EXHIBIT 10.14
PACIFIC PAY VIDEO PTY LTD
31 Albion Street, Surry Hills, NSW 2010
Tel 61 2 281 5822 Fax 61 2 281 5877
ACN 059 748 588
GUEST VIDEO SERVICES AGREEMENT
This Agreement serves as the Master Agreement (the "AGREEMENT") with Southern
Pacific Hotel Corporation Limited ACN 008 413 367 ("SPHC") for the exclusive
supply and installation by Pacific Pay Video Pty Limited ACN 059 748 588 ("PPV")
of in-house video information management systems ("In-House Systems") and the
exclusive supply of associated interactive services ("SERVICES") to Hotels
managed by SPHC.
1. RECOMMENDATION BY SPHC
1.1 EXISTING SPHC HOTELS
SPHC shall use its best efforts to procure that each of its existing Hotels
("EXISTING ") enters into an agreement ("HOTEL AGREEMENT") with PPV for the
supply and installation of a PPV In-House System and the supply of the
associated Services, which includes terms and conditions substantially in
the form set out in section 2 below, provided it is able to demonstrate to
the Owner of the respective Hotel that installation of the PPV in-house
System is best for the Hotel.
1.2 NEW SPHC HOTELS
SPHC shall use its best efforts to procure that each new Hotel ("NEW
HOTELS") enters into an agreement ("HOTEL AGREEMENT") with PPV for the
supply and installation of a PPV In-House system and the supply of the
associated services, which includes terms and conditions substantially in
the form set out in section 2 below, provided it is able to demonstrate to
the Owner of the respective Hotel that installation of the PPV in-house
System is best for the Hotel.
2. AGREEMENT BETWEEN PPV AND SPHC HOTELS
PPV agrees to contract with each existing Hotel and the new Hotels (together
"the Hotels") and to use its best efforts to sign individual Agreements, which
includes conditions substantially in the form of the Installation Agreement
attached hereafter.
*** Confidential treatment requested prusuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
3. CONFIDENTIALITY
All information exchanged during the negotiations preceding the signing of this
letter and all information exchanged pursuant to this letter is confidential and
it is agreed that such confidential information shall not be disclosed to any
person except to employees, legal advisers and consultants of PPV or SPHC
requiring the information for the purposes of entering into the Agreement or the
Hotel Agreement.
IN WITNESS WHEREOF, this Agreement is entered into by the parties hereto this
Sixth day of September, 1995.
Executed under seal on behalf of Executed under seal on behalf of
PACIFIC PAY VIDEO PTY LIMITED SOUTHERN PACIFIC HOTEL CORPORATION LIMITED
by two of its duly authorised by two of its duly authorised
officers in the presence of: officers in the presence of:
/s/ Authorized Signature
Signed Signed
/s/ Authorized Signature Authorized Signature
Signed Signed
/s/ Authorized Signature
Witness Witness
[image of seal omitted] [image of seal omitted]
DATED: ,1995
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BETWEEN:
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PACIFIC PAY VIDEO PTY LIMITED
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OR
--
PACIFIC PAY VIDEO (NZ) LIMITED
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AND:
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THE HOTEL NAME
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INSTALLATION AGREEMENT
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INSTALLATION AGREEMENT
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This Agreement between Pacific Pay Video Pty Limited (ACN 059 748 588), of 31
Albion Street, Sydney, a Company duly incorporated in the State of New South
Wales (hereinafter called "PPV") and "the Hotel's Name" (ACN of "the Hotels)
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Address" in the State of "the Hotel's State ("the Hotel") sets forth the
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terms for installation and operation by PPV of an on-demand video system and all
related services in the Hotel.
WHEREAS:
The Hotel operates a hotel for the lodging of guests in separate, private rooms
and suites which are customarily available for overnight sleeping accommodation
("Rooms")
The Hotel wishes to enhance the guest's stay by giving them the opportunity to
view pre-record entertainment programs and movies ("Programs") and standard off-
air broadcast or cable television channels available to the Hotel without
special equipment ("Channels"), conveniently in the privacy of their own Rooms
using a system provided by PPV.
