TERMS AND CONDITIONSSOARR SERVICES REVENUE RECOVERY AGREEMENT
This Revenue Recovery Services Agreement (“Agreement”) is entered into effective as of the____________________ by and between JM2E, LLC, a Texas limited liability company doing business as SOARR Services, with a principal place of business located at P.O. Box 260166, Plano, TX 75026 (hereinafter “SERVICE PROVIDER”) and ____________________, a LLC with a principal place of business located at ________________________________ (hereinafter" CLIENT”).
The SERVICE PROVIDER and the CLIENT are sometimes individually referred to herein as a “Party” and collectively as the “Parties.”RECITALS WHEREAS, SERVICE PROVIDER is engaged in the business of recovering revenue from on-line travel sites for and on behalf of hotel operators; and WHEREAS, CLIENT is a hotel operator that utilizes on-line travel sites as a means for travelers to book hotel reservations at hotels that are owned and/or operated by CLIENT and CLIENT desires to engage SERVICE PROVIDER to provide certain revenue recovery services to CLIENT as further set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, CLIENT hereby engages SERVICE PROVIDER to provide CLIENT with revenue recovery services on the terms and conditions hereinafter set forth:
1. REVENUE RECOVERY SERVICES. CLIENT hereby engages SERVICE PROVIDER, on an exclusive basis during the term of this Agreement, as an independent contractor to provide the revenue recovery services to CLIENT set forth on Exhibit A attached hereto and incorporated herein (“Services”). SERVICE PROVIDER shall provide offices and equipment, which will remain under SERVICE PROVIDER's exclusive control, needed to provide the Services to CLIENT. During the term of this Agreement, CLIENT agrees to refrain from engaging the services of any other service provider to perform Services for CLIENT.
2. COMPENSATION OF SERVICE PROVIDER. In exchange for receiving from SERVICE PROVIDER the Services set forth in Section 1 hereof and Exhibit A hereto, CLIENT shall pay to SERVICE PROVIDER the monthly services fees set forth on Exhibit A (“Service Fees”).
3. TERM OF AGREEMENT. Unless terminated in accordance with Section 4, below, this Agreement shall commence on ____________ (“Commencement Date”) and shall continue for a period of one (1) year after the Commencement Date (“Initial Term”). Thereafter this Agreement shall automatically renew for successive periods of one (1) year (each a “Renewal Term”) unless at least thirty (30) days prior to expiration of the Initial Term or Renewal Term, as applicable, either Party provides written notice to the other Party of its intention to terminate this Agreement.
TERMINATION a. For Cause by SERVICE PROVIDER. In the event that CLIENT does not fulfill either its payment obligations under Section 2 hereof, and/or any agreed upon deadlines and commitments in connection with providing materials or services to SERVICE PROVIDER, SERVICE PROVIDER shall give CLIENT written notice of same and ten (10) days to cure same. If CLIENT does not cure within ten (10) days, SERVICE PROVIDER may terminate this Agreement effective five (5) or more days after the date of the written notice given hereunder. In addition, SERVICE PROVIDER shall have the right to terminate the Agreement immediately upon the dissolution or filing for voluntary or involuntary bankruptcy (or its equivalent) by CLIENT. In such event, this Agreement shall be terminated upon receipt of notice of termination from SERVICE PROVIDER communicated to CLIENT by any acceptable business form.
b. For Cause by CLIENT. In the event of a material breach by SERVICE PROVIDER of its obligations hereunder, CLIENT shall give SERVICE PROVIDER written notice of the specific nature of the breach and fourteen (14) days within which to cure said breach to CLIENT's satisfaction. If SERVICE PROVIDER does not satisfactorily cure said breach within such period, CLIENT may terminate this Agreement effective ten (10) or more days after the date of the written notice given hereunder. In addition, CLIENT shall have the right to terminate the Agreement immediately upon the dissolution or filing for voluntary or involuntary bankruptcy (or its equivalent) by SERVICE PROVIDER, or upon the taking of dishonest or fraudulent actions by SERVICE PROVIDER. In such event, this Agreement shall be terminated upon receipt of notice of termination from CLIENT communicated to SERVICE PROVIDER by any acceptable business form.
