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EXHIBIT 10.51
PROPERTY INFORMATION DISTRIBUTION AGREEMENT
This Agreement is entered into by and between Pegasus Systems, Inc. and
Promus Hotels, Inc. (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 contracts 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.
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 in Schedule A.
(b) For providing reservation functionality to accessors of
the database, Participant agrees to pay Pegasus the
following:
(i) For each Net Reservation processed through the
on-line reservation functionality developed by
Pegasus, Participant shall pay to Pegasus a fee
of [*]. For each Net Reservation originating
with a distribution system with whom Pegasus
contracts, Participant shall pay to Pegasus a
fee of [*] in addition to the [*] Net
Reservation fee. 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.
(ii) In the event the reservation processing
originating with distribution systems is done
via E-mail, Participant shall pay Pegasus a
monthly fee of [*] per property in the database.
(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 (b) 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.
5. Term. The initial term of this Agreement shall be for four (4)
years from the date hereof provided that the Agreement shall be
automatically renewed and extended for additional one (1) year
terms thereafter unless, at least sixty (60) days prior to
expiration of the initial four (4) year 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 distribute 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 if 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.
*Confidential Treatment Requested
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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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 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 the 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.
PEGASUS SYSTEMS, INC. PARTICIPANT: PROMUS HOTELS, INC.
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By: /s/ M. ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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M. ▇▇▇▇▇▇▇▇ ▇▇▇▇
Its: Vice President, Sales Its: Senior Vice President
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Date: 6/2/97 Date: 5-30-97
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SCHEDULE A
1. Fees. During the period commencing on the effective date hereof and
through [*], Participant shall pay to Pegasus the
following fees:
(i) For 1 to 25 Participant properties in the database, [*] per
Participant property 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 900 Participant properties in the database, [*] per
Participant property per month;
(vi) For 901 to 2,000 Participant properties in the database, [*] per
Participant property per month; and
(vii) For in excess of 2,000 Participant properties in the database,
[*] per Participant property per month.
The fees for this service shall be paid quarterly in advance. Based upon
Participant's notification to Pegasus of the number of hotels it anticipates
being in the database for the following calendar quarter.
The parties hereto agree that during the term of this agreement, Pegasus shall
not charge any initial set-up fee.
*Confidential Treatment Requested
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RIDER TO PROPERTY INFORMATION DISTRIBUTION
AGREEMENT BETWEEN PEGASUS SYSTEMS, INC. AND
PROMUS HOTELS, INC.
1. The following sentences are added to the end of Section 1. Property
Information Database:
a. "As a condition to the continued effectiveness of this Agreement,
Pegasus agrees that the TravelWeb distribution system will provide
information and reservation capability for air travel (a minimum of
three (3) major carriers covering primary city payers) and car rental
(a minimum of one(l) major car rental firm covering all major
markets) operational no later than December 31, 1997.
b. Participant will be capable of including, at a minimum, the following
information in the database: address, areas served, reservation
information, telephone, fax, telex, hotel type, number of rooms,
number of floors, meeting space, credit cards, currency,
cancellation, guarantee, check-in, check-out, time zone, airport,
courtesy van, services/facilities, amenities (brochure copy), quick
description (brochure copy), area information (including brochure
copy on area served and listing of selected points of interest with
brochure copy with hotel address reinforced with quick recap
referencing distance from major points of Interest), rooms (including
brochure copy of overall hotel followed by brochure copy on various
rooms/suite types available), rates (including information on rates,
packages, promotions, family rates, government rates, etc.)
restaurants (including information on area restaurants), recreation
(including information on recreational activities available such as
nearby golf, tennis, bike rentals, outdoor pool, exercise facilities,
etc.), meetings (including information on meeting facilities),
weather (including information on local weather), and pictures
(including pictures of hotels, rooms and various points of
interest)." It is agreed that there shall be no limit on the quantity
of data in the database or the number of views of the data.
