EXHIBIT 10.6
EXECUTION COPY
MARKETING AGREEMENT
This Marketing Agreement (this "Agreement") is entered into this 26th day of
May 1998, by and between CITYSEARCH, INC., a Delaware corporation ("Company"),
and AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC., a New York
corporation ("AMEX").
WHEREAS, Company is engaged in, among other things, the business of promoting,
selling and providing to merchant establishments services associated with the
World Wide Web (the "Web") Internet sites; and
WHEREAS, Company and AMEX are parties to that certain Series E Preferred Stock
Purchase Agreement and related exhibits;
WHEREAS, AMEX desires to have offered, and to participate with Company in the
offering of the Service (as defined below), to certain of AMEX's current and
future merchants that accept the charge, credit, stored value, smart and other
cards offered for use and acceptance on the American Express network (the "AMEX
Merchant Customers") on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
in this Agreement, the parties hereto agree as follows:
1. THE SERVICE:
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(a) AMEX hereby retains Company, and Company hereby agrees, to provide
AMEX Merchant Customers with a development and hosting service for
AMEX Merchant InfoSites (as defined in subsection (b) below) and with
the ability to offer certain promotions over the Web (such service as
offered or modified by Company from time to time, the "Basic Service;"
the Basic Service as offered on the date hereof is more specifically
described in Exhibit A hereto), with changes and enhancements thereto
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as developed by Company from time to time specifically for AMEX and
approved by AMEX and Company (such changes and enhancements, the
"Enhancements"; the Basic Service and such Enhancements, collectively
the "Service"). The Service shall accord with the terms of this
Agreement. The Enhancements (including by way of example additional
services, reduced pricing or incentive offers) will be exclusively
offered to AMEX Merchant Customers as described in Section 7(a)(i).
AMEX reserves the right, subject to the Company's systems
capabilities, not to include any Enhancement to AMEX Merchant
Customers identified by AMEX. AMEX will consult with the Company from
time to time as to procedures for excluding Enhancements for
particular AMEX Merchant Customers.
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(b) The Service shall include, without limitation, the Company's
production and delivery via the Web of comprehensive local city guides
which will provide, to consumers who access the Company's Web sites
(together with the Company's national home page, the "Company Local
Sites") or Web sites that are offered by Company's licensees that are
permitted to participate in the Service (the "Partner-Led Market
Sites"; and together with the Company Local Sites, the "CitySearch Web
Sites"), up-to-date localized information regarding arts and
entertainment, community activities and events, recreation, and news.
The Company, in connection with the Service, shall create and host for
AMEX Merchant Customers custom Web sites ("AMEX Merchant InfoSites"),
which will be linked to the appropriate Company Local Sites. Company
shall use commercially reasonable efforts to have AMEX Merchant
InfoSites linked to appropriate Partner-Led Market Sites as requested
by AMEX.
(c) AMEX Merchant InfoSites shall contain, at AMEX's election, trademarks
or service marks of AMEX in a manner determined by AMEX. The design
and location of such trademarks or service marks shall be appropriate
in relation to the design and graphical user interface as the parties
shall agree. Without limiting the foregoing, the AMEX Merchant
InfoSites shall contain such messages and such trademarks as the
parties shall reasonably determine.
(d) AMEX shall determine the eligibility of AMEX Merchant Customers that
may enroll in the Service, provided that Company shall be entitled to
comment on and approve such eligibility criteria, which approval shall
not be unreasonably withheld.
2. E-COMMERCE:
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(a) As used herein:
(i) "AMEX E-Commerce Software" shall mean collectively, the High-End
E-Commerce Software and the Low-End E-Commerce Software;
(ii) "Commercially Viable" shall describe products and services that
are generally commercially available and that are competitive in
price and functionality with comparable products or services
offered by third parties.
(iii) "E-Commerce Authorization" shall mean the process via the Web
for receiving approval from AMEX and other credit, charge,
debit, stored valued and smart card issuers of E-Commerce
Transactions pursuant to applicable card acceptance agreements
between AMEX or such other issuers and Merchant Enrollees;
(iv) "E-Commerce Processor" shall mean the agent on behalf of each
Merchant Enrollee that processes the E-Commerce Authorizations;
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(v) "E-Commerce Transaction" shall mean, collectively, the High-End
E-Commerce Transaction and the "Low-End" E-Commerce Transaction;
(vi) "High-End E-Commerce Software" shall mean the software, owned or
licensed by AMEX, which provides "high-end" E-Commerce
Transaction capabilities to the AMEX Merchant InfoSites, the
Company Local Sites and certain permitted Partner-Led Market
Sites. Certain current requirements of such "high-end"
capabilities, which may be modified from time to time, are set
forth on Exhibit B hereto;
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(vii) "High-End E-Commerce Transaction" shall mean any purchase of
goods or services from a Merchant Enrollee by Cardholders (as
defined in Section 3(a)(i)) or any other holders of credit,
charge, debit, stored valued and smart cards via the Web that
utilizes the High-End E-Commerce Software. Such purchase shall
be made from any AMEX Merchant InfoSite, any Company Local Site
or any participating Partner-Led Market Site;
(viii)"Low-End E-Commerce Software" shall mean the electronic commerce
software owned or licensed by AMEX, which provides "low-end" E-
Commerce Transaction capabilities to the AMEX Merchant
InfoSites, the Company Local Sites and any participating
Partner-Led Market Sites. Certain current requirements of such
"low-end" capabilities, which may be modified from time to time,
are set forth on Exhibit C hereto.
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(ix) "Low-End E-Commerce Transaction" shall mean any purchase of
goods or services from a Merchant Enrollee by Cardholders or any
other holders of credit, charge, debit, stored valued and smart
cards via the Web that utilizes the Low-End E-Commerce Software.
Such purchase shall be made from any AMEX Merchant InfoSite, any
Company Local Site or any Partner-Led Market Site;
(x) "Merchant Enrollee" shall mean any AMEX Merchant Customer that
enrolls in the Service.
(b) Company agrees to develop an electronic commerce capability for the
Service which will allow individuals who access any Company Local
Site, any AMEX Merchant InfoSites, or participating Partner-Led Market
Sites, to conduct E-Commerce Transactions. Upon execution of an E-
Commerce Transaction (e.g., submission of all data necessary to
complete such transaction), a message shall be displayed, in a form
and content reasonably requested by AMEX, which shall indicate that
such E-Commerce Transaction is being processed by AMEX.
(c) Certain E-Commerce Exclusivity.
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(i) E-Commerce Processor Exclusivity. During the term of the
Agreement, AMEX shall be the exclusive E-Commerce Processor for
all E-Commerce Transactions conducted
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on the AMEX Merchant InfoSites and the Company Local Sites,
subject to the provisions of subsection (c) (iii) below. During
the term of this Agreement, AMEX E-Commerce Processor pricing,
taking into account all related fees, and functionality will be
comparable to pricing and functionality for competing processor
services.
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(ii) High-End Exclusivity.
(A) During the initial two (2) years of this Agreement, Company
agrees to utilize the AMEX High-End Software exclusively for
all High-End E-Commerce Transactions conducted on the AMEX
Merchant InfoSites and the Company Local Sites. Company
agrees to identify AMEX as the exclusive provider of the
High-End E-Commerce Software by displaying an icon or
message, in a format reasonably requested by AMEX, on
appropriate pages of the AMEX Merchant INfoSites and Company
Local Sites from which a High-End E-Commerce Transaction may
be conducted. The design and location of the message or icon
shall be appropriate in relation to the design and graphical
user interface as agreed by the parties.
(B) Provided that AMEX has committed to market the Service to
AMEX Merchant Customers in addition to those identified in
Section 4(b)(ii) hereof after the commencement of the third
year of this Agreement, then the provisions of subsection
(c)(ii)(A) hereof shall extend for so long as AMEX continues
to market the Service to AMEX Merchant Customers at levels
no less than those described in Section 4(b)(ii) on an
annual basis.
(iii) Low-End Exclusivity. If Company chooses to offer a Low-End
E-Commerce Software solution to any merchant customer of the
Company, then Company shall give AMEX written notification
thereof. AMEX shall have sixty (60) days from the date of its
receipt of such notice to provide Company with a commercially
viable Low-End E-Commerce Software solution to offer to AMEX
Merchant Customers and other merchant customers of Company.
(A) If AMEX provides to Company a Commercially Viable Low-End E-
Commerce Software solution, then Company agrees to utilize
the AMEX Low-End Software exclusively for all Low-End E-
Commerce Transactions conducted on the AMEX Merchant
InfoSItes and the Company Local Sites. Company agrees to
identify AMEX as the exclusive provider of the Low-End E-
Commerce Software by displaying an icon or message, in a
format reasonably requested by AMEX, on each page of the
AMEX Merchant InfoSites and Company Local Sites from which a
Low-End E-Commerce Transaction may be conducted. The design
and location of the message or icon shall appropriate in
relation to the design and graphical user interface as
agreed by the parties.
(B) If AMEX is unable to provide Company with a Commercially
Viable Low-End E-Commerce Software solution by the
expiration of such sixty (60) day period, then AMEX shall
have an additional one hundred twenty (120) day period to
integrate its E-Commerce Processor capabilities with the
low-end solution reasonably selected by the Company. If AMEX
is unable or unwilling to integrate such low-end solution by
the expiration of such one hundred and twenty
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(120) day period, then Company may utilize a third party E-
Commerce Processor for such Low-End E-Commerce Transactions.
The parties expressly acknowledge that during such one
hundred twenty (120) day period, Company can utilize a third
party E-Commerce Processor for such Low-End E-Commerce
Transactions until AMEX can provide an E-Commerce Processor
solution to Company that meets the criteria set forth in
Section 2(c)(i). No AMEX Merchant Enrollee that uses a third
party E-Commerce Software solution selected by the Company in
accordance with the terms of this subsection (iii)(B) shall
be required to terminate its low-end software solution
relationship with such third party.
(C) If Company chooses to utilize a Low-End E-Commerce Software
solution that is not approved by AMEX for distribution to
AMEX Merchant Customers, then the exclusivity granted to
Company pursuant to Section 7(b) hereof shall be voided.
