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EXHIBIT 10.13
Note: Redacted portions have been marked with (***). The redacted portions are
subject to a request for confidential treatment that has been filed with the
Securities and Exchange Commission.
[Home Network Letterhead]
@HOME NETWORK
CONTENT PARTNER AGREEMENT
At Home Corporation, a Delaware corporation with principal offices at ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("@Home") and The SABRE Group, Inc., through
its SABRE Interactive division, a Delaware corporation with principal offices at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇ ("TSG") hereby enter into this Content
Partner Agreement (this "Agreement") as of the Effective Date (defined below) to
establish a presence for TSG on the @Home Service (defined below) in accordance
with the terms and subject to the conditions of this Agreement.
In consideration of the representations, warranties and covenants contained
herein, and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the Parties agree to be bound by the terms and conditions
contained on the following pages 2 through 16 of this Agreement.
AT HOME CORPORATION THE SABRE GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ Molkaw By: /s/ ▇ ▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ Molkaw Name: ▇ ▇ ▇▇▇▇▇▇▇▇▇
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Title: VP, Marketing Dept. Title: VP & GM
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Date: March 13, 1998 Date: March 13, 1998
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@HOME NETWORK
CONTENT PARTNER AGREEMENT
@Home and TSG agree as follows:
1. GENERAL DEFINITIONS.
(a) "@HOME SERVICE" means all electronic information and/or navigation
services provided via the Internet or any successor public data networks,
including, without limitation, all related points of presence on such networks
that are created or maintained by @Home for general use by subscribers of @Home
and @Home's Distribution Affiliates.
(b) "CHANNEL" means a subject-specific content feature of the @Home Service
which has been labeled as a "Channel" by @Home and which has a persistent
element on the @Home Channel navigation area.
(c) "COMPETITOR(S)" means (***).
(d) "CONFIDENTIAL INFORMATION" means all non-public confidential and
proprietary information which the disclosing party identifies in writing as
confidential before or within thirty (30) days after disclosure to the receiving
party or which, under the circumstances surrounding disclosure, the receiving
party should have understood was delivered in confidence, subject to the
exceptions set out in Section 15 below.
(e) "CONTRACT YEAR" means each 12 month period beginning on the Effective
Date and on the first and second anniversary of the Effective Date.
(f) "DISTRIBUTION AFFILIATES" means @Home's distribution partners
(currently TCI, Cablevision, Cox, Comcast, Rogers, Shaw, Intermedia, and
Marcus), as they exist now and in the future.
(g) "EFFECTIVE DATE" means the date set out under @Home's signature on the
first page of this Agreement.
(h) "LIFESTYLE CHANNEL" means the Channel or its functional equivalent that
provides information and editorial features on issues related to Travel, Health,
and other lifestyle topics.
(i) "NOT ADVERTISING REVENUE" means amounts received by TSG directly
related to advertising and sponsorship less related third party agency costs and
third party commissions.
(j) "NET TRANSACTION REVENUE" shall mean (i) for air ticket commissions,
the amount of commission income received by TSG for air tickets generated from
@Home Service subscribers who are ticketed through any Travelocity customer
service center less all Airline Reporting Corporation refunds and/or rebates,
exchanges, and other normal adjustments (e.g. commission errors or regulatory
adjustments), (ii) for other goods and services sold by
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TSG to @Home subscribers, the amount of commission income or gross margin
received by TSG and (iii) for any car and hotel commissions that cannot be
tracked by @Home subscriber, for each, the number of such Travelocity bookings
made each month by Chime Service subscribers divided by the total number of such
bookings made on the Travelocity Website multiplied by the total commission
income received by TSG for such bookings made on the Travelocity Website.
(k) "ONLINE PROMOTION DATE" means the first day of the month closest to the
actual date on which TSG promotional links or advertising first appear on the
@HomeService.
(1) "PARTIES" means TSG and @Home.
(m) "QUARTER" means a three month period during the Contract Year, with the
first Quarter commencing on the Effective Date and successive Quarters following
thereafter.
(n) "SERVICES COMMENCEMENT DATE" means the actual date on which production
begins for the Travelocity placements within an @Home `infomercial', which @Home
estimates to be March 13, 1998.
(o) "SHOPPING GUIDE" means the @Home shopping interface or its functional
equivalent.
(p) "TRAVEL AREA" means the sub-channel in any Channel (e.g. wherein the
Channel is intended to be the Lifestyle Channel at launch) on the @Home Service
that provides travel information, travel reservations and/or travel features, as
described more fully below in Section 2(b).
(q) "TRAVEL MULTI-WIZARD" means an @Home-developed tool that provides an
easy-to-use familiar interface to common travel requests (information &/or
transactions) on the @Home Service, as described more fully below in Section
2(a).
(r) "TRAVELOCITY" means the travel information website maintained by TSG
which is commonly known as "Travelocity."
(s) "TRAVELOCITY CONTENT" means such Travelocity Website content as is
mutually agreed upon by the Parties to be provided by TSG and included in the
Travel Area.