c. Pegasus agrees to provide Participant with the following statistics
as it pertains to total Travel/Web volume as well as to Participant's
volume by specific hotel brand:
Report Subject Timing
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o Hits - Total and Average Hour, Day, Week, Month
o Unique Visits - Total and Average Hour, Day, Week, Month
o Page Views - Total and Average Hour, Day, Week, Month
Number Per Visit
o Page View Rankings - Top 50 Hour, Day, Week, Month, Year to
Date (YTD)
o Availability Checks - Total Number* Hour, Day, Week, Month, YTD
o Reservation Retrievals - Total Number* Hour, Day, Week, Month, YTD
o Reservation Cancels - Total Number Hour, Day, Week, Month, YTD
o Reservation Confirmation - Total Number Hour, Day, Week, Month, YTD
o Alternate Property Checks - Total Number* Hour, Day, Week, Month, YTD
o Gross Bookings Hour, Day, Week, Month, YTD
o Unsuccessful Reservations* Hour, Day, Week, Month, YTD
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o Volume by Domain, Subdomain, Hour, Day, Week, Month, YTD
Country, U S Regions
o Click Stream Analysis* Hour, Day, Week, Month, YTD
* Denotes reports which as of the date hereof are unavailable. Pegasus
agrees however, that such reports shall be made available to Participant
within a period of six (6) months from the date of this Agreement.
d. Pegasus agrees to provide all reasonable and necessary technical support,
hardware and software, and modifications to all of Participant's views to
maintain the following system availability and response times. For
purposes hereof, views shall mean any templates or pages on the world wide
web which are served from the data in the Travel Web DAD database.
a. Participant's views will be available for page serving (as
hereinafter defined); and hotel booking 99.5% of the time each
calendar month.
b. Participant's views page response times will average 12 seconds or
less for standard pages (as hereinafter defined) over each calendar
month.
* Available for page serving shall mean responding to any Internet
request successfully reaching the Pegasus network that serves
Participant's site. Pegasus will not be accountable for any Internet
requests that do not reach the Pegasus network serving Participant or
any Internet requests that are successfully responded to and exit the
Pegasus network and fail before reaching the client.
* Standard pages are defined as the following:
- HTML 'static' page 65,000 bytes in size; or
- Database driven 'dynamic' page 35,000 bytes in size
Pegasus and Participant will evaluate the performance criteria and
measurement tools periodically and adjust or modify upon mutual agreement
of both parties".
2. The following language is inserted after the first sentence of 4(e):
"Federal, state or local sales tax or other tax or assessment applicable
to the fees set forth herein shall be paid by Participant".
3. Section 4(c) of the Agreement is hereby amended by deleting the fourth
sentence and replacing it with the following:
"After the second anniversary of this Agreement, Pegasus may once each
calendar year increase the fees as set forth in 4(b) above up to ten
percent (10%) of the then existing fee. Pegasus shall provide Participant
written notice of the increased rate 60 days prior to the date of such
rate's effectiveness. Upon receipt of such notice, Participant shall have
15 days in which it may provide Pegasus written notice of its intent to
terminate the Agreement without penalty. Failure to provide notice during
such 15 day period shall constitute acceptance of the revised rate."
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4. Section 5 of the Agreement is hereby deleted in its entirety and is hereby
replaced with the following:
"5. Term. This Agreement shall be effective beginning June 4, 1997, and
the initial term shall be for four (4) years unless sooner terminated
as provided
herein. The Agreement shall be automatically renewed and extended for
additional one (1) year terms thereafter unless either party provides the
other written notice of its intention not to renew and extend the term of
this Agreement at least sixty (60) days prior to the expiration of the
term of the Agreement."
5. Section 7. Disclaims Limitation of Liabilities and Risk of Internet Usage
is hereby amended by adding the phrase "SUPPLIED BY PARTICIPANT" at the end
of the first sentence.
6. Section 8. Breach is hereby amended by adding the following language:
The following acts shall constitute an Event of Default under the terms of
this Agreement.
a. failure by Participant to pay its monetary obligations hereunder
within 15 days after receipt of notice from Pegasus as to non-receipt
of payment
b. failure of Pegasus to establish the requirements of the distribution
system set forth in Section l.a. hereof;
c. breach of performance criteria by Pegasus as set forth in Section
▇.▇. hereof; or
d. declaration of bankruptcy or insolvency or the inability of Pegasus
to pay its debts as they become due.
7. The following new provision is hereby added:
"10. Update of Information Supplied by Participant. It is hereby agreed
that Participant may update any or all of its information as frequently as
daily. The update process shall be an automated process utilizing either
batch feeds from Participant to Pegasus which conform to Pegasus'
interface format or the remote authoring browser supplied to Participant
by Pegasus. Pegasus agrees to process these updates from both the remote
authoring too[ and Participant's batch feed promptly and make them
available to all views within two (2) business days. However, the parties
agree to use the most efficient technology as such becomes available."
PEGASUS SYSTEMS, INC. PROMUS HOTELS, INC.
By: /s/ M. ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
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Name: M. ▇▇▇▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇
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Title: V. P. Sales Title: Senior Vice President
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6/2/97
*Confidential Treatment Requested
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