(d) Subject to the provisions of subsection (c) above and subsection (g)
below, during the term of this Agreement, Company agrees not to
integrate into the AMEX Merchant InfoSites or the Company Local Sites
any other capabilities or software that perform functions similar to
the functions provided by the AMEX E-Commerce Software. Furthermore
Company agrees to recognize AMEX as the default method of payment for
all E-Commerce Transactions within the AMEX Merchant InfoSites and
Company Local Web Sites by means reasonably requested by AMEX.
(e) Company agrees to promote to its licensees the AMEX E-Commerce
Software and AMEX's capabilities as the E-Commerce Processor. Company
agrees to use commercially reasonable efforts to induce its licensees
that own or operate the Partner-Led Market Sites to utilize the
AMEX E-Commerce Software and to utilize AMEX as the exclusive
E-Commerce Processor. Company agrees to notify its potential licensees
of Company's relationship with AMEX, to provide AMEX with
introductions to such licensees, to facilitate technical discussions
with such licensees regarding the E-Commerce Software and E-Commerce
Processor capabilities, and to participate in meetings with such
potential licensees and AMEX at AMEX's reasonable request.
(f) Company agrees to negotiate in good faith with AMEX the definitive
terms of the Merchant Hosting and Distribution License Agreement in
connection with the licensing by Company of the AMEX E-Commerce
Software. Furthermore each Merchant Enrollee that desires to allow its
customers to conduct E-Commerce Transactions shall execute and deliver
a license agreement, in a form provided by AMEX, in connection with
the sub-licensing from Company of the AMEX E-Commerce Software.
(g) During the term of the Agreement, AMEX agrees to provide to Company
the AMEX E-Commerce Software and the E-Commerce Processor that AMEX
makes generally available to the public. [*]
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WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
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(h) Nothing in this Section 2 shall be construed to limit Company's
ability to offer online transaction capabilities provided by third
parties, retailers, merchandisers to its customers or users or to
provide links to other web sites outside of the Company's platform
that provides E-Commerce Transaction capabilities.
3. PROMOTIONAL SITE:
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(a) As used herein:
(i) "AMEX Merchant Offer" shall mean each specific offer listed in
the Promotional Site and the National Promotional Site from AMEX
Merchant Customers exclusively to holders ("Cardholders") of a
charge, credit, debit or stored value card issued by AMEX or its
licensee and accepted on the AMEX network (the "AMEX Card") and
requiring payment using an AMEX Card. Such offers shall include,
without limitation, price discounts and free or discounted
products;
(ii) "National Promotional Site" shall mean a web page or web pages
that may or may not be developed, maintained or hosted by the
Company, which web page or web pages are designed to collect and
display, on a national (rather than local) level, AMEX Merchant
Offers for presentation to Cardholders;
(iii) "Promotional Site" shall mean a web page or web pages located
exclusively within the Company Site, developed and maintained by
the Company for the purpose of presenting AMEX Merchant Offers
to Cardholders.
(b) AMEX will make commercially reasonable efforts to publish AMEX
Merchant Offers solicited by AMEX in the Promotional Site.
(c) AMEX Merchant Offers that are solicited by Company shall appear in the
Promotional Site and AMEX will make commercially reasonable efforts to
publish such Company solicited AMEX Merchant Offers in the National
Promotional Site.
(d) The following AMEX Merchant Offers will link back to the Promotional
Site or to the related AMEX Merchant InfoSite unless the related AMEX
Merchant Customer elects otherwise: any AMEX Merchant Offer that is
(i) solicited by AMEX and (ii) derived from an AMEX Merchant Customer
that is located in a market in which the Company has a Company Local
Site which is located on the National Promotional Site.
(e) The Company agrees to develop the Promotional Site and make the
related AMEX Merchant Offers accessible to Cardholders, which may
include, without limitation,
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Cardholders who conduct E-Commerce Transactions. The Company agrees to
use commercially reasonable efforts to develop the Promotional Site
within six (6) months of AMEX's written notice to Company of AMEX's
desire to launch such Promotional Site. The Promotional Site shall be
branded prominently with an AMEX trademark as selected by AMEX and
agreed to by Company. Company agrees to post on the home page of the
appropriate Company Local Site an icon that shall hypertext link to
the Promotional Site. AMEX agrees to place an icon and hypertext link
on pages of the National Promotional Site as the parties shall agree.
(f) The Company agrees to grant AMEX an option for the Company to develop
a National Promotional Site where AMEX Merchant Offers may be
published and available to Cardholders, which may include, without
limitation, Cardholders who conduct E-Commerce Transactions. The
Company agrees to use commercially reasonable efforts to develop such
National Promotional Site within six (6) months of AMEX's written
notice to Company of AMEX's desire to launch such National Promotional
Site. Upon receipt of such notice, Company agrees to negotiate in good
faith with AMEX on additional terms, conditions and fees for the
Company's development of the National Promotional Site. The National
Promotional Site shall be branded prominently with an AMEX trademark
as selected by AMEX and agreed to by Company.
(g) If Company creates a site (the "Similar Site") similar to the
Promotional Site and a Merchant Enrollee posts an offer or promotion
in both the Similar Site and the Promotional Site, then Company agrees
to use commercially reasonable efforts to assure that such offer or
promotion posted in the Similar Site shall not have terms more
favorable than the AMEX Merchant Offer posted in the Promotional Site.
4. PROMOTION OF THE SERVICE:
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(a) AMEX and Company shall promote the Service to AMEX Merchant Customers
by participating in promotional programs (as defined below) in the
manner and to the extent provided in this Agreement. From time-to-time
during the term of this Agreement AMEX may engage in other
solicitation activities relating to the Service.
(b) Programs:
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(i) The parties acknowledge that they intend to offer the Service
during the term of this Agreement through various promotional
programs and channels as the parties shall mutually agree
("Programs"). All marketing and other promotional materials
(including without limitation, solicitation, fulfillment,
customer service and retention materials) developed hereunder in
connection with any Program or the Service shall be referred to
as "Promotional Materials." In the event of a disagreement, AMEX
shall have the final controlling rights on all marketing and
promotion of the Service (including but not limited to
presentation, copy, format, design, script development, etc.) so
long as such marketing and promotion do not violate any
contracts, laws or
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regulations. The timing and scope (i.e., size and frequency of
solicitations) will be mutually approved by both parties, which
approval shall not unreasonably withheld.
(ii) The initial Program shall involve the marketing of the Service,
including without limitation the delivery of Promotional
Materials, to one hundred thousand (100,000) AMEX Merchant
Customers located in geographic areas in which Company operates
the Basic Service. Such Program shall commence no later than
ninety (90) days from the date hereof. AMEX shall identify such
AMEX Merchant Customers in accordance with criteria that AMEX
shall identify to Company.
(c) Promotional Materials: Company and AMEX shall prepare Promotional
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Materials for the Service. Such materials shall be designed to
solicit Merchant Enrollees. The Company shall be solely responsible
for verifying the accuracy of all statements relating to the Service
contained in the Promotional Materials.
(d) Performance Standards: Company shall fulfill the requirements set
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forth in the following exhibits attached hereto and made a part
hereof:
Exhibit A Description of the Basic Service
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Exhibit D Financial Arrangement
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Exhibit E Customer Service
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The requirements set forth in the foregoing shall be deemed the
performance standards (the "Performance Standards") hereunder. The
parties hereto agree and acknowledge that the failure of the Company
to fulfill the requirements of the Performance Standards shall
constitute a material breach of this Agreement.
(e) Solicitation and Selection of AMEX Merchant Customers.
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(i) AMEX shall provide to Company a list of AMEX Merchant Customers
which Company may solicit for enrollment in the Service. Such
solicitation shall be conducted by Company in person by the
Company's sales force or by any other method mutually approved by
the parties. Each proposed Merchant Enrollee shall execute a
Service agreement in the form of Schedule 1 hereto as amended
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from time to time and as approved by AMEX.
(ii) Company shall provide to AMEX the sales materials used by Company
or its agents to solicit AMEX Merchant Customers. All such
materials shall be subject to AMEX's review and comment and shall
not be used if, in AMEX's sole discretion, the materials are
deemed unacceptable.
(f) Costs and Expenses:
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(vi) Except as set forth in subsection (ii) below, all costs and
expenses associated with a
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Program or the Service, including without limitation costs and
expenses related to merchant solicitations, AMEX Merchant
InfoSite creation and development, market research, market
tests, public relations, list development, ad agency fees,
software development and Customer Service, whether incurred by
the Company or reasonably incurred by AMEX in connection with
its obligations hereunder, shall be payable by the Company. Any
reimbursable amounts incurred by AMEX shall conform with the
requirements set forth in subsection (A) below or otherwise as
approved by Company in writing. Any amounts incurred by AMEX
shall be invoiced to the Company, with reasonable documentary
support for the amounts stated therein, and paid by Company
within thirty (30) days of its receipt thereof. [*]
(A) Reimbursable costs and expenses incurred by AMEX shall
conform with the following: postage, printing and
creative development fees (including without limitation
fees for creative agencies) not to exceed [*] per year
and market research expenses not to exceed [*] per year.
Without limiting the foregoing, AMEX agrees to make
reasonably commercial efforts to inform Company of AMEX's
proposed expenditure of amounts greater than $5,000 that
are reimbursable hereunder.
(ii) AMEX shall be responsible for costs and expenses incurred by
AMEX in connection with any direct mail or telemarketing
solicitations of AMEX Merchant Customers.
(iii) AMEX shall invoice to Company any amounts reimbursable by
Company hereunder, with reasonable documentary support for the
amounts stated therein. Company shall pay such amounts within
thirty (30) days of its receipt thereof. Company shall pay
interest at the rate of eighteen percent (18%) per annum on all
such amounts paid after the due date, and a penalty of five
percent (5%) of such amounts due that is not received by AMEX
within thirty (30) days of the original due date.
