CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR CERTAIN
PORTIONS OF THIS DOCUMENT. CONFIDENTIAL PORTIONS HAVE BEEN
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
AIRLINE PARTICIPATION AGREEMENT
THIS AGREEMENT (this "Agreement"), dated November 15, 1999, is by and
between xxxxxxxxx.xxx Incorporated, a Delaware corporation with an address
at Five Xxxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000 ("Priceline"), and the
undersigned airline, whose principal place of business is set forth in the
notice provision of this Agreement ("Airline").
PRELIMINARY STATEMENT:
Priceline provides a service that allows consumers to purchase
airline tickets at an offer price determined by the consumer (the
"Priceline Service"). The consumer identifies the departure and return
dates for travel and the price the consumer is willing to pay for the
airline ticket(s). Priceline then determines if it is able to fulfill the
customer's offer and, if it is able to do so, Priceline issues a ticket to
the customer on the applicable carrier.
Airline desires to participate in the Priceline Service and, in
connection therewith, will provide Priceline with unpublished fares subject
to the Restrictions (defined herein) for select origin and destination city
pairs (each, an "O&D") identified by Airline in accordance with the terms
and conditions set forth in this Agreement.
Priceline desires to include Airline as a participating carrier in
the Priceline Service and to have access to such unpublished fares in
accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements set
forth in this Agreement, the parties agree as follows:
I. Ticket Restrictions and Related Matters
1. Airline shall make available unpublished fares to Priceline for
O&Ds identified by Airline in accordance with the terms and
conditions set forth in this Agreement. Unpublished fares
provided to Priceline must be issued in accordance with rules and
restrictions provided to Priceline by Airline from time to time.
By way of example, unpublished fares on certain O&D's may require
specific routings or be flight/day specific. At all times during
the term of this Agreement, Airline will exclusively control and
determine the unpublished fares and levels of inventory provided
to Priceline. It is expressly understood and agreed that Airline
makes no commitment whatsoever regarding the level of inventory,
number of O&Ds or the level of unpublished fares that will be
provided to Priceline.
2. All tickets issued by Priceline for carriage on Airline (each, a
"Priceline Ticket"), as well as tickets issued by Priceline on
its other Participating Carriers (as hereinafter defined) shall
be subject to the restrictions listed in (a) through (h) below
(the "Restrictions"):
(a) Except as otherwise provided in Paragraph IV.4 hereof, all
Priceline Tickets will be non-refundable, non-endorsable and
non-changeable;
(b) All travel will be round-trip with no stopovers or open-jaw
travel permitted;
(c) Frequent Flyer mileage and upgrades will not be permitted;
provided, Airline may offer such benefits to the extent that
it is impractical to impose such frequent flyer restrictions
on Priceline Tickets;
(d) Priceline customers must agree to (i) make up to one stop or
connection on both their departing and return flights, (ii)
accept a ticket on any carrier participating in Priceline's
airline ticket service ("Participating Carrier"), and (iii)
travel on any flight on the specified date of travel (x) for
domestic U.S. flights, departing during the 6 a.m. - 10 p.m.
time period unless the customer has specified a request to
include flights departing outside those periods, and (y) for
international flights, at any time (i.e., 12:01 a.m. to
11:59 p.m.);
(e) All Priceline travel reservations and bookings shall be made
without Priceline customers specifying a preferred (or
requested) carrier, flight or time of day travel
preference(s) on the specified date(s) of travel;
(f) All Priceline Tickets require instant ticketing guaranteed
with a major credit card if Priceline is able to provide an
airline ticket within the customer's requested price,
departure and return date parameters;
(g) Priceline Ticket reservations are limited to no more than
eight persons traveling in the same itinerary; and
(h) Except as otherwise provided herein, in any seven-day
calendar period, a Priceline customer shall be limited to
making one offer price for airline ticket(s) for a Trip. A
"Trip" is defined as travel between the same airports on the
same dates of travel. A Priceline customer may, within a
seven-calendar day period, make an offer for travel in a
different airport pair or on different dates of travel.