c. Termination Without Cause by CLIENT. During any Renewal Term, CLIENT may terminate this Agreement by providing SERVICE PROVIDER with sixty (60) days’ advance written notice of termination.
d. Effect of Notice of Termination. All monthly management service fees shall be prorated to and including the day of termination. Any other obligation due and owing by either Party to the other at the time of termination shall remain in full force and effect and shall survive termination of this Agreement until such obligation is satisfied, unless otherwise agreed in writing by both Parties.
e. Rights and Obligations upon Termination. Within sixty (60) business days of the effective date of termination of this Agreement, SERVICE PROVIDER shall deliver to CLIENT, all CLIENT records, documents, materials and other tangibles in its keeping in respect to its performance of Services hereunder. AUTHORITY TO CHARGE VITUAL CREDIT CARDS. In connection with and to enable SERVICE PROVIDER to perform the Services for CLIENT, CLIENT will provide SERVICE PROVIDER with access to PARTNER PAY, AGODA, and BOOKING.COM so that SERVICE PROVIDER can charge the on-line travel site’s virtual credit cards (“VCCs”).
During the Term of this Agreement, CLIENT will retain the right to charge any VCC with an outstanding balance as long as the VCC is charged after two (2) months of the issuance of the applicable VCC. The right to charge a VCC will become exclusive to SERVICE PROVIDER two (2) months after issuance of such VCC and, in such case, CLIENT will refrain from charging such VCC. After charging the VCC, the SERVICE PROVIDER will retain its portion of the Fees outlined in Exhibit A and, thereafter, will issue a check for to CLIENT for amounts in excess of the Fees. SERVICE PROVIDER will retain a minimum of $5.00 per booking, if booking is less than $5.00 SERVICE PROVIDER will retain full amount of booking. OWNERSHIP OF MATERIALS AND INFORMATION.
All materials and information produced by or for SERVICE PROVIDER, or entrusted to SERVICE PROVIDER, for the benefit of CLIENT pursuant to this Agreement are and shall be the sole property of CLIENT. Such materials include without limitation CLIENT’s membership and prospect lists, conference registration lists, other mailing lists, publications, copyrights, trademarks, files, financial records and similar property or information now existing or acquired during the term of this Agreement. Should the Agreement be terminated, all such materials and information shall be delivered by SERVICE PROVIDER to CLIENT or to such person or entity as may be designated by CLIENT in writing. CLIENT and SERVICE PROVIDER agree that all procedures, systems, forms and computer programs used by SERVICE PROVIDER in providing Services to CLIENT hereunder (with the exception of such procedures, systems or computer programs which were purchased by CLIENT or purchased by SERVICE PROVIDER and charged to CLIENT, which items shall be considered the sole property of CLIENT) are the property of SERVICE PROVIDER and may be further used by SERVICE PROVIDER at any time for any purposes it requires.
INDEPENDENT CONTRACTOR RELATIONSHIP SERVICE PROVIDER acknowledges that it is engaged as an independent contractor hereunder and that neither it nor any of its employees shall be considered an employee of CLIENT for any purpose under any statute, rule or regulation. SERVICE PROVIDER agrees to indemnify and hold CLIENT harmless from and to defend CLIENT against any claim based upon an assertion that any SERVICE PROVIDER employee is an employee of CLIENT, including, without limitation, any claim for withholding tax, unemployment tax, social security payments, worker’s compensation or other similar taxes or payments. CLIENT will not directly compensate any SERVICE PROVIDER employee.
CONFIDENTIALITY AGREEMENT SERVICE PROVIDER agrees to preserve and protect the confidentiality of the proprietary and confidential information relating to CLIENT's finances, collection, customers, guests, and other information designated as confidential information of CLIENT. Both during and after the term of this Agreement, SERVICE PROVIDER agrees not to disclose or disseminate such information to any third party (unless contemplated by this Agreement), and, except as necessary to perform the Services hereunder, not to use such information for its own benefit or for the benefit of any third party, without the prior written consent of CLIENT. All such proprietary and confidential information used or generated during the course of SERVICE PROVIDER's engagement by CLIENT is the property of CLIENT. The foregoing obligations shall not apply to (a) information which, at the time of disclosure, was in the public domain; (b) information which SERVICE PROVIDER or its affiliates can establish by reasonable proof was in its possession at the time of its disclosure by CLIENT or was subsequently and independently developed by employees of SERVICE PROVIDER or its affiliates who had no knowledge of the information; or (c) information required to be disclosed under compulsion of law. SERVICE PROVIDER represents and warrants that each of its employees, including leased employees, and independent contractors to whom proprietary information is to be disclosed has agreed not to disclose or use CLIENT's proprietary information other than as is permitted hereunder.
