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EXHIBIT 10.28
COMPUTERIZED RESERVATIONS
SERVICES AGREEMENT
This Agreement is made as of the 24th day of May, 1996, between ISIS
2000, a Texas limited partnership, having a principal office address at
_________________________________ ("ISIS 2000") and Wyndham Hotel Corporation,
a Delaware corporation, having a principal office address at 2001 Bryan Street,
Suite 2300, Dallas, Texas 75201 ("Wyndham").
WHEREAS, Wyndham is in the business of owning and operating hotels;
WHEREAS, ISIS 2000 is developing and will operate a centralized
reservations system and facility;
WHEREAS, ISIS 2000 also provides equipment and software that can be
linked to the centralized reservation facility to form a reservation network;
WHEREAS, Wyndham desires to have ISIS 2000 provide Wyndham with its
services in this regard;
NOW, THEREFORE, ISIS 2000 and Wyndham agree as follows:
I. OPERATION OF THEISIS 2000 SYSTEM.
1.1 Services Provided by ISIS. ISIS 2000 shall provide to and on
behalf of Wyndham, and Wyndham shall accept the following services (the "ISIS
Services"):
1.1.1 the data processing services and data base support services
set forth on Schedule 1.1.1 hereof;
1.1.2 the telephone sales services set forth on Schedule 1.1.2
hereof;
1.1.3 a data network for Wyndham Locations and Sites;
1.1.4 a single image property management system.
1.1.5 The ISIS Services provided under Sections 1.1.1, 1.1.2 and
1.1.3 will be provided beginning on the Cutover Date; the ISIS Services
described in Section 1.1.4 will be provided commencing in 1997.
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1.2 In order to provide the ISIS Services, ISIS 2000 shall install a
network of central computers connected by means of dedicated data access to
ISIS Workstations located at Wyndham Locations that will provide the
functionality described in Section 1.2 (the "ISIS System").
1.3 Services Support. In connection with the provision of the ISIS
Services, the parties will have the following rights and obligations:
1.3.1 ISIS 2000 shall provide the hardware, software,
supplies, utilities, facilities and staff, including a Dedicated Reservations
Staff, for the operation of the ISIS System and the ISIS Services, provided
that the software, equipment configuration and any changes thereto shall be at
the sole discretion of ISIS 2000. No change to the software or equipment shall
affect ISIS 2000's service obligations under Article 1.1.
1.3.2 ISIS 2000 shall provide toll-paid service to the
Reservation Center. In addition, ISIS 2000 shall provide telephone numbers that
can access the Reservations System using long distance services billed to the
caller, with at least one number to be available for use by Wyndham's customers
to make reservations and at least one number to be available for use by Wyndham
Properties for administrative purposes. The toll-paid numbers and the telephone
number provided for Wyndham's customers shall be defined as "TRC Numbers" and
calls to the Reservations Center, shall be defined herein as "TRC-number
Calls." Collect calls to the Reservations Center will not be accepted.
1.3.3 Wyndham will advertise, at no expense to ISIS 2000, the
TRC Numbers. All of Wyndham's advertising and promotional material shall bear
the TRC Numbers in size, placement and type style equal to or more prominent
than that of other information numbers on such materials, and Wyndham will use
its best efforts to cause the Hotel Property's advertising and promotional
material to conform to such standard. ISIS 2000 agrees that the TRC Numbers
will at all times remain proprietary to Wyndham. Wyndham will license all
current Wyndham toll-free numbers to ISIS 2000 for use with the ISIS Services.
Except as specifically directed by Wyndham in writing, ISIS 2000 will not
change or allow to be changed any TRC Number during the term of this Agreement,
but Wyndham will not withhold such direction for changes mandated by ISIS
2000's telecommunications carriers or regulatory authorities. At the
termination of this Agreement for any reason, ISIS will transfer to Wyndham all
TRC Numbers then in service.
1.3.4 ISIS 2000 will notify Wyndham, via certified mail, of
the availability of ISIS System as set forth in this Agreement. Wyndham will
have 5 business days after receipt of this letter to verify the system
functionality and to verify the initial Wyndham data base. The verification
procedure will consist of (1) a single test of each of the functions to certify
that all functions are accounted for, (2) a test of the connecting and
interaction functions of the Equipment based at the Properties with the
Reservation Center and (3) a comparison of the initial data base to the manual
records to certify the accuracy of data entry. ISIS 2000 shall use all
commercially reasonable efforts to complete any necessary correction as soon as
possible, but in any event, within days of the verification process. The
commencement of ISIS Services will
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begin upon 1) the expiration of the five-day period, or the completion of the
verification procedure, whichever is earlier; or 2) if the verification
procedure results in the need for material corrections, immediately following
the verification procedure for such material corrections. Verification of the
ISIS System or the failure to object to the commencement of the ISIS Services
shall each constitute acceptance by Wyndham of the Reservations Center and the
ISIS Services for purposes of commencing the ISIS Services.
1.3.5 In the event the ISIS System is not operational by the
last permitted Cutover Date, Wyndham may terminate this Agreement without
liability.
1.4 System Performance and Integrity
1.4.1 ISIS 2000 shall provide adequate capacity in the
central computer of the ISIS System ("ISIS Central") for the ISIS Services so
as to maintain service levels as set forth in Schedules 1.1.1 and 1.1.2.
1.4.2 The ISIS System will meet scheduled available
performance standards set forth in Schedules 1.1.1 and 1.1.2. ISIS 2000 may
from time to time schedule downtime in order to accomplish normal system
maintenance and certain software implementations. Scheduled downtime will
normally occur on weekends and U.S. holidays. ISIS 2000 will provide Wyndham
with reasonable advance notice of any scheduled downtime and will coordinate
such downtime with Wyndham to allow Wyndham to make appropriate plans.
1.4.3 After receipt of a written notice from Wyndham, ISIS
2000 shall correct, within a commercially reasonable period, any performance
standard under this Agreement not fulfilled by ISIS 2000. Urgency of repair
shall be determined by ISIS 2000 in accordance with the severity of the
problem.
1.4.4 Upon reasonable advance notice to ISIS 2000, copies of
operating logs and performance reports maintained in connection with the
services herein performed will be available for Wyndham's review during
business hours at ISIS Central, or shall be sent by mail to Wyndham at its
request.
1.4.5 Wyndham acknowledges and agrees that ISIS 2000 has not
undertaken to perform any verification of any sort of the Wyndham Data Base,
and that ISIS 2000's function hereunder is solely to perform the services set
forth in Section 1.1 and to provide the equipment and software necessary for
the ISIS System, including software providing the functionality described in
Schedule 1.2 and the Equipment described in Section 2.1.
1.5 Maintenance.
1.5.1 ISIS 2000, either itself or through third-party
vendors, will maintain the ISIS Central hardware and software.
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1.6 Failure or Delay of Service.
1.6.1 ISIS 2000 shall maintain a disaster recovery plan, a
copy of which will be provided to Wyndham, as it pertains to Wyndham, within a
reasonable time after execution of this Agreement.
II. COMPUTER SERVICES
2.1 Distributed Computer Equipment and Software. By the Cutover Date,
or by such other date which the parties may mutually agree, ISIS 2000 will
provide each Wyndham Location one or more ISIS Workstation(s) and peripheral
equipment on a nonexclusive and nontransferable basis, and each Property shall
enter into a license and lease agreement substantially in the form attached
hereto as Schedule 2.1 and made a part hereof (the "License Agreement"). ISIS
2000 will provide each Property dedicated data access to ISIS Central upon the
installation at its premises of ISIS Workstations and peripheral equipment
2.1.1 Access to ISIS Central using the ISIS Workstation and
peripheral equipment will be provided at Hotel Properties and Sites that
Wyndham shall designate from time to time (i) but only to the extent not
prevented by governmental, technical or communications delays or problems not
within ISIS 2000's control; (ii) provided that upon its enrollment, the
Property satisfies all of its obligations hereunder, including causing its
applicable employees to be properly trained in the use of ISIS System and;
(iii) provided that ISIS 2000's data base information forms for the enrolling
Hotel Property are properly completed by the Hotel Property and delivered to
ISIS 2000.
2.1.2 Wyndham shall not and shall cause the Hotel Property not
to remove or alter any identifying names, logos, service marks or information
from any Equipment, software, documents or other materials provided by ISIS
2000.
2.2 Interfaces.
2.2.1 ISIS Central and the distributed ISIS Workstations will
interface so as to communicate property management and reservation information
between them. Initially, those communications will occur on a completed
transaction basis, but no later than December 31, 1997, ISIS 2000 will upgrade
the software to permit real time communication.
2.2.2 ISIS 2000 will cause connection of ISIS Central through
computer interfaces to GDS Vendors set forth in Schedule 2.2 attached hereto,
and made a part hereof and to other electronic reservation services that become
available from time to time to which Wyndham requests an interface. It is
expressly understood and agreed that: (a) ISIS Central's capabilities are
limited by the capabilities and functions of the particular GDS Vendor,
electronic service or property management system used and by that GDS Vendor,
electronic service or its system's interface to ISIS Central; and (b)
implementation of such GDS or electronic service
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interface is subject to final agreement between ISIS 2000 and a particular GDS
Vendor or electronic service provider and upon certain technological and other
requirements contained in such agreement.
2.2.3 Wyndham shall pay any fees, including but not limited to
booking fees, associated with Bookings received from GDS Vendors and Bookings
received through other electronic reservation services.
2.3 Help Desk. ISIS 2000 will make available a telephone assistance
desk in a location within the United States determined solely by ISIS 2000
staffed by knowledgeable employees who will provide assistance to Wyndham at no
additional charge, regarding: (1) the use and operation of the ISIS
Workstation; (2) Equipment diagnostics; (3) network communication diagnostics;
and (4) GDS booking assistance.
III. DATABASE SERVICES
3.1 ISIS 2000 and Wyndham will jointly establish the initial data base
for Wyndham properties within the current functionality of the ISIS System.
3.1.1 Wyndham must accurately and fully complete or cause to be
accurately and fully completed ISIS 2000 data base information forms, based
upon which ISIS 2000 will initially input Hotel Property data into ISIS
Central. With data links provided through ISIS Workstations, Wyndham will: (a)
automatically modify and update room availability status band rates for Hotel
Properties by directly inputting such modification or update into ISIS Central
via ISIS Workstations; and (b) with regard to GDS Vendors to which ISIS Central
is connected: (i) automatically communicate rate changes or other descriptive
information in the GDS data base for their properties, after which the ISIS
System will perform a quality control check and directly input such rate or
descriptive information change into the GDS Vendor as soon as reasonably
practicable; and (ii) automatically modify and update room availability status
for their properties by directly inputting such modification or update into
ISIS Central via an ISIS Workstation, which will then be automatically
communicated to the GDS Vendor. ISIS 2000 shall be responsible for accurately
inputting information that Wyndham requests ISIS 2000 to enter into the ISIS
System. ISIS 2000 shall not be responsible for the timeliness or accuracy of
data base entries which Wyndham enters or causes to be entered into the ISIS
System.
3.1.2 For Properties not using ISIS Workstations, ISIS 2000 will
update Wyndham's data base in a timely manner at Wyndham's request. Information
to be updated includes property descriptions, property status, name changes and
any other information included in the existing system functionality or any
future enhancements. ISIS 2000 and Wyndham mutually agree to develop procedures
to control and document data base change requests and updates.