Now, therefore, the parties do hereby agree as follows:
1. THE VIDEO SYSTEM
PPV will design, construct and provide to the Hotel a System ("the System") for
operation in all rooms of the Hotel. The System will mean PPV's fully operating
and fully functional in-house video information management system which allows
guests at the hotel to access, at will from their individual Rooms, Programs and
Channels for display on television receiving sets ("TVs") in the Rooms. The
System includes (i) Programs, (ii) a remote control unit for each television set
liked to the System plus ten (10) spare units, (iii) an adequate number of video
playback devices, (iv) a front-desk personal computer and printer, and (v) all
necessary electronic computer and switching equipment. The System does not
include necessary power, wiring, connections, or cooling facilities, which are
to be provided by the Hotel.
2. TERM OF THE AGREEMENT
The term of this Agreement will begin on the Term Commencement Date as defined
in Section 3(c) below and will continue for a period of five (5) years (the
"Term"). Thereafter the Term automatically will be renewed annually. subject to
the right of either party to terminate this agreement upon written notice to the
other given not less than ninety (90) days prior to the date of such annual
renewal.
3. INSTALLATION
(a) System Computer
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At the Hotel's request and in lieu of the front-desk personal computer
and printer included in the System for printing vouchers for each
rental of a movie by a guest. PPV will interface the System computer
to the hotel's property management systems ("PMS"). The interface will
permit the System to automatically post Rental Fees (as defined in
Section 5) to each individual guest's bill or Room account and will
permit the addition of any optional services specified in section 7.
The Hotel will use its best endeavours to supply PPV with the
necessary interface information and/or ask its PMS vendor to cooperate
with PPV. Any interface protocol and/or interface installation charges
imposed by the PMS software vendor will be paid for by PPV, and PPV
must ensure that its interface to the PMS does not affect its
functionality. PPV must commence installation of the system in
accordance with the schedule agreed between the parties for
installation of the System ("Schedule"), and when the Hotel :
a. grants access to the rooms of the Hotel: and
b. makes available the facilities specified in Attachment A.
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(b) Access.
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The Hotel wi11 provide such access as PPV may reasonably request to
enable PPV to complete installation of the System, including without
limitation providing all the Hotel Facilities set forth in Attachment
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A and in reasonable time to allow PPV to complete the installation.
-
The Hotel will use its best efforts to enable PPV personnel to have
access (escorted or unescorted) to guest room for the purpose of
equipment installation at a rate in accordance with the Schedule.
(c) Term Commencement Date.
-----------------------
PPV will test the system to ensure functiona1ity and upon the
successful conclusion of such test PPV will deliver to the hotel a
written statement acknowledging that the installation is completed and
the System is functional. Such statement will be attached hereto when
completed, and the "Term Commencement Date" will be the date of such
statement.
(d) Revenue Date.
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The Hotel will begin the process of billing guests and generating
revenue upon the installation of at least ten (10) guest rooms,
provided that the Hotel is reasonably satisfied that the System is
functioning according to PPV's specification.
(e) Hotel's MATV System
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PPV will pay for any necessary upgrade to the Hotel's Master Antenna
TV system ("MATV") system which PPV specifies as required for proper
operation of the System including the supply and installation of trunk
amplifiers, taps and splitters, all such upgrades become the property
of the Hotel. PPV will not remove from the installation site any MATV
hardware and equipment owned by the Hotel which has been disconnected
as a result of the installation. The Hotel will be responsible for
storing or retaining such hardware or equipment for future re-
instatement of the original MATV system if required.
(f) Faulty Equipment.
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The agreements contained paragraph 3(e)Hotel's MATV system, do not
include -------------------
the supply by PPV of any equipment and or services required to replace
or re-install faulty or sub-standard cabling existing headend
equipment and or guest room wallplates, where same are proved to
impact negatively on the performance of the Hotel's MATV system. In
such circumstance, PPV agrees to provide to the Hotel a competitive
price for the replacement of such equipment and to replace or re-
install faulty or such-standard equipment at the Hotel's cost during
the course of the work contemplated by paragraph 3(e) Hotel's MATV
System. ------------
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4. MAINTENANCE
(a) PPV Maintenance.
