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Exhibit 10.17
TRAVEL SERVICES ALLIANCE AGREEMENT
THIS TRAVEL SERVICES ALLIANCE AGREEMENT (the "Agreement") is made as of
this 15th day of September, 1998 (the "Effective Date") between XXXXXXXX.XXX,
INC., a New York corporation with its principal place of business at 00 Xxxx
00xx Xxxxxx, Xxx Xxxx, XX 00000 ("xxxxxxxx.xxx"), and XXXXXXXXXX.XXX, a division
of Global Discount Travel Services, LLC, a Nevada limited liability company with
its principal place of business at 000 Xxxxx Xxxxxxx Xxxxx, Xxx Xxxxx, XX 00000
("Lowestfare").
RECITALS
WHEREAS, Lowestfare wishes to act as xxxxxxxx.xxx's exclusive provider of
travel-related content, and to place certain advertisements on website locations
owned or controlled by xxxxxxxx.xxx;
WHEREAS, xxxxxxxx.xxx wishes to enter into such an exclusive relationship,
and to accept such advertising, subject to the terms of this Agreement.
NOW THEREFORE, xxxxxxxx.xxx and Lowestfare, for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged,
hereby agree as follows:
AGREEMENT
1. DEFINITIONS.
Capitalized terms used in this Agreement shall have the following meanings:
"Co-Branded Site" shall have the meaning assigned to it in Subsection 3.2
("Co-Branded Site").
"Confidential Information" shall have the meaning assigned to it in SECTION 9
("CONFIDENTIALITY").
"Disclosing Party" shall have the meaning assigned to it in SECTION 9
("CONFIDENTIALITY").
"Editorial Content" shall mean travel-related editorial content and related
materials provided by Lowestfare hereunder.
"End User" means a person who visits xxxxxxxx.xxx Site, or who links from
xxxxxxxx.xxx Site to the Co-Branded Site, or both.
"Fee" shall have the meaning assigned to it in Subsection 6.1 ("Fees").
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"Indemnified Party" shall have the meaning assigned to it in SECTION 15
("INDEMNITY").
"Indemnifying Party" shall have the meaning assigned to it in SECTION 15
("INDEMNITY").
"Lowestfare Content" shall mean all materials delivered by Lowestfare to
xxxxxxxx.xxx for display on xxxxxxxx.xxx Site, including without limitation the
Lowestfare Marks, the Editorial Content, "buttons", "banners", and other
materials described in EXHIBIT A ("LOWESTFARE CONTENT").
"Lowestfare Marks" shall mean the trademarks, logos and other product and
service identifiers of Lowestfare described in EXHIBIT B ("MARKS"), and as may
be modified from time to time during the Term upon the agreement of the parties.
"Monthly Sweepstakes" shall have the meaning assigned to it in Subsection 3.3
("Monthly Sweepstakes").
"Phase" shall mean the periods of time and the corresponding work assigned to
such periods as described in EXHIBIT C ("PHASES"). For purposes of this
Agreement, there shall be three (3) Phases, designated as "Phase I", "Phase II"
and "Phase III".
"Quarterly Sweepstakes" shall have the meaning assigned to it in Subsection
2.1(b) ("Quarterly Sweepstakes").
"Receiving Party" shall have the meaning assigned to it in SECTION 9
("CONFIDENTIALITY").
"Registered User" shall mean an End User who has registered at xxxxxxxx.xxx
Site.
"Registration Page" shall mean the web page so designated by xxxxxxxx.xxx at
xxxxxxxx.xxx Site.
"Template" shall have the meaning assigned to it in Subsection 8.2 ("Template").
"Term" shall have the meaning assigned to it in SECTION 12 ("TERM AND
TERMINATION").
"xxxxxxxx.xxx Site" shall mean shall mean xxxx://xxx.xxxxxxxx.xxx, or such other
site so designated by xxxxxxxx.xxx.
"xxxxxxxx.xxx Marks" shall mean the domain name and xxxxxxxx.xxx's trademarks,
service marks, logos and other company and product identifiers provided by
xxxxxxxx.xxx to Lowestfare under this Agreement, and as may be added to, deleted
from or modified from time to time by xxxxxxxx.xxx.
