on the Vessels and all
prior negotiations, agreements and communications shall be merged
herein and superseded hereby.
b) Amendments. The terms of this Agreement may not be waived, altered,
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modified, amended or supplemented in any manner whatsoever except by a
written document duly executed by both parties hereto.
c) Assignments. Neither party may assign this Agreement, in whole or in
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part, without the prior written consent of the other party.
The foregoing is not intended to apply to a sale of the stock of
either company or a merger or consolidation which results in a change
of ownership of the company.
d) Press Releases. The parties shall consult with each other and issue a
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press release with respect to this Agreement as soon as practical
after the execution hereof. During the term of this Agreement, RCCL
agrees to use best efforts to include a reference to SEAVISION in any
press releases relating to any vessels on which the System is
installed (or is planned to be installed) and in which interactive
television services are discussed.
e) Waivers. No waiver by any party of any inaccuracy of representation,
-------
breach or rights or remedies provided hereunder and no course of
dealing shall be deemed a continuing waiver of the same inaccuracy,
breach or any other right or remedy, unless such waiver is in writing
and is signed by the party sought to be bound. The failure of a party
to exercise any right or remedy shall not be deemed a waiver of such
right or remedy in the future.
f) Modification and Severability. If a court of competent jurisdiction
-----------------------------
declares that any provision of this Agreement is illegal, invalid or
unenforceable, then such provision shall be modified automatically to
the extent necessary to make such provision fully legal, valid or
enforceable, and this Agreement otherwise shall remain in full force
and effect.
g) Enforceability. This Agreement shall be enforceable by and against
--------------
RCCL and SEAVISION and their respective successors and permitted
assignees.
-13-
h) Books and Records. SEAVISION shall at all times keep complete and
-----------------
accurate books, records and accounts pertinent to this Agreement.
Said books, records and accounts shall be retained for a period of at
least three (3) years after the expiration or other termination of
this Agreement and shall, at all reasonable times, be accessible to
and open for inspection, examination, audit and copying by RCCL.
i) Notices. All notices, demands, requests and other communications
-------
required or permitted to be given to any party hereto in connection
herewith (1) must be in writing and (2) may be served either by (A)
depositing the same in the mail, full postage prepaid, certified or
registered with return receipt requested, (B) delivering the same by
an internationally recognized air courier service, full delivery cost
paid, (C) delivering the same in person, or (D) sending a telecopy of
same, confirming with a copy thereof delivered either by mail or air
courier service. Any notice, demand, request or other communication
served in the foregoing manner shall be deemed given upon delivery in
person, three business days after mailing, two business days after
sending by air courier, or on the first business day after sending by
telecopy. For the purposes hereof, the addresses and telecopier
numbers of the parties hereto are as follows:
If to RCCL: Royal Caribbean Cruises Ltd.
0000 Xxxxxxxxx Xxx
Xxxxx, Xxxxxxx 00000
Attn: Executive VP, Operations
Telecopier Number (000) 000-0000
cc: Legal Department
If to SEAVISION: SeaVision Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx, Chief Operating Officer
Telecopier Number (000) 000-0000
Any party hereto may change its address for the purposes hereof by giving notice
of such change of address to the other party in the manner provided herein.
-14-
IN WITNESS WHEREOF, RCCL and SEAVISION have executed this Agreement the
dates set forth below.
SEAVISION INC.,
a Delaware Corporation
By: /s/ Xxxxx Xxxxx
-----------------------------
Name: Xxxxx Xxxxx
Title: Chief Operating Officer
Dated: September 17, 1996
Royal Caribbean Cruises Ltd.,
a Liberian corporation
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ G. Xxxxxx Xxxxxxxxx
------------------------------ ----------------------------------
Name: Xxxxx X. Xxxxxxxx Name: G. Xxxxxx Xxxxxxxxx
Title: Executive Vice President, Title: Vice President, Purchasing
Operations Properties & Logistics
Dated: September 17, 1996 Dated: September 17, 1996
-15-
Exhibit A: Description of System (hardware and software components)
Exhibit B: Description of Services
Annex 1: [Redacted - confidential treatment requested]
Exhibit C: Technical Performance Standards
Exhibit D: Specifications
Exhibit E: Cost of Goods
Exhibit F: Settlement Form
Exhibit G: List of Reporting Requirements
Exhibit H: HVAC Specifications
Exhibit I: Privileges
-16-
EXHIBIT A
Primary Hardware and Software Components of the System to be provided
by SeaVision
Components:
[Redacted - confidential treatment requested]
EXHIBIT B
Entertainment and Interactive Services to be Provided by SEAVISION
------------------------------------------------------------------
"Basic" SEAVISION Package: Services Provided at No Charge
---------------------------------------------------------
. In-Cabin Room Service Ordering: Passengers will be able to order RCCL's
standard room service menu, including beverages charged to their cabin
account, through the System. Orders will be printed out in appropriate
pantries and/or galleys for delivery by RCCL personnel. SEAVISION shall
provide, as part of the System, printers and/or monitors to be used in such
pantries and/or galleys for such purpose.
. Shore Excursion Ordering: Passengers will be able to watch videos of shore
excursions and purchase tickets for shore excursions on and through the
System by using their television remote-control. Orders will be printed
out in the appropriate shore excursion office of RCCL, with tickets in
respect thereof to be delivered by RCCL personnel. The System, at RCCL's
option, will provide appropriate inventory control. SEAVISION will assist
with the development of the interface with RCCL's shore excursion system.
. Guest Survey: The System shall include guest satisfaction and guest
information surveys the forms of which are to be agreed upon by RCCL. RCCL
may periodically adjust or revise such questions.
. Cruise Compass: The System shall include the daily Cruise Compass.