(g) AMEX's Sponsorship Commitments. AMEX agrees to spend a minimum of
[*] within 90 days of the execution of this Agreement with
Company in connection with advertising and sponsorship Programs, which
may include, but not be limited to, banners, content sponsorships,
contests and other service promotions. AMEX and Company will jointly
determine the nature of the advertising expenditure including, but not
limited to, specific programming, markets, sponsorships, banner
campaigns, etc. The advertising will be priced favorably to AMEX at
discounted rates relative to other Company advertisers of similar size
and nature, and as mutually agreed upon by both parties. [*]
Dedicated account support, campaign management and post-sales follow-
up and tracking reports will be provided to AMEX by Company on a
timely basis. [*]
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5. CUSTOMER SERVICE:
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(a) The Company agrees to provide customer service ("Customer Service") to
AMEX Merchant Customers in accordance with the standards set forth on
Exhibit E hereto.
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(b) Customer Service shall be provided to AMEX Merchant Customers for the
term of their respective enrollment in the Service. [*]
(c) The Company shall provide AMEX with the following reports, at the time
and in the form and substance mutually agreed upon by the parties
hereto.
(i) AMEX Merchant Customer report including: (A) total number
of Merchant Enrollees; (B) Merchant Enrollees' names; (C)
Merchant Enrollees' Merchant Account numbers; (D) Merchant
Enrollees' dates of enrollment;
(ii) Revenue report setting forth revenues generated by the
Service;
(iii) Customer Service report including: (A) number of AMEX
Merchant Customers contacting Customer Service, (B)
wait/response time for telephone, and (C) length of
telephone calls;
(iv) Attrition report including: (A) total number of the
Merchant Enrollees that cancel their enrollment in the
Service; (B) reasons disclosed to Company for such AMEX
Merchant Customers' discontinuing their respective
enrollment in the use of the Service; and (C) date of
cancellation by such Merchant Enrollees.
The report required by (i) above shall be provided on a weekly basis for
the first three (3) months of the Service thereafter it shall be provided
on a monthly basis. The report required by (iv) above shall be provided on
a quarterly basis. The other reports described above will be provided to
AMEX on a monthly basis or as otherwise jointly agreed by AMEX and the
Company.
6. FINANCIAL ARRANGEMENT:
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(a) AMEX Merchant Customers enrolling in the Service shall be charged the
price or prices determined by Company and approved by AMEX (the
"Enrollment Fees"). Company shall be responsible for billing and
collecting all Enrollment Fees. Such Enrollment Fees will be billed by
invoice, automatic debit from a demand deposit account, or, when
available, to the AMEX Merchant Customers' American Express Corporate
Purchasing Card account. Payment schedules and procedures will be set
forth in detail on Exhibit D.
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(b) Company understands that it will be responsible for paying any charges
incurred in connection with the Acceptance Agreements (as defined in
Section 13(d) below), including the payment of any discount fees
payable thereunder. (Any revenues to AMEX generated by the terms of
the Acceptance Agreements shall not be calculated as part of the gross
revenues for purposes of Exhibit D hereto.)
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7. EXCLUSIVITY:
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(a) For the Benefit of AMEX
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(i) During the term of this Agreement neither Company, nor any
affiliate within the Company's control, may market any service
or program similar to the Service that provides the Enhancements
without the prior written consent of AMEX; provided that if the
Enhancement is a pricing feature, then such exclusivity shall
apply only in the market where such Enhancement is promoted
during the thirty (30) day period following the expiration of
the marketing of such Enhancement by the parties hereunder.
(ii) During the term of this Agreement, AMEX shall be the exclusive
sponsor of the Service, the AMEX Merchant InfoSites and the
Company's Local Sites for credit, charge, debit, stored value
and other similar card products (the "Charge Card Products").
Except as permitted herein, Company agrees that during the term
of this Agreement, Company will not, without the express written
consent of AMEX, grant or permit its licensees to grant a
sponsorship (where Company's approval or consent is required),
or engage in any marketing activities, relating to any Charge
Card Product.
(iii) During the term of this Agreement, AMEX shall be the preferred
travel agency and financial services sponsor of the Service, the
AMEX Merchant InfoSites and the Company's Local Sites. Company
agrees to promote AMEX as such preferred sponsor in the manner
reasonably requested by AMEX and as appropriate for the AMEX
sponsorship commitment. The Company will make commercially
reasonable efforts to notify AMEX of sponsorship opportunities
in other areas and to grant AMEX a right of first refusal to
sponsor such other areas on terms no less favorable than the
sponsorship opportunities the Company proposes to grant to a
third party. The foregoing shall not be construed to restrict
Company from accepting banner
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advertisements or regional sponsorships from third party travel
agencies or financial services providers.
(b) For the Benefit of Company.
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(i) As used herein:
(A) "Non-Solicitation Period" shall mean the six (6) month
period commencing on the date AMEX drops mail in connection
a Service Promotion;
(B) "Service Promotion" shall mean the direct mail
solicitation, billing statement inserts and proactive
telemarketing solicitation of AMEX Merchant Customers for
enrollment in the Service;
(C) "Similar Service" shall mean a product or service
substantially similar to the Service or the Basic Service
and offered by Microsoft Sidewalk, Digital City, Xxx
Interactive Media or the New York Times Company.
(ii) [*]
(iii) AMEX agrees to use commercially reasonable efforts to have the
AMEX proprietary sales force which markets to AMEX Merchant
Customers Web-related products and services to include the
Service in its schedule of available products. AMEX shall use
such efforts only in markets where the Company operates a
Company Local Site or in a Partner-Led Market Site participating
with AMEX pursuant to this Agreement. Furthermore, AMEX shall
use such efforts in connection with its sales efforts and
inbound sales calls.
(iv) AMEX agrees to identify the Service as the AMEX sponsored online
local guide and service which develops and hosts merchant Web
sites. AMEX agrees to coordinate with Company on the specific
language in connection with such identification and the
Company's preferential status. Furthermore, AMEX shall use such
efforts in connection with its proprietary sales force efforts
and inbound sales calls.
(v) The rights of Company under this Section 7(b) shall be subject
to the terms set forth in Section 2(c)(iii)(C) hereof.
8. ADVERTISEMENTS. Company agrees to comply with the Advertisement Policy set
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forth in Exhibit F hereto.
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9. INDEMNIFICATION AND HOLD HARMLESS:
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(a) Each party hereto (an "Indemnitor") shall indemnify and hold harmless the
other party, its parent, subsidiaries, affiliates successors, assignees,
directors, officers, agents and employees (each an "Indemnitee") from and
against any loss, damage, cost, expense, liability, and settlement,
including without limitation, any reasonable attorney fees and court costs
(each of the foregoing a "Claim") reasonably incurred by any Indemnitee
which Claim arises out of or in connection with (i) the intentional or
negligent act or omission of the Indemnitor or its officers, directors,
employees, contractors or agents (collectively, the "Agents") in the course
of the performance of Indemnitor's duties and obligations under this
Agreement; (ii) the failure of Indemnitor or its Agents, as the case may
be, to comply with the terms of this Agreement; or (iii) the failure of
Indemnitor (including without limitation its Agents who perform on behalf
of Indemnitor hereunder) to comply with its obligations under any and all
laws, rules, or regulations applicable to Indemnitor, its Agent or the
Service, as the case may be.
(b) Each Indemnitee seeking indemnification under this Agreement shall give
prompt notice to Indemnitor along with such Indemnitee's request for
indemnification, of any Claim for which it is seeking indemnification. The
parties understand and further agree that no settlement of an indemnified
Claim shall be made by an Indemnitee without the concurrence of Indemnitor.
Indemnitor shall control the settlement or defense of any Claim; provided,
however, that the Indemnitee may, at its cost, engage its own attorneys.
The Indemnitee will fully cooperate with Indemnitor to enable it to fulfill
its obligations with respect to such Claim.
(c) IN NO EVENT WILL EITHER PARTY HERETO BE RESPONSIBLE FOR ANY INCIDENTAL,
INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY
KIND, INCLUDING WITHOUT LIMITATION LOST REVENUES, LOSS OF PROFITS OR LOSS
OF BUSINESS.
(d) The provisions of this Section 9 shall survive the termination of this
Agreement.
10. PUBLICITY: Except as may be required by law, no party hereto shall
----------
issue advertising, promotional activity, press or publicity release
relating to the Service or this Agreement without securing the prior
written consent of such other party.
11. CONFIDENTIALITY:
----------------
(a) Company and AMEX acknowledge that as a result of the performance of
their respective responsibilities under this Agreement, AMEX will
obtain access to confidential and proprietary information of the
Company and Company shall obtain access to confidential and
proprietary information concerning Cardholders, AMEX's business,
customers, methodologies and strategies (all such information herein
the "Confidential Information"). All such Confidential Information of
the other party shall be deemed to be confidential and proprietary
unless such Confidential Information: (i) is clearly intended for
public distribution by AMEX, in the case of AMEX Confidential
Information, or by
-14-
Company, in the case of Company's Confidential Information; (ii) is
known by the receiving party prior to its receipt thereof; (iii) is
lawfully obtained by the receiving party from a third party; or (iv)
is independently developed by the receiving party without use of any
portion of such Confidential Information which can be reasonably
demonstrated by written record.
(b) This Agreement, including all exhibits and schedules hereto, is hereby
designated as confidential within the meaning of this Section 11 and
shall not be disclosed to a third party unless disclosure is required
by government regulation or court order.
(c) Company and AMEX shall not use any of the other party's Confidential
Information for any purpose other than to perform their respective
responsibilities under this Agreement. Company and AMEX shall each
take the same measures to protect the Confidential Information of the
other party received by it as it prudentially should take with respect
to its own Confidential Information, including, but not limited to,
instructing its employees, vendors, agents, and independent
contractors (excluding only those retained to provide the Service) of
the foregoing and requiring them to be bound by appropriate
confidentiality agreements.
(d) AMEX shall have all rights and interests to the list of AMEX Merchant
Customers and the information contained thereon. Company (i) shall not
solicit AMEX Merchant Customers for any reason other than in
accordance with the terms of this Agreement or as requested by AMEX in
writing and (ii) may neither communicate with, nor permit its licensee
or designee to communicate with, Merchant Enrollees other than in
accordance with the terms of this Agreement without the prior written
consent of AMEX. Notwithstanding the foregoing, the Company may market
products and services to, or communicate with, its own merchant
customers and potential merchant customers provided that the source of
the information used by the Company to market to or communicate with
such merchant customer or potential merchant customer is neither AMEX
nor the lists provided by or on behalf of AMEX under this Agreement.