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"Travel Services Company" shall have the meaning assigned to it in Subsection
3.1 ("Exclusive Travel Services Relationship").
"User Information" shall have the meaning assigned to it in SECTION 11 ("USER
INFORMATION AND REGISTRATION DATA").
2. PHASE I SERVICES.
The parties shall provide Phase I Services as provided herein and as provided in
EXHIBIT C ("PHASES"):
2.1 Registration and Email.
(a) "Opt In" Registration. During the period of the Term before the
commencement of the activities described in Subsection 2.1(b) ("Quarterly
Sweepstakes"), xxxxxxxx.xxx shall place a "check box", including the name of
Lowestfare and the terms of the associated offer, on the Registration Page, by
means of which End Users may be automatically registered with Lowestfare also.
(b) Quarterly Sweepstakes. Lowestfare shall provide to xxxxxxxx.xxx
no less frequently than one (1) time each calendar quarter commencing with the
Effective Date, a prize for distribution by xxxxxxxx.xxx to winners of
xxxxxxxx.xxx's quarterly registration sweepstakes. The rules and operation of
such quarterly registration sweepstakes ("Quarterly Sweepstakes") shall be
determined solely by xxxxxxxx.xxx, in reasonable consultation with the original
provider of the prize. Lowestfare shall not be held liable by xxxxxxxx.xxx or
any third party for the administration, operation or legality of the Quarterly
Sweepstakes. xxxxxxxx.xxx intends that new Registered Users will be
automatically entered into such Quarterly Sweepstakes, and that such Registered
Users who do not wish to participate in such Quarterly Sweepstakes will be
offered the opportunity not to participate by checking an "opt out" box on the
Registration Page.
2.2 E-mail Promotion. At least one (1) time each calendar quarter during
the Term, commencing with the Effective Date, xxxxxxxx.xxx will direct an e-mail
campaign to all Registered Users. Such e-mail campaign shall, at a minimum,
reasonably promote the Co-Branded Site, and may, at xxxxxxxx.xxx's discretion,
include additional material regarding xxxxxxxx.xxx and its goods and services.
2.3 Framing. theglobe in its sole discretion may frame all or any part of
the Lowestfare website (currently, "http//xxx.xxxxxxxxxx.xxx"), or the
Co-Branded Site, and any revenue theglobe derives from banner sales shall be
solely theglobe's.
3. PHASE II SERVICES.
The parties shall provide Phase II Services as provided herein and as provided
in EXHIBIT C ("PHASES"):
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3.1 Exclusive Travel Services Relationship. xxxxxxxx.xxx shall not, during
the Term, enter into any agreements with any of the companies ("Travel Services
Companies") described in EXHIBIT F ("TRAVEL SERVICES COMPANIES") whereby such
Travel Services Companies shall provide travel-related content substantially
similar to that listed in EXHIBIT A ("LOWESTFARE CONTENT") to xxxxxxxx.xxx and
receive placement of the trademarks, logos, or other company or product
identifiers on xxxxxxxx.xxx Site. Notwithstanding the foregoing: (a)
xxxxxxxx.xxx shall not be restricted in any manner from accepting banner ads or
banner-like ads from any party; and (b) the foregoing restriction shall not
apply to Registered User web pages (including any "xxxxxxxx.xxx Stores" located
at such web pages) hosted by xxxxxxxx.xxx.
3.2 Co-Branded Site. Lowestfare shall, according to the schedule contained
in EXHIBIT C ("PHASES"), develop and operate a web page (the "Co-Branded Site"),
to be located at one (1) or more server computers owned or controlled by
Lowestfare, which shall include content provided by Lowestfare and shall reflect
the user interface of the Template as licensed by xxxxxxxx.xxx pursuant to
SECTION 8 ("LICENSES AND STANDARDS"). The design, layout, and "look & feel" of
the Co-Branded Site shall be mutually agreed to by the parties.