(t) "TRAVELOCITY WEBSITE" means any travel information site maintained on
the World Wide Web by TSG, currently at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, except for the Easy
Sabre site at ▇▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇.
2. PROMOTION ON THE @HOME SERVICE. In addition to the services provided in
connection with the "Exclusive Person" described in Section 3 below, @Home will
promote Travelocity on the @Home Service as follows:
(a) TRAVEL MULTI-WIZARD. @Home will provide a Travel Multi-Wizard that
includes car, air, & hotel booking capabilities, which will be listed as the
first buttons in the interface. Both
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Parties will work together in good faith to jointly define the booking
functionality. The Travel Multi-Wizard will reside in the "How Do I" section of
the @Home Service, and a Travel Multi-Wizard link will also appear in the
popular "Search" area of the @Home Service when a user selects a directory
choice related to travel. Both "How Do I" and "Search" are accessible from any
page on the @Home Service. It can also be linked as appropriate from any page
within the @Home Service. During the term of this agreement, all booking
transactions from the Travel Area, other @Home Service Channels and otherwise
within the @Home Service will utilize the Travel Multi-Wizard or the Travelocity
Website. During the term of this agreement, Travelocity will be the exclusive
car booking engine and air booking engine and the default hotel booking engine
accessed using the Travel Multi-Wizard.
(b) TRAVEL AREA.
(i) @Home will work with TSG to create mutually agreed-upon Travelocity
Content within the Travel Area. The Travel Area may also include, but is not
limited to: (***) that do not violate the exclusivity provisions set out in
Section 3 below. A feature in this Travel Area could be a "Travelocity video
wall" that displays video on the top destinations and vacation packages. TSG
will (***) these video elements to @Home design and technical specifications.
(ii) TSG and @Home will mutually agree upon the promotion of
Travelocity in this Travel Area along with the specifications for any multimedia
content on the @Home Service. Notwithstanding the foregoing, @Home will include
in the Travel area a space for an editorial feature, programmed at its
discretion, and a space for daily TSG promotion; this promotion will allow TSG
to highlight fare specials, vacation packages, and other TSG functionality. In
the event @Home creates a Travel Channel, the overall design and content of the
Travel Channel will be at the (***); provided, however. that (***) will provide
(***) persistent and prominent placement on the Travel Channel front page which
overall shall be (***) than the placement or promotion (***) provides to any
other Travel content provider. (***) may include a main editorial feature in a
(***) manner as other Channels.
(iii) The Travel Area and Travel Channel will use @Home's technology
platforms (e.g. replication) to serve downloadable multimedia content ("Media
Assets"), as more fully described in Section 7(b) below. The Travel Area and
Travel Channel will have links to Travelocity designed to drive @Home customers
to the Travelocity Website.
(c) @HOME SHOPPING GUIDE. @Home shall include Travelocity in the @Home
Shopping Guide.
(d) @HOME LIFESTYLE CHANNEL. From time to time @Home will create a feature
story related to travel within the Lifestyle Channel. If an opportunity exists
in @Home's reasonable judgment to contextually link a feature with a travel
transaction or relevant Travelocity content, @Home will link to the bookings
portion of the Travel Multi-Wizard or the relevant Travelocity Website pages.
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(e) CONTEXTUAL LINKING FOR ALL OTHER TRAVEL-RELATED CONTENT: Within all
Channels and the @Home home page, @Home may create a feature related to travel.
If an opportunity exists in @Home's reasonable judgment to contextually link for
a travel transaction, @Home will link to the bookings portion of the Travel
Multi-Wizard or Travelocity Website.
(f) USER INTERFACE.
(i) @Home and TSG will mutually agree upon the user interface ("UI")
design for the Travelocity portion(s) of the Travel Area and Travel
Multi-Wizards (which shall be consistent with the @Home look-and-feel).
(ii) @Home reserves the right to change the @Home Service user
interface in its reasonable discretion; provided that (a) @Home will give TSG
reasonable advance notice of any change that is reasonably likely to have an
impact on TSG promotional placements, and (b) following any such change, @Home
will provide TSG with promotional placements materially similar to those prior
to the change.
3. EXCLUSIVE POSITION.
(a) TRAVELOCITY EXCLUSIVE POSITION. Subject to Section 3(b) below,
Travelocity will hold an "Exclusive Position" within the @Home Service. For
these purposes, "EXCLUSIVE POSITION" means and includes the following:
(i) Exclusive Travel Area. @Home will not create a Travel Area or
Travel Channel for a Competitor or include persistent navigation (e.g., a
button) to pages displaying content from Competitors.
(ii) Elimination of Promotional Placement. @Home will not permit
any Competitor to have any promotional buttons, promotional links, outbound
marketing materials, or other promotional materials related to travel services
on the @Home Service other than as permitted in this agreement.
(iii) Advertising Placement. @Home shall have no restriction on the
sale of ads to Competitors, but may not place Competitors' ads in the portions
of the Travel Multi-Wizard, Travel Area or Travel Channel where Travelocity has
persistent placement.
