EXHIBIT 10.33
JOINT CONTENT DISTRIBUTION AGREEMENT
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This Exclusive Content Distribution Agreement ("Agreement") is entered into
this 9th day of January, 2000, by and between XxxxxXxxxxx.xxx, Inc., a
Delaware corporation ("OrbitTravel"), whose address is Xxx Xxxxx Xxxxxx Xxxxx,
Xxxxx 00-X, Xxx Xxxx, XX 00000, and XxxxXxxxxxx.xxx, Ltd., a corporation
registered in the Cayman Islands ("AsiaGateway"), whose address is 000 0xx
Xxxxxx Xxx Xxxx, XX.
RECITALS
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1. OrbitTravel is in the business of developing, providing, and operating on-
line interactive services, websites, computerized databases, and
communications systems within the travel industry that provide third
parties remote access to on-line computerized databases. OrbitTravel has
created and owns a computerized travel information and reservations system
for the on-line distribution of travel-related information and services
known as "TravelFile".
2. AsiaGateway maintains a website known as "XxxxXxxxxxx.xxx" which
distributes news and other informational content relating to the people,
nations, and business of Asia and the Pacific Rim.
3. The parties desire to establish an joint online content distribution
relationship whereby AsiaGateway shall actively promote and distribute
travel related content provided by OrbitTravel on the XxxxXxxxxxx.xxx
website, and OrbitTravel shall actively promote and distribute content
pertaining to Asia through OrbitTravel's distribution channels, all in
accordance with the terms and conditions of this Agreement.
AGREEMENTS
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SECTION 1. CONTENT DISTRIBUTION AND PROMOTION
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1.1 OrbitTravel Content: Immediately following the execution of this
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Agreement, OrbitTravel shall provide AsiaGateway with travel-related
informational Content to be included within XxxxXxxxxxx.xxx. For the
purposes of this Agreement, "Content" shall mean text, database files and
records, images, video, audio (including, without limitation, music used in
time relation with text, images, or video), and all other travel-related
data, products, services, advertisements, promotions, links, and pointers
utilized within an Internet Website. OrbitTravel hereby grants AsiaGateway
a limited license for the sole purpose of displaying such Content on the
XxxxXxxxxxx.xxx website, the term of which shall be concurrent with the
term of this Agreement.
(a) Form of Content: The nature and extent of the Content to be provided
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by OrbitTravel to AsiaGateway shall be as agreed upon by the parties
from time
to time. However, the parties anticipate the Content shall be provided
by OrbitTravel through various linked hypertext pages as follows:
(i) Home Page Button: OrbitTravel and AsiaGateway shall place an
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animated button (gif) image, text link, or other graphic
representation on the XxxxXxxxxxx.xxx home page (the "Button").
The Button shall contain a travel-related message mutually agreed
upon by the parties, and shall remain a fixed presence on
AsiaGateway's Home Page from the date of its implementation
throughout the term of this Agreement. AsiaGateway will establish
a hypertext link from the Button to various HTML (Web) pages that
display the Content to be provided by OrbitTravel for display on
XxxxXxxxxxx.xxx. The Button and the corresponding Web pages shall
conform to the overall appearance ("look and feel") of
XxxxXxxxxxx.xxx, and shall be timely updated to conform to any
changes made to the look and feel of XxxxXxxxxxx.xxx.
(ii) Additional Travel Related Content: OrbitTravelTravel may provide
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AsiaGateway with additional travel related Content for inclusion
in the AsiaGateway Website, the extent and nature of which shall
be mutually agreed upon by the parties, which Content may include
(but shall not necessarily be limited to) text and images
pertaining to travel contests, featured destinations, hotspots,
travel advisories, and special events.
(b) Bookings: Visitors to the AsiaGateway Website shall have the ability
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to book travel reservations through the use of hypertext links to
OrbitTravel's booking engine. Any bookings made through the
AsiaGateway site shall be subject to the revenue sharing provisions of
Section 2.2 of this Agreement.
(c) Content Promotion: AsiaGateway shall display credit to OrbitTravel in
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connection with any travel-related Content displayed on-line, and, if
practicable, will brand the Content with the OrbitTravel logo.
AsiaGateway shall utilize its best efforts to promote the travel
related Content supplied by OrbitTravel to users of the AsiaGateway
Website.