(e) It is understood and agreed by the parties hereto that all files of
Merchant Enrollees supplied to the Company in connection with the
Service (including, but not limited to, the master file tape for the
Service) are and always have been the exclusive property of AMEX, and
will be turned over to AMEX, at no cost to AMEX, upon termination of
this Agreement.
(f) Nothing in this Agreement shall be deemed to prevent Company or AMEX
from providing information to their respective independent contractors
who are retained to assist in the performance of such party's
obligations hereunder provided that the conditions set forth herein
are complied with by such party and its independent contractors and
such independent contractors are not competitors of the other party.
-15-
(g) Each party acknowledges that irreparable injury would be caused to the
other party in the event of unauthorized use of such other party's
confidential information, and agrees that preliminary and permanent
injunctive relief would be appropriate in the event of breach of this
Section 11.
(h) Upon termination or expiration of this Agreement and at the request
and option of AMEX or Company, as the case may be, each of AMEX and
Company agrees promptly (i) to return the confidential information of
the other party to such party or (ii) destroy the confidential
information of the other party and acknowledge in a sworn affidavit
that all such confidential information has been destroyed.
(i) Section 11 in its entirety, shall survive the termination of this
Agreement.
12. DATA AND RECORDS: Acknowledging the confidentiality of AMEX Merchant
-----------------
Customer data, Company hereby agrees to the terms of the AMEX Data Access
Document attached hereto as Exhibit G and the AMEX Merchant Customer Data
---------
and Data Related Rights schedule attached hereto as Exhibit I the terms of
---------
which are hereby incorporated herein and made a part hereof. Company will
comply with the exhibits entitled Security attached hereto as Exhibit J and
---------
AMEX Audit Rights attached hereto as Exhibit K, the terms of both are
---------
incorporated herein by reference and made a part hereof. In the event
Company uses the services of third party vendors, representatives or
subcontractors, Company shall be responsible for ensuring their compliance
with the terms of this Agreement, and shall ensure that all such vendors,
representatives or subcontractors execute the Non-Disclosure Agreement
substantially similar to that attached hereto as Exhibit L. With respect to
---------
access of AMEX data via a computer, Company's employees and agents will
follow the Terminal Rules set forth in Exhibit M.
---------
13. REPRESENTATIONS, WARRANTIES & COVENANTS:
----------------------------------------
(a) Each party hereto represents and warrants that it has full power and
authority to execute this Agreement and to take all actions required
by, and to perform the agreements contained in, this Agreement, and
that each party's respective obligations under this Agreement do not
conflict with its obligations under any other agreement by which the
such party is bound.
(b) Each party represents, warrants and covenants that the performance of
its respective obligations under this Agreement in connection with the
Service complies and will comply with all applicable federal, state,
local and foreign laws and regulations.
(c) Each party represents, warrants and covenants that each of its
respective employees assigned to perform services with respect to the
Service has and will have the skill and background to perform such
assigned services in a competent and professional manner, and to act
in compliance with all applicable laws and regulations.
-16-
(d) Company represents, warrants and covenants that it is and shall
continue to be during the terms of this Agreement a party in good
standing to (i) a card acceptance agreement with AMEX (the "Retail
Acceptance Agreement") for the acceptance of the American Express(R)
Cards and (ii) a corporate purchasing card acceptance agreement with
AMEX (the CPC Acceptance Agreement"; and together with the Retail
Acceptance Agreement, the "Acceptance Agreements") for the acceptance
of the American Express(R) Corporate Purchasing Cards.
(e) Company covenants that the Service shall comply with AMEX's policies,
as amended from time to time, relating to privacy of customer data.
Attached hereto as Exhibit N is a copy of AMEX's online privacy
---------
policies in effect on the date hereof.
14.TRADEMARKS: Notwithstanding any other provision of this Agreement, neither
----------
party shall have the right to use the other party's registered or
unregistered trademarks, service marks, or trade names, or to refer to the
other party directly or indirectly, in connection with any product, promotion
or publication without the prior written approval of that party.
15.INTELLECTUAL PROPERTY OWNERSHIP:
--------------------------------
(a) As used herein "Developed Materials" shall mean, hereunder, all
inventions, methods, techniques, works of authorship, computer software,
computer upgrades, computer programs, service providers, vendors
information, training materials, telemarketing scripts, computer
screens, reports, data, any other proprietary or confidential
information made, created, developed or written hereunder and other
intellectual property created, developed or written in accordance with
the activities contemplated hereunder. In the event any Developed
Material (i) is fully paid for by AMEX and Company has not provided
material creative or developmental input therein (including without
limitation provision of proprietary or confidential information), then
such Developed Material shall be deemed the sole property of AMEX and
any use thereof by Company shall require consent thereto by AMEX; (ii)
is substantially paid for by AMEX and Company has had material creative
or developmental input therein (including without limitation provision
of proprietary or confidential information), then such Developed
Material shall be deemed the property of AMEX with Company having a non-
exclusive, royalty-free right of use thereof; (iii) is substantially
paid for by Company and AMEX has had material creative or developmental
input therein (including without limitation provision of proprietary or
confidential information), then such Developed Material shall be deemed
the property of Company with AMEX having a non-exclusive, royalty-free
right of use thereof; and (iv) is fully paid for by Company and AMEX has
not provided material creative or developmental input therein (including
without limitation provision of proprietary or confidential
information), then such Developed Material shall be deemed the sole
property of Company and any use thereof by AMEX shall require consent
thereto by Company. As used herein, "AMEX Property" shall mean the
Developed Material as described in (i) and (ii) above; "Company
Property" shall mean the Developed Material as described in (iii) and
(iv) above.
-17-
(b) All Developed Materials shall be deemed Confidential Data and
Information and subject to the confidentiality provisions of this
Agreement.
(c) Nothing herein shall be construed to restrict, impair or deprive Company
or AMEX of any of their respective rights or proprietary interests in
technology or products that existed prior to and independent of the
performance of their respective obligations hereunder.
16. INTELLECTUAL PROPERTY INFRINGEMENT
----------------------------------
(a) Each party agrees to defend and/or handle at its own expense, any claim
or action against the other party or its affiliates (including without
limitation, its parent, subsidiaries, officers and directors) for any
actual or alleged infringement of any intellectual or industrial
property right, including, without limitation, trademarks, service
marks, patents, copyrights, misappropriation of trade secrets or any
similar proprietary rights, based upon the Service or any portion
thereof furnished or utilized by such party or based on the other
party's use thereof. Each party further agrees to indemnify and hold the
other party and its affiliates harmless from and against any and all
liabilities, losses, costs, damages and expenses (including reasonable
attorneys' fees) associated with any such claim or action. Each
indemnifying party shall have the sole right to conduct the defense of
any such claim or action and all negotiations for its settlement or
compromise, unless otherwise mutually agreed to in writing.
(b) If any portions of the Service become, or in Company's opinion are
likely to become, the subject of any claim or action as described in
subsection (a) above, then, Company, at its expense may either: (i)
procure for AMEX the right to continue using same as contemplated
hereunder; (ii) modify same to render same non-infringing (provided such
modification does not adversely affect the use of the Service as
contemplated hereunder); or (iii) to AMEX's satisfaction, replace same
with equally suitable, functionally equivalent, compatible, non-
infringing products, materials or services.
17. NOTICES: All notices, consents, requests, instructions, approvals, and
--------
other communications made, required or permitted hereunder (each herein, a
"Notice") shall be given in writing and delivered to the receiving party
to its respective address set forth below (i) by personal delivery to the
individual identified below, (ii) by certified or registered mail (return
receipt requested), or (iii) by a nationally recognized courier. The
effective date of such Notice shall be deemed to be the date upon which
any such Notice is personally received by the addressee. Any party hereto
may change its address set forth below by written notice to the other
party hereto in accordance with the terms of this Section:
(a) If to AMEX:
American Express Travel Related Services Company, Inc.
American Express Tower
-18-
3 World Financial Center
New York, New York 10285-4221
Attn: Xxxxxxx Xxxxxxx
Vice President
Interactive Enterprise Development
American Express Relationship Services
Copy to:
American Express Travel Related Services
Company, Inc.
General Counsel's Office
American Express Tower
3 World Financial Center
New York, New York 10285-4909
Attn: Xxxxxxx X. Xxxxxx
Counsel for AERS
(b) If to Company:
CitySearch, Inc.
000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxx III
-19-
Copy to:
CitySearch, Inc.
000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx XxXxxxxxx
Chief Legal Officer
18. TERM AND TERMINATION:
---------------------
(a) This Agreement shall take effect upon the date hereof (the "Effective
Date"), and continue until May 26, 2002 (including any renewal period
as provided herein, the "Expiration Date") unless earlier terminated
in accordance with this Section.
(b) Early Termination: In accordance with the following, this Agreement
-----------------
may be terminated by either party prior to the Expiration Date:
(i) In the event that the other party commits a material breach or
default under this Agreement which breach is not cured by the
breaching party thirty (30) days from the receipt of notice to
cure the breach from the non-breaching party, then the non-
breaching party may terminate this Agreement in its discretion
at any time after such thirty (30) day period; provided that if
such cure cannot be accomplished within such thirty (30) day
period, then, with the non-breaching party's consent which shall
not be unreasonably withheld, such period shall be extended for
such reasonable additional period as shall be necessary to
effect such cure, so long as the party shall have commenced such
cure within such thirty (30) day period and shall thereafter
proceed diligently to complete the cure.
(ii) In the event (1) of a sale or distribution of all or
substantially all of the assets of Company or a sale or
distribution of sufficient stock (other than pursuant to a
public offering) of Company to effect a change in control or (2)
that Company or its affiliate enters into the business of
providing financial services or provides a financial product or
service substantially similar to any of AMEX's financial
products or services, AMEX may, in its sole discretion,
terminate this Agreement immediately. In the event that AMEX
terminates this Agreement pursuant to the preceding sentence of
this Section, Company shall reimburse AMEX for reasonable
out-of-pocket expenses (not to exceed $100,000) incurred in
transferring all data contained within the AMEX Merchant
InfoSites (excluding Company Property) at AMEX's election, to
another vendor of AMEX or to AMEX itself. The expenses described
in the foregoing shall include costs associated with consultants
retained by AMEX in connection with such termination.