. Wine Ordering: Passengers will be able to view a wine menu on the System and
order their selection with their television remote-controls. Orders will
be printed out in the Wine Xxxxxxx'x office or wine cellar, for delivery by
RCCL personnel at the designated meal.
. Interface with RCCL's Property Management System: The System will interface
with the Vessel's property management system to enable appropriate charges
to be applied to passenger accounts.
. Interface with RCCL's Shore Excursion System: The System will interface
with the Vessel shore excursion system to enable shore excursion tickets to
be ordered and appropriate charges to be applied to passenger accounts.
. Passenger Folio Review: Each passenger will be able to use the System to
review a summary of their on-board account.
. Access Control: The System will be designed to limit access to only those
persons who are adult passengers or who are minors under adult supervision.
Passengers will be able to limit access to various services, such as gaming
and adult programming, by enabling lock-out codes and using password
procedures.
. Report Generation: The System will generate detailed activity reports,
which will be made available to RCCL for the purposes of revenue payments to
SEAVISION. SEAVISION shall also provide, at RCCL's request, reports
pertaining to passenger usage of the System.
. Language Options: The System will have the modules available in various
languages, to be mutually agreed upon between RCCL and SEAVISION.
. Future Cruise Module: RCCL will be able to feature information on other
cruises and itineraries through the System.
. Gaming Tutorials: The system shall provide on demand access to various
gaming tutorials.
. Safety Instructions: The System shall provide on demand access to safety
information regarding the Vessel.
RCCL shall be responsible for providing all ticket stock, videos and
photographs for shore excursions, wine ordering, gaming tutorials, future
cruise modules and safety instructions. RCCL shall retain control over all
materials included in such programs. RCCL may choose, at its option, to
produce its own videos and photographs, retain SEAVISION for this purpose
and reimburse SEAVISION for all its costs incurred in connection with
producing the same, or contract with a third party to produce such videos
and/or photographs, provided, however, that any videos and photographs
produced by any such third party shall in all ways meet SEAVISION's
technical standards for use on the System. If RCCL elects to have SEAVISION
produce any such videos or photographs, SEAVISION shall provide RCCL with
detailed cost estimates prior to the initiation of video and photograph
production. Such estimates will include the cost of preproduction
scripting and preparation and the cost of sending crews aboard RCCL's
Vessels for taping, photographing and post-production editing. RCCL shall
pay these costs directly to SEAVISION as a supplier.
[Redacted - confidential treatment requested]
Revenue-Generating and Pay-Per-View Entertainment Services
-----------------------------------------------------------
RCCL will be entitled to a portion of the Adjusted Gross Revenues generated by
the following revenue services, pursuant to and in accordance with the terms of
Section 5 of the Agreement.
[Redacted - confidential treatment requested]
Revenue Services:
. Video-on-Demand: Passengers will be able to purchase movies and other
entertainment options such as taped concerts, on demand, using the System
and their television remote-control. SEAVISION shall determine the fee
that will be levied for each such order and charged to such passengers'
respective onboard accounts. Such fee shall be subject to RCCL's prior
approval, which shall not be unreasonably withheld, and in any event shall
be consistent with the fees charged for similar services on comparable
cruise lines and luxury hotels. Subject to RCCL's approval, adult
programming may be offered. SEAVISION shall be responsible for all
licenses, including but not limited to copyright licenses, which are needed
in order to show such entertainment.
. Gaming Options: Passengers will be able to play video slots, blackjack and
poker on the System. Any additional games that SEAVISION may desire to
provide on the System shall be subject to the parties' mutual agreement.
[Redacted - confidential treatment requested]
. Shopping: SEAVISION will offer passengers interactive video shopping on the
System.
[Redacted - confidential treatment requested]
. Advertising and Promotion: SEAVISION shall have the exclusive right to sell
advertising on the System [Redacted - confidential treatment requested] to
third parties for the purposes of advertising, promotions and marketing of
their companies, products or services. [Redacted - confidential treatment
requested]
[Redacted - confidential treatment requested]
Interactive advertising on the System by concessionaires on board the
Vessel, including but not limited to the beauty salon and spa and
photographer will be by mutual agreement between SEAVISION and those
suppliers. RCCL will be entitled to a portion of the Adjusted Gross
Revenues generated by any fees paid by such concessionaires, pursuant
to and in accordance with the terms of Section 5 of the Agreement.
[Redacted - confidential treatment requested]
[Redacted - confidential treatment requested]
. Digital Photography: RCCL at its option, may select as an additional
feature for the System to provide digital photography. If selected,
passengers will be able to view in their cabins personal photographs taken
by the on-board photo concessionaire. The system will display the
photographs allowing the passengers to purchase a variety of sizes and
poses. This services can include, subject to RCCL approval, kiosk based
applications which will provide an entertaining and easy-to-use graphical,
touch screen interface to purchase "instant" photographs with a wide
variety of backgrounds and in various sizes. In the event RCCL selects to
offer such service, the terms of the service shall be set forth in an
addendum to this Agreement.
. Crew Amenities: RCCL, at its option, may elect to have additional services
provided to its crew on the Vessels, subject to the prior mutual agreement
of the parties.
Annex 1:
[Redacted - confidential treatment requested]
EXHIBIT C
Technical Performance Standards for the System
[Redacted - confidential treatment requested]
Exhibit D
Specifications
[Redacted - confidential treatment requested]
Exhibit E
"Adjusted Gross Revenues" - Cost of Goods
[Redacted - confidential treatment requested]
EXHIBIT F
[Redacted - confidential treatment requested]
EXHIBIT G
[Redacted - confidential treatment requested]
EXHIBIT H
[Redacted - confidential treatment requested]
EXHIBIT I
---------
[Redacted - confidential treatment requested]