Priceline will not knowingly sell a ticket to a Priceline
customer in response to a second (or subsequent) offer for a
Trip within a seven calendar day period; provided, that
Priceline may sell a ticket in connection with a second
offer if the Priceline customer (i) raises the offer by a
minimum of $[**] and (ii) accepts, as part of the second
offer, (x) a travel package which includes a hotel or
rental car offer, or (y) a product or service co-marketed
by Priceline such as a credit card or long distance telephone
service or other co-marketing program.
3. If during any two consecutive months during the term of this
Agreement, the number of tickets sold by Priceline on
Participating Carriers that do not include a Saturday night stay
is greater than [**]% of all tickets sold on all Participating
Carriers through Priceline during such period, then Airline shall
have the right to cause Priceline to include as part of the
Restrictions, a Saturday night stay for all tickets sold on all
Participating Carriers through Priceline; provided, however, that
Airline's right to impose such restriction shall terminate and be
of no further force or effect at such time as Delta Air Lines,
Inc. ("Delta") no longer has a contractual right to cause
Priceline to impose a Saturday night stay restriction for
Priceline's airline ticket sales on all Participating Carriers.
Additionally, in the event that Priceline licenses any of
Priceline's proprietary software to Delta, Priceline will license
such software to Airline on the same terms and conditions as
apply to any license to Delta to the extent that contractual
rights of Delta as of the date hereof do not prohibit such
license (subject to any waiver by Delta); provided, however, that
Priceline shall thereafter have the right unilaterally to modify
or terminate such license to Airline if Priceline's license to
Delta is similarly modified or terminated. Additionally, so long
as, and only so long as, Delta shall have the contractual right
to limit the number of second look offers under Paragraph I.2(h)
to no more than 20 percent of first look offers, Priceline will
comply with such Restriction, and Airline, shall hereby have an
independent right to enforce such Restriction for all
Participating Carriers. Subject to the foregoing, Priceline
further agrees that it shall be prohibited from removing or
materially modifying any of the Restrictions applicable to any
Participating Carrier that will materially increase the usage of
Priceline by business flyers without the prior written consent of
Airline.
4. Airline may include, in addition to the Restrictions, other fare
rules and conditions for Priceline Tickets issued on Airline such
as advance purchase or Saturday night stay requirements. Subject
to Paragraph II.2, Priceline also reserves the right after
written notice to Airline to impose, on a non-discriminatory
basis on all Participating Carriers, additional restrictions on
tickets sold by Priceline, including a Saturday night stay
requirement, as part of the Restrictions.
5. The Restrictions will be communicated by Priceline to the
customer via the Internet (or through Priceline's customer
service representatives if the consumer contacts Priceline
through its toll free customer service number), and will be set
forth on ticketing and/or itinerary documentation issued by
Priceline.
6. All Priceline Tickets issued for carriage on Airline shall be
subject to the published conditions of carriage and the fare
rules of Airline, to the extent such conditions and fare rules
are not inconsistent with the Restrictions. Airline will honor
all Priceline Tickets issued for travel on Airline in accordance
with the Restrictions and other rules and conditions established
by Airline for Priceline Tickets.
7. All tickets issued by Priceline on any Participating Carrier
shall be subject to the Restrictions and any additional
restrictions imposed by Priceline in accordance with the second
sentence of Paragraph I.4.
II. Priceline Ticket Reservations, Bookings, Payment and Fulfillment
1. Airline will file unpublished fares and rules for Priceline
Tickets with the computer reservation system ("CRS") used by
Priceline. Airline may file fares under Airline's two letter
designation code on flights operated by other carriers.
Notwithstanding the forgoing, Priceline will use best efforts to
cooperate with Airline to identify and work toward the most
efficient system selected by Airline, including Airline's
internal reservation system, for the filing of fares for use by
Priceline in the operation of its air travel service with
Airline.
2. Subject to Paragraph III, Priceline will determine the price at
which Priceline Tickets are sold based on customer offers
received through the Priceline Service. Priceline shall not
advertise prices or fares below Airline's published fares. As
used herein, "published fare" means an Airline fare published
through the Airline Tariff Publishing Company ("ATP") and
available for sale by Airline appointed agents for scheduled air
transportation. Priceline shall not advertise prices or fares in
any O&D below Airlines published fares in the applicable O&D.