Furthermore, the costs associated with Company's obligations in
Section 11(e) shall not be applied against the $100,000 cap
stated herein.
-20-
(iii) Either party may terminate this Agreement with immediate effect:
(1) upon the institution by the other party of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the other
party to institution of bankruptcy or insolvency proceedings
against it or the filing by the other party of a petition or
answer or consent seeking reorganization or release under the
Federal Bankruptcy Code, or any other applicable Federal or state
law, or the consent by the other party to the filing of any such
petition or the appointment of a receiver, liquidator, assignee,
trustee, or other similar official of the other party or of any
substantial part of its property, or the making by the other
party of an assignment for the benefit of creditors, or the
admission in writing by the other party of an assignment for the
benefit of creditors, or the admission in writing by the other
party of its inability to pay its debts generally as they become
due or the taking of corporate action by the other party in
furtherance of any such actions; (2) if, within 60 days after the
commencement of an action against the other party seeking any
bankruptcy, insolvency, reorganization, liquidation, dissolution
or similar relief under any present or future law or regulation,
such action shall not have been dismissed or all orders or
proceedings thereunder affecting the operations or the business
of the other party stayed, or if the stay of any such order or
proceeding shall thereafter be set aside; or if, within 60 days
after the appointment without the consent or acquiescence of the
other party of any trustee, receiver or liquidator or similar
official of the other party, or of all or any substantial part of
the property of the other party, such appointment shall not have
been vacated.
(c) Transfer Assistance: Upon the termination of this Agreement due to an
--------------------
event described in Section 18(b)(i), where the material breach relates to
the Company's obligations under this Agreement, Section 18(b)(ii) or
Section 18(b)(iii), where the events described therein occur with respect
to Company, Company shall, upon AMEX's request, provide the following
assistance: (i) continue to provide the Service to the extent requested by
AMEX in accordance with the Performance Standards for the remainder of all
Merchant Enrollees' enrollment period up to one (1) year provided that
Company has been paid for such enrollment period; (ii) provide such
assistance ("Transfer Assistance") as reasonably requested by AMEX to
transfer the Service to another vendor or to AMEX itself during a one-
hundred eighty (180) day period following the effective date of the
termination of the Agreement; (iii) answer AMEX Merchant Customers'
questions regarding the Services as mutually agreed on an as needed basis;
and (iv) deliver to AMEX any remaining AMEX-owned reports and documentation
still in Company's possession, or at AMEX's direction, destroy all AMEX
data and information in the Company's possession. The above referenced
Transfer Assistance shall be provided at AMEX's expense unless otherwise
provided herein or the termination is due to a material breach by Company.
(d) Certain Post-Termination Rights and Obligations.
-----------------------------------------------
(i) As used herein "Post-Termination Period" shall mean the one (1) year
period following termination of this Agreement so long as such
termination is not due to an
-21-
event described in the following sections: 18(b)(i), where the
material breach relates to the Company's obligations under this
Agreement; 18(b)(ii); or 18(b)(iii), where the events described
therein occur with respect to Company. During the Post-Termination
Period:
(A) AMEX and Company agree that Company shall continue to provide the
Service to Merchant Enrollees in accordance with the terms and
conditions of this Agreement; the term of the Agreement shall be
deemed extended through the expiration of the Post-Termination
Period with respect to the Merchant Enrollees. Any and all
solicitations by Company under this Agreement for new enrollments
in the Service shall cease immediately prior to the commencement
of the Post-Termination Period;
(B) Company may, but is not obligated to, renew the enrollment of any
Merchant Enrollee, provided that no term of such renewal
enrollment shall extend for more than a twelve (12) month period.
[*]
(C) AMEX shall not solicit Merchant Enrollees to enroll in a service
that is substantially similar to the Service.
(ii) For a period of five (5) years following the termination of the
Agreement, Company agrees not to promote or sponsor an AMEX
Competitor on any AMEX Merchant InfoSite, regardless of whether such
AMEX Merchant InfoSite is hosted or maintained by Company. As used
herein, "AMEX Competitor" shall mean an entity engaged in the
issuance or promotion of Charge Card Products or is engaged in the
financial services business.
(iii) Upon expiration of the Post-Termination Period, Company's obligations
to brand any portion of the AMEX Merchant InfoSite with an AMEX
trademark shall cease.
19. MISCELLANEOUS:
--------------
(a) Headings: Headings stated in this Agreement are for convenience of
---------
reference only and are not intended as a summary of such sections and
do not affect, limit, modify, or construe the contents thereof.
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-22-
(b) 21/st/ Century. No later than December, 1998, Company shall (i)
--------------
manage and manipulate data in connection with the Service involving
all dates from the 20/th/ and 21/st/ centuries without functional or
data abnormality related to such dates; (ii) manage and manipulate
data in connection with the Service involving all dates from the
20/th/ and 21/st/ centuries without inaccurate results related to
such dates; (iii) have user interfaces and data fields in connection
with the Service formatted to distinguish between dates from the
20/th/ and 21/st/ centuries; and (iv) represent all data in
connection with the Service to include indications of the millennium,
century, and decade as well as the actual year.
(c) Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall constitute an original, but all of
which together shall constitute one instrument notwithstanding that
all parties are not signatories to the same counterparts.
(d) Informal Resolution and Arbitration.
-----------------------------------
(i) With the exception of the disputes arising under the provisions
of Section 11 hereof, if that there is a dispute between the
parties relating to this Agreement, the parties agree the party
claiming the dispute will provide written notice of the dispute
to the other party. Within thirty (30) days after receipt of the
written notice, AMEX and Company will each appoint a
representative with full authority to negotiate a resolution of
the dispute and meet as often as is necessary in a good faith
effort to resolve the dispute without the necessity of a formal
meeting. In the event that representatives are unable to resolve
the dispute within ninety (90) days of the date of the written
notice, said dispute shall be submitted to mandatory and binding
arbitration as provided below in Section 19(e)(ii).
(ii) To initiate the arbitration, the disputing party shall notify
the other party in writing which shall describe in reasonable
detail the nature of the dispute, state the amount of the claim,
specify the requested relief and name an arbitrator who has been
licensed to practice law in the U.S. for at least ten years, is
not an employee of AMEX or Company or an employee of an
affiliate of either AMEX or Company, is experienced in
representing clients in connection with commercial agreements
and is impartial, neutral, disinterested, unbiased and bound by
the Rules of Ethics of the ABA and AAA for neutral arbitrators
and shall not have ex parte communications with the parties
(Basic Qualifications). Within fifteen (15) days after the other
party's receipt of the Arbitration Demand, such other party
shall file and serve on the disputing party a written statement
answering the claims set forth in the Arbitration Demand and
including any affirmative defenses of such party, asserting any
counterclaim which shall describe in reasonable detail the
nature of the dispute relating to the counterclaim, and state
the amount of the counterclaim and specify the requested relief
and name the second arbitrator satisfying the Basic
Qualifications. Within fifteen (15) days thereafter, the two
party selected arbitrators shall select a third neutral
arbitrator from a list provided by the AAA of potential
arbitrators who satisfy the Basic Qualifications and who have no
past or present relationship with the parties or their counsel
except as disclosed in writing to and approved by the parties.
The
-23-
third arbitrator selected by the two party appointed arbitrator
shall serve and have sole responsibility as the "case manager".
Within forty-five (45) days after the arbitration panel has been
appointed, the case manager shall meet with the parties and
their counsel to agree to a case management agreement which
shall include the arbitration panel's commitment that they have
sufficient time available for the handling of the dispute to
final disposal within one hundred eighty (180) days. The
arbitration will be heard by a panel of the three arbitrators so
chosen and decisions of a majority of the members of the
arbitration panel shall be final and subject to the provisions
of Section 11 hereof. The arbitration panel shall have the power
and authority and is instructed to exclude evidence on grounds
of prejudice, immateriality and/or redundancy and no ruling by
the arbitrator rejecting evidence on such ground shall be a
ground for vacating the arbitration award.
(iii) Any controversy, dispute, disagreement or claim arising out of
or relating to this Agreement, or any alleged breach thereof, or
the subject matter thereof, shall be settled exclusively by
binding arbitration, as described in above in subparagraphs (i)
and (ii), which shall be conducted in New York, New York. The
arbitration panel is specifically authorized to render partial
or full summary judgment as provided by the Federal Rules of
Civil Procedure. In the event full or partial summary judgment
is granted, the non-prevailing party may not raise as a basis
for a motion to vacate an award that the Arbitration Panel
failed or refused to consider evidence of bearing on the
dismissed claim or issue. The Federal Rules of Civil Procedure
shall apply to all discovery pursuant to the arbitration process
and the Federal Rules of Evidence and Subpoena shall apply to
the arbitration hearing. The party bringing a particular claim
or asserting an affirmative defense shall have the burden of
proof with respect to thereto. The arbitration proceeding and
all testimony, filings, documents and information relating to or
presented during the arbitration proceedings shall be deemed to
be information subject to the confidentiality provisions of the
Agreement. The arbitration panel will have no power or authority
under the Commercial Arbitration Rules of the AAA or otherwise,
to relieve the parties from their agreement hereunder to
arbitrate or otherwise to amend or disregard any provision of
the Agreement, including without limitation the provisions of
this Section 19(d), except that the parties hereto expressly
agree that claims pursuant to Section 11(g) hereof will not be
subject to the requirements of this Section 19(d).
(iv) Should an arbitrator refuse or be unable to proceed with
arbitration proceedings, he/she shall be replaced by the party
who selected such arbitrator or if such arbitrator was selected
by the two party appointed arbitrators, by such two party
appointed arbitrators selecting a new third arbitrator in
accordance with the basic qualifications.
(v) Any award rendered by the arbitration panel will be final,
conclusive and binding upon the parties and any judgment hereon
may be entered and enforced in any court of competent
jurisdiction.
-24-
(vi) Each party will bear a pro rata share of all fees, costs and
expenses of the arbitrators, and notwithstanding any law to the
contrary, each party will bear all fees, costs and expenses of
its own attorneys, experts and witnesses; provided, however that
in connection with any judicial proceeding to compel arbitration
pursuant to this agreement or to confirm, vacate or enforce any
award rendered by the arbitration panel, the prevailing party in
such proceeding will be entitled to recover reasonable attorneys
fees and expenses incurred in connection with such proceeding,
in addition to any other relief to which it may be entitled.