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PPV will promptly provide all maintenance, repairs and replacement of
materials and equipment necessary to ensure satisfactory operation of
the System, including satisfactory signal quality. Such maintenance
and technical assistance will be provided free of charge except as
provided in Section 4(b) or if oocasioned by a breach by the Hotel of
any of its obligations as set out in this Agreement. PPV in providing
maintenance, repairs and replacement will not interfere with the
Hotel's other systems and if it does so, will be responsible for the
costs of re-instating such systems to the condition prior to the
interference.
(b) Notification by Hotel.
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The Hotel Will, at the Hotel's expense, use reasonable efforts to
notify PPV by telephone of any failure of the System or the System's
functions in any given room or as to any given Program. The Hotel
will notify PPV as soon it is reasonably possible and upon the Hotel's
actual notice of any unauthorised use, access, theft, damage or
malfunction of or to the System or any other equipment of PPV.
Page 3
(c) Access for Maintenance.
----------------------
Except in the case of an emergency or upon notification by the Hotel
to PPV of a breakdown, the Hotel will allow authorised personnel of
PPV or its independent contractor(s) to have access to the System upon
reasonable prior notice in order to conduct routine maintenance, to
observe and monitor the System, to ensure suitable operation
conditions, to implement improvements in the System, to conduct
repairs, and to otherwise carry out PPV's obligations set out in this
Agreement.
(d) Response Time.
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PPV or its independent contractor(s) will respond as follows after
being notified of a System failure; within 4 hours during normal
working hours on weekdays, within 8 hours at other times. The Hotel
shall use its best endeavours to provide PPV or its independent
contractor(s) prompt access to the System to correct System failures
once PPV or its independent contractor(s) have been notified by the
Hotel of such System failures.
(e) Negligent or Wilful Damage.
--------------------------
Any repairs or replacements to any equipment supplied try PPV made
necessary by any negligent of wilful act by the Hotel or any of its
employees, contractors, servants, agents or others authorised by the
Hotel, will be undertaken by PPV at the Hotel's expense.
(f) Repair by Hotel.
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The Hotel will not permit any person to tamper with or attempt to make
repairs to any equipment supplied by PPV. In emergencies and as
directed by PPV Engineers, the Hotel may carry out repairs in
accordance with such instructions given by PPV Engineers via the
telephone.
(g) Remote Control Units.
--------------------
The Hotel will be responsible for paying for the replacement of
infrared remote control units in the event of theft, loss or damage in
excess of the spare remote units. The initial replacement cost is as
set forth on Attachment B plus shipping, duties and taxes and is
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written notice from PPV to hotel with an effective date at least
thirty (30) days in advance of a change, provided that the replacement
cost shall at all times be reasonable. The initial number of spare
remote control units should be ten percent (10%) of the total rooms
installed.
5. FEE AND PAYMENT TERMS
(a) Rental Fee.
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The Hotel will charge hotel guests for access to Programs, an amount
set by PPV in consultation with the Hotel (the "Rental Fee"). The
initial Rental Fee will be as set forth in Attachment B for each
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occasion a guest accesses a Program. From time to time, PPV may revise
the Rental Fee after consultation with the Hotel. PPV will notify the
Hotel in writing of the new Rental Fee and the effective date at least
thirty (30) days in advance of such revision .
(b) Denials.
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In the event any Hotel Guest disputes the amount of Rental Fees in a
situation in which Hotel personnel are otherwise unaware of any System
malfunction (herein referred to as a "Denial"), the Hotel may, in its
sole discretion, credit the disputed amount to the Guest's account
provided it supplies PPV with a copy of the credit voucher showing
room number, date, time of day, and reason for the disputed charge.
For denials that occur within six (6) months after commencement, there
will be HOTELS no charge to the Hotel. After that date, for denials
that amount to 5% or less of total purchases, there will be no charge
to the Hotel. For denials in excess or 5% of total purchases, 50% of
the denial amount will be deducted from the Hotel's commission
described in Section 5(d) hereof. This formula will be applied on a
monthly basis.
(c) Taxes or other Charges.
----------------------
In addition to the Rental Fee, the Hotel wi11 collect from guests any
applicable taxes or applicable charges levied thereon and will pay
those taxes or charges to the appropriate government agencies or other
authorities.
Page 4
(d) Hotel commission.
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The Hotel will retain for the Hotel's services a commission in an
amount calculated as set forth in Attachment B.
