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EXHIBIT 10.25
HCC PARTICIPANT AGREEMENT
This Agreement (the "Agreement") is entered into by and between THE
HOTEL CLEARING CORPORATION, a Delaware corporation ("HCC"), and HFS
INCORPORATED, formerly known as Hospitality Franchise Systems, Inc.
("Participant"), to be effective the 27th day of December, 1995.
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 are identified as "commissionable" or "partially commissionable" on
the transaction records provided by Participant 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 is an
operator of a hotel reservation system that has executed a HCC Participant
Agreement.
(iv) HCC Travel Agents. An HCC Travel Agent is a travel
agency who has executed an HCC Subscriber Agreement. A list of current HCC
Travel Agents will be periodically provided by HCC to Participant.
(v) HCC Travel Agent Commissions. HCC Travel Agent
Commissions are the commissions paid by Participant to HCC Travel Agents
pursuant to this Agreement. HCC Travel Agent Commissions will be based on
commission rates provided by Participant to HCC.
SECTION 2. THE HCC SYSTEM
2.1 Duties of HCC. HCC will provide and operate the HCC System
for the use and benefit of Participant, its 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
Participant and its franchisees and affiliates as described below. Upon
compliance with the terms of this Agreement by Participant, its franchisees and
INFORMATION CONTAINED IN THIS AGREEMENT HAS BEEN OMITTED SUBJECT TO A
CONFIDENTIAL TREATMENT REQUEST AND HAS BEEN FILED SEPARATELY WITH THE S.E.C.
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affiliates, and subject to Section 5 hereof, HCC will provide the following
clearinghouse services to Participant and its franchisees and affiliates:
(i) identify Participant to travel agents as being a HCC
System Participating Entity;
(ii) provide billing statements for HCC Travel Agent
Commissions, Transaction Fees (as defined below) and other fees, costs and
expenses to Participant no later than the fifteenth (15th) business day after
the end of each month as provided in Section 3 below;
(iii) distribute collected HCC Travel Agent Commissions
received from Participant and its affiliates and franchisees to the appropriate
HCC Travel Agents as set forth in the HCC Travel Agent Commission information
provided by Participant;
(iv) provide no later than the fifteenth (15th) business
day of each month reports to Participant and HCC Travel Agents reflecting HCC
Travel Agents' reservation transactions with Participant and HCC Travel Agent
Commissions owed based upon the data provided to HCC by Participant and its
affiliates and franchisees who are participating in the HCC System; and
(v) provide telephone customer support services from 8:00
a.m. to 5:00 p.m., U.S. Central time, Monday through Friday, exclusive of legal
holidays.
The procedures of the HCC System are subject to changes for enhancements from
time to time as determined by HCC.
2.2 Duties of Participant. Participant 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 HCC Travel Agents and Participant
and its affiliates and franchisees;
(ii) Provide HCC with all that is required by HCC to
process all reservations (including all reservations made electronically or by
voice, through the use of a central reservation "800" phone number, inclusive
of no-shows, cancellations and non-commissionable transactions) made by HCC
Travel Agents with Participant and its affiliates and franchisees no less often
than on a semi-monthly basis such data being complete and accurate to the best
of Participant's knowledge and ability and inclusive of all of the information
to permit HCC to provide the clearinghouse services described in Section 2.1
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 Participant and its affiliates and franchisees
except such data designated as confidential pursuant to Section 7 hereof.
Because efficient and reliable operation of the clearinghouse services offered
by the HCC System is dependent on the use of data from
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transactions carried by UltraSwitch, Participant agrees to process all of its
electronic reservation transactions through the UltraSwitch system so long as
it is a party to this Agreement;
(iii) Pay, pursuant to this Agreement, all Travel Agent
Commissions reported to HCC for processing pursuant to this Agreement;
(iv) Continually use its best efforts to cause each of its
franchisees and affiliates to fully and timely participate in the HCC System
pursuant to this Agreement;
(vi) Permit HCC to use its name as an entity participating
in the HCC System.
2.3 Modification or Enhancement of the HCC System or Participant
System. HCC may in its sole discretion modify the operation or enhance the
capability of the HCC System, and Participant agrees to cooperate with HCC in
all modifications and enhancements of the HCC System. If Participant
determines that such modification or enhancement is likely to require
Participant to make significant modifications to its central reservation system
(any such modifications to be at Participant's sole expense), HCC will provide
at least ninety (90) days' prior notice to Participant of such modification or
enhancement and Participant may, at its option, terminate this Agreement upon
sixty (60) days notice to HCC.
SECTION 3. FEES, COSTS, AND PAYMENTS
3.1 Fees for Processing HCC Travel Agent Commissions. Participant
shall pay HCC monthly transaction fees for processing HCC Travel Agent
Commissions ("HCC Travel Agent Transaction Fees") of U.S. [*] per
HCC Travel Agent Commissionable Reservation.
3.2 Commission Payments. HCC shall pay HCC Travel Agent
Commissions in the travel agent's local currency or the currency requested by
the travel agency.
3.3 Disputed Commissions. HCC will provide Participant 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 Participant compared to other information
available to HCC. With respect to all exceptions as to which Participant
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 Participant('s) franchisees, but HCC will not have
any liability to either Participant 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 Participant to (i) timely pay all other HCC Travel Agent Commissions
reported to HCC for processing and (ii) timely
*Confidential Treatment Requested
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pay to HCC all Transaction Fees and other fees, costs and additional expenses
owed by Participant under this Agreement.