(f) New York Law: This Agreement shall be governed by and in accordance
-------------
with the laws of the State of New York, without reference to its
conflict of laws principles.
(g) Independent Contractor Status And Authority.
-------------------------------------------
(i) Company agrees and acknowledges that in its performance of its
obligations under this Agreement, Company is an independent
contractor of AMEX. Company is solely responsible for its own
activities. Company has no authority to make commitments or enter
into contracts on behalf of, bind or otherwise obligate AMEX in
any manner whatsoever except as expressly stated in this
Agreement.
(ii) Since Company is an independent contractor and not an agent of
AMEX, Company represents, warrants and agrees that it shall be
liable for all taxes, withholdings, and imposts of any nature
applicable to the payment of compensation, whether current or
deferred, for the work performed on Company's behalf in
accordance with Company's obligations hereunder. Furthermore,
Company will indemnify and hold AMEX harmless for any such
taxes, withholding or imposts for which AMEX may be determined
to be liable.
(h) Non-Waiver; Cumulative Rights: No failure or delay (in whole or in
------------------------------
part) on the part of any party to exercise any right or remedy
hereunder shall or operate as a waiver thereof or effect any other
right or remedy. All rights and remedies hereunder are cumulative and
are not exclusive of any other rights or remedies provided hereunder or
by law.
(i) Severability: If any provision contained in this Agreement is or
-------------
becomes invalid, illegal, or unenforceable in whole or in part, such
invalidity, legality, or unenforceability shall not affect the
remaining provisions and portions of this Agreement.
(j) Assignment: This Agreement may not be assigned by either party without
the prior written consent of the other party.
(k) No Creation of Partnership. This Agreement shall not be construed to
--------------------------
create or constitute a partnership for tax or other purposes.
-25-
(l) Sales Tax. Company, and not AMEX, is the seller of the services
---------
hereunder. Company is responsible for collecting and remitting to the
appropriate jurisdiction any and all applicable sales or use taxes and
shall fully indemnify and hold AMEX harmless for any sales, use or
similar transaction taxes that are assessed, whether against AMEX or
Company, with respect to such sales.
(m) Access to AMEX Merchant Customer Lists. The access provided by AMEX
--------------------------------------
to Company of certain lists of AMEX Merchant Customers shall be
provided to Company at no additional charge.
(n) Entire Agreement: This Agreement constitutes the entire Agreement
-----------------
between the parties with respect to the subject matter hereof and
supersedes all prior contemporaneous oral or written understandings or
Agreements among the parties which relate to the subject matter hereof.
No modification or amendment of this Agreement or any of its provisions
shall be binding upon any party unless made in writing and duly
executed by authorized representatives of all parties.
IN WITNESS WHEREOF, AMEX and Company, intending to be legally bound by the terms
of this Agreement, have caused this Agreement to be executed by their duly
authorized representatives as of the date and year first above written.
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Interactive Enterprise Development
American Express Relationship Services
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Establishment Services
CITYSEARCH, INC.
By: /s/ Xxxxxxx Xxxx
---------------------------------
-26-
Name: Xxxxxxx Xxxx
Title: CEO
-27-
EXHIBIT A
---------
DESCRIPTION OF THE BASIC SERVICE
--------------------------------
The Basic Service
-----------------
Company produces and delivers comprehensive local city guides on the Web at
its Web site, xxx.xxxxxxxxxx.xxx, providing up-to-date information regarding
arts and entertainment, community activities and events, recreation, businesses
and news/sports/weather to consumers in major metropolitan areas. Each local
city guide consists of original content developed and designed specifically for
the Web by the Company and its licensees. The Company creates custom-built Web
sites ("InfoSites") for local businesses, aggregates them in a local city
environment and provides consumers the ability to regularly update and expand
the sites according to customer preferences. By enabling consumers to search,
sort and filter information and engage in interactive relationships, the Basic
Service offers local and regional businesses the opportunity to reach and
interact with targeted audiences in a cost-effective manner. The Basic Service
is built in cooperation with the community, and in partnership with local
government, community and volunteer associations, business and professional
groups, educational institutions and local media companies.
Services to Consumers
---------------------
Company provides events, community, business and news information in a
complete and current guide to a local city at no charge to consumers. For
example, the Basic Service lists restaurants, music, movies, theater, volunteer
information, children's activities, gift ideas, entertainment, local getaway
ideas, physicians, pets, shopping and short features. The information and the
interface have been designed to cater to a broad range of interests in an easily
navigable, intuitive format.
Company has developed technology which enables consumers to perform
sophisticated search functions and allows filtering for their personal
interests, with e-mail delivery. The information can be searched, sorted and
filtered by keyword, time and geography. For example, if a consumer in San
Francisco wants to locate a traditional Italian restaurant in North Beach
neighborhood, he could access the San Francisco site and type in the keywords
"Italian restaurant" in the "What Are You Looking For" box and click on "North
Beach" at the "Area" prompt. The Basic Service would return all Italian
restaurants in North Beach. At the consumer's discretion, the search result
could be sorted by InfoSite size, alphabetically or by category and viewed as
either a list or map. The list view provides each restaurant's name, address,
telephone number and, if the restaurant has purchased an InfoSite, provides the
number of pages purchased. The map view displays each restaurant's name and
location. For restaurants that have purchased InfoSites, the consumer can click
on the restaurant's name or icon to find additional information.
-28-
By using the Basic Service, consumers can search main shopping areas
navigable maps, community organizations and vendors can be contacted via e-mail,
and consumers can engage in the chat and bulletin board discussions with
individuals such as local public officials and celebrities. Consumers may also
access video streams from local television stations, including recent news,
weather and traffic. The Company is continuing to develop a local platform for
electronic commerce, including ticketing, reservations, sales event
notifications, electronic coupons, newsletters and other transactions.
Value Proposition to Business Customers
---------------------------------------
The Company creates and hosts InfoSites for local businesses and
organizations for a monthly fee. Company believes it offers an attractive value
proposition for local businesses. For an initial fee ranging from $60 to $650
per month, the Company provides a turn-key solution for businesses to establish
a Web presence including design, layout, photography, posting of updated
information, hosting and maintenance. Business customers are able to provide a
targeted audience with updated information about their stores and services
including pictures, prices, store location, live entertainment, weekly specials
or sales and other relevant information. Electronic delivery enables the
service to be provided at a fraction of the cost of paper-based media. The
Company's efficient, proprietary site design tools and significant production
economies enable it to build customized multi-paged Web sites without charging
customers an up-front fee. Furthermore, the Company encourages frequent
information updates by offering business customers a certain number of free
updates each month. This is in contrast to yellow pages and similar forms of
advertising which print infrequently and do not allow for regular information
updates.
By building and hosting custom Web sites in its local city guide
environment, Company provides business customers a cost effective way to
establish a meaningful presence on the Web. In addition, the Company offers a
number of additional benefits to customers. By aggregating a business
customer's InfoSite with those of numerous other businesses in a comprehensive
local city guide, Company provides categorical and geographic context to a
business customer's Web presence rather than allowing it to "free-float" in
cyberspace. Business customers, moreover, receive free promotion of their
InfoSite as part of the Basic Service. Company's business customers receive
usage reports, e-mail functionality to enable consumers and businesses to
communicate with each other, community sponsorship opportunities and access to
an expanded base of potential buyers including tourists and mail order users.
The Company is also developing the system as a platform for electronic commerce,
including ticketing, reservations, sales events notifications, electronic
coupons, newsletters and other transactions).
-29-
EXHIBIT B
---------
HIGH-END CAPABILITIES
---------------------
[*]
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[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-30-
EXHIBIT C
---------
LOW-END CAPABILITIES
--------------------
[*]
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-31-
[*]
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-32-
EXHIBIT D
---------
FINANCIAL ARRANGEMENT
---------------------
[*]
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-33-
EXHIBIT E
---------
CUSTOMER SERVICE
[*]
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-34-
[*]
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-35-
[*]
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-36-
EXHIBIT F
---------
ADVERTISEMENT POLICY
--------------------
1. Advertisements on the AMEX Merchant InfoSites, any portion of the Service
or the CitySearch Web Sites (to the extent such CitySearch Web Sites are
branded with an AMEX trademark), shall not:
(a) Contain any unlawful, harmful, threatening, abusive, harassing,
defamatory, vulgar, obscene, profane, hateful, racially, ethnically or
otherwise objectionable material of any kind, including, but not
limited to, any material which encourages conduct that would
constitute a criminal offense, give rise to civil liability or
otherwise violate any applicable local, state, national or
international law.
(b) Contain personal attacks on a company or individual.
(c) Offer unauthorized downloads of any copyrighted or private
information.
(d) Purport to be from someone other than the author.
(e) Violate applicable law, including but not limited to any FTC or unfair
advertising rules, regulations, and laws.
2. The Company agrees to provide AMEX with a quarterly list of advertisers and
services offered through the AMEX Merchant InfoSites and the CitySearch Web
pages (to the extent such CitySearch Web pages are branded with an AMEX
trademark).
3. The parties reserve the right at any time to exclude any specific
advertisers and advertisements in the AMEX Merchant InfoSites, the Service
and the CitySearch Web Sites (to the extent such CitySearch Web Sites are
branded with an AMEX trademark), including any promotional materials
related thereto, by written notice to each other.
-37-
EXHIBIT G
---------
AMEX DATA ACCESS DOCUMENT
-------------------------
Information Security Requirements
---------------------------------
The following are provided as minimum requirements or guidelines only.
GENERAL
-------
[*]
Company agrees to abide by the Privacy Principles as adopted by AMEX for itself
from time to time. Those requirements are currently as follows:
1. COLLECT ONLY CUSTOMER INFORMATION THAT IS NEEDED, AND TELL CUSTOMERS HOW
IT WILL BE USED.
Limit the collection of information about customers to what is needed to be
known to administer their accounts, to provide customer services, to offer
new products and services, and to fulfill any legal and regulatory
requirements. Tell customers about the general uses of the information
collected about them, and will provide additional explanation if customers
request it.