3.1.3 For Properties not using ISIS Workstations, ISIS 2000 will
update airline data bases through the GDS Vendors listed in Schedule 2.2 in a
timely manner to reflect changes
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in room rates, property descriptions and property status pursuant to the terms
and conditions between GDS Vendors and Wyndham. ISIS 2000 will provide similar
services using other third party electronic reservation services that ISIS 2000
and Wyndham mutually agree to utilize.
3.2 Maintenance and Storage of Data
3.2.1 ISIS 2000 will maintain the Wyndham Data Base in the
Reservations Data Base. Except as set forth in Article 8.2.2, the Wyndham Data
Base shall be the sole property of Wyndham and only mutually agreed upon
terminals shall have access to the Wyndham Data Base; provided, however, that
ISIS 2000's personnel, including its third party contractors, shall have access
to the Wyndham Data Base to ensure the integrity and performance of the
Reservations Services, to measure Bookings, to make Enhancements, or for any
other purpose consistent with the terms of this Agreement. Any such access
shall be subject to Article VIII.
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3.2.2 ISIS 2000 will store data from the Wyndham Data Base for
such periods as set forth in Schedule 3.2.2, at which time ISIS 2000 may delete
it from the Reservations Data Base. At Wyndham's request, ISIS 2000 will store
such data for longer periods, subject to appropriate price adjustments to
reflect any increased costs.
IV. USER PROFICIENCY.
4.1 Training. Wyndham will be provided with two all day (7 hours)
training courses at a "train the trainer" level on the use of ISIS Workstations
to each Property within a reasonable period of time after that Property
connects to the ISIS System.
4.2 Manuals. ISIS 2000 will also provide Wyndham with a reasonable
number of manuals on the use of the ISIS Workstation and the ISIS System.
4.3 Wyndham Responsibility. Wyndham will take all reasonable steps to
ensure that all of their employees who are authorized to use ISIS Workstations
have been trained appropriately and are proficient in such use. In the event
Wyndham requests additional training or ISIS 2000 and Wyndham determine that
users lack the requisite proficiency, Wyndham will arrange for users or
trainers to receive additional training at an additional charge to Wyndham
reasonably based on ISIS 2000's cost of providing such training.
V. OTHER SERVICES.
5.1 Services. ISIS 2000 may, from time to time, agree to provide other
services to Wyndham, including but not limited to the services described in
Schedule 5.1.
VI. ENHANCEMENTS.
6.1 System Changes. In its sole discretion, and at any time, ISIS 2000
may replace or relocate the software, hardware or other equipment or
technology, or any portion thereof, used to provide the ISIS Services. ISIS
2000 will have the right to change or substitute any parts, programs or systems
of the ISIS Workstation and peripheral equipment and to implement ISIS
Workstation Enhancements at any time in its discretion, which changes,
substitutions and Enhancements Wyndham must accept.
6.2 Effect of Changes. No replacement, relocation, change,
substitution or Enhancement permitted under Section 6.1 shall affect the terms
of this Agreement, including, but not limited to, ISIS 2000's service
obligation under Article 1.1, nor shall it have a material adverse effect on
performance or functionality of the ISIS System or the ISIS Workstation, or
result in any material increase in the charges payable to ISIS 2000 hereunder
unless such change results in the establishment of a new function therein not
previously available hereunder, in which case ISIS 2000 shall offer such new
functionality to Wyndham for a fee reasonably related to ISIS 2000's cost as
determined by ISIS 2000 in its sole discretion, but in any event not greater
than the fee charged to similarly situated customers for the same service. ISIS
2000 will give Wyndham, if
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affected by such changes, reasonable advance notice thereof. Should an
Enhancement be implemented that results in a substantial change in ISIS
Workstation operation, ISIS 2000 will provide to Wyndham up to one (1) day of
training on such Enhancement at no additional cost to Wyndham.
6.3 Implementation of Enhancements. ISIS 2000 will provide Wyndham
with prior notice of the scheduled implementation of any Enhancements to the
ISIS System that, to ISIS 2000's knowledge, will materially affect Wyndham's
own operations. Wyndham may elect not to implement any such Enhancements.
6.4 Wyndham Enhancements. From time to time, Wyndham may
request that ISIS 2000 develop Enhancements to the ISIS System or the ISIS
Workstation.
6.4.1 If ISIS 2000 is willing to develop such an Enhancement, ISIS
2000 will provide Wyndham with a price quote, including rights to use
Enhancement after termination of the Agreement and maintenance costs, based on
whether the Enhancement is proprietary to Wyndham, and on time, materials and
operational expenses associated with both (i) the development, testing and
implementation of the Enhancement and (ii) its on-going operation and
maintenance, and a tentative schedule for developing the Enhancement. Within
forty-five (45) days following the submission of the price quote and schedule
to Wyndham, Wyndham will approve or cancel its request for the proposed
Enhancement. If Wyndham does not respond to the price quote within such
forty-five day period, it shall expire.
6.4.2 If Enhancements added to the ISIS System at the request of
another customer are generally offered to customers of the ISIS Services , they
will be offered to Wyndham provided that charges, if any, for such Enhancement
will be i) mutually agreed upon by Wyndham and ISIS 2000 and ii) comparable to
the charges to such other customers for such Enhancement. Enhancements to the
ISIS System that are added without Wyndham's consent shall not affect any of
Wyndham's fees under Article 7.
6.5 Availability of Enhancements.
6.5.1 ISIS 2000 will make Enhancements available to Wyndham on a
nonexclusive, nontransferable basis at the same time or prior to other ISIS
2000 customers, except that programs developed by ISIS 2000 on an exclusive
basis for anyone other than Wyndham will not be available to Wyndham.
Enhancements developed by or for ISIS 2000 upon request of Wyndham on an
exclusive basis for Wyndham will not be made available to other customers of
ISIS 2000
VII. FEES.
7.1 Basic Fees. Pursuant to the terms of this Agreement, ISIS 2000
will charge and Wyndham will pay to ISIS 2000, as applicable: (1) Initiation
Fee; (2) Booking Fees; and (3) Data and Equipment Fees; and (4) Other Service
Fees, at rates set forth below.
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7.1.1 For each Property that connects to the ISIS System that is
not a Wyndham Property on the Cutover Date, Wyndham will pay an initiation fee
of $10,000 prior to its connection to the ISIS System.
7.1.2 For the ISIS Services, Wyndham shall pay ISIS 2000 a fee for
each net Booking made through the ISIS System. The number of net Bookings for a
particular month shall be the total number of Bookings less the number of
Cancellations. Counting functions of the ISIS System will be used to determine
the number of Bookings, Cancellations and Booking Fees. The Booking Fee will be
determined in accordance with Schedule 7.1.2.
7.1.3 Wyndham shall pay ISIS 2000 monthly fees of $1,000 per Site
for Equipment and software utilized by Wyndham at Sites and for the data
communication network. Any Property using the public-switched telephone network
for communicating with ISIS Central, whether by dial-in or dial-out computer
connection, fax, or voice, will be responsible for the cost of these
communications.
7.1.4 In the event that Wyndham desires ISIS 2000 to provide any
other services pursuant to Article V, and ISIS 2000 agrees to do so, such
services will be provided at fees reasonably related to costs agreed on by the
parties. If the parties are unable to negotiate a mutually acceptable fee, ISIS
2000 will have no obligation to provide such services.
7.2 Adjustments to Fees. At the end of each twelve-month period of
this Agreement, ISIS 2000 may increase any fees fixed herein in order to offset
any cumulative increases in ISIS 2000's total direct or indirect costs of
providing the ISIS System, but in no event shall the increase pursuant to this
Article 7.2 exceed eight percent (8%) per annum. ISIS 2000 shall give Wyndham
30 days' notice of any such fee increase, during which period ISIS 2000 shall
allow Wyndham to review, during reasonable business hours and at ISIS 2000's
place of business, documentation establishing that ISIS 2000's costs have been
increased.
7.3 Invoices and Payment. ISIS 2000 shall submit an itemized invoice
to Wyndham covering all charges under this Agreement for the previous month,
based upon reports generated by the ISIS System. Wyndham shall pay the amount
of such invoice by a single check to ISIS 2000 within seven days from the date
of such invoice. The payment of invoice amounts shall be the sole
responsibility of Wyndham, and shall not be dependent upon payment, approval or
audit by any third party, including any Affiliate of Wyndham. However, upon
reasonable notice to ISIS 2000 and during reasonable business hours, Wyndham
shall have the right to audit ISIS 2000's books and records used in connection
with preparing any such invoice. Any invoice that is not paid by Wyndham within
seven (7) days from the date of such invoice shall accrue interest at a rate of
five (5) percentage points above the prime rate of interest announced from time
to time by Bank One, Texas, N.A., or the highest lawful rate of interest,
whichever is lower.
7.3.1 By the last day of each Calendar Quarter, ISIS 2000 will
estimate the Booking Fees for the next ensuing Calendar Quarter, and ISIS will
invoice Wyndham for services rendered during that Calendar Quarter at rates
based on such estimates. Within 45 days
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following the end of each Calendar Quarter, the parties will conduct a true up
comparing the fees that were earned based on costs and the payments made based
on the estimates. If the true up establishes that Wyndham owes ISIS 2000
additional Booking Fees, Wyndham shall remit such additional Booking Fees by
the end of the 45-day true up period; if the true up establishes that ISIS 2000
was overpaid Booking Fees during the Calendar Quarter, the amount of the
overpayment will be credited against the next invoice rendered for Booking
Fees.
7.4 Taxes.
7.4.1 Wyndham covenants and agrees to pay when due or reimburse
and indemnify and hold ISIS 2000 harmless from and against all taxes, fees, or
other charges of any nature whatsoever (together with any related interest or
penalties, except such interest or penalties resulting solely from the failure
of ISIS 2000 to timely file personal property tax returns with respect to
Equipment leased to Wyndham) now or hereafter imposed or assessed by any
Federal, state, county, local or foreign governmental authority with respect to
services performed or equipment or software supplied by ISIS 2000 (whether by
sale, license, lease or otherwise) under this Agreement, or upon the ordering,
purchase, sale, ownership, delivery, leasing, possession, use, operation,
return or other disposition of such equipment, software or services, or upon
the rents, receipts or earnings arising there from (excepting only Federal,
state and local taxes based on or measured by the taxable income of ISIS 2000).
7.4.2 Any sales, use or other taxes levied on the ISIS Services,
ISIS Workstation, or any other services provided by ISIS 2000 to Wyndham
pursuant to this Agreement (other than taxes calculated on the basis of the net
income of ISIS 2000) may be paid by ISIS 2000 on Wyndham's behalf, to the
applicable taxing authority in which case ISIS 2000 will include the amount of
any such taxes in its monthly invoice to Wyndham, or by Wyndham directly to
such taxing authority, in which case ISIS 2000 shall have no obligation to
calculate, collect or pay any such taxes.
7.4.3 Notwithstanding the foregoing, ISIS 2000 will be responsible
for the filing of all personal property tax returns with respect to Equipment
leased to Wyndham and will pay all taxes indicated thereon. Wyndham will
reimburse ISIS 2000 for all such taxes within thirty (30) days of receipt of
ISIS 2000's invoice therefor.
7.5 Most Favored Nations. ISIS 2000 will not enter into an agreement
on or after the effective date of this Agreement, pursuant to which ISIS 2000
will charge another customer of the ISIS Services, with total average net
Bookings per month equal to or fewer than those of Wyndham, a better fee
structure for the same services provided to Wyndham, without offering such
better fee structure to Wyndham, commencing with the commencement date of such
other agreement.
