1. BookingCenter.com System.
BookingCenter.com will provide Participant the ability to use BookingCenter.com’s property management software and access BookingCenter.com’s web-based reservation system and commerce services (together, the “System”). System services may be upgraded and added by BookingCenter.com from time to time in its discretion.
1.1 System Software: The System includes computer software for installation or use on all computer terminals of Participant and its properties (such properties include hotels, inns, lodges, motels and other accommodations that are owned, managed or otherwise contractually bound with Participant (each a “Hotel”)). Participant and its Hotels may use the System software to book reservations at their facilities pursuant to this Agreement.
1.2 Internet Reservation Module: Participant agrees to pay BookingCenter the fees (“Transaction Fees” or “Monthly Fees”) set forth on the Property Account Form signed by the the Property. The System also allows Participant and its Hotels to link with BookingCenter.com’s Internet reservation module, comonly called a ‘Booking Engine’. The reservation module allows Hotel guests to book reservations with Participant or its Hotels on the Internet and have such reservations linked to the BookingCenter software on the System software.
1.3 Inventory Advertisement. Provided Participant agrees to pay BookingCenter.com the “Transaction Fees” or “Monthly Fees”), the System also allows Participant and its Hotels the ability to advertise their inventory on such travel systems as the GDS and websites as are arranged by BookingCenter.com from time to time. As indicated by the Participant on the signed Property Account Form, the Property shall elect whether to allow BookingCenter.com to place the inventory of Participant and its Hotels with such host travel systems and websites pursuant to this Agreement.
1.4 Each Hotel to be included in the System represented by the Participant may be revised and updated from time to time by Participant, upon notice to BookingCenter.com. Acceptance of any Hotel for inclusion in the System is within BookingCenter.com’s sole discretion, and it may remove a Hotel from the System at any time, with written notice to Participant. Participant must complete enrollment in the System (i.e. license and register their BookingCenter software and provide Hotel information and whatever necessary training) within sixty (60) days following the date on which BookingCenter.com accepts Participant into the System.
2. Transaction or Monthly Fees.
Participant agrees to pay BookingCenter.com the Transaction Fees in accordance with the term set forth on the signed Property Account Form signed by the the Property. Such Fees shall be a monthly subscription fee, and/or transaction fee, and/or predetermined percentage of the Room Revenue derived from each reservation that a Hotel receives through the System. The specific payable will be determined based on the origin of the reservation (e.g., Participant website, OTA (‘Online Travel Agency’) website, GDS vendor, call center, etc), as more fully described in the Property Account Form signed by the the Property. “Room Revenue” means, for each Hotel, the nightly room rate for such Hotel in the applicable local currency, as posted on the System, including any discounts or additional fees that may actually be applied through the System by such Hotel, multiplied by the number of nights the guest stayed at Hotel’s accommodation. For a Participant listing in a currency other than the US$, the value shall be calculated in United States $ (dollars) by the pubished ‘currency translation’ from the European Central Bank’s XML public feed as of the first business day of the billing month (ie, the month billed by BookingCenter.com) as opposed to the month booked or date of arrival into the Hotel.
3. Updating Accommodation Information.
Participant is responsible for timely updating, and for the accuracy of, the room availability, rates, and property information for each Hotel on the System. In the event of overbooking, including without limitation, when a guest reserves a room through the System that is not actually available at a Hotel’s property, Participant is responsible for making such guest whole, including without limitation, finding acceptable alternative accommodations to such guest.
4. Participant Web Site.
If Participant maintains its own Web Site (“Participant’s Web Site”), and wishes to provide access to the System directly from Participant’s Web Site to enable its Hotel guests to check availability or make a reservation, BookingCenter.com agrees to provide the necessary system programming information to enable Participant to establish the appropriate link or interface between the System and Participant’s Web Site, including the use of a “Book Now” button which will appear on Participant’s Web Site. In addition, any web page generated using BookingCenter.com’s reservation module shall contain a “Powered by BookingCenter” logo or attribution on the bottom of this ‘Booking Engine’ powered and delivered by BookingCenter. If the participant decides to use BookingCenter.com’s published XML spec for use as their ‘Booking Engine’, then the requirement to contain a “Powered by BookingCenter” logo or attribution is not relevant.
5. Right to Resell and Work Direct.
Participant acknowledges that BookingCenter.com has the right to use, reproduce, display and transmit on the BookingCenter.com web site and any BookingCenter.com partner web site or call center, if applicable, any information or material provided by Participant regarding Hotels for inclusion in the System, and Participant further acknowledges that reservations booked through the System may originate from such BookingCenter.com partner web sites or call centers. No additional Transaction Fees beyond those set forth on the Property Account Form signed by the the Property shall apply to any such transactions. BookingCenter.com expressly reserves the right to work directly with any Hotel that requests to work directly with BookingCenter.com.