2. GIVE CUSTOMERS CHOICES ABOUT HOW THEIR DATA WILL BE USED.
On a regular basis, give customers the option to decide whether or not they
wish to have their names removed from lists used for mail, telephone and
online marketing. These "opt-out" choices include product and service
offers from AMEX and those made in conjunction with AMEX's business
partners.
3. ENSURE INFORMATION QUALITY.
Use advanced technology and well-defined employee practices to help ensure
that customer data are processed promptly, accurately and completely.
Require high standards of quality from the consumer reporting agencies and
others who provide information about prospective customers.
4. USE INFORMATION SECURITY SAFEGUARDS.
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-38-
Access to customer data is limited to those who specifically need it to
conduct their business responsibilities. Use security techniques designed
to protect customer data -- especially when certain data are used by
employees and business partners to fulfill customer services.
5. LIMIT THE RELEASE OF CUSTOMER INFORMATION.
In addition to providing customers with the opportunity to "opt out" of
marketing offers, information is released only with the customers' consent
or request, or when required to do so by law or other regulatory authority.
When a court order or subpoena requires release of information, customer is
notified promptly to give the customer an opportunity to exercise his or
her legal rights. The only exceptions to this policy are when notifying the
customer is prohibited by court order or law, or cases in which fraud
and/or criminal activity is suspected.
6. BE RESPONSIVE TO CUSTOMERS' REQUESTS FOR EXPLANATIONS.
If an application for services is denied or a customer's relationship is
ended, to the extent permitted by applicable laws, an explanation is
provided, if requested. The reasons for the action taken is stated and the
information upon which the decision was based, unless the issue involves
potential criminal activity. Medical information about an applicant for
insurance, or an insured individual, may be disclosed to a physician
designated by the customer rather than to the customer directly.
7. EXTEND THESE PRIVACY PRINCIPLES TO BUSINESS RELATIONSHIPS.
AMEX expects the companies selected as business partners to honor AMEX's
Privacy Principles in the handling of customer information. These include
companies which (a) assist in providing services to AMEX customers; (b)
supply AMEX with information for identifying or evaluating prospective
customers; or (c) are given the opportunity to send mailings to approved
AMEX customer lists. In selecting business partners, consider the accuracy
and quality of the data they provide, how they respond to consumer
complaints and whether or not they provide "opt out" choices for those
whose information they process.
8. HOLD EMPLOYEES RESPONSIBLE FOR THESE PRIVACY PRINCIPLES.
Each employee is personally responsible for maintaining consumer confidence
in the company. Provide training and communications programs designed to
educate employees about the meaning and requirements of these Privacy
Principles. Conduct internal audits and commission outside-expert reviews
of compliance with the Privacy Principles and the specific policies and
practices that support the Principles.
Disregard of these Privacy Principles shall be deemed a breach of the Agreement
and cause for termination pursuant to the terms thereof.
[*]
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-39-
CARDMEMBER PRIVACY
------------------
[*]
EMPLOYEE RESPONSIBILITIES
-------------------------
[*]
SECURITY ADMINISTRATION AND RESPONSIBILITIES
--------------------------------------------
[*]
SYSTEM SECURITY
---------------
[*]
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-40-
[*]
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-41-
EXHIBIT H
---------
[INTENTIONALLY OMITTED]
-42-
EXHIBIT I
---------
CUSTOMER DATA AND DATA-RELATED RIGHTS
-------------------------------------
1. Limited Access to AMEX Merchant Customer Data. Company shall have limited
---------------------------------------------
access to certain Card Member data including AMEX Merchant Customer account
number, address and other relevant information (the "AMEX Merchant Customer
Data") solely for the purposes of investigating and monitoring the handling of
cases and related customer services for particular AMEX Programs and plans to be
determined by the parties hereto. AMEX shall have the sole responsibility of
overseeing all security standards and requirements as set forth by AMEX in
relation to the AMEX Merchant Customer Data in Company's possession. Company
shall insure that all standards and requirements will meet AMEX's full and
reasonable satisfaction.
2. Data and Reports
----------------
Ownership of AMEX Data. All data and information submitted to Company by AMEX in
----------------------
connection with the Services (the "AMEX Data") is and shall remain the property
of AMEX. The AMEX Data shall: (1) not be used by Company other than in
connection with providing or analyzing the Services, (2) not be disclosed, sold,
assigned, leased or otherwise provided to third parties by Company; and (3) not
be commercially exploited by or on behalf of Company, its employees or agents
except as provided in this Agreement. Company shall take all appropriate actions
to safeguard the AMEX Data. The database of Enrolled AMEX Merchant Customers
shall remain the sole property of AMEX.
Return of Data. Upon request by AMEX upon the termination or expiration of this
--------------
Agreement, Company shall (1) promptly return to AMEX, in a format agreed upon by
the parties hereto and on the media reasonably requested by AMEX, all AMEX Data
and/or (2) erase or destroy under the supervision of AMEX, all AMEX Data in
Company possession.
Accuracy of Data. As part of the Services, each party shall be responsible for
----------------
the accuracy and completeness of the data and information submitted by a party
to the other and any errors in and with respect to data and information
submitted to the other. Each party shall promptly correct any errors or
inaccuracies in the data or information prepared by one party and submitted to
the other.
Corrections of Errors. As part of the Service, Company shall promptly correct
---------------------
any errors or inaccuracies made known to them either through their own sources
or made known to them by AMEX in the AMEX Data. AMEX shall be responsible for
(1) the accuracy and completeness of the AMEX Data submitted by AMEX to Company
and (2) any errors in and with respect to data obtained from Company caused by
inaccurate or incomplete AMEX Data.
-43-
EXHIBIT J
---------
SECURITY
--------
1. Safety and Security Procedures: [*]
------------------------------------
2. Logical Security Controls: [*]
------------------------------
3. Authorized Access: [*]
-----------------------
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-44-
4. Security Relating to Competitors: [*]
--------------------------------------
5. Disaster Recovery: [*]
-----------------------
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-45-
EXHIBIT K
AMEX AUDIT RIGHTS
-----------------
Company shall keep all documents (excluding credit and monitoring reports)
relating to services provided under this Agreement for a period of three (3)
years or longer as required by applicable law. Unless otherwise instructed by
AMEX, Company shall promptly deliver all such documents to AMEX upon the
termination of this Agreement.
AMEX shall have the right, during normal business hours and with 24 hour notice
to Company, to visit Company's operations center to (i) monitor telephone
conversations between Company customer service representatives and AMEX Merchant
Customers/AMEX Merchant Customers to the extent permitted by and in accordance
with applicable law, and (ii) to audit Company's Service Locations and files for
the services described in this Agreement and otherwise relating to Company's
performance of its obligations under this Agreement. Upon AMEX's request,
Company shall also cooperate with AMEX in developing the telecommunications
systems necessary to enable AMEX to conduct such telephone monitoring at any
time from AMEX's New York headquarters or other reasonable remote location(s) to
the extent permitted by and in accordance with applicable law. In the event such
systems are developed, AMEX may conduct such remote monitoring at any time to
the extent permitted by and in accordance with applicable law and to the extent
AMEX will cover the cost to develop the necessary telecommunications systems,
AMEX shall cover those costs that are reasonable and appropriate.
AMEX shall have the right, without notice, to perform a Data Security review of
Company's security controls as they relate to the physical security and
protection of AMEX Confidential data/system access.
-46-
EXHIBIT L
---------
NON DISCLOSURE AGREEMENT
------------------------
[Subcontractor/Agent/Representative Name] ("Receiving Party") agrees that
Receiving Party is aware that American Express Travel Related Services Company,
Inc. ("AMEX") and ________________________ ("Company") have entered into a
Marketing Agreement ("Agreement") that imposes certain obligations on Company,
some of which are specifically set forth below. Receiving Party understands that
as part of obligations under the Marketing Agreement, Company is required to
obtain this written agreement from Receiving Party to further ensure
understanding and compliance with these obligations.
In consideration of Receiving Party's future assignment and/or responsibilities
in connection with Company's performance under the Marketing Agreement,
Receiving Party hereby acknowledges, represents and confirms to Company and AMEX
as follows: (a) Receiving Party has read the provisions of this Non-Disclosure
Agreement, understands each of them, agrees to them, and knows of no agreements,
obligations or restrictions which prevent or prohibit Receiving Party from
complying with them; (b) Receiving Party shall receive and maintain all AMEX
information and perform services in a manner consistent with these obligations;
and (c) Receiving Party agrees not to, directly or indirectly, engage in or
assist others to engage in, any activity or conduct which violates the
provisions of this Non-Disclosure Agreement.
1. General Obligations. All confidential or proprietary information and
-------------------
documentation ("Confidential Information" (including the terms of this Non-
------------------------
Disclosure Agreement, the AMEX Data and the Software) relating to AMEX
(including without limitation AMEX's customers, partners and clients) shall be
held in confidence by Receiving Party to the same extent and in at least the
same manner as AMEX protects its own confidential or proprietary information and
as recommended as a result of any facility audits or reviews. Receiving Party
shall not disclose, publish, release, transfer or otherwise make available
Confidential Information in any form to, or for the use or benefit of, any
person or entity without AMEX's express written consent. Receiving Party shall,
however, be permitted to disclose relevant aspects of the Confidential
Information to its officers, agents, subcontractors and employees and to the
officers, agents, subcontractors and employees of its corporate affiliates or
subsidiaries to the extent that such disclosure is reasonably necessary for the
performance of its duties and obligations to Company under the Marketing
Agreement; provided, that Company shall take all reasonable measures to ensure
that the Confidential Information is not disclosed or duplicated in
contravention of the provisions of this Non-Disclosure Agreement by such
officers, agents, subcontractors and employees. The obligations in this Section
-------
1 shall not restrict any disclosure by Receiving Party pursuant to any
-
applicable law, or by order of any court or government agency (provided that
Receiving Party shall give prompt notice to AMEX of such order) and shall not
apply with respect to information which (a) is developed by Receiving Party
without violating AMEX's proprietary and confidential rights, (b) is or becomes
publicly known (other than through unauthorized disclosure), (c) is disclosed by
AMEX to a third-party free of any obligation of confidentiality, is already
known by the Receiving Party without an obligation of confidentiality other than
pursuant to this Non-Disclosure Agreement or any confidentiality agreements
entered into before the effective date of the Marketing Agreement, or (d) is
rightfully received by Receiving Party free of any obligation of
confidentiality.