(d) Content Updates: OrbitTravel shall be responsible for ensuring that
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all Content provided by it is current, accurate, and conforms to
adequate technical and operational standards, and shall be further
responsible for deleting all obsolete Content on a regular basis.
1.2 AsiaGateway Content: Immediately following the execution of this Agreement,
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AsiaGateway shall provide OrbitTravel with Asia-related informational
Content. AsiaGateway shall provide all Content through a hypertext link
placed within OrbitTravel's distribution channel, or otherwise in a
compatible electronic file format in accordance with OrbitTravel's
specifications. AsiaGateway hereby grants OrbitTravel a limited license for
the sole purpose of displaying such Content on OrbitTravel's distribution
channels, the term of which shall be
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concurrent with the term of this Agreement. All Content so provided shall
be stored and displayed from OrbitTravel's server network. AsiaGateway
shall be responsible for ensuring that all Content is current, accurate,
and conforms to adequate technical and operational standards. AsiaGateway
shall be responsible for updating all rates, charges, procedures,
availability, marketing, and all other information to be distributed
on-line, and for deleting all obsolete Content on no less than a yearly
basis.
(a) Content Display: OrbitTravel shall have the right to display any
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Content provided by AsiaGateway through any or all of OrbitTravel's
on-line distribution channels, including, but not limited to,
xxxxxxxxxx.xxx, xxxxxxxxxxxxx.xxx, and the Global Distribution
Systems. Any Content display shall be at OrbitTravel's sole and
absolute discretion, and OrbitTravel reserves the right to refuse the
display of any Content that it determines to be inappropriate for
on-line display and distribution. OrbitTravel shall display credit to
AsiaGateway in connection with any Content displayed on-line, and, if
practicable, will brand the Content with the AsiaGateway logo.
(b) Content Promotion: OrbitTravel shall work with AsiaGateway to program
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and promote the availability of the AsiaGateway Content throughout
appropriate areas within OrbitTravel's distribution channels. In
addition, and in order to maximize the audience to OrbitTravel's
distribution channels, OrbitTravel may distribute, promote, and link
to individual or whole portions of the AsiaGateway Content from any
distribution channel area. Any promotion of the AsiaGateway Content
shall be subject to OrbitTravel's sole editorial discretion.
(c) Changes to Distribution Channels: OrbitTravel shall work with
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AsiaGateway to accommodate any change or alteration in OrbitTravel's
distribution channels that affect the distribution of the AsiaGateway
Content.
1.3 Promotional Rights: Either party shall have the right to make use of this
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Agreement in such party's Website, media and sales kits, trade advertising,
and/or otherwise to its discretion, subject to the other party's right to
pre- approve any use of its logo, editorial or trademarks in the promoting
party's print materials and advertising. As soon as practicable following
the execution of this Agreement, the parties shall issue a joint press
release approved by each party to the industry press, announcing the
substance of this Agreement and AsiaGateway's official relationship for
value added content development with OrbitTravel.
1.4 Content Ownership: The parties understand and agree that, notwithstanding
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any licenses or other rights granted elsewhere herein, any and all rights
associated with the Content and related intellectual property provided by
either party for inclusion in the other party's Website is and shall remain
the sole property of the providing party. All other content and related
intellectual property associated
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with XxxxxXxxxxx.xxx's websites and distribution channels is and shall
remain the property of XxxxxXxxxxx.xxx, and all other content and related
intellectual property associated with XxxxXxxxxxx.xxx is and shall remain
the property of AsiaGateway.
SECTION 2. PAYMENTS AND REVENUE SHARING
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2.1 Stock Issuance: In consideration for the distribution and promotional
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duties undertaken by AsiaGateway pursuant to this Agreement, within thirty
(30) days following the execution hereof, OrbitTravel shall cause Divot to
issue to AsiaGateway 200,000 shares common stock, .001 par value. When so
issued, the OrbitTravel shares shall be considered fully paid and
nonassessable, and shall be represented by a certificate or certificates,
in genuine and unaltered form, duly endorsed in blank or accompanied by
duly executed stock powers endorsed in blank, with requisite stock transfer
stamps, if any, attached.