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VIII. CONFIDENTIALITY OBLIGATION
8.1 Trade Secrets Information.
8.1.1 Title and full ownership and proprietary rights of a Trade
Secret Owner's Trade Secrets, trademarks, and Equipment shall be and remain
with that party. A Trade Secret Owner's Trade Secrets are agreed to be that
person's proprietary information and trade secret whether or not any portion
thereof is or may be validly copyrighted or patented. Trade Secrets provided to
a party pursuant to this Agreement in any form and any and all copies thereof,
and any parts or abstracts thereof which may be furnished to a party, are for
the use of that party for the limited purposes set forth herein, and will not
be disclosed or made available to any other person, firm, corporation or
governmental entity not granted the right to use such Trade Secrets under this
Agreement, in whole or in part or in any form or manner whatsoever by a party
who is not the Trade Secret Owner or any of its officers, directors, agents,
employees, shareholders, representatives, affiliates, or other persons or
entities acting in concert with that party without the prior written consent of
the Trade Secret Owner.
8.1.2 Wyndham and ISIS 2000 each will use its best efforts to
ensure that its employees, agents, consultants, and suppliers are aware of,
recognize, and agree that the terms of this Agreement and each party's Trade
Secrets acquired by virtue of or in connection with this Agreement, are
proprietary in nature and, therefore, are not to be disclosed by the other
party to third parties without the prior written consent of the owner thereof,
and may not be used by such other party for any purpose except to carry out its
obligations or to assert a right under this Agreement. Wyndham and ISIS 2000
each shall use its best efforts to ensure that all individuals having access to
software contained in the Reservations Data Base under this Agreement shall
observe this non-disclosure covenant and treat all data and materials of the
other party covered by this Agreement in a confidential manner.
8.2 Wyndham Information.
8.2.1 Notwithstanding anything herein to the contrary, it is
agreed that Wyndham will have sole ownership rights and title to its Database
and rate, pricing and inventory information ("Wyndham Trade Secrets"). Wyndham
Trade Secrets will not be disclosed by ISIS 2000 to any third party or to any
ISIS 2000 employees not directly connected with the services to be provided
hereunder or who have no need to know same without the prior written consent of
Wyndham.
8.2.2 Nothing in this Agreement will be construed to prohibit ISIS
2000's use, for any purpose, of statistical information or data obtained
through the ISIS System, as long as such statistics are not identifiably
related solely to Wyndham or any Wyndham Property.
8.2.3 In the event that ISIS 2000 provides reservations services
to third parties, such third parties will not be allowed access to the Wyndham
Data Base or other information provided by Wyndham pursuant to this Agreement,
without Wyndham's prior written approval.
8.3 Subpoenaed Information. Each party agrees that it will treat Trade
Secrets provided to it pursuant to this Agreement as it would treat its own
most sensitive trade secrets or
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confidential information. If any party receives a subpoena, court order or
directive, or discovery request (collectively referred to as "Subpoena")
pursuant to litigation, government inquiry, or otherwise, concerning any Trade
Secrets provided to it pursuant to this Agreement, such party will immediately
notify the Trade Secret Owner who will be permitted, at its option and expense,
to interpose objections or defenses to such Subpoena. In no event may any party
turn over, disclose, produce or discuss any Trade Secrets provided to it
pursuant to this Agreement for any purpose whatsoever without notifying the
party who is the Trade Secret Owner of the Subpoena and without the first to
occur of: (i) prior timely notice by the Trade Secret Owner waiving its rights
to object or defend as set forth above; or (ii) final, binding, non-appealable
court order or decree obtained in an action in which the Trade Secret Owner has
timely elected to defend, be a party or intervenor. Failure of a Trade Secret
Owner to give notice of waiver, or to object, defend, join or intervene in the
action prior to the production date set forth in the Subpoena will be deemed
waiver of rights to object or defend. In the event that a Subpoena directs
production in less than seven (7) days of receipt, the recipient of the
Subpoena will attempt to obtain extension and otherwise use its best efforts to
notify the Trade Secret Owner and permit the Trade Secret Owner to object,
defend, join or intervene the action. In all events, the Trade Secret Owner
will be responsible for all legal fees and expenses incurred by the other party
or parties in connection with a Subpoena concerning the Trade Secret Owner's
Trade Secrets.
8.4 Return of Materials. Upon termination of this Agreement for any
cause or reason, Wyndham agrees to deliver to ISIS 2000 all materials or
information supplied by ISIS 2000 pertaining to software contained in the
Reservations Data Base, and shall, after a due diligent search, certify to ISIS
2000 that all such copies have been returned to ISIS 2000 or destroyed.
8.5 Public Announcement. Neither party will make a public announcement
regarding this Agreement or the provision of Reservations Services provided for
herein, nor will either party use any name, logo, tradename, trademark or
service mark of the other party, without the other party's prior written
approval which may not be unreasonably withheld.
IX. REPRESENTATIONS AND WARRANTIES OF WYNDHAM. Wyndham represents and
warrants to ISIS 2000 as follows:
9.1 Organization of Wyndham. Wyndham is a corporation duly organized,
validly existing and in good standing under the laws of Delaware. The execution
and delivery of this Agreement and the performance by Wyndham of its
obligations hereunder have been duly authorized by all necessary action on the
part of Wyndham. This Agreement is a legal, valid and binding obligation of
Wyndham enforceable against Wyndham in accordance with its terms except that
the enforceability hereof and thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally. Neither the execution and delivery of this
Agreement nor the performance by Wyndham of any of its obligations hereunder
nor the consummation of any of the transactions contemplated hereby will
violate any agreement to which Wyndham is a party or by which Wyndham or any of
its property may be bound, or any provision of Wyndham's Certificate of
Incorporation or By-Laws, or any applicable law, regulation, rule, judgment,
order or decree. No consent, approval or authorization
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of, or registration, declaration or filing with, any governmental authority on
the part of Wyndham is required as a condition to the valid execution, delivery
and performance of any of this Agreement by Wyndham pursuant hereto except for
such as have been duly made or obtained.
9.2 Employees and Affiliates, etc. Wyndham does not have any
outstanding contracts with officers, employees, agents, consultants, advisers,
salesmen, sales representatives, distributors or dealers connected with
providing services similar to or interchangeable with the ISIS Services that
are not cancelable by Wyndham on a schedule coordinated with the Cutover Date
without liability, penalty or premium.
9.3 Collective Bargaining Agreements. There are no collective
bargaining agreements of Wyndham with any labor union or other representative
of employees connected with the provision of services similar to or
interchangeable with the ISIS Services (including local agreements, amendments,
supplements, letter and memoranda of understanding of any kind).
9.4 Authorization to Execute. The undersigned signatory has authority
to execute this Agreement on behalf of Wyndham.
X. REPRESENTATIONS AND WARRANTIES OF ISIS 2000. ISIS 2000 represents and
warrants to Wyndham as follows:
10.1 Organization of ISIS 2000. ISIS 2000 is a limited partnership
duly organized, validly existing and in good standing under the laws of Texas
and has full power to conduct its business as it is now being conducted and to
own and operate the properties and assets now owned and operated by it. The
execution and delivery of this Agreement and the performance by ISIS 2000 of
its obligations hereunder have been duly authorized by all necessary action on
the part of ISIS 2000. This Agreement is a legal, valid and binding obligation
of ISIS 2000 enforceable against ISIS 2000 in accordance with its terms except
that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditor's rights generally. Neither the execution and delivery of this
Agreement nor the performance by ISIS 2000 of any of its obligations hereunder
or the consummation of any of the transactions contemplated hereby will violate
any material agreement to which ISIS 2000 is a party or by which ISIS 2000 or
its properties may be bound or any provision of ISIS 2000's Partnership
Agreement or By-Laws or any applicable law, regulation, rule, judgment, order
or decree.
10.2 Authorization to Execute. The undersigned signatory has authority
to execute this Agreement on behalf ISIS 2000.
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XI. COVENANTS OF WYNDHAM.
11.1 Access to Information. Wyndham will give to ISIS 2000, its
programmers, consultants, counsel, employees and other representatives full
access to all of the properties, books, contracts, commitments, and reports and
records of Wyndham that relate to the implementation of the ISIS System and
will furnish to ISIS 2000 all such documents, records and information with
respect to its reservation system and copies of any working papers relating to
its reservation system as ISIS 2000 may from time to time reasonably request.
Wyndham shall cooperate with ISIS 2000 to facilitate the commencement of the
operation of the ISIS Services by ISIS 2000. In accordance with the foregoing,
Wyndham and ISIS 2000 agree to work together on a schedule for such
commencement and to keep each other adequately informed as to its progress.
ISIS 2000 will be entitled to maintain as many of its employees as is
reasonably necessary on the premises of Wyndham for the purposes of carrying
out this Agreement. If this Agreement is terminated prior to the Cutover Date
for any reason, all data, information, files, records and copies of documents,
work sheets and other materials obtained by ISIS 2000 in connection with this
Agreement shall be returned to Wyndham as soon as practicable after written
request therefor.
11.2 Notification. Wyndham will give notice to ISIS 2000 promptly upon
becoming aware of (a) any inaccuracy of a representation or warranty made by
Wyndham herein or (b) any event or state of facts that, if it had occurred or
existed on or prior to the date of this Agreement, would have caused any such
representation or warranty to be inaccurate, and any such notice will describe
such inaccuracy, event or state of facts in reasonable detail.
11.3 Honor Reservation. The availability of accommodations, any
inventory of accommodations or rates for such accommodations to be included in
the Reservations Data Base shall be no more restricted or limited than a
Wyndham Customer would encounter by contacting directly an individual Wyndham
Property. Wyndham shall cause the management of each Wyndham Property to honor
confirmed reservations effected via the ISIS System and shall provide the
accommodations thereby reserved and confirmed by ISIS 2000. If Wyndham is
unable to honor a confirmed reservation or to offer the accommodations reserved
due to oversales of accommodations, Wyndham shall be responsible for any
resulting liabilities, including the Booking Fee for such reservation. In the
event that an oversale of accommodation is due solely to the negligence or
willful misconduct of ISIS 2000, Wyndham's sole remedy shall be recovery of any
Booking Fee for the reservation. Wyndham shall, on request, certify the
accuracy of all data pertaining to it or its operations which has been supplied
to ISIS 2000 or put into the Reservations Data Base.
XII. FORCE MAJEURE; SUSPENSION AND TERMINATION
12.1 Effect of Force Majeure. In the event that either party is unable
to perform any of its obligations under this Agreement or to enjoy any of its
benefits because of Force Majeure, the party who has been so affected
immediately shall give notice to the other party and shall do everything
possible to resume performance. Upon receipt of such notice, the obligations
under
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this Agreement, except as otherwise set forth herein, shall immediately be
suspended. If the period of nonperformance exceeds thirty (30) days from the
receipt of notice of the Force Majeure event, the party whose ability to
perform has not been so affected may by giving written notice to the other
party terminate this Agreement. However, delays in delivery of the Equipment or
software due to Force Majeure events shall automatically extend the delivery
date for a period equal to the duration of such event. Neither party will be
relieved of the obligation to maintain confidentiality of Trade Secrets by the
occurrence of Force Majeure, and Wyndham will not be relieved of the
obligations to make payments to ISIS 2000 regardless of the occurrence of Force
Majeure, to the extent that such payments are for services received prior to
the event of Force Majeure.