3.3 Placement.
(a) Linking to Co-Branded Site. xxxxxxxx.xxx shall link by
contextual links, "buttons", or similar identifiers determined by xxxxxxxx.xxx,
from xxxxxxxx.xxx Site to the Co-Branded Site. The specific pages at
xxxxxxxx.xxx Site from which such links may be made shall be determined by and
agreed to by both parties, but may include the following pages as may exist as
of the Effective Date, or as may be created or modified by xxxxxxxx.xxx during
the Term:
(i) xxxxxxxx.xxx homepage
(ii) What's New Area
(iii) Business & Finance Theme Area
(iv) Metro Theme Area
(v) Romance Theme Area
(vi) Life/College Theme Areas
(vii) Assorted (News, Sports, etc.)
(viii) NavBar
(ix) Xxxxxxx.xxx
(x) Travel
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(b) Impressions. xxxxxxxx.xxx shall deliver at least: (i)
[CONFIDENTIAL TREATMENT REQUESTED] End User page impressions of Lowestfare
Content at xxxxxxxx.xxx Site during the first year of the Term in locations at
xxxxxxxx.xxx Site to be mutually agreed upon by both parties; (ii) [CONFIDENTIAL
TREATMENT REQUESTED] End User page impressions of Lowestfare Content at
xxxxxxxx.xxx Site during the second year of the Term in locations at
xxxxxxxx.xxx Site to be mutually agreed upon by both parties; and (iii)
[CONFIDENTIAL TREATMENT REQUESTED] End User page impressions of Lowestfare
Content at xxxxxxxx.xxx Site during the third year of the Term in locations at
xxxxxxxx.xxx Site to be mutually agreed upon by both parties. Such page
impressions shall include, without limitation, all impressions given at
xxxxxxxx.xxx Site for all Lowestfare banner ads and contextual button
impressions. It is the parties' shared expectation that the foregoing page
impressions shall be provided in the quantities and from the locations at
xxxxxxxx.xxx Site described in EXHIBIT D ("Locations"); provided, however, that
the parties understand and agree that such expectation does not represent any
binding obligation on either party. xxxxxxxx.xxx will work with Lowestfare to
identify the most effective mix of banner ads, contextual links, and "buttons"
to be used on different pages of xxxxxxxx.xxx Site, including but not limited to
new sections of xxxxxxxx.xxx Site as they are launched. The number of the
foregoing page impressions shall be measured monthly, and any overages or
shortfalls from the pro rated monthly quantity (i.e., [CONFIDENTIAL TREATMENT
REQUESTED] impressions per month during the first year of the Term), shall be
rolled forward into the overall total in subsequent months on an ongoing basis
until the end of the Term.
3.4 Online Promotion. xxxxxxxx.xxx shall promote the relationship between
the parties with advertisements in accordance with EXHIBIT D ("LOCATIONS"), with
online advertising solutions companies determined by xxxxxxxx.xxx such as
DoubleClick Inc. and 24/7 Media Inc.
4. PHASE III SERVICES.
The parties shall provide Phase III Services as provided herein and as provided
in EXHIBIT C ("PHASES"):
4.1 Affiliate Program. At the discretion of Lowestfare, xxxxxxxx.xxx shall
promote an affiliate program, to be determined solely by xxxxxxxx.xxx, to be
located on the "Making Money" page at xxxxxxxx.xxx Site, or such other location
as determined by xxxxxxxx.xxx, to allow Registered Users who have personal home
pages located at xxxxxxxx.xxx Site to place on such home pages certain
Lowestfare Content with links to the Co-Branded Site.
4.2 Offline Promotion. The globe shall promote the relationship between
the parties with advertisements in print media as determined by xxxxxxxx.xxx.
5. CONTENT AND LIABILITY.
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5.1 Lowestfare Content. In addition to all other obligations of Lowestfare
with respect to the Phases, Lowestfare shall also from time to time during the
Term promptly deliver to xxxxxxxx.xxx the Lowestfare Content described in
EXHIBIT C ("PHASES"), and shall continue to provide such Lowestfare Content
during the Term of the Agreement in accordance therewith. Such Lowestfare
Content shall be provided in file transfer protocol ("ftp") format, at least one
(1) time each week.