2.2 Revenue Sharing: The parties shall share any commissions or other revenues
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realized through travel bookings completed through Content displayed on
AsiaGateway, with sixty percent (60%) of such commissions to be distributed
to OrbitTravel, and forty percent (40%) of such commissions to be
distributed to AsiaGateway. OrbitTravel shall be responsible for the
calculation of all such revenues, and shall provide AsiaGateway with a
written report (either in electronic or printed form) detailing the nature
and extent of such revenues, and shall pay AsiaGateway's revenue share, no
later than the tenth (10th) day of the month following that in which such
revenues were received by OrbitTravel.
SECTION 3. REPRESENTATIONS AND WARRANTIES
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3.1 Each party represents and warrants that it will distribute the Content
provided by the other party in the manner set forth in this Agreement. Each
party further represents and warrants that it owns or otherwise has the
unlimited right to publish any and all printed material and/or graphics to
be distributed on-line. Each party further represents and warrants that the
Content provided to such party pursuant to this Agreement will be of the
same or superior quality (in terms of its editorial, community, and
functional appeal) as is available through such party's own publications or
websites.
SECTION 4. TERM AND TERMINATION
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4.1 Effective Period: This Agreement shall become effective as of the date set
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forth above and shall remain in effect for three (3) years (the "Effective
Term"). Unless otherwise canceled following the expiration of the Effective
Term, this Agreement shall renew automatically for additional three (3)
year term following
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the expiration of the Effective Term, provided, however, that either party
may cancel the Agreement following the Effective Term, with or without
cause, by providing the other party with ninety (90) days written notice
thereof.
4.2 Termination: This Agreement shall terminate upon the occurrence of any one
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or more of the following events:
(a) Either party fails to timely and properly perform any material
covenant, agreement, obligation, term, or condition contained herein,
and such failure continues for a period of thirty (30) days after
receipt by the defaulting party of written notice thereof from the
other party. The thirty (30) day cure period shall not apply if the
failure to perform is not capable of being cured.
4.3 Consequential Damages: Under no circumstance shall either party be liable
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to the other for lost profits, revenues, savings, or data, and any other
consequential, indirect, special, or incidental damages that may arise from
that a breach or default of the terms of this Agreement, including any
damages which may arise under any indemnities provided by either party
under this Agreement.
SECTION 5: INDEMNIFICATION
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5.1 AsiaGateway Indemnification: AsiaGateway hereby agrees to indemnify and
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hold harmless OrbitTravel, its affiliates, subsidiaries, successors,
assigns, officers, directors, agents, and employees, from and against any
and all liabilities, damages, losses, expenses, claims, demands, suits,
fines, or judgments (including, but not limited to, attorneys' fees, expert
witness costs, court costs, and expenses) that may at any time be
threatened against, suffered by, accrued against, charged to, or
recoverable against OrbitTravel in any forum, by reason of:
(a) Any alleged inaccuracy, copyright infringement or any other claim
arising in connection with the Content provided by AsiaGateway for
on-line distribution, including but not limited to any defamatory or
allegedly defamatory material placed on-line;
(b) Misappropriation, violation, or infringement of any proprietary
rights, trademarks, trade names, or service marks utilized by
AsiaGateway;
(c) AsiaGateway's failure to obtain or maintain all permits and licenses
required under law in relation to this Agreement, and
(d) Any injuries or death of persons or loss of, damage to, or destruction
of property (including loss of use thereof) arising out of any act or
omission of AsiaGateway or its affiliates.
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5.2 OrbitTravel Indemnification: OrbitTravel hereby agrees to indemnify and
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hold harmless AsiaGateway, its affiliates, subsidiaries, successors,
assigns, officers, directors, agents, and employees, from and against any
and all liabilities, damages, losses, expenses, claims, demands, suits,
fines, or judgments (including, but not limited to, attorneys' fees, expert
witness costs, court costs, and expenses) that may at any time be
threatened against, suffered by, accrued against, charged to, or
recoverable against AsiaGateway in any forum, by reason of:
(e) Any alleged inaccuracy, copyright infringement or any other claim
arising in connection with the Content provided by OrbitTravel for
on-line distribution, including but not limited to any defamatory or
allegedly defamatory material placed on-line;
(f) Misappropriation, violation, or infringement of any proprietary
rights, trademarks, trade names, or service marks utilized by
OrbitTravel;
(g) OrbitTravel's failure to obtain or maintain all permits and licenses
required under law in relation to this Agreement, and
(h) Any injuries or death of persons or loss of, damage to, or destruction
of property (including loss of use thereof) arising out of any act or
omission of OrbitTravel or its affiliates.