(iv) Exclusive Position on Travel Multi-Wizard. Travelocity will be
the sole booking engine on the Travel Multi-Wizard that provides car &/or air
booking functionality and Travelocity will be the default hotel booking engine
accessed using the Travel Multi-Wizard.
(v) Anchor Tenancy in Shopping Guide. Travelocity will be the
Anchor Tenant for the Travel Area in the Shopping Guide. Such inclusion shall be
on the terms set out on Attachment I hereto.
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(vi) Lifestyle Channel. Until such time as a Travel Channel is
created, a persistent navigation button to the Travel Area will exist on all
pages of the Lifestyle Channel within the @Home Service.
(b) LIMITS ON EXCLUSIVITY. Notwithstanding Section 3(a) above,
Travelocity's Exclusive Position will not preclude @Home from the following:
(i) Editorial Content. @Home's editors may place editorial content
on the @Home Service from time to time which content may include links to third
party sites including competitor sites. However, @Home may not persistently
promote Competitor content on the @Home Service with the exception of editorial
listings. Within such editorial listings section, TSG will have a promotional
placement `above the fold', either in the banner advertising space or in a
sponsor space above the editorial listings.
(ii) Non-Competitive Agreements. @Home may enter into agreements
with any travel sites or travel content providers that are not Competitors.
(c) @HOME NON-EXCLUSIVE. @Home does not require (***) on the Travelocity
Website. TSG may, at its discretion, distribute the Travelocity Content through
alternative broadband networks including, but not limited to, (***).
4. FUTURE OPPORTUNITIES
(a) MULTIMEDIA INTEGRATION. As TSG categorizes its Media Assets into
database form, @Home will work with TSG to link and display the Media Assets
from time to time in conjunction with relevant features on the @Home Service.
(b) PREMIUM SERVICES: @Home intends to offer a variety of premium services
to its subscribers in the future. @Home will provide the network and systems
infrastructure, transaction management, co-promotion, marketing resources, and a
distribution channel for premium offerings. TSG may (but is not required to)
participate with its own premium service offering (e.g. pay-per-play video
tours) if so desired. In the event a premium service is created, such service
will be a subscription based product whose price would be set by TSG and @Home
subject to approval of @Home Distributor Affiliates. A revenue share for such
premium service shall be negotiated in good faith between @Home and Travelocity
prior to the offering.
5. OBLIGATIONS OF TSG. In addition to its other obligations under the
Agreement, TSG agrees to the following:
(a) ACTIVE WEB PRESENCE. During the term of this Agreement, TSG will
maintain an "Active Web Presence. For these purposes, Active Web Presence means:
(i) the maintenance of a site on the World Wide Web that offers at
least the level of performance and functionality as offered on the Commencement
Date (including breadth and depth of offerings, services and suppliers); and
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(ii) to the extent commercially reasonable, the quality of the
primary features and functions of the Travelocity Website and the Travelocity
Content (including, frequency of updates, breadth and depth of services and
suppliers, tools, usability, etc.) are substantially equal to or better than the
analogous functions and features provided by comparable third party content
providers of travel transactions and information; and
(iii) to the extent commercially reasonable, the Travelocity
Website(s) continue to integrate the latest and most common features of
functionality as comparable websites, including (without limitation and by way
of example only): back-end security, appropriate transactional mechanisms,
customer service, user interface enhancements, and navigation tools.
(b) SPECIAL PROMOTIONS. TSG agrees to offer promotions at no cost to @Home
subscribers on a quarterly basis that are of (***) that will be featured
prominently in the Travel Area and will be used primarily to promote
Travelocity.
(c) DIRECT CONNECTION TO @HOME NETWORK. In the event the response time from
the Travelocity Website to @Home subscribers becomes unacceptably slow (in the
reasonable discretion of @Home), TSG and @Home shall work together to establish
and maintain a direct connection from the TSG servers to the @Home network. TSG
and @Home shall equally share the total cost of this connection, the speed of
which shall be no less than (***). Any price for the connection offered by @Home
shall be no greater than the price charged to similar @Home content providers.
6. MARKETING; CUSTOMER INFORMATION.
(a) OUTBOUND MARKETING. @Home will use reasonable efforts with its
Distribution Affiliates to include Travelocity in any content-related external
marketing pieces. Any such marketing pieces in which @Home chooses to include
Travelocity will, at a minimum, include the Travelocity name but may also
include the Travelocity logo, descriptions, screen shots, etc. TSG will provide,
and @Home will comply with, guidelines for how to describe/display Travelocity
in @Home outbound marketing efforts. Possible marketing avenues may include, but
are not limited to, cable TV spots/infomercials, newspaper ads, ▇▇▇▇ stuffers,
postcards, door hangers, direct mail, and take-one brochures. TSG shall have the
right of prior approval of any mention or representation of TSG in any such
marketing materials. @Home shall include TSG in its 30 minute `informercial' to
be shot on or about March 13, 1998.