INDEMNIFICATION CLIENT shall indemnify SERVICE PROVIDER and hold it harmless from any losses, damages, claims, costs and expenses of any nature incurred as a result of SERVICE PROVIDER's actions taken on behalf of CLIENT or resulting from SERVICE PROVIDER's relationship with CLIENT, provided that CLIENT shall not be obligated hereunder with respect to (a) any action of SERVICE PROVIDER not in the ordinary course of CLIENT's business and taken without CLIENT's knowledge and consent, or (b) any negligent act or omission of SERVICE PROVIDER. SERVICE PROVIDER shall indemnify CLIENT and hold it harmless from any losses, damages, claims, costs and expenses of any nature incurred as a result of (a) any action of SERVICE PROVIDER not in the ordinary course of CLIENT's business and taken without CLIENT's knowledge and consent, or (b) any negligent act or omission of SERVICE PROVIDER.
NOTICES All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other Party at its address above (or to another address that the receiving Party designates in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail (in each case, return receipt requested, postage prepaid), electronic facsimile or other electronic communication where receipt is verifiable. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
ASSIGNMENT. Neither Party shall assign its rights hereunder to any person or entity without the prior written consent of the other Party. The rights and obligations set forth in this Agreement are binding upon and shall inure to the benefit of the successors and permitted assigns of the Parties. GOVERNING LAWThis Agreement shall be governed by the law of the State of Texas, without regard to its choice of law rules. Any action or proceeding between the Parties hereto arising out of or relating in any way to this Agreement shall be brought only in a state or federal court of competent jurisdiction located in the State of Texas, and all objections to personal jurisdiction and venue in any action or proceeding so commenced are hereby expressly waived.
ENTIRE AGREEMENT. This Agreement and its Exhibits represent the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersede any prior or contemporaneous discussions, representations or agreements, oral or written, of the Parties regarding this subject matter. This Agreement shall not be modified except by further writing signed by both Parties.
SEVERABILITY If any provision contained herein is determined by a court of competent jurisdiction or an arbitration tribunal to be invalid or unenforceable, said determination shall not affect the validity and enforceability of the remaining provisions hereof. The Parties represent that they are not aware that any provision of the Agreement is invalid or unenforceable.
WAIVER No waiver by either Party, whether express or implied, of any right or obligation set forth in this Agreement, or any breach or default, shall constitute a continuing waiver of that or any other right, obligation, breach, or default.
FORCE MAJEURE Neither Party shall be in default hereunder by reason of its delay in performing or failure to perform any of its obligations hereunder if such delay or failure is caused by strikes, acts of God or the public enemy, riots, or interference by civil or military authorities.
SECTION HEADINGS The Section headings and numbers are for convenience only and shall not be deemed to affect in any way the language of the provisions to which they refer.
COUNTERPARTS This Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
EXHIBIT A - SERVICES AND FEES 1. 365 Day Review: SERVICE PROVIDER will perform an audit of all hotel reservations booked through Expedia, Priceline/ Agoda, and booking.com during the prior 365 days to identify reservations for which the virtual credit card provided by the on-line travel site has not yet been charged. The 365 Day Review will be performed by SERVICE PROVIDER without charge to CLIENT. SERVICE PROVIDER shall be entitled to a Fee equal to _____________of the revenue recovered for CLIENT through performance of the 365 Day Review. (Agoda/ Priceline 150-day review).
2. Maintenance Audit Service:Additional commissions as follows: All recovered amounts_____________ IN WITNESS WHEREOF, the undersigned, hereby certifying that they are authorized to do so, have executed this Agreement on behalf of the Parties on the dates indicated below.
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