3.4 Billing Statements. Based upon the information provided HCC
by or with respect to Participant pursuant to Section 2.2, above, HCC will
provide monthly billing statements detailing (i) HCC Travel Agent Commissions
to be paid by Participant for the period covered by such billing statement; and
(ii) [*] to be [*] for the period covered by such billing statement. All fees
and costs shall be paid in U.S. dollars.
SECTION 4. TERM
4.1 Term of Agreement. The initial term of this Agreement shall
begin on the effective date set forth at the beginning of this Agreement and,
unless earlier terminated pursuant to the provisions of this Agreement, shall
expire on the last day of the seventy second (72nd) month after the date of
this Agreement. However, this Agreement will be automatically renewed and
extended for additional twelve (12) month periods unless, at least thirty (30)
days prior to the expiration of the initial term of this Agreement or any
additional twelve (12) month period, either party provides written notice to
the other of its decision not to renew and extend.
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 Participant and the failure of Participant 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 Participant as a Participating Entity and to notify all HCC 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 Participant or HCC to satisfy the
obligations set forth in this Agreement;
*Confidential Treatment Requested
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(iii) The refusal or failure of either party to perform
diligently and in good faith each and every material provision of this
Agreement;
(iv) If either HCC or Participant (the "Defaulting Party")
becomes insolvent, takes any step leading to its cessation as a going concern,
or ceases business operations for reasons other than a strike and other than
assignment as allowed by this Agreement, then the other party (the "Insecure
Party") may immediately terminate this Agreement upon written notice to the
other party unless the Defaulting Party immediately gives the Insecure Party
adequate assurance of the future performance of this Agreement. If bankruptcy
proceedings are commenced with respect to the Defaulting Party, and if this
Agreement has not otherwise terminated, then the Insecure Party may suspend all
further performance of this Agreement until the Defaulting Party assumes or
rejects this Agreement pursuant to Section 365 of the Bankruptcy Code or any
similar or successor provision. Any such suspension of further performance by
the Insecure Party pending the Defaulting Party's assumption or rejection will
not be a breach of this Agreement.
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 by
Participant, Participant 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 fifteen (15) 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 Participant 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. Such designation may be removed by each
party making the designation. Participant acknowledges that it will have no
access to and will not use the HCC System or related
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property, other than as specifically provided for in this Agreement, and that
such system and related property is confidential and proprietary property of
HCC. Any use of HCC service marks or trade names by Participant is subject to
prior written approval of HCC, provided, that Participant may describe the HCC
System contemplated by this Agreement in its franchise offering circular and
other materials as required by state or federal law. Unless otherwise provided
herein, any use of Participant's service marks or trade names by HCC is subject
to prior written approval of Participant. The provisions of this Section 7.1
will remain binding and in force and effect as long as such information remains
confidential (other than by breach of this Agreement), notwithstanding the
expiration or termination of this Agreement at any time.
SECTION 8. INDEMNIFICATION
8.1 Indemnification in the Event of Certain Losses. Participant
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 Agreement
on account of Participant's (or its affiliates or franchisees) fault, to the
extent not caused by the fault of HCC ("HCC's Losses"). HCC agrees to
indemnify and hold harmless Participant, and Participant's affiliates,
directors, officers, employees and stockholders, from and against any losses,
claims, liabilities, damages or expenses (including reasonable attorney's fees)
("Participant's Losses") occurring as a result of or arising out of a material
breach of this Agreement on account of HCC's fault to the extent not caused by
the fault of Participant. 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
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9.1 Waiver of Warranties. HCC WILL NOT BE RESPONSIBLE OR LIABLE
FOR ANY FALSIFICATIONS OR INACCURACIES IN THE DATA PROVIDED BY PARTICIPANT 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. EXCEPT WITH RESPECT TO HCC'S
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 HCC AND WAIVED BY PARTICIPANT.
9.2 No Consequential Damages. Except with respect to the
indemnification provisions set forth in Section 8.1 hereof, 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
Participant, 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 Participant.
10.2 Non-Exclusive Agreement. Each party acknowledges that this is
not an exclusive agreement with respect to reservations commissions
clearinghouse services and that each party may 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 Participant 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.
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10.4 Assignment. This Agreement is not assignable by HCC or
Participant without the prior written consent of the non-assigning party, and
such consent shall not be unreasonably withheld or delayed provided that
Participant may assign this Agreement in connection with the sale of its
reservation system or franchise system and either party may assign this
Agreement without consent in the event of a merger, consolidation, or sale of
substantially all of its 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 prepaid, (d) sent by telecopy or facsimile with
confirmation of receipt 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 PARTICIPANT:
0000 Xxxxxx Xxxxx Xxxx. HFS Incorporated
Suite 1100 0000 X. Xxx Xxxxx
Xxxxxx, XX 00000 Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, III Attention: Xxxx Xxxxxxxxx
If by telecopy/facsimile to: If by telecopy/facsimile to:
(000) 000-0000 (000) 000-0000
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. Subject to the agreement to arbitrate and the jurisdiction and
venue provisions set forth in Section 10.1 hereof, any action brought relating
to or arising out of this Agreement must be brought in the state or federal
courts situated in the county and state of the residence or principal place of
business of the party against whom the action is brought (or any of them, if
more than one).
10.7 Entire Agreement. This Agreement and the Exhibits attached
hereto constitute the entire agreement between HCC and Participant 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.
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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.
AGREED to as of the date first written above.
THE HOTEL CLEARING CORPORATION HFS INCORPORATED
By: /s/ XXXX X. XXXXX, III By: /s/ XXXXXXX XXXXXXX
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Xxxx X. Xxxxx, III,
President Its:
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May 1, 1997
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EXHIBIT A
Initial Information to be Provided by Participant 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