(b) ONLINE MARKETING. @Home and TSG will work together to include
Travelocity in other appropriate online mechanisms for showcasing Travelocity
Content and other offerings as these mechanisms are developed.
(c) USAGE DATA. When technically feasible and if legally and contractually
permitted, each Party will provide the other with aggregated usage data
concerning access by @Home subscribers to the Travelocity promotional areas.
Usage data reports will be provided quarterly and as reasonably requested. The
reports will be delivered in the format most commonly collected by such Party.
All usage data will be considered Confidential
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Information of the Party furnishing the usage data. Unless legally required,
each Party agrees not to provide usage data specific to the other that has not
been aggregated with other data to any third-party (other than, with respect to
@Home, to Distribution Affiliates), without such Party's prior consent.
(i) Usage Data Provided by TSG. TSG will provide @Home the
following information pertaining to @Home customers: number of visitors, page
views per visit, @Home visitors who register with Travelocity, total
transactions, total revenue per transaction, and products/services purchased per
visit. TSG Usage Data shall not include specific customer names.
(ii) Usage Data Provided by @Home. @Home will provide TSG with
aggregate usage data on the Travel Category of the Shopping Guide as compared to
aggregate usage data in all Categories offered by the Shopping Guide; and the
number of clicks-through to the Travel Area from @Home links.
(d) CUSTOMER SUPPORT. @Home will forward all calls and e-mails regarding
Travelocity services to TSG personnel if TSG support is needed.
7. DISTRIBUTION.
(a) @HOME DISTRIBUTION AFFILIATES. @Home will distribute the Travelocity
Content through its Distribution Affiliates. The territory governed by this
Agreement will be North America (including Canada and U.S.) and any other
country where @Home offers the @Home Service.
(b) REPLICATION SERVICES. @Home will replicate mutually agreed-upon
Travelocity media assets to ensure cost-efficient and reliable delivery of Media
Assets to its subscribers. Specifically, @Home will provide TSG the replication
data storage space for each replication data @Home regional data center
according to the following schedule:
Year Total Replication Space
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Per RDC (MB)
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1998 (***)
1999 (***)
2000 (***)
TSG may purchase additional replication space in the future at a mutually agreed
upon price, but no greater than the price charged to similar @Home content
providers.
(c) RIGHT TO CACHE ETC. Without limiting any rights @Home may have under
applicable laws, TSG agrees that @Home may transport (i.e. transmit, distribute,
and serve), cache on proxy servers, replicate on replication servers and
reproduce on related storage devices operated by @Home and its Distribution
Affiliates Travelocity Content as necessary to efficiently deliver the
Travelocity Content as provided herein. TSG will retain complete discretion to
set "TTL" (time to live) variables for the Travelocity Content (i.e. use the
standard mechanism to allow no cache of specified content). If necessary, TSG
agrees to adapt (or permit the adaptation by @Home of) the Travelocity Content
for compatibility with reasonable technology solutions adopted by @Home.
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(d) @HOME SERVICE UPTIME. @Home will use reasonable efforts to ensure that
it minimizes any downtime of the @Home service. In the event the @Home Service
is down for a substantial period of time (other than as the result of a Force
Majeure event or routine maintenance), @Home will extend the term of the
Agreement for the period of time equal to the period of downtime.
(e) SUBSCRIBERS. Unless otherwise agreed in writing by TSG, @Home shall
make the Travelocity Content available to all basic subscribers of the @Home
Service (subject to Section 17j below).
(f) ADVERTISING IMPRESSIONS. During the term of the Agreement, @Home will
provide broadband advertising inventory to TSG to promote TSG within the @Home
Service equivalent in total value to a (***) purchase of such inventory at a
discounted price of (***) off the then-current CPM rate card (as established
each month by @Home). Current @Home CPM rates are (1) (***) for @Home-created
ads and (2) (***) for advertiser-created ads. This advertising inventory will be
allocated as follows: in calendar year 1998, @Home will provide TSG with
impressions equal in value to (***); for calendar year 1999, @Home will provide
TSG with impressions equal in value to (***); and for calendar year 2000, @Home
will provide TSG with impressions equal in value to (***).
(i) If using its own advertisements, TSG will deliver
advertisements to @Home in a format that conform to the then current advertising
specification.
(ii) @Home will provide TSG creative services to produce up to four
B*Box advertisements, which may include spawned files (as defined in the then
current advertising specifications). in each calendar year.
(iii) @Home will provide customized B*Box rotation and positioning
within guide channels (i.e., News, Finance, Technology, etc.) as well as within
region, city, and zip code when technically feasible.
(iv) Pursuant to SECTION 6 c) above, the parties will provide one
another with information regarding advertising yields and subscriber usage data.
@Home will provide such information to TSG in the form of customized online
reports.