3. All unpublished fares made available by Airline for sale through
the Priceline Service shall not be commissionable and shall be
inclusive, where applicable, of the applicable domestic federal
transportation excise tax for such unpublished fare. All such
unpublished fares shall be exclusive of any domestic federal
segment taxes, and any domestic or international fuel, departure,
arrival, passenger facility, airport, terminal and/or security
taxes or surcharges which, when applicable, must be added to the
fare amount collected from the passenger and shown on the
Priceline Ticket.
4. Subject to Paragraph III, upon locating an unpublished fare with
inventory availability satisfying a Priceline customer's ticket
request, Priceline shall immediately ticket the customer's ticket
price against a valid credit card provided by the Priceline
customer.
5. In all Priceline Ticket transactions, Priceline will be the
merchant of record and will pay all associated merchant credit
card fees. All Priceline Tickets sold on Airline will be settled
through Airline Reporting Corporation ("ARC").
6. All Priceline Tickets of Airline issued through the Priceline
Service will be issued by Priceline using Agency ARC: 00-00000-0.
In collecting payment for Priceline Tickets, Priceline will act
as the agent of Airline pursuant to Agent's ARC Agent Reporting
Agreement with ARC.
7. Unless otherwise directed by a Priceline customer, all Priceline
Tickets issued on Airline will be issued electronically. After
issuance, Priceline will promptly forward to the customer a
receipt of proof of purchase, conditions of carriage on Airline
and a copy of the Restrictions (including any additional
restrictions imposed by Airline). In the event a Priceline
customer requests Airline to provide a separate electronic ticket
receipt for an electronic ticket, the price shown on Airline's
receipt will reflect that such ticket is a "bulk" electronic
ticket.
8. Priceline will encourage its customers to accept electronic
ticketing for all Priceline Ticket requests by imposing an
additional charge for the issuance of paper tickets and
maintaining the issuance of electronic tickets as the default
option on the Priceline Service.
9. Subject to the provisions of Paragraph II.5 above, all Priceline
paper tickets for carriage on Airline will be issued by Priceline
on standard ARC traffic documents and will be validated with
Airline's validation in accordance with ARC requirements. The
passenger coupon will show "bulk" for the fare amount and will
include all additional collections noted in Paragraph II.3 above.
The auditor's coupon will show the Airline's unpublished fare
authorized for Priceline.
10. In the event that Priceline is unable to fulfill an airline
ticket request from unpublished fares and seat inventory provided
from Participating Carriers in a manner not inconsistent with
this Agreement, Priceline reserves the right to sell tickets on
Airline using published fares used by travel agents generally as
reflected in CRSs, in accordance with the rules and conditions
associated with such fares and in accordance with an allocation
method that allocates such purchases in proportion to the
aggregate domestic or international market share (as applicable)
offered by each Participating Carrier in the O&D requested;
provided that the Participating Carrier has seats available for
sale at the published fares comparable to the published fares
available from other Participating Carriers in such O&D.
11. [**]
[**]
III. Priceline Ticket Allocation Methodology
Priceline will maintain an allocation methodology that determines when
participating airlines will be given the first opportunity to fill a
customer ticket request. Priceline will provide a first-look allocation
system whereby each Participating Carrier will be allocated first-looks for
each O&D's in proportion to its natural market share of all Participation
Carriers for such O&D's, as determine by a standard industry QSI
calculation. Airline acknowledges Delta Airlines' preexisting "first look"
advantage and agrees to participate in the Priceline Service on an interim
basis with Delta's "first look" allocation advantage. Priceline agrees to
negotiate expeditiously and in good faith with Delta to remove this first
look advantage relative to Airline. Priceline will notify Airline promptly
when the first look allocation advantage has been removed. Thereafter, in
no case will another Participating Carrier be given a first-look bias over
Airline. Priceline shall use its best efforts to establish a methodology,
acceptable to Airline, whereby Airline may indicate which flight to use to
fulfill a customer's request in the event that more than one flight (e.g.,
different departure times or different stops or connections) satisfies a
Priceline customer's request. Priceline agrees to fulfill all Priceline
first look ticket requests allocable to Airline at the "Highest Qualifying
Fare" available from Airline. In the interim period where Delta maintains
its first look advantage, carrier will receive second looks based upon O+D
QSI share and fulfillment at the "highest qualifying fare". As used herein,
the term "Highest Qualifying Fare" means the highest priced Airline
unpublished fare meeting the Priceline customer's offer price and other
terms, plus the amount of Priceline's minimum ticket margin, as established
from time to time by Priceline and notified to Airline. Once a first look
"level playing field" has been achieved, Priceline will allocate "second
through nth looks" in its sole discretion; provided, however, that
Priceline will not agree to provide any |Participating Carrier which has a
"level playing field" in the first look allocation system with an advantage
over the Airline in the second look allocation system; and provided
further, however, that Airline's contractual position with respect to
second looks shall be no less favorable than the contractual position of Delta.