5.2 Liability. As between xxxxxxxx.xxx and Lowestfare, Lowestfare is
solely responsible for any legal liability arising out of or relating to
Lowestfare Content or the Co-Branded Site. The Lowestfare Content and the
Co-Branded Site: (a) shall not infringe any third party's copyright, patent,
trademark, trade secret or other proprietary rights or rights of publicity or
privacy; (b) shall not violate any law, statute, ordinance or regulation
(including without limitation the laws and regulations governing export control,
unfair competition, anti-discrimination or false advertising); (c) shall not be
defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d)
shall not be obscene, pornographic or indecent or contain child pornography; and
(e) shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots
or other computer programming routines that are intended to damage,
detrimentally interfere with, surreptitiously intercept or expropriate any
system, data or personal information.
6. PAYMENT.
6.1 Fees. During the Term, Lowestfare shall pay to xxxxxxxx.xxx the
following fees: (a) During the first year of the Term, Lowestfare shall pay to
xxxxxxxx.xxx a fee ("Fee") of [CONFIDENTIAL TREATMENT REQUESTED] in twelve (12)
monthly payments of [CONFIDENTIAL TREATMENT REQUESTED] each, the first two (2)
of such Fee payments (totaling [CONFIDENTIAL TREATMENT REQUESTED] to be made on
the Effective Date, and each subsequent payment [CONFIDENTIAL TREATMENT
REQUESTED]) to be made thirty (30) days after the immediately prior payment. (b)
During the second year of the Term, Lowestfare shall pay to xxxxxxxx.xxx a fee
of [CONFIDENTIAL TREATMENT REQUESTED] in twelve (12) equal monthly payments, the
first of such payments to be made on the one-year anniversary of the Effective
Date. (c) During the third year of the Term, Lowestfare shall pay to
xxxxxxxx.xxx a fee of [CONFIDENTIAL TREATMENT REQUESTED] in twelve equal monthly
payments, the first of such payments to be made on the two-year anniversary of
the Effective Date.
6.2 Taxes. All fees and payments stated herein exclude, and Lowestfare
shall pay, any sales, use, property, license, value added, withholding, excise
or similar tax, federal, state or local, related to such payments or the
parties' performance of their obligations or exercise of their rights under this
Agreement and any related duties, tariffs, imposts and similar charges,
exclusive of taxes based on xxxxxxxx.xxx's net income.
7. SUPPORT.
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At its sole expense, Lowestfare shall be responsible for, and shall provide, all
customer and technical support for End Users relating to the Co-Branded Site.
xxxxxxxx.xxx may redirect any End User inquiries regarding the travel component
of the Co-Branded Site to Lowestfare.
8. LICENSES AND STANDARDS.
8.1 Content. Lowestfare hereby grants to xxxxxxxx.xxx a non-exclusive,
non-transferable worldwide, royalty-free license (without the right to grant
sublicenses) to use, download, or distribute publicly perform, publicly display
and digitally perform the Lowestfare Content on or in conjunction with
xxxxxxxx.xxx Site, and xxxxxxxx.xxx's performance under this Agreement.
8.2 Template. xxxxxxxx.xxx hereby grants to Lowestfare a non-exclusive,
non-transferable, worldwide royalty-free license (without the right to grant
sublicenses) to install the object code version of the software ("Template")
described in EXHIBIT E ("Template") solely at the Co-Branded Site, and solely to
use and to permit End Users to use the Template pursuant to the use of such
Co-Branded Site. The Template shall at all times remain the sole and exclusive
property of xxxxxxxx.xxx, subject only to the licenses expressly granted herein.
Lowestfare understands and agrees that xxxxxxxx.xxx may, from time to time and
in xxxxxxxx.xxx's discretion, provide modified, updated, correct or enhanced
versions of the Template to Lowestfare, and Lowestfare shall replace the prior
version with such new version within a reasonable amount of time. In the event
the Template is modified, updated, corrected or enhanced within six months from
the Effective Date, theglobe shall reimburse Lowestfare for any costs incurred
in implementing such Template.
8.3 Trademarks. Lowestfare hereby grants to xxxxxxxx.xxx a non-exclusive,
nonsublicenseable license to use the Lowestfare Marks in links to and
advertisements and promotions for xxxxxxxx.xxx Site. xxxxxxxx.xxx hereby grants
to Lowestfare a non-exclusive, nonsublicenseable license to use xxxxxxxx.xxx
Marks on the Co-Branded Site.