8. COMPENSATION.
(a) CASH PAYMENTS TO @HOME. During the term of the Agreement, TSG will make
minimum annual cash payments (the "GUARANTEED PAYMENTS") to @Home as follows:
First Contract Year: (***)
Second Contract Year: (***)
Third Contract Year: (***)
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Subject to the adjustments described in Sections 8(b) and (c) below, the
Guaranteed Payment for each Contract Year will be payable in equal quarterly
installments (the "QUARTERLY PAYMENTS"), and each Quarterly Payment will be due
no later than thirty (30) days following the last day of the relevant Quarter;
provided, however, that the first Quarterly Payment due with respect to the
Guaranteed Payment for the First Contract Year shall be due no later than ten
(10) days after the Effective Date.
(b) OFFSET TO GUARANTEED PAYMENT. If, at the end of any Contract Year, (i)
the total amount of revenue share payments due to @Home under this agreement is
less than the total Guaranteed Payments made by TSG for that Contract Year, and
(ii) the average number of @Home subscribers during that Contract Year is less
than (***) of the projected subscriber levels indicated below; then the
Guaranteed Payment due to @Home for the following year will be reduced by an
amount equal to that Contract Year's Guaranteed Payment multiplied by the
percentage of the subscriber shortfall. (For example, if in Contract Year 1,
subscriber numbers are (***) below the projected number, then TSG's Year 2
Guaranteed Payment amount would be reduced by (***) of the total Contract Year 1
Guaranteed Payments). If any amount is owed to TSG after the final Contract Year
of this Agreement, @Home will extend the term of this Agreement until TSG has
recouped such amount in the value of services provided by @Home.
For these purposes, projected subscriber levels will be:
Year Average Subscribers
---- -------------------
1998 (***)
2000 (***)
1999 (***)
If the Travel Channel link is not implemented on the @Home Service home page on
or before (***), then the Offset to Guaranteed Payments will be calculated using
the (***), rather than (***). Offsets to the Guaranteed Payments will be
calculated as above, but (***).
(***):
Year Average Unique Visitors
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1999 (***)
2000 (***)
(c) ADDITIONS TO GUARANTEED PAYMENT. In the event that the @Home share of
the sum of Advertising Revenue and Transaction Revenue as described below is
greater than the scheduled Quarterly Payment for any given Quarter during the
term of this Agreement, TSG will pay @Home the difference between such @Home
revenue share and the scheduled Quarterly Payment, in addition to the Quarterly
Payment, within 30 days of the end of the given Quarter.
(i) Advertising Revenue Share: TSG will pay to @Home (***) of the
Net Advertising Revenue on pages on the Travelocity site served to @Home
subscribers.
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(ii) Transaction Revenue Share: TSG will remit to @Home (***) of
its Net Transaction Revenue.
9. TERM AND TERMINATION.
(a) INITIAL TERM. The initial term of this Agreement will begin on the
Effective Date and will end three years following the Online Promotion Date,
unless earlier terminated according to its terms. @Home will promptly notify TSG
of the Services Commencement Date.
(b) SUSPENSION AND TERMINATION FOR CESSATION OF TRAVEL SERVICES. In the
event @Home ceases to offer travel services at any time during the term of this
Agreement: (i) within thirty (30) days of such cessation, @Home will refund to
TSG any unearned Guaranteed Payments made by TSG in the form of advertising
inventory; and (ii) TSG's obligation to make future Guaranteed Payments to @Home
will be suspended until such time that @Home reinstates travel services;
provided, however, that TSG's obligation to make revenue share payments to @Home
hereunder shall continue. In the event @Home does not reinstate travel services
within one year of the date it first ceases such services, this agreement shall
automatically terminate, and neither party will have any liability to the other
as a result of such termination.
(c) TERMINATION FOR FAILURE TO MAINTAIN ACTIVE WEB PRESENCE. In the event
that TSG fails to maintain its Active Web Presence, @Home may terminate the
Agreement upon 30 days written notice, provided that TSG has not resumed Active
Web Presence within such 30 day period.
(d) NO LIABILITY FOR TERMINATION. Neither @Home nor TSG will have any
liability to the other merely as a result of proper termination of this
Agreement in accordance with this Section 9, however all amounts earned but
unpaid by either party to the other as of the date of such termination shall be
due and payable to the other party in accordance with the terms set forth in
this Agreement.
(e) TERMINATION DUE TO BREACH. Either party may terminate this Agreement,
effective upon thirty (30) days' written notice, if the other party fails to
cure any breach of its material obligations under this Agreement within thirty
(30) days following written notice to such party.
10. PUBLIC ANNOUNCEMENT. Both parties will periodically promote the
TSG/@Home relationship through press releases and other announcements, the
timing and content of which the parties have mutually agreed, which agreement
shall not be unreasonably withheld.
11. BUSINESS MARKS. @Home and TSG each will have the right, without charge,
to use in promoting the Travelocity Content and the @Home Service the other's
business name and any trade names, trademarks and service marks (collectively,
"MARKS") that @Home may adopt for use with the @Home Service and that TSG may
adopt for use with the
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Travelocity Website and/or the Travelocity Content distributed and used by
@Home. However, any such use must be identical to use by the party that owns the
▇▇▇▇, and as approved by the owner in writing in advance, or otherwise in
accordance with any ▇▇▇▇ usage guidelines communicated by the owner. The owner
retains all goodwill and all other rights thereto, and the other party obtains
no goodwill or any other rights thereto as a result of the use of the owner's
Marks. Except as explicitly set forth herein, no other licenses or rights are
granted or implied.