IV. Priceline Customer Service
1. Priceline will provide twenty-four hour customer support services
to all Priceline customers through a toll-free number at the
customer support center designated by Priceline from time to
time. The customer support center will be adequately staffed with
personnel trained to take Priceline Ticket requests by phone and
respond to all customer inquiries for related service and
support.
2. Priceline will use commercially reasonable efforts to ensure that
its customer service representatives provide quality customer
service and support to Priceline customers in a prompt, reliable
and courteous manner.
3. Priceline will respond to Priceline customer questions and issues
pertaining to special handling requirements for Priceline Tickets
including processing any special customer handling requirements
in respect of Priceline Tickets issued on Airline.
4. The ticket Restrictions will apply to all tickets issued through
the Priceline Service on Airline. Airline may waive, at its own
cost and expense, one or more of the Restrictions set forth in
Paragraphs I.2 (a)-(f) pursuant to a direct arrangement made by
Airline with the applicable customer holding a Priceline Ticket.
On an exception basis where necessary or appropriate to address
an escalating customer service issue of any individual customer,
Priceline may refund the price of a Priceline Ticket applicable
to such customer. At Airlines' request, Priceline shall provide
Airline with a monthly report detailing the number and amount of
refunded Priceline Tickets involving air transportation services
on Airline. Priceline and Airline will jointly develop the
guidelines upon which such exception refunds will be governed.
V. Confidentiality
1. Priceline and Airline will each hold in confidence and, without
the prior written consent of the other, will not reproduce,
distribute, transmit, transfer or disclose, directly or
indirectly, in any form, by any means or for any purpose, any
Confidential Information of the other party. As used herein, the
term "Confidential Information" shall mean this Agreement and its
subject matter, and proprietary information that is provided to
or obtained from one party to the other party including any
information which derives economic value, actual or potential,
from not being generally known to, and not generally
ascertainable by proper means by, other persons, including the
unpublished fares provided by Airline to Priceline pursuant to
this Agreement. The recipient of Confidential Information may
only disclose such information to its employees on a need-to-know
basis.
2. The obligations of a recipient party with respect to Confidential
Information shall remain in effect during and after the term of
this Agreement (including any renewals or extensions hereof) and
for a period of one (1) year thereafter, except to the extent
such data:
(a) is or becomes generally available to the public other than
as a result of a disclosure by the recipient, or its
directors, officers, employees, agents or advisors;
(b) becomes available to the recipient on a non-confidential
basis from a source other than the disclosing party or its
affiliated companies, provided that such source is not bound
by any confidentiality obligations to the disclosing party
or its affiliated companies (as applicable);
(c) is necessary to comply with applicable law or the order or
other legal process of any court, governmental or similar
authority having jurisdiction over the recipient. Both
parties hereto acknowledges that the other party may be
required to file this Agreement with the Securities and
Exchange Commission ("SEC"), as required by federal
securities laws, and that such filing shall not be deemed a
violation of the provisions of this Article V; provided,
that either party may request confidential treatment of
provisions of this Agreement; or
(d) was in the possession of the recipient party prior to the
date of disclosure by the other party, as shown by written
records of the recipient party; provided, however, that both
parties acknowledge and confirm that they began exchanging
data on April 1, 1998.