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The Hotel shall deduct from this amount any additional charges that
may be applicable. for use of PPV's optional services set forth in
Attachment B.
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The remaining amount of Rental Fees ("Net Rental Fees") will be paid
to PPV within fourteen (14) days following the end of We month in
which the fees were charged. The payment will specify the occupancy
rate for the month, available rooms and the corresponding commission
rate. Net Rental Fees due to PPV wi11 be paid free and clear of any
tax or other deduction or withholdings of any nature unless otherwise
agreed in writing with PPV
(e) Late Charges.
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Net Rental Fees due but not remitted to PPV by the due date will bear
a penalty charge at the rate of 1.25% per month (or the maximum amount
allowed by law, whichever is lower) until paid.
(f) Inspection Right.
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The Hotel will keep current, complete and accurate records of
occupancy rates and all Rental Fees and other amounts due to PPV
pursuant to this Agreement, in accordance with uniform system of
accounting principles applied on a consistent basis. Throughout the
duration of this Agreement, the books and records of the Hotel
pertinent to the Rental Fee for any month will be open to inspection
and reproduction by PPV and, if necessary, to an audit by a certified
public accountant an authorised representative of PPV upon reasonable
advance written notice to the Hotel.
PPV's right to inspect and audit the books and records of hotel will
not extend beyond one year from the expiration of this Agreement. If
any audit by PPV discloses any non-payment or underpayment of any
amount payable to PPV pursuant to this Agreement, the Hotel will
immediately pay to PPV any deficiency, plus the interest charges as
provided in Section 5(e) above. If the deficiency is in excess of 5%
of the actual amount payable to PPV for the period for which the
deficiency occurred, the Hotel will reimburse PPV for all costs
incurred by PPV in conducting the audit.
(g) Access Record.
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The System will generate an accurate record (the "Access Record") of
the access to the System by any guests including a record of the
access charges for each individual guest's bill or Room account. PPV
will be responsible for all costs associated with programming the
System to enable it to provide the aforesaid data. The Hotel and PPV
agree that the Access Record will be the sole property of PPV and will
be held in strictest confidence by the personnel of the Hotel; and
that such personnel will be entitled to review the information only to
the extent necessary to ensure proper billing of Hotel Guests. PPV may
review and use the Access Record for such purposes as PPV may
reasonably deem appropriate.
6. PROGRAM TITLES(a)
(a) Program Selection
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Program titles to be made available on the System will be selected by
PPV, provided that PPV will ensure that all program titles comply with
all applicable requirements of Australian law. PPV and the Hotel will
work together to maximise guest satisfaction and useage. Geographic
buy rate trends will be made available to the Hotel management upon
request.
(b) Royalty to Program Suppliers.
----------------------------
PPV will be responsible for any royalty payable to Program suppliers
for Program titles supplied by PPV and made available on the System.
page 5
(c) Proper Use of programs.
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The Hotel will be responsible for ensuring that access to the System
"head-end" is restricted to persons authorised by PPV. The Hotel will
not permit copying of any Programs. The Hotel warrants that Programs
wi11 be exhibited in the Rooms only, and not in the public rooms and
public areas (including lobbies, hallways, restaurants, bars, meeting
rooms, etc.) of the Hotel; and the Programs will not be exhibited
other than in accordance with this Agreement or by any other means of
transmission of any kind whatsoever. The Hotel will use reasonable
efforts to insure that only registered guests of the hotel and their
invites may view the program.
(d) Cassettes and Proper Use.
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The Hotel warrants that any media such as cassettes that contain the
programs ("Cassettes") will be kept in a secure and locked area and
will not be accessible to hotel staff without PPV's prior written
consent. The Hotel will use its best efforts to prevent unauthorised
use, exhibition or viewing of any Cassette by any person other than on
the System on the terms set forth herein. The Hotel will not permit
any person to duplicate or make alterations of any kind to the
Cassettes. The Hotel will promptly report to PPV any unauthorised use
of the Cassettes as soon as the Hotel becomes au-are of any such use.
If the Hotel makes video cassette recorders available to its guests,
the Hotel agrees that PPV may disable the "record" function during
installation of the System.