XIII. LIMITED ISIS 2000 WARRANTY
13.1 ISIS Services. ISIS 2000 MAKES NO WARRANTY WITH REGARD TO THE
ISIS SERVICES OR ANY EQUIPMENT OR SOFTWARE FURNISHED HEREUNDER, INCLUDING ANY
WARRANTY OF FITNESS FOR INTENDED PURPOSE OR OF MERCHANTABILITY. ISIS 2000 WILL
ENFORCE, ON BEHALF OF WYNDHAM, ANY WARRANTIES IT HAS RECEIVED IN CONNECTION
WITH SOFTWARE OR HARDWARE SUPPLIED TO WYNDHAM.
XIV. LIMITATION OF ISIS 2000 LIABILITY
14.1 Exclusive Remedy. ISIS 2000's sole and exclusive liability for a
failure or delay in the performance of the ISIS System, including, without
limitation, any ISIS Workstation or implementation of Enhancements, or for any
limitation placed upon the functional capabilities or the data volumes of the
ISIS System, shall be as set forth in Schedule 14.1. ISIS 2000 shall have no
liability if such failure or delay was caused directly or indirectly by
Wyndham.
14.2 Other Claims. ISIS 2000'S LIABILITY FOR ANY AND ALL OTHER CLAIMS,
EXCEPT FOR CLAIMS RESULTING FROM THE INTENTIONAL TORT OR NEGLIGENCE OF ISIS
2000 OR ONE OF ITS AUTHORIZED EMPLOYEES, SHALL, IN THE AGGREGATE, NOT EXCEED
THREE MONTHS' AVERAGE BILLING TO THE DAMAGED PROPERTY TAKEN OVER THE 12 MONTHS
PRECEDING THE MONTH IN WHICH THE DAMAGE OR INJURY IS ALLEGED TO HAVE OCCURRED,
BUT IF THIS AGREEMENT HAS NOT BEEN IN EFFECT FOR 12 MONTHS PRECEDING SUCH DATE,
THEN OVER SUCH FEWER NUMBER OF PRECEDING MONTHS AS THE AGREEMENT HAS BEEN IN
EFFECT.
14.3 No Consequential Damages. EXCEPT IN CONNECTION WITH SUCH CLAIMS
FOR WHICH ISIS 2000 SHALL BE LIABLE AS INDEMNITOR PURSUANT TO ARTICLE XV
HEREOF, ISIS 2000 WILL NOT BE LIABLE FOR, AND WYNDHAM HEREBY WAIVES AND
RELEASES ALL CLAIMS AGAINST ISIS 2000 FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, INCLUDING LOST REVENUES, LOST PROFITS, OR LOSS OF PROSPECTIVE ECONOMIC
ADVANTAGE, OR ANY
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CLAIMS OF THIRD PARTIES, INCLUDING BUT NOT LIMITED TO WYNDHAM CUSTOMERS,
WYNDHAM FRANCHISEES, AGENTS OF WYNDHAM OR ANY OTHER AFFILIATE OF WYNDHAM
RESULTING FROM PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT.
XV. INDEMNIFICATION.
15.1 Indemnification by Wyndham. Wyndham shall indemnify and hold
harmless ISIS 2000, and shall reimburse ISIS 2000 for any loss, liability,
claim, damage, expense (including, but not limited to, costs of investigation
and defense and reasonable attorney's fees) or diminution of value
(collectively, "Damages") arising from or in connection with liabilities
arising out of any failure by Wyndham to comply with its obligations under this
Agreement, any inaccuracy in any of the representations or warranties of
Wyndham in this Agreement, or any action by any third party with respect to the
functioning of the ISIS System or any of the services provided hereunder,
except for any actions resulting directly or indirectly from ISIS 2000's
negligence.
15.2 Indemnification by ISIS 2000. ISIS 2000 shall indemnify and hold
harmless Wyndham, and shall reimburse Wyndham for any Damages arising out of
any failure by ISIS 2000 to comply with its obligations under Article 14.1 of
this Agreement, or any inaccuracy in any of the representations or warranties
of ISIS 2000 in this Agreement, other than Damages for lost profits, or
incidental or consequential damages or Damages arising out of any action by any
third party with respect to the functioning of the ISIS System or any of the
services provided hereunder.
15.3 Patent Indemnity. ISIS 2000 shall indemnify and hold Wyndham
harmless against any Damages incurred by or against Wyndham as a result of or
in connection with any claim made or alleged that the ISIS System infringes any
United States patent, copyright, trade secret, trademark or other intellectual
property rights of any third party, conditioned on the following:
(A) That ISIS 2000 shall be notified promptly in writing by
Wyndham of any notice of such claims; and
(B) That ISIS 2000 shall have the sole control of the defense of any
action on such claim and all negotiations for its settlement or
compromise.
Should any aspect of the ISIS System be held, or in ISIS 2000's
opinion be likely to be held, to infringe such intellectual property rights,
ISIS 2000 shall, at its expense, (i) procure for Wyndham the right to continue
using the ISIS System, or (ii) replace or modify the same so that it becomes
non-infringing but still provides substantially the same functions as provided
prior to replacement or modification.
XVI. TERM; CANCELLATION OF CERTAIN SERVICES.
16.1 Base Term. This Agreement is effective upon execution and has an
initial term
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ending on the date five years from the Cutover Date, and will be renewed for
any number of consecutive one year terms unless terminated (a) by either party
by written notice to the other party at least 120 days prior to the end of the
then current term of the Agreement or (b) pursuant to Section 16.2 or Article
XVII hereof. Articles VIII, XIII, XIV and XV, and Sections 18.1, 18.4, 18.7 and
18.15 will survive termination of this Agreement.
16.2 Early Termination. Wyndham may elect to terminate this Agreement
upon one year's written notice given to ISIS 2000. If Wyndham so elects, it
will pay all costs ISIS 2000 has incurred through the date of termination in
setting up and providing service under this Agreement, including, without
limitation, financing costs, other than costs that have been recovered by ISIS
2000 through charges to Wyndham.
XVII. TERMINATION.
17.1 Breach. In the event of a material breach of the terms and
conditions of this Agreement, the non-breaching party may terminate this
Agreement without further liability upon thirty (30) prior written notice to
the other party (which notice shall describe, with as much particularity as
possible, the alleged material breach) provided, however, that the breaching
party shall have thirty (30) days to correct such breach following receipt of
such notice. In the event that a cure requires more than thirty (30) days to
complete, it shall be deemed sufficient if a cure is promptly commenced,
thereafter, is diligently prosecuted, and in any event cured within ninety (90)
days of the receipt of the original notice.
17.2 Non-Payment. If Wyndham does not make any payment to ISIS 2000
when it is due, which shall not be less than ___days from the date an invoice
is received, then ISIS 2000 may immediately terminate this Agreement upon ten
(10) days written notice to Wyndham, unless Wyndham makes such payment to ISIS
2000 on or before the expiration of such ten (10) day default, notice and grace
period.
17.3 Obligations Upon Termination.
17.3.1 Upon termination of this Agreement, ISIS 2000 will
provide a tape capture of the Wyndham Data Base to Wyndham at a mutually agreed
upon reasonable date and in a form to be reasonably agreed upon between the
parties in order to assist Wyndham in an efficient migration to another
reservations system. ISIS 2000 will provide good faith assistance to Wyndham as
requested by Wyndham for six (6) months from the date the Agreement is
terminated. ISIS 2000 will invoice Wyndham, and Wyndham will pay ISIS 2000,
monthly for the assistance provided at ISIS 2000's cost plus 20%.
17.3.2 Termination by ISIS 2000 in accordance with the
provisions of this Article XVII will be treated as an early termination by
Wyndham under Section 16.2 and will entitle ISIS 2000 to recover the payment
provided in that section.
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XVIII. GENERAL.
18.1 Expenses. Except as expressly provided herein, each of the
parties hereto will pay its own fees and expenses, including its own counsel
fees and accountants' fees, incurred in connection with the transaction
contemplated by this Agreement.
18.2 Exclusivity. ISIS 2000 will provide service exclusively to
Wyndham for three years following the Cutover Date. Wyndham understands and
agrees that this is a non-exclusive agreement after three years and that after
that time ISIS 2000 may provide similar services to other third parties.
Wyndham agrees until this Agreement is terminated that ISIS 2000 shall be sole
supplier to Wyndham and its Affiliates of services of the type provided under
this Agreement.
18.3 Competition. During the term of this Agreement, Wyndham will not,
in any manner directly or indirectly, (i) compete with or (ii) own, manage,
operate, join, control, participate in or be connected as a partner, advisor,
consultant, trustee or otherwise, with any system, business or business entity
that competes or could compete with, the activities of ISIS 2000 in connection
with the ISIS Services.
18.4 Governing Law This Agreement shall be construed and interpreted
according to the laws of the State of Texas.
18.5 Amendment and Modification. The parties hereto may amend, modify
and supplement this Agreement in such manner as may be agreed upon by them in
writing.
18.6 Assignment and Subcontracting. This Agreement and all of the
provisions hereof are and will be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, including a
purchaser of all or substantially all of the assets or outstanding stock of
Wyndham, but this Agreement and the rights, interests or obligations hereunder
may not be assigned by any of the parties hereto without the consent of the
other parties, except that either party may assign this Agreement or any
portion hereof to a subsidiary or Affiliate, or may subcontract any of its
obligations hereunder, without such consent.
18.7 Third Parties' Rights. No provision of this Agreement is intended
to create any rights in persons or entities other than the parties hereto,
their successors and assigns.
18.8 Counterparts. This Agreement may be executed simultaneously in
two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
18.9 Headings. The headings of the sections of this Agreement are for
convenience only and do not constitute a part hereof.
18.10 Security. Various levels of restricted access will be
incorporated into ISIS Central and ISIS Workstation by password duty code,
individual sign-in code, job duty code, workstation location and computer
terminal access. It will be Wyndham's responsibility to assign password duty
codes to all persons using the ISIS Workstation on behalf of Wyndham.
18.11 Waiver. No waiver or breach of any provisions of this Agreement
shall constitute a waiver of any subsequent breach of the same or any other
provision hereof and no waiver shall be effective unless made in writing.
18.12 Independent Contractors. Nothing in this Agreement is intended
or will be construed to create or establish any agency, partnership or joint
venture relationship between the parties hereto.
18.13 Severability. In case any one or more of the provisions of this
Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but such provision or
provisions shall be ineffective only to the extent of such invalidity,
illegality or unenforceability without invalidating the remainder of such
provision or provisions or the remaining provisions of this Agreement, and this
Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions had never been contained herein, unless the deletion of
such provision or provisions would result in such a material change as to cause
performance by a party to be unreasonable.
18.14 Entirety of Agreement. The terms and conditions of this
Agreement including the exhibits hereto, and the License Agreement, constitute
the entire agreement between the parties and supersede those of any previous
agreement, oral or written, between Wyndham and ISIS 2000 with respect to the
subject matter of this Agreement. There are no restrictions, promises,
warranties, covenants or undertakings, other than those expressly set forth
herein.
18.15 Notices. All notices required or permitted to be given hereunder
shall be in writing and shall be valid and sufficient if dispatched either (i)
by hand delivery, (ii) by telex, cable or facsimile transceiver, with
confirming letter mailed promptly thereafter in accordance with clause (iv)
hereof, (iii) by reputable overnight express courier or (iv) by certified mail,
postage prepaid, return receipt requested, deposited in any post office in the
United States, in any case, addressed to the addresses set forth on the first
page of this Agreement, or such other addresses as may be provided from time to
time in the manner set forth above. When sent by cable or facsimile as
aforesaid, notices given as herein provided shall be considered to have been
received when sent during normal business
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hours; otherwise, notices shall be considered to have been received only upon
delivery or attempted delivery during normal business hours.