3. Except as otherwise specifically provided in Section 2(c) of this
Paragraph V with respect to either party's filing requirements
with the SEC, in the event that the recipient becomes legally
compelled to disclose any of such Confidential Information by any
governmental body or court, recipient will provide the disclosing
party with prompt notice so that the disclosing party may seek a
protective order or other appropriate remedy and/or waive
compliance (in writing) with the provisions hereof. In the event
that such protective order or other remedy is not obtained, or
the disclosing party waives (in writing) compliance with the
provisions hereof, recipient will furnish only that portion of
such Confidential Material which is legally required and will
exercise its reasonable business efforts to obtain appropriate
assurance that confidential treatment will be accorded such
Confidential Information
4. The recipient of Confidential Information will exercise
reasonable commercial care in protecting the confidentiality of
the other party's Confidential Information.
5. Priceline will not disclose (including, without limitation, by
sale) to any third party information obtained through the
Priceline Service or otherwise concerning a customer who has
acquired a ticket on Airline using the Priceline Service.
6. Nothing contained herein shall be construed to prevent Airline
from competing, directly or indirectly, with Priceline. Priceline
shall not provide any Confidential Information to Airline that
would in any way prohibit or inhibit such competition.
7. Priceline will not identify Airline's participation in the
Priceline Service until a customer is booked and confirmed for
ticketing. Furthermore, Priceline will not, in any media
(including its Internet site), indicate that Airline is
participating or has participated in the Priceline Service except
to indicate that as a consumer proposition, a Priceline customer
must accept a routing on one of the major U.S. full service
airlines or, in the case of international travel, other airline
carriers available through the Priceline Service. Except as set
forth above, Priceline will not disclose Airline's participating
in the Priceline Service without Airline's prior consent. Airline
will not disclose its participation in the Priceline Service
without Priceline's prior consent. Notwithstanding the forgoing,
Priceline may identify Airline as one of its Participating
Carriers in its public filings with the SEC.
VI. Proprietary Marks
During the term of this Agreement neither Priceline nor Airline shall
use the other party's trademarks, trade names, service marks, logos,
emblems, symbols or other brand identifiers in advertising or
marketing materials, unless it has obtained the prior written
approval of the other party. The consent required by this Paragraph
VI shall extend to the content of the specific advertising or
marketing items as well as the placement and prominence of the
applicable trademark, trade name, service xxxx, logo, emblem, symbol
or other brand identifier of the other party. Priceline or Airline,
as applicable, shall cause the withholding, discontinuance, recall or
cancellation, as appropriate, of any advertising or promotional
material not approved in writing by the other party, that differs
significantly from that approved by the other party, or that is put to
a use or used in a media not approved by the other party.
VII. Reporting
Priceline will provide monthly reports in a format designated by
Airline summarizing (i) information concerning each ticket issued by
Priceline on Airline; (ii) aggregate information (i.e. non airline
specific) for all tickets issued by Priceline in each O&D that
Airline participates; and (iii) aggregate information for all
Priceline offers from customers not ticketed in each O&D that Airline
participates.
Priceline will provide to Airline an annual statement by Priceline's
independent accounting firm or other qualified third-party concerning
Priceline's compliance with the ticket allocation methodology
specified in Paragraph III and all reporting obligations required by
this Agreement.
Airline may, upon reasonable notice to Priceline and during normal
business hours, audit the financial books and records of Priceline
and the information specified in Paragraphs VII 1 and 2. Any such
audit shall be at the sole cost and expense of Airline and shall be
conducted in a manner that does not unduly disrupt or interfere with
the normal business operations of Priceline.
VIII. Term of Agreement
1. Subject to the provisions of this Paragraph VIII, this Agreement
will commence on the date set forth on the first page of this
Agreement (the "Commencement Date") and will continue for a
period of five (5) years thereafter. Notwithstanding the
foregoing, (i) Airline may terminate this Agreement with or
without cause on 30 days' prior written notice to Priceline, and
(ii) Priceline may terminate this Agreement on 30 day's prior
written notice to Airline if, at any time, Airline voluntarily
participates in another name-your-price airline ticket service
other than the Company's and its affiliates' airline ticket
services or makes any public disparaging statements regarding
Priceline or its services.
2. The obligations of the parties under Paragraph V of this
Agreement shall survive for the period specified in Section 2 of
Paragraph V, and the obligations of the parties under Paragraph
IX of this Agreement shall indefinitely survive the termination
of this Agreement.