7. OPTIONAL SERVICES
At the Hotel's option during the term of the Agreement, additional guest
programming services will be provided by PPV ("Optional Services"). Such
programming and services, costs or commissions where applicable, are
described in Attachment B.
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8. OWNERSHIP OF THE SYSTEM
(a) Property of PPV.
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The parties agree that the System and all equipment, materials and
engineering related thereto provided by PPV are the sole and exclusive
property of PPV. The Hotel will ensure the safety and security of the
System and all related property of PPV at all times while the System
is installed in the Hotel, and will be liable for any damage to the
System resulting from negligence on the part of the Hotel's employees
or third parties to which the Hotel permits access to the System. The
Hotel will use reasonable efforts to prevent any theft of, or damage
or vandalism to any of the equipment supplied by PPV.
(b) Liens or Other Claims.
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The Hotel will not allow any lien, encumbrance, mortgage claim or
security interest to be attached to or be made against the System.
(c) Placards.
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The Hotel will maintain all PPV notices or plaques, affixed to the
System or related equipment stating that the System and all equipment,
materials and engineering related thereto are the sole and exclusive
property of PPV.
(d) Filings.
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If PPV elects to file documents with governmental agencies for the
purpose of notifying potential creditors of the Hotel that the System
is the Property of PPV, the Hotel will assist at PPV's cost with such
filings if requested to do so by PPV.
(e) Removal of Equipment.
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Equipment comprising part of the System will not be removed from the
Hotel for any Purpose whatsoever other than by PPV, except in the case
of an emergency where such removal is necessary to ensure safety of
such equipment and the Hotel uses reasonable efforts to notify PPV of
such removal by telephone or other approved means.
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(f) Removal by PPV.
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In the event the safety of the System is threatened due to earthquake,
flood, fire, strike, civil disruption or similar causes, PPV will be
entitled to enter upon the hotel premises and to remove the System
from danger upon reasonable notice to the Hotel.
(g) Removal upon Termination.
------------------------
Upon termination of this Agreement, the Hotel will allow PPV to remove
the System. PPV will undertake to remove the System within thirty
(30) days after such termination and will return the premises where
the System was installed to its original condition, normal wear and
tear excepted, at no cost to the Hotel, and will do so with minimal
disruption to the Hotel's MATV services.
9. INSURANCE
PPV wi11 provide general business risk insurance coverage on the System during
the term of this Agreement.
10. REPRESENTATIONS AND COVENANTS OF HOTEL
The Hotel represents, undertakes and covenants with PPV that throughout the
duration of this Agreement:
(a) Authority.
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The Hotel warrants and represents that it is the sole operator of the
hotel, that it has full legal power and authority to enter into this
Agreement and to perform all of its obligations hereunder and that
this Agreement is within the Hotel's authority as operator of the
hotel. If the Hotel is a corporation, the Hotel further warrants and
represents that all necessary corporate action has ben taken to
authorise the Hotel to enter in this Agreement and perform its
obligation hereunder.
(b) Compliance.
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The Hotel will comply, and will ensure that performance of its
obligations hereunder complies, with all applicable laws, ordinances,
rules, regulations, orders, licenses, permits or other requirements
now or hereafter in effect, of any governmental authority. Without
limiting the generality of the forgoing, to the extent any filing
with, or nay license, approval or other agreement of, any applicable
authority is required for performance of any of the Hotel's
obligations, the Hotel will file the appropriate documents and will
maintain such documents on file, which PPV may inspect upon demand.
The exception is noted in 11b.
11. REPRESENTATIONS AND COVENANTS OF PPV
PPV represents, undertakes and covenants with Hotel that throughout the duration
of this Agreement:
(a) Authority.
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PPV warrants and represents that it has full legal power and authority
to enter into this Agreement and to perform all of its obligations
hereunder. PPV further warrants and represents that all necessary
corporate action has been taken to authorise it to enter into the
Agreement and perform its obligations hereunder.[(b)]
(b) Compliance.
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PPV has all necessary licenses, permits, approval or agreements to
enable it to provide the Programs and access to the Channels in
accordance with this Agreement.
(c) No Infringement.