12. LIMITATION OF LIABILITY. @HOME, @HOME'S DISTRIBUTION AFFILIATES AND TSG
WILL NOT BE LIABLE TO ONE ANOTHER OR ANY THIRD PARTY, UNDER ANY LEGAL OR
EQUITABLE THEORY, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES
OF ANY KIND, SUFFERED BY OR OTHERWISE COMPENSABLE TO THE OTHER, ARISING OUT OF,
UNDER OR RELATING TO THIS AGREEMENT, WHETHER OR NOT ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. EXCEPT FOR REFUNDS WHICH ARE DUE TSG HEREUNDER, IN NO EVENT
WILL EITHER PARTY HAVE ANY LIABILITY OF ANY NATURE OR AMOUNT WHATSOEVER TO THE
OTHER OR ANY THIRD PARTY ARISING OUT OF, UNDER, OR RELATING TO, ANY FAILURE OF
THE DISTRIBUTION OF THE CONTENT OR ANY PART THEREOF OR ANY SOFTWARE PROGRAM,
SOFTWARE 08 WEB SITE LINK OR LINK MECHANISM, OR OTHER MATERIAL OR ITEMS THROUGH
THE @HOME NETWORK OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY SUCH FAILURE OF
DISTRIBUTION RESULTING FROM DISTRIBUTION AFFILIATES' ELECTION NOT TO DISTRIBUTE
MATERIAL OR ITEMS OR DUE TO TECHNICAL DIFFICULTIES). ADDITIONALLY, IN NO EVENT
SHALL EITHER PARTY'S LIABILITY TO THE OTHER UNDER THIS AGREEMENT OR OTHERWISE
EXCEED THE AMOUNT OF (***) SET FORTH UNDER SECTION 8. The limitations in this
Section 12 shall not apply to compensation due or obligations set out in
Sections 13 and 14 below.
13. PROPRIETARY RIGHTS GENERALLY. @Home and TSG each retain any and all
right, title and interest in and to all intellectual property of any nature
(including patents, rights under patent applications and patents issuing on such
applications, trade secrets, copyrights, trademarks and other business names
(including goodwill in such marks), among others), subject to the rights granted
by the parties in Section 11 of this Agreement or as otherwise explicitly set
forth in this Agreement. @Home and TSG each agree to reproduce, and agree not to
remove or obscure proprietary rights legends (such as copyright notices, among
others) or license terms and conditions included with any intellectual property
deliverable provided in connection with this Agreement. TSG agrees to ensure
that the Travelocity Content and its Marks and their use, reproduction and
distribution (alone and not in combination with other material or items) will
not infringe the intellectual property rights of any third party when
distributed on the @Home Service. @Home agrees to ensure that its Marks and the
@Home Service and their use, reproduction and distribution (alone and not in
combination with other material or items) do not infringe the intellectual
property rights of any third party. If, as a result of any collaboration by
@Home or TSG under this Agreement, they become joint owners of any newly created
intellectual property (excluding that which each party contributes on its own)
by operation of law, then they will cooperate, subject to prudent business
judgment, to establish, register, maintain and protect such intellectual
property.
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14. INDEMNIFICATION. Each party will indemnity the other party and its
customers and affiliates for, and hold them harmless from, any loss, expense
(including reasonable, attorneys fees and court costs), damage or liability
arising out of any third party claim, demand or suit resulting from a breach of
any of the warranties of the indemnifying party in Section 13. As a condition to
indemnification (a) the indemnified party will promptly inform the indemnifying
party in writing of any such claim, demand or suit and the indemnifying party
will fully cooperate in the defense thereof; and (b) the indemnified party will
not agree to the settlement of any such claim, demand or suit prior to a final
judgment thereon without the consent of the indemnifying party, which will not
be unreasonably withheld.
15. CONFIDENTIAL INFORMATION.
(a) NONDISCLOSURE. Each party agrees (a) to hold the other party's
Confidential Information in strict confidence, (b) not to disclose such
Confidential Information to any third party, and (c) not to use the other
party's Confidential Information for any purpose other than to further this
Agreement. Each party may disclose the other party's Confidential Information to
its responsible employees and independent contractors, and, in the case of
@Home, the employees of @Home's Distribution Affiliates, with a bona fide need
to know such information and subject to a nondisclosure agreement but only to
the extent necessary to carry out this Agreement. Each party agrees to instruct
all such employees and independent contractors not to disclose such Confidential
Information to third parties, without the prior written permission of the
disclosing party.