3. In the event of written notice of termination of this Agreement
in accordance with the terms of this Paragraph VIII, all
Priceline Tickets issued on Airline prior to the effective date
of termination specified in such notice will be honored by
Airline under the terms of this Agreement.
IX. Indemnification
1. Priceline will indemnify, defend and hold harmless Airline, its
officers, directors, employees and agents, from and against all
damages, losses and causes of action including, without
limitation, damage to property or bodily injury, to the extent
caused by Priceline's breach of this Agreement or the ARC Agent
Reporting Agreement, or by the negligence or willful acts or
omissions of Priceline or any of its employees or agents.
Additionally, Priceline will indemnify, defend and hold harmless
Airline, its officers, directors, employees and agents from and
against all liabilities for federal transportation tax (including
interest and penalties), if any, payable on amounts collected by
Priceline on tickets issued for travel on Airline in excess of
amounts paid by Priceline to Airline in respect to such tickets.
2. Airline will indemnify, defend and hold harmless Priceline and
its officers, directors, employees and agents from and against
all damages, losses and causes of action including, without
limitation, damage to property or bodily injury, to the extent
caused by Airline's breach of this Agreement or by the negligence
or willful acts or omissions of Airline or any of its employees
or agents.
X. No Exclusivity
The relationship by and between Airline and Priceline as set forth in
this Agreement shall be non-exclusive. As such, Airline may
participate in other programs similar to the Priceline Service or in
any line of business.
XI. Representations and Warranties
1. Priceline represents and warrants to Airline that (i) Priceline
has obtained all consents and approvals necessary for Priceline
to execute and deliver this Agreement and to perform its
obligations hereunder, (ii) Priceline's execution and delivery of
this Agreement and its performance of its obligations hereunder
does not violate any provision of its charter or bylaws or any
agreement to which Priceline is a party or is bound, and (iii)
Airline's participation in the Priceline Service will not be
restricted as to any O&D serviced through the Priceline Service
other than restrictions, if any, imposed by Airline or regulators
to which Airline is subject.
2. Airline represents and warrants to Priceline that (i) Airline has
obtained all consents and approvals necessary for Airline to
execute and deliver this Agreement and to perform its obligations
hereunder and (ii) Airline's execution and delivery of this
Agreement and its performance of its obligations hereunder does
not violate any provision of its charter or bylaws or any
agreement to which Airline is a party or is bound.
XII. General Provisions
1. No waiver or breach of any of the provisions of this Agreement
shall be construed as a waiver of any other breach of the same
or any other
provision.
2. If any paragraph, sentence or clause of this Agreement shall be
adjudged illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the legality,
validity or enforceability of this Agreement as a whole or of any
paragraph, sentence or clause hereof not so adjudged.
3. Any notice required or permitted hereunder shall be deemed
sufficient if given in writing and delivered personally, by
facsimile transmission, by reputable overnight courier service or
United States mail, postage prepaid return receipt requested, to
the addresses shown below or to such other addresses as are
specified by similar notice, and shall be deemed received upon
personal delivery, upon confirmed facsimile receipt, two (2) days
following deposit with such courier service, or three (3) days
from deposit in the United States mails, in each case as herein
provided:
If to Priceline: If to Airline:
Xxxxxxxxx.xxx Incorporated United Air Lines, Inc.
Five High Ridge Park 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxx Xxxxx Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxx Attention: Xxxxx Xxxxxx
Chief Financial Officer Vice President - Revenue
Management
Phone: (000)-000-0000 Phone: 000-000-0000
Fax: (000)-000-0000 Fax: 000-000-0000
With a copy to: With a copy to:
Xxxxxxxxx.xxx Incorporated United Air Lines, Inc.
Five High Ridge Park 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000 Xxx Xxxxx Xxxxxxxx, XX 00000
Attention: Xxxxxxx X. Attention: Xxxx Xxxxx
Brier General Counsel
Phone: (000)-000-0000 Phone: 000-000-0000
Fax: (000)-000-0000 Fax: 000-000-0000
A party may change its address and the name of its designated
recipient of copies of notices for purposes of this Agreement
by giving the other parties written notice of the new name and
the address, phone and facsimile number of its designated
recipient in accordance with this Paragraph XII(3).