18.16 Use of Mark. ISIS 2000 grants Wyndham the right and license to
use the "ISIS 2000" name and mark in its promotional and marketing efforts,
subject to ISIS 2000's prior written approval of the use of any ISIS 2000
trademark, which approval shall not be unreasonably withheld.
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XIX. DEFINITIONS. As used herein, the following terms have the following
meanings:
Accommodation Segment--a portion of the GNR containing Property, room type, and
guest stay dates. Each different Reservation entry in the ISIS System, per
Property, room type, or guest stay date or dates, constitutes an Accommodation
Segment.
Affiliate--Any person or entity which, directly or indirectly, controls or is
controlled by one of the parties to this Agreement, or under common control
with such party or any partnership in which one of the parties to the Agreement
has at least a 5% interest.
Booking--A Reservation made through the ISIS System for a continuous stay in
one room or suite at a Wyndham Property.
Booking Fee--The fee charged for a Booking.
Calendar Quarter--a 3-month period beginning January 1, April 1, July 1 or
October 1.
Cancellation--The cancellation of a Booking in its entirety through the ISIS
System.
Cutover Date--the date ISIS Services commence in accordance with Section 1.3.4,
which the parties plan to occur on or about ____________, 1996, but which in no
event shall be later than December 31, 1996.
Dedicated Reservations Staff--A group of people, the individual members of
which may vary from time to time, that is solely dedicated to providing
Reservations Services for Wyndham.
Dollars and $--U.S. Dollars.
Enhancement--Any addition to the functionality of the ISIS System, including
but not limited to ad hoc report changes, beyond the functionality of the ISIS
System on the Cutover Date, including an ISIS Workstation programming or
Equipment modification, improvement or addition to an existing program or
Equipment.
Equipment--computer hardware, including personal computer terminals, screens,
keypads, fileservers, gateways and modems.
Force Majeure--any cause reasonably beyond a party's control, including,
without limitation, weather, acts of God, public enemies, war, insurrection,
third party labor disputes and strikes, acts or orders of governmental
authorities, electrical or power outage or interruption, fire, flood or
explosion.
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GDS Booking--A Booking from a GDS Vendor.
GDS Vendor--Global Distribution System computerized reservation vendor.
Guest Name Record or GNR--identifying information and reservation information
regarding a particular guest or guests of a Property entered into the ISIS
System.
Hotel Property or Property--the hotel, resort and condominium which is owned,
operated, managed by or contractually related to Wyndham or with regard to
which Wyndham has control over Reservations.
ISIS 2000--See the opening paragraph of this Agreement.
ISIS Central--the centralized computer hardware and software from which ISIS
Services are performed and through which the ISIS Workstations are
interconnected. ISIS System--the interconnected computerized reservation and
hotel management system at ISIS Central and Wyndham Sites, including
proprietary software therefor, owned by ISIS 2000 and operating from ISIS'
central computer system, which performs the functions, including hotel room
booking and inventory functions, set forth in Schedule 1.2 attached hereto and
made a part hereof.
ISIS Workstations--dedicated reservation workstations connected via dedicated
telecommunication lines to ISIS Central, including the proprietary software
package used by ISIS 2000, and related Equipment, that produces an intelligent
workstation and provides expanded booking and office management functionality.
Location--one of Wyndham's Properties or Sites.
Party--ISIS 2000, Wyndham or Hotel Property, as appropriate.
Reservation--the entry of an Accommodation Segment in the ISIS System.
Reservation Center--means the facility from which the ISIS Services are
performed.
Reservations Data Base--Information stored in the ISIS System.
Scripts or Macros--a stored sequence of computer screens that direct
reservation agent dialogue with Wyndham customers or travel agent and assist
the reservation agent in inputting data regarding a booking.
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Site--a business location of Wyndham which is not a Hotel Property but which is
connected to the ISIS System.
Terminal Booking--a Booking made through an ISIS Workstation.
Termination--termination of this Agreement.
Trade Secrets of a party ("Trade Secret Owner")--all confidential or
proprietary software, documentation, source code, screen display designs,
procedures, technical or financial materials, Wyndham lists, pricing, business
plans, technology and inventions developed in whole, or in part, by that party
and utilized or disclosed to the other party in connection with performance
under this Agreement. "Trade Secrets" do not include any materials or
information which is or becomes publicly known through no wrongful act of the
party who is not the Trade Secret Owner.
TRC Number--the toll-paid and toll telephone numbers ISIS 2000 makes available
for customers to call to make reservations through the Central Reservations
System.
TRC-Number Booking--a Booking on a TRC-number Call.
TRC-Number Call--See Article 1.3.2.
United States--the fifty (50) United States of America and the District of
Columbia.
Wyndham--See the first paragraph of this Agreement.
Wyndham Customer--Any person or entity who calls the Reservations Center for
the purpose of making a Booking or a Cancellation, or for any other reason
related to Wyndham.
Wyndham Data Base--Information stored in the Reservations Data Base relating to
Wyndham Properties or Wyndham Customers.
All definitions set forth herein apply to all exhibits hereto, and all
definitions set forth in exhibits hereto apply to the body of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement as
of the date first written above.
WYNDHAM HOTEL CORPORATION
By:/s/ ANNE L. RAYMOND
-----------------------------
Its: Executive Vice President
-----------------------------
ISIS 2000 Limited Partnership, a Texas
limited partnership
By: ISIS CRO, Inc. a Texas corporation,
its general partner
By: /s/ STANLEY MACK KOONCE, JR.
-----------------------------
Stanley Mack Koonce, Jr.
President
Wyndham Reservation Agreement. Wyn
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SCHEDULE 1.1.1
INFORMATION SYSTEM DATA BASE AND DATA NETWORK SERVICES
ISIS 2000 will provide the following Information System and Data Network
Services to Wyndham:
1. Single Image Central Reservation System
2. Global Distribution System Reservation Services
3. Property Management System Interface to and from the ISIS System for
hotels automated with an existing "Fidelio" PMS
4. Guest History Data Base
5. Yield and Room Merchandising Support System
6. Other systems as agreed by ISIS 2000 and Wyndham
ISIS Central Reservation System will he available at least 98% of scheduled
hours based upon monthly averages.
ISIS will develop and maintain a back-up manual reservation process.
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SCHEDULE 1.1.2
TELEPHONE SALES AND SUPPORT SERVICES
1. Telephone Sales Services - ISIS will handle telephone sales on
Wyndham's behalf with the general public and travel agents
2. Telephonic Support and Sales for Wholesaler's designated by Wyndham
3. Customer Service Calls from Wyndham's Customers
4. Brochure request handling - Fulfillment of these requests will be by
Wyndham or another Wyndham contracted Service
5. Help Desk for Wyndham Hotel Properties and other Wyndham locations
During the first three months of the agreement, telephone answering
service levels will be 70% answered within 20 seconds, thereafter 80%
within 20 seconds
ISIS 2000 will maintain a dedicated group of reservation sales agents to
provide service to Wyndham
ISIS 2000 and Wyndham will jointly develop the approach to handling sales
via the Telephone Sales Service
ISIS 2000 will provide music on hold and promotional announcements
ISIS will provide Wyndham with reports which measure actual telephone
sales performance
ISIS will provide Wyndham with the ability to access the reservation sales
data base report
ISIS 2000 will provide Wholesaler Reservations Services to Wyndham. The
Wholesaler Reservations Services are defined as:
a. Processing and delivering reservations booked by Wholesalers to
Wyndham Properties through an 800-number to be provided by ISIS 2000;
27
b. Processing guarantees of reservations through vouchers, advanced
deposits and/or rooming lists, in accordance with the written
instructions provided to ISIS 2000;
c. Updating availability status between Wyndham Properties and
Wholesalers by opening and closing rooms inventory;
d. Administering guidelines established for Wholesalers as related to
availability, cut-off periods and room allotment;
e. Coordination with Wyndham Properties sales departments as related to
Wholesaler contract information, negotiated rates and guarantee
policies.
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SCHEDULE 1.2
ISIS SYSTEM CAPABILITIES
ISIS 2000 SYSTEM ARCHITECTURE
ISIS 2000 uses the Oracle data base management system and the Oracle
Developer 2000 tool kit. ISIS Central runs under the UNIX operating
system. Windows 95 is used as the operating system on ISIS
Workstations. WindowsNT will be used in local system servers.
SCREEN INFORMATION AND NAVIGATION CAPABILITIES
The sales agent is be presented with information screens and a method
of navigation between screens that provides flexible and rapid support
for the information needs of the telephone sales agent.
USE OF WINDOWS AND COLOR
Multiple "windows" of information are be available to the sales agent.
These multiple windows are presented on the screen to allow the agent
to rapidly access information required to support the specific nature
of the telephone sales call that is being handled
Color is used on the screen to enhance the ease of intuitive
understanding by the sales agent, as well as to call the agent's
attention to important information and to assist in navigation between
screens throughout the sales transaction
RESERVATION SALES DISPLAY
The sales agent can capture and retain information about the sale
throughout the call to avoid redundant data entry Typical information
that is captured in this manner includes:
o Arrival & Departure Dates
o Frequent guest number
o Airline frequent flier number
o Guest name and Address
o Name of person making the reservation
o Number of guests
o Number of rooms requested
o Characteristics or type of room requested
o Amenity requirements
o Travel agency name or IATA number
o Affiliation with a group or convention
o Eligibility for special rate programs
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o Corporate affiliation
o City or hotel requested
For those fields that require the guest or his agent to remember a
number, such as frequent guest number or IATA number, a look-up
feature is available to allow the sales agent to find the frequent
guest record based upon other information that the guest has
available.
Whenever a data field which has associated information in the data
base, such as Frequent Guest Number or IATA number or Corporate
Identifier, is entered, applicable information available from the data
base is automatically filled in for the sales agent.
CITY INFORMATION
This Information includes:
o Availability display of Wyndham hotels in the specified city and
for the guest's requested dates, room requirements, and amenity
requirements.
o Location of hotels within the city
o Location relative to airports, business centers and points of
interest
o Descriptions of nearby attractions
HOTEL PROPERTY INFORMATION
The sales agent has the ability to access well organized information
about a specific Wyndham hotel. This information includes:
o Hotel management
o Address and phone numbers/fax numbers
o A description of the hotel
o Descriptions of specific room types
o Recreational facilities at the hotel or available to hotel
guests
o Banquet and meeting facilities/restaurants
o Amenities and services offered by the hotel
o Driving directions from the airport, major highways and
business centers
o Description of hotel policies
o Fire/Safety
o Handicap access
o Smoking/non-smoking rooms
Wyndham has the ability to add new information categories as needed.
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AVAILABILITY AND RATE DISPLAY
The ISIS System provides an integrated availability and rate display
for the hotel which allows the agent to rapidly scan a range of dates
for rates or room-types that are available for sale.
Special rate plans are displayed only if the sales agent has
previously identified an attribute of the customer that allows
eligibility for the rate plan. These special rate plans could include
group and convention rates, negotiated corporate rates, special
marketing program rates, package plans, and negotiated travel agency
consortia rates.
The availability of rates displayed for sale on the screen are limited
by the following parameters, which are controlled by the hotel:
o Minimum length of stay
o Date of arrival
o Date of departure
o Advance booking requirement
o Participation in a group or convention
o Eligibility for a special rate program
Special booking requirements, such as advance deposit requirements or
refundability limitations, can be presented when applicable to allow
the agent to discuss the restriction with the guest before progressing
with a booking.