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PPV warrants that the publication or dissemination by the System of
the Programs and Channels will not infringe any copyright or other
intellectual property rights of any person and that Hotel will not be
obliged to pay as a result of the operation of the System any license
fees, royalties or other payments over and above the Rental Fees
payable to PPV. PPV takes full responsibility for ensuring that all
movies are fully licensed for the uses contemplated in this Agreement
from movie studios, and will indemnify the Hotel for all loss, cost,
or damage caused by or resulting from PPV's breach of this clause.
Page 7
(d) Hotel Satisfaction.
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The System will fully operate within three (3) months of installation
to the standard represented by PPV to the Hotel and SPHC and in
accordance with the System's specifications. The System will continue
to operate to the Hotel's reasonable satisfaction throughout the Term
and the signal quality will be at a reasonable commercial standard.
12. PUBLICITY REGARDING THE SYSTEM
The Hotel will adequately publicise the existence of the System and Access to
the Programme for use by its Guests. The Hotel and its employees will use best
efforts to encourage Guests use and enjoyment of the System. If the Hotel
prepares any publicity or other materials relating to the System, the Hotel will
forward such materials to PPV for approval prior to publication and
dissemination of the same. The Hotel will ensure that its employees will not
make any representations with regard to the System other than as set out in the
materials which PPV has approved.
13. TRAINING AND CONSULTATION
To enable the Hotel to generate suitable promotional material related to the use
of the System by the Hotel and to enable personnel of the Hotel to advise and
encourage guests regarding their use of the System, PPV will provide a training
course on the use and operation of the System for as many employees of the Hotel
as deemed desirable. Personnel of PPV will be reasonably available for
telephone consultation to provide further assistance, to Hotel personnel
regarding use and operation of the System at not charge.
14. ACCOMMODATIONS
Where the Schedule provides for PPV employees or PPV contractors to work
extended hours or hours beyond normal business hours, the Hotel shall be
responsible for the supply of all necessary accommodation (one separate room per
employee), meals and non-alcoholic beverages for such persons for the period of
site related works for the purposes of installing the System on a space
available basis. In addition the Hotel agrees to provide to PPV the corporate
rate for the accommodation of visiting staff during the term of the Agreement.
15. CONFIDENTIALITY
The parties agree that the functions and components of the System, facts
regarding the equipment and materials related thereto, the manner of operation
thereof and the terms of this Agreements, including without limitation Rental
Fees and Hotel Commission schedule, all constitute proprietary information of
PPV ("confidential information"). The Hotel will not use or disclose the
Confidential Information to any third party or permit any third party to have
access to the System and the Confidential Information, other than the Hotel's
personnel, its legal and financial advisers or other persons or parties as may
be reasonably necessary for performance of its obligations under this Agreement.
16. EXCLUSIVE VIDEO ENTERTAINMENT SYSTEM
Except in respect of cable, satellite or over the air commercial channels, and
except in respect of optional free to guess service not elected to be provided
by PPV, as part of the consideration to PPV for installation of the System, the
Hotel agrees that the System wi11 be the sole and exclusive video entertainment
and information services system provided or permitted to be provided by the
Hotel to its guests during the Term. In addition, notwithstanding any other
provision contained herein no pay-per-view entertainment will be provided by the
Hotel other than such as is delivered by way of the System. PPV will not
unreasonably deny access through the System by outside video services and cable,
satellite or over the air commercial channels not competitive with that offered
by PPV, regardless of any revenue enhancement, provided such service providers
agree to pay a reasonable access fee.
The Hotel further agrees that it will not directly or indirectly solicit or
permit the installation of any video system which might in any way directly or
indirectly compete with the System or, so far as Hotel is able to do so, permit
any guest or other person using the Hotel or its facilities for any purpose to
bring upon or use any such competing system on the premises of the Hotel.
Should the Hotel inform PPV in writing of new technology, including interactive
services offered by a competing in-house movie programmer in an installed system
in either Australia or New Zealand which if incorporated in the System is likely
to materially enhance the System revenue, PPV will install a similar or better
technology or service within nine (9) months or the Hotel shall have the right
to receive such technology from an outside source.