6. Payment Terms. BookingCenter.com shall bill Participant once a month. At the end of each billing period, BookingCenter.com shall prepare a billing statement including all reservations made through the System account and used in the preceding billing period. Upon receipt of the statement via online communication, Participant shall have fifteen (15) days to reconcile the statement and to notify BookingCenter.com in writing, or via their ‘Members Area’, of any discrepancies. At the end of such fifteen (15) day period, Participant shall pay the fees invoiced in the billing statement, as modified by any timely changes received from Participant and accepted by BookingCenter.com. The Transaction Fees and any additional charges or commissions owed hereunder not paid within such fifteen (15) day period shall accrue interest at an annual rate that is the lesser of: (i) 1.8% per month; or (ii) the maximum amount permitted by law. Participant shall request of BookingCenter if it wishes to authorize BookingCenter.com to make information available to travel agents, GDS, and other systems BookingCenter.com refers to in its entirety as the ‘ Global Booking Network’ or ‘Online Travel Agencies’. Travel Agency fees from bookings made in the GDS systems are commonly called ‘commissions’ and are applicable if a Participant agrees to use the GDS systems to list their inventory as ‘commisionable bookings’. It is understood that these fees are above and beyond the scope of the BookingCenter.com fees specified on the Property Account Form signed by the the Property Bookings. Any cancellations made within the GDS systems are considered ‘In Channel’ cancellations and will not accrue any charges or fees to either BookingCenter.com nor Participant. However, if a Guest were to contact a Participant directly and cancel a booking made originally in the GDS system(s), then this is considered an ‘Out of Channel’ cancellation and such a booking will incur a fee of US$10 per ‘Out of Channel’ booking cancelled. This fee of US$10 is required to be paid to BookingCenter.com the month following the canceled booking’s departure date. To avoid any ‘Out of Channel’ cancellation booking fees, Participant should simply inform the Guest, were they to contact a Participant directly, to cancel the booking ‘in the channel’ – directly with the Travel Agent or OTA – in which it was made to avoid the $10 fee.
7. Termination.
This Agreement shall be in effect from the Effective Date (which is the date at which the Participant agrees to these terms by submitting the Property Account Form signed by the the Property) until terminated by BookingCenter upon ninety (90) days written notice to Participant or by Participant with 60 (60) days written notice to BookingCenter.com. In the event of a breach of this Agreement, the non-breaching party may terminate this Agreement upon written notice to the other party of the breach. Upon providing notice of breach to Participant, BookingCenter.com may immediately remove information regarding Participant and any Hotel from the System without further notice to Participant, and Participant shall immediately remove any Button(s), links, and other references to BookingCenter.com or its partners from the Participant Web Site. Upon termination of this Agreement, all unpaid fees or other charges owed by Participant shall become immediately due and payable, and Participant shall remit payment to BookingCenter.com with no right of set off or deduction.
8. Right To Use System Information.
Participant acknowledges that BookingCenter.com will compile certain information related to the usage of the System (“Compiled Data”). Such Compiled Data may include, without limitation, the volume of reservations booked on the System for a particular geographic region or class of accommodation, seasonal fluctuations in bookings, and demographic profiles of the System’s end users. Participant acknowledges, and agrees to obtain consent from each Hotel it represents acknowledging that BookingCenter.com and its partners are authorized to use, reproduce and generally make such Compiled Data available to users of the System, provided that the source of any data in the Compiled Data is not specifically attributed to Participant or any Hotel.
9. Representations and Warranties.
Participant represents to BookingCenter.com that it has all requisite corporate power and authority to enter into this Agreement, that this Agreement has been duly authorized by Participant and that this Agreement will constitute the legal, valid and binding obligation of Participant. In addition, Participant represents and warrants that it has all rights necessary to perform its obligations under this Agreement, including any and all rights to individual Hotel data, information, and materials provided by Participant hereunder.
10. Indemnification.
Participant will indemnify BookingCenter.com, its employees, agents and users, against, and hold BookingCenter.com harmless, and defend or settle at Participant’s expense, any claim, action or other proceeding brought against BookingCenter.com involving any claim or action that: (i) any information, data or materials, or the use or inclusion in the System of any information, data or materials provided by Participant or any Hotel infringes any third-party intellectual property right, is obscene, libelous or defamatory, or otherwise results in any injury or damage to any third party; or (ii) any liability arising from any breach by Participant of any representations, warranties or obligations under this Agreement. Participant will pay, as incurred, any and all costs, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) awarded against or incurred by BookingCenter.com in connection with any action or proceeding attributable to any such claim.