If the hotel requested by the guest is not available for the dates
requested, other Wyndham Properties that are available in the city are
identified to the sales agent so that they can be offered to the
guest.
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The ISIS System maintains current IATA and ARC travel agency names and
addresses to allow automatic insertion of the name and address data
for travel agencies when the IATA number is entered. Wyndham can add
to this list additional travel agents or distributors that are
proprietary to Wyndham and which are maintained separately by Wyndham.
These proprietary distributors will not be modified or deleted when an
updated IATA file is loaded.
In addition to automatic insertion of the above information, a guest
profile is available for those customers that Wyndham chooses to
designate in advance as frequent guests. The guest profile allows for
the automatic transfer of the necessary name, address, telephone,
corporate affiliation and special guest requests information into the
Guest Name Record (GNR).
The ISIS System is capable of capturing special service requests that
the guest may require, notifying the property of the request and
storing the requests with the GNR.
REGRETS AND DENIALS
If a telephone sales call does not result in a sale the ISIS System
presents the sales agent with a "Regrets and Denials" screen that
captures the reason, in the opinion of the sales agent, that the sale
was lost. The categories of regret and denial reasons are flexible,
allowing Wyndham to add and delete categories as desired. The city or
hotel requested and the guest's requested length of stay are captured
automatically.
Wyndham has the ability to add, delete or modify regret and denial
reason codes.
The regrets and denials information is collected as a part of a forced
wrap-up at the close of each sales dialogue.
GUEST DATA
Each sale results in the storage in the data base Reservations Data
Base of information about the sale and the guest. The GNR will store
the necessary information to document the sale that has been made and
to provide the Hotel Property with the necessary information about the
guest and the terms of sale. The guest name record includes:
o Record identifier or confirmation number
o Guest name
o Guest address
o Guest telephone Number
o Guest business telephone number
o Name of person making the reservation
o Date of arrival
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o Date of departure
o Rate-tier, rate-type confirmed
o Room-type confirmed
o Source of sale
o Travel agency IATA number
o Travel agency name and address and phone number
o Wholesaler identifier and name
o Reservation Center sales agent ID
o GDS system and agent identifier if a GDS sale
o Hotel property sales agent ID
o Any special service request
o Any free-form comments entered by the sales agent that will
be conveyed to the hotel property
With the exception of the free-form comments, which can be stored as
unedited text, this information is structured data that is edited for
accuracy and validity.
ROOM-TYPE AND RATE-TYPE
There is no technical limit to the number of room-types or rate-types
that can be offered by a hotel. The rates can be associated with a
rate tier allows all rates in a tier to have their sales restrictions
modified as part of a single data base update transaction.
The ISIS System allows both inventory allocation and
status/restriction capabilities to manage availability. The status
restrictions on display for sale include:
o Length of stay based upon either arrival date or stay through
o Closed to arrival
o Closed to departure
o Advance booking
o Day of week
The ISIS System can automatically price for quotation by the sales
agent to the guests
o Additional charges for:
Additional guests
Children by age category
o Meal plans
o Rollaway beds
o Taxes & service charges
The ISIS System can automatically enforce maximum room occupancy rules
by room type and hotel.
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DATA BASE
The data base of rates and availability can be accessible from the
Hotel Property. This access, with appropriate security control, must
be possible via the following methods:
o Dial-up access from a personal computer at the property
o An ISIS Workstation on property connected via ISIS 2000's
network
o An automatic update, received over a dedicated or shared
network, from a property management
system that is controlling a property's inventory
o An update made by a data base agent at the Reservation Center
on instruction from the property.
The rate and availability data base maintain an inventory and or
status for each room-type and rate tier. The ability to maintain an
inventory for group or wholesaler blocks is provided. These blocks are
room-type specific to meet the needs of certain wholesalers and run of
the house for others.
A history of the changes made to inventory levels, rate-tiers,
rate-types, and room-types is saved on the ISIS System to allow for
resolution of any problems with a hotel's status. This history will
include the change made, the date and time of the transaction and the
security sign in code of the individual making the change.
The ISIS System is capable of acting as a single data base for all
reservation activity. The central data base can be used as one
consistent source of availability, rate and guest reservation
information for Wyndham.
The central data base is capable of providing support for several
critical objectives:
o A single point of complete control of all inventory and price
offerings
o The ability to manage inventory and price across all
distribution channels
o The ability to provide a consistent source of information for
sales reporting and analysis
o A source of information for a customer direct marketing data
base
The ISIS System will be able to link to existing Fidelio property
management systems via a two-way reservation link. The new
single-image Property Management System will allow for a replicated
copy of a hotel's reservation and customer data locally.
GDS SYSTEM INTERFACE THROUGH THISCO'S ULTRASWITCH
The ISIS System has the capability to "link" to the various Global
Distribution Systems (GDS). This will include links with:
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o Sabre - Including "Direct Connect Availability"
o Galileo's RoomMaster - Including Inside availability
o Worldspan
o Amadeus
o System One
Wyndham may also establish links with other GDSs.
AVAILABILITY STATUS MESSAGES
The ISIS System is capable of automatically generating and sending
availability status messages to each Global Distribution System and
notifying the GDS of changes in availability status of a hotel
property's room-type or rate-level inventory.
The ISIS System provides the ability to translate, via flexible
translation tables, the room-types and rate-levels used by Wyndham to
the allowable structures for room-types and rate-levels within each
GDS.
GDS RATE UPDATE
The ISIS System can automatically pass updated rate information to GDS
in conjunction with the use of the LANYON RATES system.
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PROPERTY MANAGEMENT SYSTEM
An automated two way interface will be available for the Fidelio
property management systems ("PMS") currently installed at Wyndham. It
is Wyndham's intention to move to a centralized data base for all
hotels. This will occur in two steps:
o Automated Two way Interfaces with Fidelio PMSs. This will
include the actual guest stay data from the hotel PMS
o New "single image" property management system to be installed
beginning in 1997
During transition to Wyndham's new system and when Wyndham first takes
over a Property, there is a need to operate the ISIS System connection
to the Property with the following alternatives:
o The ISIS System is capable of sending reservations,
modifications and cancellations to the property via automated
FAX. The nature of modifications made to an existing reservation
will be clearly highlighted on this form to allow local
reservation personnel to accurately modify their local PMS data
base.
o A second option for Properties without a PMS interface is to
download reservations, cancellations and modifications to a
personal computer at the Property on either a dial-in basis or a
dial-out basis.
Wyndham intends to utilize the network which will grow as a result of
interfacing PMSs to the ISIS System as the basis for establishing a
corporate network which will support a number of functions which will
includes:
o Customer data base, the ISIS System will be capable of receiving
a daily upload of actual guest stay information following
completion of the property's night audit.
o Guest Recognition
o Guest History - Direct marketing
o Management Information
YIELD MANAGEMENT SYSTEM - ROOMS MERCHANDISING
While Wyndham does not currently utilize an automated yield management
system, a manual process is used to assess current advanced booking
patterns relative to a comparable period in the prior years. This
comparison of advanced booking levels is considered along with other
market and competitive factors known by property management to
determine which rate tiers will be restricted on which future dates.
To effectively manage yield, information about the sales build
progress for all sources or bookings needs to be accumulated for
review, not simply sales from the Reservation Center and GDS. As such,
the only current source at Wyndham for complete yield
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management data is the property management system at the hotel.
However, the ISIS System, using either a two-way link to Fidelio or
the new ISIS "Single-Image" property management system, will be used
as the single data base for all reservation activity. As such, the
ISIS System will be the source of information to support the yield
management process for some Wyndham Properties.
The following data will be captured in this process to assist in the
yield management and room merchandising process:
o Hotel identifier
o Date at which status file was produced
o For each rate tier and room type combination at the property:
The number of un-cancelled and currently residing bookings
for each future date up to a future date defined by the hotel
property.
It is anticipated that this future date will be at least 26
weeks out.
o For each future date, type of customer and source of sale
The number of new bookings
The number of cancellations
The number of modifications
o The booking restrictions in place for each future date, rate
tier and room-type.
A system that supports Wyndham's room merchandising process will be
developed using this data.
WHOLESALER REQUIREMENTS
Wyndham uses a number of wholesalers to support its sales and
marketing effort. Most capabilities required to support wholesalers,
such as the ability to inventory a block of rooms for a wholesaler,
are covered elsewhere in this requirement document. The following
section highlights additional capabilities that are provided to
support wholesalers:
o Wyndham may wish to enter reservations from wholesalers
from any designated Wyndham sales office or property.
o Wyndham's headquarters staff or sales office(s) will be able
to view inventory build for a particular wholesaler block.
o An ability to request a specific room from a Hotel Property
and note the status of the request as confirmed or denied in
the reservation detail.
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Confirmations will be printed when designated by a sales agent. The
confirmation includes:
o The hotel booked and its address and phone number
o The dates of arrival and departure
o Package or rate booked
o Package description
o Add ons or taxes
o Details of any special service requirements promised to the
guest
CUSTOMER DATA BASE
Wyndham will, as a second step following the activation of the ISIS
System, have the ability to establish a Customer Data Base that can be
used flexibly for direct marketing purposes. The ISIS System will
provide an ability store the sales and checkout record for each guest.
These records will be matched to link the various stays of a guest
across all Wyndham hotels. "Key data elements" will be used to match a
customer and will include: customer name, address, phone number,
business phone number, credit card type and number(s), frequent guest
number, airline frequent flier number(s). The source of booking for
the customer will also be identified in the customer data base. The
ISIS System will also be capable of capturing, and passing to the
Customer Data Base, a corporate identifier for those sales that are
made against a corporate agreement.
MARKETING INFORMATION QUERY AND ANALYSIS
Marketing information will be available by standard screen queries,
and if need printed via a flexible query. Information available in
query will include:
o Source of Sale for each Hotel Property:
By geographic area
By mode of distribution:
Direct from customer
Travel agency via telephone
Travel agency via GDS
Wholesalers
By individual travel agency
By travel agency group or consortia
By Wholesaler
o Sales received via the telephone from either a customer or
travel agency further reported as resulting from:
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Sales made by a Hotel Property and booked in the
ISIS System
Sales made by the Reservation Center
Sales made by an overseas sales office that has
booking access to the ISIS System.
o The above information for a property will also be available
in regional, division and corporate summaries as defined by
Wyndham.
o Based upon the regret and denial categories established by
Wyndham; daily, weekly and monthly summaries of regrets and
denials will be available for each hotel. This summary will
include the number of calls resulting in a regret or denial
for each reason defined and each date. Regrets and denials
will be reported for each Property and be summarized by
region, division and corporate. The categories of regrets and
denials to be reported will be defined by Wyndham and be
flexibly changed as required.
TELEPHONE SALES
The ISIS System will produce reports that measure the productivity of
the telephone sales operation. These reports will also provide
operational information useful to Reservation Center and Hotel
Property management in day-to-day management of the reservation
operation. These reports or displays will include:
o Telephone sales agent booking performance:
Number of hours that the agent was signed in with sales
agent duty code.
Number of bookings
Gross
Net of cancellations
o The ISIS System will be capable of exporting a file of
telephone sales activity by sales agent to a personal
computer for analysis of sales conversion rates on an agent
by agent basis. Alternatively, the ISIS System will be
capable of accepting a file from the Automated Call Director
(ACD) for production of sales conversion rate reports.
DATA BASE
Queries summarizing activity by each data base agent will be produced.
This activity will include the number of transactions of each type
entered by the data base agent and the number of hours signed in with
the data base agent duty code.