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17. DEFAULT
(a) The remedies set out in Section 17(b) below will apply to either the
Hotel or PPV should: (i) breach or become in default of performance of
any material term or condition contained in this Agreement, and should
fail to cure, correct or remedy such breach or default within sixty
(60) days after receipt of a written notice thereof from the other
party, (ii) be adjudicated bankrupt or petition for relief under any
bankruptcy, reorganisation receivership, liquidation, compromise
arrangement or moratorium statute, (iii) make an assignment for the
benefit of its creditors, or (iv) petition for the appointment of a
receiver, liquidator, trustee or custodian for all or part of its
assets.
(b) If any of the events set out in Section 17(a) above will occur, the
party not in default may exercise any or all of the following
remedies: (i) cancel and terminate this Agreement and require removal
or repossession of the System and all components thereof, (ii) obtain
injunctive and other equitable relief. and (iii) obtain such damages
and other rights and remedies as the party not in default my have at
law.
18. FORCE MAJEURE
(a) Where a party is unable, wholly or in part, by reason of Force
Majeure, to carry out any obligations under this Agreement and that
parties (i) gives the other party prompt notice of the force Majeure
with reasonable full particulars and, insofar as known, the probable
extent to which it will be unable to perform or be delayed in
performing that obligation, and (ii) uses all reasonable efforts to
remove that Force Majeure as quickly as possible, then that obligation
is suspended insofar as it is affected by the continuance of the Force
Majeure provided that this Section 18(a) will not operate to relieve
any part of an obligation to pay money.[b]
(b) For the purposes of this Agreement, "Force Majeure" means: (i) an act
of God, strike, lockout or other interference, (ii) war declared or
undeclared, blockade, disturbance, lightning, fire, earthquake, storm,
flood, or explosion, (iii) governmental or quasi-governmental
restraint, expropriation, prohibition, intervention, direction or
embargo (iv) unavailability or delay in availability of equipment or
transport not due to any action or inaction on behalf of either party,
(v) unavailability or delay in obtaining governmental or quasi-
governmental approvals, consents, permits, licenses, authorities or
allocations and (vi) any other cause whether of the kind specifically
enumerated in this Section 18(b) or otherwise which is not reasonably
within the control of the party affected; and "all reasonable efforts"
does not require the settlement of strikes, lockouts or other labor
disputes, or claims or demands by any government or quasi-government
authority on terms contrary to the reasonable business judgment of the
party affected.
(c) In the event any Force Majeure prevents performance under this
Agreement by either party which continues in existence for more than
thirty (30) days, the parties will meet in good faith to discuss the
situation and to make all reasonable efforts to achieve a mutually
satisfactory resolution of the problem.
(d) In the event performance by either party is prevented due to Force
Majeure for a period not to exceed one hundred and twenty 120 days
during any twelve (12) month period, such failure of performance will
not be deemed default hereunder, provided, however, that in the event
of such failure of performance by Hotel, PPV will be entitled to
remove the System until performance is no longer prevented by Force
Majeure.
19. WARRANTIES , REMEDIES
Except as provided in clause 11, PPV makes no representation or warranty, either
express or implied, with regard to the System, including implied warranties of
merchantability or fitness for a particular purpose. Except for damages caused
to the Hotel by PPV's negligent or intentional conduct, the obligations of PPV
under Section 4 constitutes Hotel's sole and exclusive remedies for any claim
which Hotel may have arising out of or in connection with the System.
Page 9
20. LIMITATION OF LIABILITY
In no event will PPV be liable for costs of procurement of substitute goods by
the Hotel. In no event will PPV be liable for any special, consequential,
incidental or indirect damages (including without limitation loss of profit)
whether or not PPV has been advised of the possibility of such loss, however
caused and on any theory of liability (including but not limited to negligence
or strict liability) arising out of the Agreement. This exclusion includes any
liability that may arise out of third-party claims against Hotel. These
limitations will apply notwithstanding any failure of essential purpose of any
limited remedy.
21. GENERAL TERMS
(a) This Agreement will be governed by the laws of New South Wales
Australia.
(b) Except as otherwise set forth herein, the provisions hereof will be
binding upon, and will inure to the benefit of, the respective
successors and assigns of the parties hereto; provided that no
assignment of this Agreement will be made by the Hotel without the
express prior written consent of PPV, such consent not to be
unreasonably withheld.
(c) This Agreement may be modified or amended only by a written agreement
signed by both parties. No waiver by either party of any breach or
default hereunder will be construed as a waiver of any precedent or
subsequent breach or default.