8.4 Restrictions. Each party, as a trademark owner hereunder, may
terminate the foregoing trademark license if, in its sole discretion, the
licensee's use of the marks does not conform to the such party's standards;
alternatively, the owner may specify that certain pages of the licensee's
website may not contain the licensed marks; provided, however, the objecting
party must state in writing the basis for the objection and provide the other
party with a reasonable opportunity to cure such offending action. Title to and
ownership of the owner's marks shall remain with the owner. The licensee shall
use the marks exactly in the form provided and in conformance with any trademark
usage policies. The licensee shall not form any combination marks with the
owner's marks. The licensee shall not take any action inconsistent with
ownership of the marks and any benefits accruing from use of such trademarks
shall automatically vest in the owner.
9. CONFIDENTIALITY.
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9.1 Confidential Information. Each party (the "Disclosing Party") may from
time to time during the Term of this Agreement disclose to the other party (the
"Receiving Party") certain non-public information regarding the Disclosing
Party's business, including technical, marketing, financial, personnel,
planning, and other information ("Confidential Information"). The Disclosing
Party shall xxxx all such Confidential Information in tangible form with the
legend `confidential', `proprietary', or with similar legend. With respect to
Confidential Information disclosed orally, the Disclosing Party shall describe
such Confidential Information as such at the time of disclosure, and shall
confirm such Confidential Information as such in writing within thirty (30) days
after the date of oral disclosure. Regardless of whether so marked, however, any
non-public information regarding the Template, including the Template itself,
shall be deemed to be the Confidential Information of xxxxxxxx.xxx.
9.2 Protection of Confidential Information. Except as expressly permitted
by this Agreement, the Receiving Party shall not disclose the Confidential
Information of the Disclosing Party using the same degree of care which the
Receiving Party ordinarily uses with respect to its own proprietary information,
but in no event with less than reasonable care. The Receiving Party shall not
use the Confidential Information of the Disclosing Party for any purpose not
expressly permitted by this Agreement, and shall limit the disclosure of the
Confidential Information of the Disclosing Party to the employees or agents of
the Receiving Party who have a need to know such Confidential Information for
purposes of this Agreement, and with respect to agents who are recipients of the
Confidential Information of the Disclosing Party, who are bound in writing by
confidentiality terms no less restrictive than those contained herein. The
Receiving Party shall provide copies of such written agreements to the
Disclosing Party upon request; provided, however, that such agreement copies
shall themselves be deemed the Confidential Information of the Receiving Party.
9.3 Exceptions. Notwithstanding anything herein to the contrary,
Confidential Information shall not be deemed to include any information which:
(a) was already lawfully known to the Receiving Party at the time of disclosure
by the Disclosing Party as reflected in the written records of the Receiving
Party; (b) was or has been disclosed by the Disclosing Party to a third party
without obligation of confidence; (c) was or becomes lawfully known to the
general public without breach of this Agreement; (d) is independently developed
by the Receiving Party without access to, or use of, the Confidential
Information; (e) is approved in writing by the Disclosing Party for disclosure
by the Receiving Party; (f) is required to be disclosed in order for the
Receiving Party to enforce its rights under this Agreement; or (g) is required
to be disclosed by law or by the order or a court or similar judicial or
administrative body, including as part of any filing with the Securities and
Exchange Commission; provided, however, that the Receiving Party shall notify
the Disclosing Party of such requirement immediately and in writing, and shall
cooperate reasonably with the Disclosing Party, at the Disclosing Party's
expense, in the obtaining of a protective or similar order with respect thereto.
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9.4 Return of Confidential Information. The Receiving Party shall return
to the Disclosing Party, destroy or erase all Confidential Information of the
Disclosing Party in tangible form: (a) upon the written request of the
Disclosing Party (except for Software or Modified Software contained in such
Confidential Information); or (b) upon the expiration or termination of this
Agreement, whichever comes first, and in both cases, the Receiving Party shall
certify promptly and in writing that it has done so.