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Displays or reports will be available that allow an audit of the
changes made for each hotel and by each data base agent to the
availability/rate levels and restrictions, These reports will show the
time that the change was entered into the ISIS System, the agent that
made the change and the specific change that was made. These will be
displayable both by agent and by Property.
SECURITY
The ISIS System will provide a security system which allows for
assignment of security access from a central point, either at
Wyndham's headquarters or the Reservation Center. Security access will
be granted in proportion to the job responsibilities and location of
the individual who is granted the access
The ISIS System will append to each transaction the security access
code of the individual making a transaction and, if possible, an
identifier of the location from which the transaction was made.
FREQUENT GUEST RECOGNITION/REWARD PROGRAM
Wyndham may wish to reward frequent guests in a variety of manners in
the future. In order to achieve this objective the ISIS System will
provide the capability to track frequent guests using the customer
data base as previously described The frequent guest program will
allow for a related customer profile in the ISIS System providing
information about the guest that can be used during the reservation
process, as well as provide information about the guest's previous
stay history with Wyndham.
VIDEO AND MAP DATABASE AND DISPLAY
The ISIS System will maintain a data base of video images of the hotel
and related facilities and points of interest. In addition maps to the
property can be scanned into the ISIS System and stored. These images
and maps can be presented to the sales agent to assist in the sale and
providing help to the guest.
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EXHIBIT 2.1
ISIS WORKSTATION LICENSE AND LEASE AGREEMENT
This Agreement is made and entered into this _____ day of ________________ 199
, by and between ISIS 2000, a limited partnership formed under the laws of the
State of Texas, with offices at ________________________________("ISIS 2000"),
and Wyndham Hotel Corporation, a corporation incorporated under the laws of the
State of Delaware with offices at ___________
("Wyndham").
W I T N E S S E T H:
WHEREAS, ISIS 2000 is willing to make ISIS Workstations available to Wyndham by
providing Wyndham with certain equipment and software; and
WHEREAS, Wyndham desires to utilize ISIS Workstations and desires therefore to
install and utilize certain related equipment and software; and
WHEREAS, Wyndham desires to lease the equipment and license the software
specified herein;
NOW, THEREFORE, in consideration of the premises and the mutual obligations
hereinafter set forth, ISIS 2000 and Wyndham hereby agree as follows:
1. DEFINITIONS
For purposes of this Agreement: All definitions set forth in the
Centralized Reservations Service Agreement executed between the parties hereto
on ___________________________ ("Service Agreement") are applicable hereto and
incorporated by reference herein.
2. INSTALLATION
A. ISIS 2000 will, pursuant to the Service Agreement, lease and
install or cause to be installed the applicable Equipment as detailed in
Exhibit A at the location or locations set forth on Exhibit B attached hereto
and made a part hereof and additional locations to be requested by Wyndham at
additional prices to be agreed upon between the parties, and will interconnect
the Equipment to ISIS Central.
B. Each Wyndham Location will be reviewed by a ISIS 2000
representative to determine what, if any, physical modifications will be
required to support the ISIS Workstation at the Wyndham designated spot(s).
After the placement review is completed, ISIS 2000 will issue a placement
survey for each Wyndham location. The placement survey will detail the layout
of all terminals, cables, and back room support for Equipment (e.g., CPUs and
modems). At its own
41
cost and expense, Wyndham will undertake the responsibility to implement any
physical modification required by the placement survey, including without
limitation, the furnishing of electrical power, the installation of data
cables, and access to telephone lines.
C. Wyndham will not relocate any installed Equipment further than the
length of the wire installed by ISIS 2000 that connects such Equipment without
first obtaining ISIS 2000's written consent. Any approved relocation must be
accomplished by ISIS 2000 or its designee at Wyndham's sole cost and expense.
D. ISIS 2000 will use its best efforts to install and interconnect
the Equipment at the Wyndham locations by the respective dates set forth on
Exhibit A, or in the event of subsequently requested locations, by dates to be
agreed upon.
E. Wyndham warrants and represents that each location at which the
Equipment is to be installed is owned or controlled by Wyndham and that it has
authority to enter into this Agreement on behalf of each said location.
3. TRAINING
Only qualified personnel who have satisfactorily completed ISIS
2000's training program, as described in the Service Agreement, will be
permitted to operate any Equipment or access ISIS Central.
4. SOFTWARE LICENSE - RESTRICTIONS
ISIS 2000 hereby grants Wyndham a nonexclusive license to the
software resident in the ISIS Workstation in connection with Wyndham's use of
the ISIS Workstation. The software may not be used, in whole or in part, by
Wyndham on other than the Equipment set forth on Exhibit A to this Agreement or
subsequently designated Equipment as agreed to by the parties, without the
prior written consent of ISIS 2000. This license will terminate upon
termination of this Agreement.
It is expressly understood and agreed that all provisions the Service
Agreement regarding title, ownership and nondisclosure apply to this Lease
Agreement and are incorporated herein by reference.
Except with the prior written consent of ISIS 2000, Wyndham will not
use ISIS Workstation for any functions other than those set forth in the ISIS
Workstation operations manuals.
ISIS 2000 provides ISIS Workstation pursuant to license agreements
with various third party software providers. Certain of these providers may
require ISIS 2000 to obtain Wyndham's agreement to and compliance with software
sublicenses, and Wyndham agrees to abide by all
42
such sublicenses. If Wyndham fails to agree to or abide by a sublicense, ISIS
2000 may refuse to install, or may deinstall, ISIS Workstation.
Wyndham will not sell, lease, or otherwise transfer Macros that
have been created by ISIS 2000 or by Wyndham.
5. THIRD PARTY-PROVIDED SOFTWARE
A. Wyndham may not use software that is provided by any party other
than ISIS 2000 in connection with Wyndham's use of the ISIS Workstation, unless
Wyndham obtains ISIS 2000's prior written consent to the use of such third
party-provided software ("Third Party Software"). If ISIS 2000 consents to
Wyndham's use of Third Party Software, ISIS 2000 will have no liability for any
associated license or sub-license fees and will have no responsibility for
loading the software. In addition, regardless of whether it has provided its
prior consent to Wyndham's use of Third Party Software, ISIS 2000 will have no
liability to Wyndham if subsequent enhancements or modifications of the ISIS
Workstation render the Third Party Software incompatible with the ISIS
Workstation.
B. Regardless of whether ISIS 2000 has provided its prior consent to
Wyndham's use of Third Party Software, ISIS 2000 will have no liability
whatsoever to Wyndham for, and Wyndham releases ISIS 2000 from any
responsibility for, any defects, malfunctions, failure to perform, and errors
of any kind by the Third Party Software. In addition, ISIS 2000's consent to
Wyndham's use of Third Party Software will not obligate ISIS 2000 to provide
support services of any kind for Third-Party Software.
C. Regardless of whether ISIS 2000 has provided its prior consent to
Wyndham's use of Third Party Software, ISIS 2000 will have no liability
whatsoever to Wyndham for, and Wyndham releases ISIS 2000 from any
responsibility for, any malfunction, interruption, or failure to perform of the
ISIS Workstation or Equipment caused by the Third Party Software.
D. Regardless of whether ISIS 2000 has provided its prior consent to
Wyndham's use of Third Party Software, Wyndham will be liable to ISIS 2000 for
any loss or damage to the ISIS Workstation or ISIS Central that is caused by
the Third Party Software's performance or failure to perform, including all
costs incurred by ISIS 2000 in connection with the service and repair required
to restore Wyndham's interconnection to ISIS Central.
E. Regardless of whether ISIS 2000 has provided its prior consent to
Wyndham's use of Third Party Software, Wyndham will indemnify and hold harmless
ISIS 2000 and its partners, officers, directors, agents, and employees against
and from any and all liabilities, damages, losses, expenses, claims, demands,
suits, fines or judgments, including, but not limited to, attorneys' fees,
costs and expenses incident thereto, which may be suffered by, accrue against,
be charged to, or be recovered from ISIS 2000, its partners, officers,
directors, agents, or employees, by reason of any injuries to or deaths of
persons, the loss of, damage to, or destruction of property, including loss of
the use thereof, or economic loss arising out of or in
43
connection with (i) any act, error or omission of Wyndham, its officers,
directors, agents, or employees in the installation and operation of the Third
Party Software, (ii) any act, error, or omission of the provider of the Third
Party Software in the installation and operation of the Third Party Software,
(iii) any defect, malfunction, failure to perform, and error of any kind by the
Third Party Software; and (iv) any misuse or negligent use of, or failure to
adhere to operating guidelines and procedures with respect to the Third Party
Software by Wyndham, its agents or employees; and (v) any damage or loss to the
Wyndham Database.
6. THIRD PARTY-PROVIDED HARDWARE
A. Wyndham may not use hardware that is provided by any party other
than ISIS 2000 in connection with Wyndham's use of the ISIS Workstation or ISIS
Central, unless Wyndham obtains ISIS 2000's prior written consent to the use of
such third-party provided hardware ("Third Party Hardware"). If ISIS 2000
consents to Wyndham's use of such Third Party Hardware, ISIS 2000 will have no
liability whatsoever for the costs associated with Wyndham's use of same and
will have no responsibility for installing the Third Party Hardware. If
Wyndham's existing Equipment must be reconfigured to accommodate the Third
Party Hardware, ISIS 2000 will perform or cause to be performed such
reconfiguration, at Wyndham's expense. In addition, regardless of whether it
has provided its prior consent to Wyndham's use of Third Party Hardware, ISIS
2000 will have no liability to Wyndham if subsequent enhancements or
modifications of the ISIS Workstation System render the Third Party Hardware
incompatible with the ISIS Workstation.
B. Regardless of whether ISIS 2000 has provided its prior consent to
Wyndham's use of Third Party Hardware, ISIS 2000 will have no liability
whatsoever to Wyndham for, and Wyndham releases ISIS 2000, its partners,
officers, directors, employees and agents from any and all responsibility for,
any defects, malfunctions, failure to perform, and errors of any kind by the
Third Party Hardware. In addition, ISIS 2000's consent to Wyndham's use of
Third Party Hardware will not obligate ISIS 2000 to provide repair and
maintenance services of any kind in connection with said Third Party Hardware.
C. Regardless of whether ISIS 2000 has provided its prior consent to
Wyndham's use of Third Party Hardware, ISIS 2000 will have no liability
whatsoever to Wyndham for, and Wyndham releases ISIS 2000, its partners,
officers, directors, employees and agents from any and all responsibility for,
any malfunction, interruption, or failure to perform of ISIS Workstation caused
by the Third Party Hardware.
D. Regardless of whether ISIS 2000 has provided its prior consent to
Wyndham's use of Third Party Hardware, Wyndham will be liable to ISIS 2000 for
any loss or damage to the ISIS Workstation that is caused by the Third Party
Hardware's performance or failure to perform, including all costs incurred by
ISIS 2000 in connection with the service and repair required to restore
Wyndham's interconnection to ISIS Workstation.
44
E. Regardless of whether ISIS 2000 has provided its prior consent to
Wyndham's use of Third Party Hardware, Wyndham will indemnify and hold harmless
ISIS 2000, its partners, officers, directors, agents, and employees against and
from any and all liabilities, damages, losses, expenses, claims, demands,
suits, fines or judgments, including, but not limited to, attorneys' fees,
costs and expenses incident thereto, which may be suffered by, accrue against,
be charged to, or be recovered from ISIS 2000, its partners, officers,
directors, agents, or employees, by reason of any injuries to or deaths of
persons, the loss of, damage to, or destruction of property, including loss of
the use thereof, or economic loss arising out of or in connection with (i) any
act, error or omission of Wyndham, its officers, directors, agents, or
employees in the installation and operation of the Third Party Hardware, (ii)
any act, error, or omission of the provider of the Third Party Hardware in the
installation and operation of the Third Party Hardware, and (iii) any defect,
malfunction, failure to perform, and error of any kind by the Third Party
Hardware.