4. This Agreement supersedes and replaces all previous understandings
or agreement, whether oral or in any written form, with respect to
the subject matter addressed herein. The captions in this
Agreement are for convenience only and do not alter any terms of
this Agreement.
5. This Agreement may be amended or modified only by a written
amendment executed by the parties.
6. The formation, construction, performance and validity of
this Agreement shall be governed by the internal laws of the
State of New York. Each party agrees that any civil suit or
action brought against it as a result of any of its
obligations under this Agreement may be brought against it
either in the state or federal courts of the principal place
of business of either party, and each party hereby
irrevocably submits to the jurisdiction of such courts and
irrevocably waives, to the fullest extent permitted by law,
any objections that it may now or hereafter have to the
laying of the venue of such civil suit or action and any
claim that such civil suit or action has been brought in an
inconvenient forum, and each party further agrees that final
judgment in any such civil suit or action shall be
conclusive and binding upon it and shall be enforceable
against it by suit upon such judgment in any court of
competent jurisdiction.
7. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and together, shall
constitute one and the same instrument. Execution may be
effected by delivery of facsimiles of signature pages (and
the parties shall follow such delivery by prompt delivery of
originals of such pages).
8. No party will in any manner or by any device, either
directly or indirectly, act in violation of any applicable
law, governmental order or regulation, including, but not
limited to, those concerning advertisement of air
transportation services. Priceline shall comply at all times
with the provisions of Airline's tariffs (except where such
tariffs are specifically amended by Airline under the terms
of this Agreement) and the terms of the ARC Agent Reporting
Agreement and any addenda thereto.
9. Priceline agrees to notify Airline promptly, in writing, in
the event there is a change of control in the ownership of
Priceline. For purposes of this Agreement, a "change of
control" means (i) the acquisition by any other person or
group (within the meaning of Section 13(d)(3) of the
Securities Exchange Act (except an employee group of such
party, any of its subsidiaries or a holding company of such
party)), of the beneficial ownership of securities
representing 20% or more of the combined voting power of the
securities entitled to vote generally in the election of the
board of directors of the applicable party, or (ii) the
sale, mortgage, lease or other transfer of assets or earning
power constituting more than 50% of the assets or earning
power of such party (other than ordinary course financing);
provided that in no event shall a "change of control" be
defined to include (i) an initial public offering of shares
of the party's capital stock, (ii) the formation by a party
of a holding company, or (iii) an intra-corporate
transaction with a company under common control with a
party.
10. No party hereto shall assign or transfer or permit the
assignment or transfer of this Agreement without the prior
written consent of the other party.
11. This Agreement shall not be deemed to create any partnership
or joint venture between Airline and Priceline, or to create
any rights in favor of any person or entity other than the
parties hereto. This Agreement is for the sole benefit of
the parties and nothing herein expressed or implied shall
give or be construed to give any other person any legal or
equitable rights hereunder
12. NO PARTY WILL BE LIABLE TO THE OTHER FOR ANY OF THE OTHER
PARTY'S INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST
REVENUES, LOST PROFITS, OR LOST PROSPECTIVE ECONOMIC
ADVANTAGE, ARISING FROM THIS AGREEMENT OR ANY BREACH HEREOF.
13. THE PARTIES AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR IN THE
EVENT ANY PROVISION OF PARAGRAPH V AND PARAGRAPH VI OF THIS
AGREEMENT IS NOT PERFORMED IN ACCORDANCE WITH THE TERMS
THEREOF AND THAT THE PARTIES SHALL BE ENTITLED TO AN
INJUNCTION OR INJUNCTIONS TO PREVENT BREACHES OF SUCH
PROVISIONS AND TO ENFORCE SPECIFICALLY THE TERMS THEREOF.
14. Each party has participated in the negotiation and drafting
of this Agreement. In the event any ambiguity or question of
intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the parties, and no
presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date indicated above.
XXXXXXXXX.XXX INCORPORATED UNITED AIR LINES, INC.
By:_____________________________ By:____________________________
Name: Name:
Title: Title:
[**]=Confidential Treatment requested for redacted portion