SECTION 6. CONFIDENTIALITY
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6.1 Confidential Information: For purposes of this Agreement, confidential
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information shall include (but not be limited to) any: (i) software, and
(ii) any and all trade secrets or other proprietary information of either
party concerning past, present, or future research, development, customers,
business activities or affairs, finances, properties, methods of operation,
processes, and systems which are reasonably considered by such party to be
confidential. The party which receives confidential information from the
other party agrees to maintain such information in secrecy at all times,
and to take reasonable steps, including such steps as it takes to protect
its own proprietary information, prior to and after termination of this
Agreement, to prevent the duplication of disclosure of any such
confidential and proprietary information, other than by or to its own
employees or agents who must have access to such information to perform
such party's obligations hereunder. Information of either party shall not
be subject to the obligations imposed by this Section if such information
is publicly available or is lawfully obtained by the disclosing party from
another source free of restrictions or is independently developed by the
disclosing party.
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SECTION 7. GENERAL PROVISIONS
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7.1 Notices: Any notice or communication required under this Agreement to be
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made to either party shall be typewritten in English and shall be
considered delivered when personally delivered, delivered by registered
U.S. Mail with confirmed receipt (postage prepaid), or delivered by
overnight courier to the address of the party as set forth above.
7.2 Titles and Captions: All article and section titles or captions in this
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Agreement are for convenience only. They shall not be deemed a part of this
Agreement, and in no way define, limit, extend, or describe the scope or
intent of any of its provisions.
7.3 Binding Effect: This Agreement shall be binding upon and inure to the
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benefit of the Parties and their successors, legal representatives, and
permitted assigns.
7.4 Entire Agreement: This Agreement constitutes the entire agreement between
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the parties hereto, and supersedes all prior and contemporaneous
agreements, arrangements, negotiations, and understandings between the
parties hereto relating to the subject matter hereof. There are no other
understandings, statements, promises or inducements between the parties,
oral or otherwise, contrary to the terms of this Agreement. No
representations, warranties, covenants, or conditions, express or implied,
whether by statute or otherwise, other than as set forth herein have been
made by any party hereto. No waiver of any term, provision, or condition of
this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or shall constitute, a waiver of any
other provision hereof, whether or not similar, nor shall any such waiver
constitute a continuing waiver, and no waiver shall be binding unless
executed by the party making such waiver.
7.5 No Partnership or Joint Venture: This Agreement, and the distribution and
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other rights provided hereunder, are not intended to, and shall not for any
reason, be deemed to create a partnership, joint venture, or similar
relationship between the parties.
7.6 Counterparts: This Agreement may be executed in one or more counterparts,
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each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
7.7 Invalidity of Provisions: If any provisions of this Agreement is or becomes
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wholly or partly invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall continue in
force unaffected, and the parties shall meet as soon as possible and
negotiate in good faith upon a
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replacement provision that is legally valid and that as nearly as possible
achieves the objectives of the Agreement and produces an equivalent
economic effect.
7.8 Force Majeure: Neither party shall be liable to the other in the event and
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to the extent that performance is delayed or prevented by any cause
reasonably beyond such party's control, including, but not limited to, acts
of God, public enemies, war, civil disorder, fire, flood, explosion, labor
disputes or strikes, or any acts or orders of any governmental authority,
inability to obtain supplies or materials (including, without limitation,
computer hardware) or any delay or deficiency caused by the electrical or
telephone line suppliers or other common carriers.
7.9 Governing Law/Arbitration: This Agreement shall be construed and governed
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in accordance with the laws of the State of New York without regard to any
conflicts of law rules. Any controversy or claim arising out of or relating
to this agreement shall be determined by arbitration in accordance with the
International Arbitration Rules of the American Arbitration Association.
The number of arbitrators shall be one (1) and the place of arbitration
shall be New York City, New York, and the language of the arbitration shall
be in English.
IN WITNESS WHEREOF, the parties have executed the Agreement as of the day
and year written above.
XXXXXXXXXXX.XXX, INC. XXXXXXXXXXX.XXX, LTD.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Aditha Reksono
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Title: Chairman & CEO Title: Chairman & CEO
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