10. USER INFORMATION AND REGISTRATION DATA.
10.1 User Information. Any information or data collected from or about End
Users (including without limitation voluntarily-disclosed information, any
information Lowestfare collects regarding End Users from their access or use of
the Co-Branded Site (including without limitation all statistical, demographic
and psychographic information about such End Users) and any reports about
traffic (collectively, "User Information")) shall be owned exclusively by
xxxxxxxx.xxx. However, during the Term of this Agreement, xxxxxxxx.xxx hereby
grants to Lowestfare a nonexclusive, nontransferable, nonsublicenseable license
to use User Information only as required to exercise its rights and carry out
its obligations hereunder. Lowestfare acknowledges that the User Information
constitutes extremely valuable trade secrets of xxxxxxxx.xxx. Lowestfare shall
not use the User Information for any purpose other than as expressly granted
under this Agreement nor disclose the User Information to any third party.
Without limiting the foregoing, under no circumstances may Lowestfare send
unsolicited emails to any End Users, nor may Lowestfare permit or authorize any
third parties to do so. Lowestfare shall use at least industry-standard methods
to protect the security of User Information. This Subsection 10.1 ("User
Information") shall not apply to End Users who (a) have registered as
Xxxxxxxxxx.xxx users, including pursuant to Subsection 2.1(a) ("'Opt In'
Registration") and Subsection 2.1(b) ("Quarterly Sweepstakes"); or (b) are or
become customers of Xxxxxxxxxx.xxx or Global Discount Travel Services, or its
respective subsidiaries, now existing or hereafter organized.
10.2 Registration Data. As part of the User Information, xxxxxxxx.xxx
shall provide to Lowestfare the email addresses and names of Registered Users.
11. DISCLAIMER OF WARRANTIES.
EACH PARTY PROVIDES ALL MATERIALS AND SERVICES TO THE OTHER PARTY "AS IS." EACH
PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Each party acknowledges
that it has not entered into this Agreement in reliance upon any warranty or
representation except those specifically set forth herein.
12. TERM AND TERMINATION.
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12.1 Term. The term of this Agreement ("Term") shall continue for a period
of three (3) years following the Effective Date.
12.2 Termination for Cause. Notwithstanding the foregoing, this Agreement
may be terminated by either party upon notice for the material breach of this
Agreement by the other party which breach has remained uncured for a period of
thirty (30) days from the date of written notice thereof.
12.3 Effect of Expiration or Termination. Upon the expiration or
termination of this Agreement, all licenses granted hereunder shall immediately
terminate, and each party shall promptly remove all references to the other
party's trademarks from any site that caches, indexes or links to such party's
site.
13. SURVIVAL.
Upon the expiration or termination of this Agreement, SECTION 1 ("DEFINITIONS"),
Subsection 5.2 ("Liability"), SECTION 9 ("CONFIDENTIALITY"), SECTION 11
("DISCLAIMER OF WARRANTIES"), Subsection 12.4 ("Effect of Expiration or
Termination"), SECTION 13 ("SURVIVAL"), SECTION 14 ("LIMITATION OF LIABILITY"),
SECTION 15 ("INDEMNITY") and SECTION 16 ("GENERAL PROVISIONS") shall survive and
continue to bind the parties.
14. LIMITATION ON LIABILITY.
EXCEPT IN THE EVENT OF A BREACH OF SECTION 8 ("LICENSES AND STANDARDS") OR
SECTION 9 ("CONFIDENTIALITY"), NEITHER PARTY SHALL BE LIABLE FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS (HOWEVER ARISING, INCLUDING
NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT IN THE
EVENT OF A BREACH OF SECTION 8 ("LICENSES AND STANDARDS") OR SECTION 9
("CONFIDENTIALITY"), A FAILURE TO PAY FEES OWED, OR AN INDEMNITY CLAIM, IN NO
EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN AN AMOUNT GREATER THAN
THE AMOUNTS ACTUALLY PAID BY LOWESTFARE TO THEGLOBE HEREUNDER.