(b) EXCEPTIONS. Notwithstanding the foregoing, Confidential Information
will not include information which:
(i) Is now, or hereafter becomes, through no act or failure to act
on the part of the receiving party, generally known or available to the public;
(ii) was acquired by the receiving party before receiving such
information from the disclosing party and without restriction as to use or
disclosure;
(iii) Is hereafter rightfully furnished to the receiving party by a
third party, without restriction as to use or disclosure;
(iv) Is information which the receiving party can document was
independently developed by the receiving party without use of the disclosing
party's Confidential Information;
(v) Is required to be disclosed by law, provided that the
receiving party uses reasonable efforts to give the disclosing party reasonable
notice of such required disclosure and to limit the scope of material disclosed;
or
(vi) is disclosed with the prior written consent of the disclosing
party.
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(c) RETURN. Upon the disclosing party's request, the receiving party will
promptly return to the disclosing party all tangible items containing or
consisting of the disclosing party's Confidential Information.
(d) INJUNCTIVE RELIEF. Each party acknowledges that all of the disclosing
party's Confidential Information is owned solely by the disclosing party (or its
licensors) and that the unauthorized disclosure or use of such Confidential
Information would cause irreparable harm and significant injury to the
disclosing party, the degree of which may be difficult to ascertain.
Accordingly, each party agrees that the disclosing party will have the right to
pursue an immediate injunction enjoining any breach of this Section 15 as well
as the right to pursue any and all other rights and remedies available at law or
in equity in the event of such a breach.
16. WARRANTIES AND DISCLAIMERS. EXCEPT AS OTHERWISE SET FORTH IN THIS
AGREEMENT: (a) @HOME DOES NOT MAKE ANY WARRANTIES CONCERNING THE @HOME NETWORK
OR THE @HOME SERVICE, EXPRESS, IMPLIED OR OTHERWISE, (b) @HOME SPECIFICALLY
DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THIRD PARTY RIGHTS, AND (c) THE
@HOME NETWORK, THE @HOME SERVICE, AND ANY AND ALL CONTENT AND TOOLS AND RELATED
DELIVERABLES PROVIDED BY @HOME IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED BY
@HOME "AS IS". SIMILARLY, EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, TSG
DOES NOT MAKE ANY WARRANTIES CONCERNING THE TRAVELOCITY CONTENT, EXPRESS,
IMPLIED OR OTHERWISE, AND SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH
RESPECT TO CONTENT PROVIDED BY TSG TO @HOME IN CONNECTION WITH THIS AGREEMENT,
ALL OF WHICH ARE PROVIDED BY TSG `AS IS'.
17. GENERAL PROVISIONS.
(a) GOVERNING LAW AND VENUE. This Agreement and any disputes arising under,
in connection with, or relating to this Agreement will be governed by the laws
of the State of California. The state and federal courts in San Mateo County,
California will have exclusive venue and jurisdiction for such disputes, and the
parties hereby submit to personal jurisdiction in such courts. The prevailing
party in any such dispute will be entitled to recover costs of suit (including
the reasonable fees of attorneys and other professionals).
(b) NOTICES. All notices or other communications to or upon @Home or TSG
under this Agreement shall be by telecopy or in writing and telecopied, mailed,
or delivered to each party at its address set forth in the introductory
paragraph of this Agreement or such other address or telecopier number as either
party shall notify the other. All such notices and communications: when sent by
delivery service, shall be effective on the third business day following the
deposit with such service; when mailed, first class postage prepaid and
addressed as aforesaid in the mails, shall be effective upon receipt; when
delivered by hand, shall be effective upon delivery; and when telecopied, shall
be effective upon confirmation of receipt.
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(c) COMPLIANCE WITH LAWS. Subject to the express provisions of this
Section, each party agrees to comply with applicable laws in connection with
this Agreement. To the best of Travelocity's knowledge, the use, reproduction
and distribution of Travelocity Content, in and of itself, does not and will not
violate applicable laws or related legal rights of third parties.
(d) ASSIGNMENT. Neither party may assign or transfer its rights or
obligations under Agreement without the prior written permission of the other
party (which permission shall not be unreasonably withheld or delayed); provided
that either party may assign its rights and obligations under this Agreement in
the event of a corporate reorganization, merger, or sale of all or substantially
all of a Party's assets or to any commonly controlled affiliate or wholly-owned
subsidiary without the consent of the other party so long as the original party
remains liable for its obligations hereunder. Any transferee must agree to
accept the burdens as well as the benefits of this Agreement. Any attempt to
transfer, sublicense or assign any of the rights or duties hereunder in
violation of this Section is hereby prohibited and shall be null and void.
Subject to the foregoing, this Assignment shall inure to the benefit of and be
binding upon the parties and their successors and assigns.
(e) RELATIONSHIP OF PARTIES. Neither this Agreement nor the parties'
business relationship established hereunder will be construed as a partnership,
joint venture, fiduciary relationship or agency relationship or as granting a
franchise. Accordingly, neither party shall have any right to act on behalf of
the other party for any purpose. The parties warrant to one another that they
have consulted legal counsel in reviewing and/or negotiating this Agreement.