2. Unauthorized Acts. Receiving Party shall: (a) notify AMEX promptly of any
-----------------
material unauthorized possession, use or knowledge, or attempt thereof, of the
Confidential Information by any person or
-47-
entity which may become known to such party, (b) promptly furnish to AMEX full
details of the unauthorized possession, use or knowledge, or attempt thereof,
and use reasonable efforts to investigate and prevent the recurrence of any
unauthorized possession, use or knowledge, or attempt thereof, of the
Confidential Information, (c) use reasonable efforts to cooperate with AMEX in
any litigation and investigation against third parties deemed necessary by AMEX
to protect its proprietary and confidential rights and (d) promptly use all
reasonable efforts to prevent a recurrence of any such unauthorized possession,
use or knowledge of the Confidential Information. Receiving Party shall bear the
cost it incurs as a result of compliance with this Section 2.
---------
3. Receiving Party agrees that if Receiving Party threatens to or actually
breaches or fails to observe any of the obligations set forth in this Non-
Disclosure Agreement, AMEX and Company shall be subject to irreparable harm
which shall not be adequately satisfied by damages. Receiving Party therefore
agrees that Company or AMEX shall be entitled to an injunction and/or any other
remedies permitted, to ensure and enforce Receiving Party's compliance with
these obligations; provided, however, that no specification herein of any
particularly legal or equitable remedy shall be construed as a waiver,
prohibition or limitation of any legal or equitable remedies.
By: ________________________________
Name: ______________________________
(Type, Stamp or Print)
Title: _____________________________
Date: ______________________________
Witness: ___________________________
-48-
EXHIBIT M
---------
________________________________________________________________________________
[LOGO OF AMERICAN EXPRESS APPEARS HERE]
TERMINAL RULES AND REGULATIONS
________________________________________________________________________________
Part of our mission is to make changes and adjustments to various AMEX Merchant
Customer accounts. This is done through the use of our computer system. The use
of this system is extremely critical. There are a few very specific rules and
regulations that go along with working with the computer system. These rules
must be followed in detail by every employee who is involved with the computer
system. Therefore, you are being shown the rules and regulations so that you
understand how the system works. It is very important that you understand and
comply with the following operating rules and regulations.
MAINTENANCE CHANGES TO CARDMEMBER ACCOUNTS.
[*]
USE OF YOUR PASSWORD AND IDENTIFICATION NUMBER
[*]
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-49-
[*]
MONITORING
[*]
UNAUTHORIZED ACCESS/VIEWING OF ACCOUNTS
[*]
IMPORTANCE OF THE RULES AND REGULATIONS
[*]
ACKNOWLEDGMENT
I have read and understand the above regulations and agree to comply with them.
_________________________ __________________________________________________
Employee Signature Print Name Date
-------------
[*] = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
-50-
EXHIBIT N
---------
AMERICAN EXPRESS CUSTOMER INTERNET PRIVACY STATEMENT
Protecting your privacy is important to us. We hope the following statement will
help you understand how American Express collects, uses and safeguards the
personal information you provide to us on our website.
. Security
--------
. Information Collection
----------------------
. Information Use
---------------
. Declining Email Offers
----------------------
Set Email Preferences - set, review or change preferences regarding
---------------------
the type email offers you do not want to receive.
. Children
--------
. Company Commitment to Privacy
-----------------------------
___________________________________________________________________________
SECURITY
When you send confidential personal account data to us on an American Express
website, we require that a "secure session" first be established using Secure
Socket Layer (SET), or Secure Electronic Transactions (SET) when that is fully
available. For further information about SSL, SET and the safety and
confidentiality of personal data transmissions over the Internet, please read
our Security Q & A.
--------------
INFORMATION COLLECTION
When you BROWSE any American Express website, you do so anonymously. Personal
information including your email address is NOT collected. Some of our websites,
however, may request that you VOLUNTARILY supply us with personal information,
including your email address and account number [if you are an American Express
Cardmember or InvestDirect user], for purposes such as correspondence, site
registration, checking your xxxx or investments online, making a purchase, or
participating in online surveys.
Like many other commercial websites, the American Express website may utilize a
standard technology called a "cookie" to collect information about how our site
is used. Please read About Cookies for more information.
-------------
INFORMATION USE
If you provide us with your email address, or have done so in the past, we may
upon occasion send you email offers. We may use information you have given us
to, for example, provide a service, ensure proper billing, measure consumer
interest in our various services and inform you about
-51-
products and services. These offers may be based on information you provided in
your initial transaction with us, in surveys, from information that may indicate
purchasing preferences and lifestyle, as well as information available from
external sources, such as census bureau data. Primarily, these email offers will
come from American Express. We may also, upon occasion, share email addresses
with certain establishments that accept the American Express Card, or with other
well-established companies so that they can send you product and service offers
that may be of interest.
All offers are carefully developed to ensure that they meet our standards. Our
goal is to target offers to people who we believe will find them of value. The
lists used to send you product and service offers are developed and managed
under strict conditions designed to safeguard the security and privacy of
customer personal information. For an illustration of the types of offers we may
provide with our business partners exclusively to American Express Cardmembers,
please view American Express Special Offers.
-------------------------------
Please note that our free email service, AMEXMAIL, as well as our financial
services websites, AMERICAN EXPRESS FINANCIAL ADVISORS and AMERICAN EXPRESS
FINANCIAL DIRECT, do not share email addresses with any company outside of
------
American Express.
DECLINING EMAIL OFFERS
American Express provides customers with an easy means to decline receiving
email offers.
Although most customers tell us they appreciate receiving notice of these
carefully designed opportunities, we recognize the importance of providing you
with choices. At any time, you may request to discontinue receiving these offers
from us by simply replying to the email and informing us of your preferences.
All email offers that you receive from American Express will inform you of how
to decline receiving further email offers. Additionally, you may Set Email
---------
Preferences to notify us of your preferences regarding the type of email offers
-----------
you do not want to receive, and you may also review and change preferences you
have previously set.
CHILDREN
American Express does not knowingly solicit data from children, and we do not
knowingly market to children.
COMPANY COMMITMENT TO PRIVACY
In keeping with our long-standing leadership in consumer privacy protection,
American Express is actively involved with current industry initiatives to
preserve individual privacy rights on the Internet and in all aspects of
electronic commerce.
For additional information about our commitment to protecting the privacy of our
customers both online and offline, please read the American Express Customer
-------------------------
Privacy Principles. The American Express Customer Internet Privacy Statement is
------------------
currently applicable only to our U.S. customers and visitors to our website. As
we develop websites for international audiences, they
-52-
will maintain their own additional rules and practices, which are fully
consistent with this Statement, and which they may modify as needed for
particular products and services, or to conform to local laws or customs around
the world. If you have any questions about this statement, you can reach us at
0-000-XXX-0000, or you may send us an email.
----------------
To obtain information about American Express direct mail and telemarketing
privacy policies for the U.S., please call: 0-000-000-0000.
ABOUT COOKIES
Cookies were originally designed to help a website distinguish a user's browser
as a previous visitor and thus save and remember any preferences that may have
been set while the user was browsing the site. A cookie is a small string of
text that a website can send to your browser. A COOKIE CANNOT RETRIEVE ANY OTHER
DATA FROM YOUR HARD DRIVE, PASS ON COMPUTER VIRUSES, OR CAPTURE YOUR EMAIL
ADDRESS. Currently, websites use cookies to enhance the user's visit; in
general, cookies can securely store a user's ID and password, personalize home
pages, identify which parts of a site have been visited or keep track of
selections in a "shopping cart."
If you are just browsing an American Express website, a cookie identifies only
your browser. If you become a registered user on an American Express website
(with a designated user ID and password), we may use cookies so that we can
provide personalized information that we believe will be of value to you based
on preferences you have indicated while visiting the site.
It is possible to set your browser to inform you when a cookie is being placed
this way, you have the opportunity to decide whether to accept the cookie. If
you are just browsing our site and are not a registered user, you do not have to
accept a cookie and you may still continue utilizing the site. However, if you
are visiting a site where you will be accessing your confidential account
information (such as Checking Your Xxxx), you must accept that site's cookies as
they are essential for site administration and security. By accepting a cookie,
keep in mind that your choice to decline email offers remains unaffected. Here
is how to set your cookie preferences:
NETSCAPE NAVIGATOR 3: Select Network Preferences from the Options menu. From the
Network Preferences menu, select the Protocols tab and modify your preference if
you wish to be warned before accepting cookies.
NETSCAPE NAVIGATOR 4: Select Preferences from the Edit menu. From the
Preferences menu, select Advanced and several options for cookies will be listed
in the lower right of the menu. Additionally, you may select Help for more
details. For further information about the Netscape browser and use of cookies,
visit Netscape's website at xxxx://xxxx.xxxxxxxx.xxx.
MICROSOFT INTERNET EXPLORER 3: Select Options from the View menu. Choose the
Advanced menu to modify your preference if you wish to be warned before
accepting cookies.
MICROSOFT INTERNET EXPLORER 4: Select Options from the View menu. Choose the
Advanced menu and scroll to the section labeled "Cookies," where several options
are listed. For further information about the Microsoft Internet Explorer
browser and use of cookies, visit Microsoft's website at
xxxx://xxx.xxxxxxxxx.xxx/Xxxx/Xxxxxx.xxx.
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AOL: The following AOL browsers automatically accept cookies and do not allow
you to set cookie preferences: AOL v3.0 for Windows 3.0 using AOL's proprietary
browser or Microsoft Internet Explorer v3.0 for AOL. AOL v3.0 for Windows 95
using Microsoft Internet Explorer v3.0, or AOL for the MAC using Microsoft
Internet Explorer 2.1. All OTHER earlier versions of AOL browsers do not support
cookies, and therefore cannot authenticate you as a registered user on American
Express websites that involve sending or receiving personal account information.
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SCHEDULE 1
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FORM OF SERVICE AGREEMENT
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