7. REPAIR AND MAINTENANCE
A. ISIS 2000 will provide or cause to be provided to Wyndham
certain repair and maintenance services required for the Equipment during
normal business hours.
B. Neither Wyndham nor any third party, other than a third
party designated by ISIS 2000, will perform or attempt to perform maintenance,
repair work, alterations or modifications, of any nature whatsoever, to the
Equipment or the ISIS Workstation.
C. Except where damage results from the fault or negligence of
ISIS 2000 or its designated agent, maintenance and repair services set forth in
this Article 7 do not apply to:
(i) any damage resulting from (a) accident, transportation,
neglect or misuse, (b) failure or variation of electrical power, (c) failure to
properly maintain the installation site, air conditioning or humidity control,
or (d) causes other than ordinary use; and
(ii) any damage resulting from any maintenance, parts,
attachments or modification to the Equipment or software performed or provided
by anyone other than ISIS 2000 or its designated agent.
D. Any repair or maintenance required because of any damages
as described in Article 7C will be performed by ISIS 2000 or its designated
agent at Wyndham's sole cost and expense.
8. OPERATION OF EQUIPMENT, INDEMNITY AND INSURANCE
A. (i) The ISIS Workstation must be used and operated (a)
in strict accordance with operating instructions provided by ISIS 2000 in the
procedures manuals and materials, and (b) solely for the performance of the
specific business functions designated in the
45
procedures manuals and materials. Any undesignated business use and all
nonbusiness uses are strictly prohibited.
(ii) Wyndham will take all precautions necessary to
prevent unauthorized operation or use of ISIS Workstation.
B. Wyndham will take all necessary precautions to protect the ISIS
Workstation.
C. (i) At its own cost, Wyndham must procure and maintain insurance,
from an insurer and on terms and conditions acceptable to ISIS 2000, insuring
the Equipment against all risk of loss or damage, including, without
limitation, the risks of fire, theft and such other risks as are customarily
insured in a standard all-risk policy. Such insurance shall also provide the
following:
(a) Full replacement value coverage for the
Equipment which value is stipulated to be not less than the
Insurance Value as specified on Exhibit A attached hereto;
(b) An endorsement naming ISIS 2000 as a
co-insured and as a loss payee to the extent of its interest in
the Equipment; and
(c) An endorsement requiring the insurer to
give ISIS 2000 at least 30 days' prior written notice of any
intended cancellation, nonrenewal, material change in coverage or
any default in the payment of a premium.
(ii) Prior to the installation of the Equipment,
ISIS 2000 must receive from the insurer certificates of insurance evidencing
the insurance and endorsements specified in Article 8C(i) hereof.
(iii) If Wyndham fails to maintain or pay the
premium on the insurance required in Article 8C(i) hereof, then ISIS 2000 may
secure equivalent insurance coverage or pay any delinquent premium. If ISIS
2000 elects to do so, then ISIS 2000 may, at its option:
(a) Demand that Wyndham immediately reimburse
ISIS 2000 to the extent of ISIS 2000's cost of such equivalent
insurance or delinquent premium payment plus interest at the rate
of eighteen percent (18%) per annum or the maximum amount
permitted by law, whichever is less, from the date of ISIS 2000's
expenditure until the date of reimbursement to ISIS 2000 and
Wyndham will immediately pay all such amounts to ISIS 2000, or
(b) Deduct from amounts due to Wyndham from
ISIS 2000 an amount equal to ISIS 2000's cost of such equivalent
insurance or delinquent premium payment.
46
D. (i) Notwithstanding anything stated herein to the
contrary, Wyndham will be liable to ISIS 2000 for any loss or damage to the
Equipment, regardless of the cause thereof, occurring while leased to Wyndham
or while in the possession, custody, or control of Wyndham.
(ii) If any Equipment is lost, totally destroyed, damaged
beyond repair, or so damaged to constitute a constructive total loss, then,
within 60 days after such loss or damage, Wyndham will pay to ISIS 2000 an
amount equal to the replacement value of such equipment on the date of such
loss or damage less any insurance proceeds paid to ISIS 2000 in accordance with
Article 8C hereof.
9. ENTRY AND INSPECTION
ISIS 2000 or its designee will have the right to enter upon any
Wyndham Location during Wyndham's business hours for the purpose of monitoring
Wyndham's operation of the Equipment and the ISIS Workstation, inspecting the
Equipment, performing such repairs, maintenance, or support services as may be
necessary, or removing the Equipment; provided, however, that ISIS 2000 will
not during the course of such monitoring, inspection, repair, or removal
unreasonably interfere with Wyndham's business.
10. REPRESENTATIONS AND WARRANTIES
A. ISIS 2000'S REPRESENTATIONS AND WARRANTIES AND LIABILITY FOR
BREACH THEREOF ARE LIMITED TO THOSE EXPRESSLY SET FORTH IN THE SERVICE
AGREEMENT.
B. WYNDHAM WAIVES CERTAIN CLAIMS AND RELEASES ISIS 2000 FROM
LIABILITIES AS SET FORTH IN THE SERVICE AGREEMENT.
C. INDEMNIFICATIONS SET FORTH IN THE SERVICE AGREEMENT APPLY HERETO.
11. TERM
This Agreement commences on the date hereof and terminates upon
termination of the Service Agreement, and will terminate with respect to the
Equipment located on any Property on the date that Property ceases to be owned
or controlled by Wyndham.
12. TERMINATION
ISIS 2000's right to terminate this Agreement shall be identical to
and coextensive with the termination rights of the parties as set forth in the
Service Agreement.
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13. OWNERSHIP OF EQUIPMENT
It is understood and agreed that: (1) all Equipment will remain the
sole property of ISIS 2000 unless sold to Wyndham pursuant to a separate sales
agreement; (2) Wyndham will not remove any identifying marks from any
Equipment; (3) Wyndham will not subject the Equipment to any lien or
encumbrance; and (4) Wyndham will return the Equipment immediately upon the
termination of this Agreement. ISIS 2000 is granted the right to enter the
premises on which Equipment is located and remove the Equipment, without
liability for doing so, upon termination of this Agreement.
14. ENTIRE AGREEMENT
Exhibits A and B are a part of this Agreement. This Agreement,
together with the Service Agreement and Schedules thereto, constitutes the
entire agreement and understanding of the parties on the subject matter hereof
and, as of the effective date, supersedes all prior agreements, whether written
or oral, between the parties hereto concerning the subject matter hereof. This
Agreement may be amended or modified only by written amendment or supplement
signed by the party to be bound thereby. All provisions of the Service
Agreement which do not contradict this Agreement apply to this Agreement and
are incorporated herein by reference.
15. SERVICE AGREEMENT CONTROLLING/CROSS DEFAULTS
The parties hereto agree that this Agreement and the Service
Agreement shall be construed and interpreted in such a manner as to be
consistent and complimentary. However, in the event of an ambiguity, conflict
or inconsistency, the terms and provisions of the Service Agreement shall
control and be the sole authority. A breach of the Service Agreement shall be
deemed a breach of this Agreement and shall entitle the non-defaulting party to
exercise all rights and remedies permitted herein and in the Service Agreement.
IN WITNESS WHEREOF, Wyndham and ISIS 2000 have executed this Agreement as of
the day and year first above written.
WYNDHAM HOTEL CORPORATION ISIS 2000 Limited Partnership
a Texas limited partnership
By: /s/ ANNE L. RAYMOND By: ISIS CRO, Inc. a Texas
------------------------- corporation, its general
partner
Title:
-----------------------
Date: By: /s/ STANLEY MACK KOONCE JR.
----------------------- ----------------------------
Stanley Mack Koonce, Jr.
President
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SCHEDULE 2.2
GDS INTERFACES
Subject to Customer's agreements with the following GDS Vendor and any other
generally accepted and recognized GDS (in accordance with Section 2.2.2 of the
Agreement), ISIS 2000 will implement interfaces between ISIS Central and such
GDS Vendor:
Amadeus
Galileo
Gemini
Sabre
System One
Worldspan
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SCHEDULE 3.2.2
ONLINE DATA STORAGE
ISIS 2000 will maintain sufficient disk capacity on ISIS Central to accommodate
Wyndham's data storage requirements for current and future reservations,
property descriptions, and frequent guest records. Sufficient disk capacity
will be maintained for historical reservation data for a minimum of thirty days
after the departure date of such reservations.
Historical reservation records will be transferred to tape before purging.
The computer tape will be formatted to microfiche and provided to Wyndham at
cost.
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SCHEDULE 5.1
OTHER SERVICES
Pouches - ISIS 2000 will initiate daily (except weekends) courier pouch service
to the Wyndham Caribbean resort properties for delivery of deposit, customer
service, reservations and administrative information. For such services, ISIS
2000 will charge Wyndham a fee equal to 120% of ISIS 2000's fully allocated
cost of providing such services.
Brochure Fulfillment - ISIS 2000 will provide address labels and fulfillment
instructions to be forwarded for fulfillment as specified by Wyndham. Brochure
labels are included in the booking fee.
Customer Service - ISIS 2000 will document initial customer service calls and
forward the information to a Wyndham customer service representative as
specified by Wyndham. ISIS 2000 will forward all follow-up calls to Wyndham's
customer service representative. ISIS 2000 will include this service in the
booking fee.
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SCHEDULE 7.1.2
BOOKING FEES
Booking Fee: A booking fee will be charged for each net reservation
created on the ISIS System or in GDS on behalf of the Property. This
fee will be based full absorption of all ISIS costs, including costs
of capital leases, 10% return on capital, interest and principal
repayment on loans, and taxes. The booking fee for a reservation will
be based upon the category of booking. These categories are GDS
Bookings, TRC Number Bookings for a commercial hotel, TRC Number
Bookings for a resort hotel, Terminal Bookings and Bookings made for a
wholesaler. Each of these fees will be computed by including all
directly assignable costs such as labor, telephone charges, GDS
booking fee, and dedicated supervision. In addition to directly
assignable costs, indirect costs including overhead costs and
financing costs will be distributed to categories of bookings on a
basis agreeable to Wyndham. The total of directly assignable and
indirect costs will be accumulated for each category of booking and
divided by the number of bookings in each category. The booking fee
will be computed based upon actual cost for each month.
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SCHEDULE 14.1
FAILURE OR DELAY OF SERVICE; WARRANTY
In cases of failure or delay in providing the ISIS Services, ISIS 2000's
liability to Wyndham will be as follows:
1. For programming enhancements failure or delay: liability limited to an
amount equal to ISIS 2000's charge to Wyndham for the specific enhancement
request that fails or is delayed except that, in the case of a delay, the
amount may be reduced to an amount equivalent to the ratio of days delayed to
days originally estimated multiplied by the amount of the charge to Wyndham for
the specific enhancement.
2. For failure or delay in the functional capabilities or data content of the
ISIS System: liability limited to ISIS 2000 correcting the function or data at
its own expense in a timely manner.
3. For failure or delay in the reservation service or non-delivery of
reservations to Wyndham properties: liability not to exceed the ISIS 2000 price
to Wyndham for the subject reservations.