(f) RECORDS AND AUDITING. TSG will maintain its records relating to Net
Advertising Revenue and Net Transaction Revenue earned and related payments made
to @Home for at least three (3) years after their creation, and will permit
@Home or its representative to examine such records upon reasonable notice at
reasonable times. @Home or any such representative agree to hold information
obtained in such examination in confidence and shall only reveal to @Home such
information as is necessary to verity TSG's compliance or noncompliance with
this Agreement. TSG will promptly pay any payments found due by such an
examination, plus interest, and if any examination discloses a shortfall in any
payments due @Home in any quarter of more than five percent (5%), TSG will pay
the reasonable fee of the auditors for that examination.
(g) WAIVER. No waiver of any breach of any provision of this Agreement will
be considered to be a waiver of any prior, concurrent or later breach of the
same provisions or different provisions, and will not be effective unless made
in writing and signed by an officer of the waiving party.
(h) AMENDMENTS. This Agreement may only be amended by a written agreement
or addendum signed by duly authorized representatives of both parties.
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(i) SURVIVAL. Sections 12, 13, 14, 15, 16, and 17 of this Agreement, along
with any other provisions which by their nature extend beyond termination of
this Agreement shall survive termination. Termination shall not affect either
part's obligation to pay amounts due prior to termination or which (under the
terms of this Agreement) become due following termination.
(j) FORCE MAJEURE. Neither party will have liability to the other party
under, in connection with or for any reason relating to this Agreement as a
result of any failure of performance by or on behalf of such party as a result
of an event of "force majeure". For purposes of this Agreement, "force majeure"
means an event beyond a party's reasonable control whether or not foreseeable
and includes, in any case, the following events that may prevent or
significantly hinder such party from performing this Agreement or acting in
connection with this Agreement: armed conflicts, famine, floods, Acts of God,
labor strikes or shortages, governmental decree or regulation, court order,
severe weather, fire, earthquake, failure of suppliers, unavailability of
communications transport facilities and breakdowns in communications transport
facilities. Notwithstanding the foregoing, in the event that the @Home Service
is not available, as a result of a Force Majeure event, to more than 20% of the
@Home Service subscribers for a period of 10 consecutive days, or 15
non-consecutive days, then the performance of the Parties under this Agreement
shall be suspended, including TSG's obligation to make Guaranteed Payments,
until such time that the Force Majeure event is over, and the term of this
Agreement will be extended by an amount of time equal to the length of the
suspension.
(k) DISTRIBUTION AFFILIATES. Notwithstanding other term of this Agreement,
TSG acknowledges and agrees that the Distribution Affiliates will have the right
under certain circumstances to elect not to distribute the Travelocity Content
and promotional material and that, pursuant to its agreement with such
Distribution Affiliates, @Home may be subject to restrictions regarding the
promotion or distribution of the Travelocity Content and promotional materials.
TSG agrees not to bring any action or threaten to bring any action against the
Distribution Affiliates or @Home in connection with any such election,
restriction or failure to distribute. Any @Home subscribers which do not receive
Travelocity Content as a result of the foregoing shall not be counted as @Home
subscribers for the purposes of Section 8 of this Agreement. @Home will notify
TSG in THE EVENT that any Distribution Affiliates elect not to distribute the
Travelocity Content.
(l) ENTIRE AGREEMENT. This Agreement, including its Attachments,
constitutes the entire understanding of @Home and TSG with respect to its
subject matter and supersedes all prior agreements between @Home and TSG.
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ATTACHMENT I
TERMS OF @HOME SHOPPING GUIDE TENANCY
1. @Home Shopping Guide. The @Home Shopping Guide is a shopping service
provided by @Home to its subscribers. The Shopping Guide will feature a general
Shopping Page, as well as shopping interfaces in particular categories ("ANCHOR
TENANT CATEGORIES") established from time to time by @Home.
2. Anchor Tenants. "ANCHOR TENANTS" will be featured in Anchor Tenant
Categories. Travelocity will be an Anchor Tenant in the `Travel" Category. @Home
and TSG agree to work together to create a strong branded presence for
Travelocity in the Travel Category.
3. Responsibilities of @Home. @Home is responsible for the following
promotional activity for the duration of this Agreement to its Anchor Tenants.
This will be implemented in a reasonable time frame after the Effective Date:
Travelocity will be promoted above-the-fold as an Anchor Tenant in the Shopping
Guide. @Home will promote Travelocity within its Anchor Tenant Category in
accordance with the standard Shopping Guide promotional guidelines as amended
from time to time by @Home. The Travelocity promotion will be displayed when an
@Home user enters its Anchor Tenant Category and there will be links to the
Travelocity portion of the Travel Multi-Wizard or various parts of the Travel
Area or Travelocity Website.
4. Responsibilities Of TSG. TSG is responsible for all processing of
customer orders generated pursuant to this Agreement. TSG shall provide customer
service to @Home customers, which service shall cover all steps in the process
of taking orders to the final delivery of product to customers. Customer service
shall include conducting business in a professional manner consistent with
industry standards. TSG shall use reasonable efforts to comply with @Home
"merchant certification" requirements as defined by @Home from time to time.
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