(d) This Agreement sets forth the entire agreement and understanding of
the parties relating to the subject matter hereof, and merges and
supersedes all prior discussions and understanding between the parties
related thereto, whether written or oral.
(e) If a dispute arises out of or relates to this Agreement or the breach,
termination, validity or subject matter thereof or any matter
associated therewith the parties agree to endeavour to settle the
dispute by mediation administered by the Australian Commercial
Disputes Centre ("ACDC") before having recourse to litigation. Such
mediation shall be conducted in accordance with the ACDC mediation
guidelines which terms are hereby deemed to be incorporated. Each
party will do such acts, matters and things as may be reasonable in
the circumstances to enable such mediation to occur.
IN WITNESS WHEREOF, this Agreement is entered into by the parties hereto this
day of _________,1995.
EXECUTED BY PACIFIC )
- -------------------
PAY VIDEO PTY LIMITED )
- ---------------------
ACN 059 748 588 )
- ---------------
by a duly authorised officer )
in the presence of. )
Witness)
EXECUTED BY THE HOTEL )
- ---------------------
NAME ACN )
- ---------------------
by a duly authorised officer )
in the presense of: )
Witness)
Page 10
ATTACHMENT A
-------------
FACILITIES TO BE PROVIDED BY THE HOTEL FOR INSTALLATION
1. The Hotel MATV system must be able to handle the bandwidth 7 MHz to 456
MHz, including bi-directional communications at 7 MHz. For countries
adhering to the PAL standard, all channels between 279 MHz and 478 MHz must
be reserved for the System. For countries adhering to the NTSC standards
all channels between 330 MHz and 456 MHz must be reserved for the System.
2. The Hotel shall use its best efforts to provide PPV with an as-built
drawing of the Hotel's MATV design as soon am possible after signature of
Agreement.
3. The room in which the System is to be located must be secure from
unauthorised access and the location intended for the system must measure
at least 2.5 meters by 2.5 meters. Adequate access must be available for
rolling the System from the delivery track to the installation room. A
table or desk will be provided of a least 0.6 meter by 0.8 meter for use by
staff during the installation process.
4. Electrical Service of at least 10 amps (220-240 VAC) must be provided;
unless only 100-2000 VAC is available in which event 20 amp electrical
service is required.
5. The Hotel must provide cooling capability of at least 3400 BTUs in the
System room. The required ambient temperature range is 22 degrees C, +/- 1
degree (72 degrees f, +/- 2 degrees).
6. The Hotel must provide two dedicated telephone lines for connection to the
System, equipped with RJ-11 jacks. One is for modem use and the other is
for voice use. The Hotel will be obligated to pay for line installation
and rental but not for usage charges.
7. For the purpose of staging and configuring room interface units, the Hotel
must provide the installation team with use of a secure space for the
duration of the installation period. The space must be at least three
meters on a side, and be equipped with electrical service outlets. A guest
room, located near the service lifts is acceptable for this purpose.
8. The Hotel shall use it best efforts to coordinate access by the
installation team to blocks of rooms for equipment installation, which will
proceed at approximately 50 rooms per day. If the Hotel wishes the
installation team to be escorted while in rooms it must provide Hotel
personnel for that purpose.
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ATTACHMENT B
------------
1. INITIAL RENTAL FEE: [***] for each access of a programme
2. HOTEL COMMISSION:
----------------
The percentage of Net Rental Fees for the preceding month corresponding to the
SPHC rooms installed and operating with a Pacific Pay Video System for that
month shown in the following table;
TOTAL SPHC ROOMS COMMISSION
---------------- ----------
CONTRACTED
----------
[***] [***]
[***]
3. REMOTE CONTROL REPLACEMENT COST: US [***] for each replacement unit
4. OPTIONAL SERVICES
(a) Guest services including video folio review and video message services will
--------------
be offered to participating Hotels at no charge.
(b) Additional services excluding those referred to in 4(a) Guest Services,
------------------- --------------
will be provided where possible, to participating Hotel's at a cost of
AUD [***] per month per service, including:
(i) video checkout;
(ii) interactive guest survey;
(iii) minibar inventory;
(iv) breakfast ordering;
(v) housekeeping status.
*** Confidential tratment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
Page 12