11. Disclaimer.
Participant acknowledges that it is responsible for the delivery, entry, maintenance, timeliness and accuracy of all data provided to BookingCenter.com, and for any updating of Hotel or other data during the term of this Agreement. BookingCenter.com WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR SUCH DATA OR INFORMATION INCLUDED IN THE SYSTEM, INCLUDING WITHOUT LIMITATION ANY INACCURACIES, NOR WILL BookingCenter.com HAVE ANY LIABILITY UNDER ANY CIRCUMSTANCES FOR ANY CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES. Participant is solely and exclusively responsible for the protection of any and all of its intellectual property and/or the intellectual property of any Hotel, including, but not limited to, the inclusion on Participant’s or any Hotel web pages of any and all statutory or other notices customarily used or required for purposes of providing notice of ownership or protection of Participant’s and/or any Hotel’s trademarks, trade names, service marks or copyrights.
12. Complimentary Rooms.
Participant shall use its best efforts to cause its Hotel(s) to provide a minimum of ten (10) complimentary room nights per group to BookingCenter.com or its assignee per year, beginning on the first day that Participant uses the System. In addition, Participant shall encourage its Hotels to participate in promotional events whereby a predetermined number of free rooms may be made available to BookingCenter.com or its assignee for use as promotional awards to users of BookingCenter.com or its partners.
13. Confidential and Proprietary Information.
During the term of this Agreement, the parties acknowledge that each may receive confidential and proprietary information of the other party, including without limitation, information concerning proprietary technology and products, technical data, system programming, software, processes, ideas, concepts, formulas, designs, engineering, trade secrets, know-how, research, marketing plans, strategies and client information identified at the time of disclosure as confidential or proprietary information (“Confidential Information”). All such Confidential Information will be treated as confidential and proprietary by the receiving party, and shall not be disclosed by the receiving party to third parties unless required by law. The receiving party will only disclose the Confidential Information of the disclosing party to those of its employees: (i) with a need to know in order to perform this Agreement; (ii) who are informed of the nondisclosure obligations imposed by this Agreement; and (iii) who are parties to appropriate confidentiality agreements sufficient to comply with the obligations imposed by this Agreement. The receiving party shall use at least the same degree of care it takes to protect the confidentiality of the disclosing party’s Confidential Information that the receiving party normally exercises with respect to its own Confidential Information, but in no event shall the receiving party use less than its reasonable efforts to protect the confidentiality of the disclosing party’s Confidential Information. Confidential Information shall not include any information which: (i) is now or hereafter becomes available to the public through no wrongful actions of the receiving party; (ii) is known to, or in the possession of, the receiving party before its disclosure hereunder, as demonstrated by documented evidence; (iii) is disclosed to the receiving party by a third party not under any obligation of secrecy or confidentiality to the disclosing party; (iv) can be shown by written evidence was independently developed by the receiving party; or (v) the receiving party is required by law to disclose; provided, however, in that instance, that the receiving party provides the disclosing party with sufficient prior notice for the disclosing party to take any legal or other steps it deems necessary to protect its Confidential Information. The provisions of this Section 13 will remain binding and in full force and effect, notwithstanding the expiration or termination of this Agreement at any time.
14. Miscellaneous.
14.1 This Agreement shall be interpreted in accordance with the laws of the State of California and any legal proceeding out of this Agreement will occur in Douglas County, Nevada and Participant hereby agrees to and submits to personal jurisdiction in Nevada and in Douglas County.
14.2 This Agreement will be binding on and will inure to the benefit of the legal representatives, successors and assigns of the parties hereto. Unless otherwise agreed herein, neither party to this Agreement may assign, hypothecate, pledge or sublicense any of its rights or obligations hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that a party may assign this Agreement without such consent in connection with any merger, consolidation, any sale of all or substantially all of such party’s assets or any other transaction in which more than fifty percent (50%) of such party’s voting securities are transferred.
14.3 This Agreement, together with its exhibits and addendums, if any, constitutes the entire agreement between BookingCenter.com and Participant with respect to the subject matter hereof, and Participant has not relied upon any promises or representations by BookingCenter.com with respect to the subject matter except as set forth herein. This Agreement may be amended only in writing signed by the party against whom enforcement is sought.
14.4 If any provision of this Agreement is found invalid or unenforceable, that provision shall be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.
14.5 The waiver by either party of a breach of or a default under any provision of this Agreement, shall not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
14.6 Participant agrees not to disclose the terms of this Agreement to any third party, and to treat the terms of this Agreement as Confidential Information of BookingCenter.com.
14.7 With respect to translations of this Agreement into a language other than English, the English version shall govern any conflicts that may arise concerning the interpretation of any terms or conditions of this Agreement.