15. INDEMNITY.
Each party (the "Indemnifying Party") shall indemnify the other party (the
"Indemnified Party") against any and all claims, losses, damages costs and
expenses, including reasonable attorneys' fees, which the Indemnified Party may
incur as a result of claims in any form by third parties arising from: (a) the
Indemnifying Party's acts, omissions or misrepresentations to the extent that
the Indemnified Party is deemed a principal of the Indemnifying Party, (b) the
violation of any third party proprietary right by the Indemnifying Party's
domain name, software or any content provided by the Indemnifying Party
(including without limitation the Lowestfare Content) for use on the
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Indemnified Party's servers, or (c) breach of Subsection 16.5 ("Compliance with
Laws"). In addition, Lowestfare shall indemnify xxxxxxxx.xxx against any and all
claims, losses, damages, costs and expenses, including reasonable attorneys'
fees, which xxxxxxxx.xxx may incur as a result of claims in any form by third
parties arising from; the content on the Co-Branded Site. The foregoing
obligations are conditioned on the Indemnified Party's giving the Indemnifying
Party notice of the relevant claim, cooperating with the Indemnifying Party, at
the Indemnifying Party's expense, in the defense of such claim, and giving the
Indemnifying Party the right to control the defense and settlement of any such
claim, except that the Indemnifying Party shall not enter into any settlement
that affects the Indemnified Party's rights or interest without the Indemnified
Party's prior written approval. The Indemnified Party shall have the right to
participate in the defense at its expense.
16. GENERAL PROVISIONS.
16.1 Governing Law. This Agreement will be governed and construed in
accordance with the laws of the State of New York without giving effect to
conflict of laws principles. Both parties consent to jurisdiction in New York
and further agree that any cause of action arising under this Agreement shall be
brought in a court in New York, New York. The parties exclude the application of
The United Nations Convention on Contracts for the International Sale of Goods
from this Agreement.
16.2 Severability; Headings. If any provision herein is held to be invalid
or unenforceable for any reason, the remaining provisions will continue in full
force without being impaired or invalidated in any way. Headings are for
reference purposes only and in no way define, limit, construe or describe the
scope or extent of such section.
16.3 Force Majeure. If performance hereunder is prevented, restricted or
interfered with by any act or condition whatsoever beyond the reasonable control
of a party, the party so affected, upon giving prompt notice to the other party,
shall be excused from such performance to the extent of such prevention,
restriction or interference. Each party acknowledges that the operation of the
other party's website and services may be interfered with by numerous factors
outside of a party's control, and xxxxxxxx.xxx does not guarantee continuous or
uninterrupted display of Lowestfare Content.
16.4 Independent Contractors. The parties are independent contractors, and
no agency, partnership, joint venture, employee-employer or
franchisor-franchisee relationship is intended or created by this Agreement.
Neither party shall make any warranties or representations on behalf of the
other party.
16.5 Compliance with Laws. At its own expense, each party shall comply
with all applicable laws, regulations, rules, ordinances and orders regarding
the marketing, promotion and performance of its obligations hereunder, including
without limitation the operation of the Co-Branded Site and its other activities
related to this Agreement.
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16.6 Notice. Any notices hereunder shall be given to the appropriate party
at the address specified above or at such other address as the party shall
specify in writing. Notice shall be deemed given: upon personal delivery; if
sent by fax, upon confirmation of receipt; or if sent by certified or registered
mail, postage prepaid, five (5) days after the date of mailing.
16.7 Entire Agreement; Waiver. This Agreement sets forth the entire
understanding and agreement of the parties, and supersedes any and all oral or
written agreements or understandings between the parties, as to the subject
matter of this Agreement, including the Travel Services Alliance Agreement
between xxxxxxxx.xxx and xxxxxxxxxx.xxx dated as of September 9, 1998..It may be
changed only by a writing signed by xxxxxxxx.xxx and Lowestfare. The waiver of a
breach of any provision of this Agreement will not operate or be interpreted as
a waiver of any other or subsequent breach.
16.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
be taken together and deemed to be one instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXXXXXXX.XXX, A DIVISION OF XXXXXXXX.XXX, INC.
GLOBAL DISCOUNT TRAVEL SERVICES LLC
By: By:
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Title: Title:
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Date: Date:
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