EX-10.10 2 dex1010.htm AMENDED AND RESTATED PROMOTION AGREEMENT CONFIDENTIAL TREATMENT AMENDED AND RESTATED PROMOTION AGREEMENT
Exhibit 10.10
CONFIDENTIAL TREATMENT
AMENDED AND RESTATED
This AMENDED AND RESTATED PROMOTION AGREEMENT (this “Agreement”) is dated as of April 23, 2009, and effective January 1, 2009 (the “Effective Date”) by and between Kayak Software Corp. (“Kayak”), a Delaware corporation with offices at 00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0, Xxxxxxx, Xxxxxxxxxxx 00000, and Orbitz Worldwide, LLC (“Orbitz”), a Delaware corporation with offices at 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, XX 00000.
WHEREAS, Orbitz and Kayak were parties to that certain Promotion Agreement, dated as of July 19, 2007 (“July 2007 Agreement”);
WHEREAS, This Agreement supercedes all previous Promotion Agreements (including, without limitation, the July 2007 Agreement) and Amendments to Promotional Agreement between Kayak and any of Orbitz or Orbitz’s Affiliates, including TDS Operations, Inc.
1. | Definitions. |
1.1 | “30-Day Look Back Tracking” means a mechanism that credits Kayak for Orbitz Bookings which occur within 30 days after a User clicked on a Result (and on the User’s first return visit to an Orbitz Site following a Click, as long as Kayak was the last pay-for-performance listing (including Orbitz’s email marketing as a pay-for- performance listing) through which the User navigated to an Orbitz Site. |
1.2 | “Affiliate” means any company or other entity worldwide, including without limitation corporations, partnerships, joint ventures, and limited liability companies, in which Kayak, Orbitz or a third party, as applicable, directly or indirectly holds at least a 50 percent ownership, equity, or financial interest or that is controlled, controls or is under common control with such party. |
1.3 | “Click” means each activity by a User on a Kayak Site or from the Kayak Service that results in a visit to an Orbitz Site. |
1.4 | “Dynamic Packaging” means a combination of two or more travel-related services (e.g. hotel accommodations, car rental), at least two of which must be an air, car or hotel booking, for which a customer is quoted a single price, and which is created in real-time in response to a query for specific travel dates and city pair. |
1.5 | “Ebookers Booking” means when a Click results in the purchase of a travel or travel-related product or service through an Ebookers Site. By way of example, the purchase of air travel would result in a passenger name record (“PNR”). |
1.6 | “Ebookers Site(s)” means each of the following European-targeted Online Travel Agencies owned or operated by or on behalf of Orbitz: xxx.xxxxx.xx, xxx.xxxxx.xx, xxx.xxxxxxxx.xxx, xxx.xxxxxxxx.xx, xxx.xxxxxxxx.xx, xxx.xxxxxxxx.xx, xxx.xxxxxxxx.xx, xxx.xxxxxxxx.xx, xxx.xxxxxxxx.xx, xxx.xxxxxxxx.xx, and xxx.xxxxxxxx.xx, including any subdomains or successors of any of the foregoing, as accessed by any medium or means now known or hereafter developed, including without limitation, wireless, broadband and handheld devices. For clarity, the Orbitz Domestic Online Travel Agency websites (and any sub-domains thereof) shall not be considered “Ebookers Sites”. |
1.7 | “Ebookers Transaction” means each airline ticket, hotel room, car rental booking, or vacation package booked as a result of a click from an applicable Result on a Kayak European Site to an Ebookers Site. By way of example, if a click results in the purchase of two airline tickets and one hotel room booked separately, this would equal three transactions. If a click results in the purchase of a vacation package that includes two airline tickets and one hotel room, this would equal one transaction. |
1.8 | “Kayak Sites” means each of the following sites owned or operated by or on behalf of Kayak, or by any of Kayak’s Affiliates (whether current or future): xxx.xxxxx.xxx and xxx.xxxxxxxx.xxx (which are primarily intended for use by residents of the United States, including without limitation any co-branded, private labeled or |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
white-labeled versions thereof, such as the websites operated or managed for third party portal affiliates, e.g., Xxxxx.xxx, USA Today) (collectively, the “Kayak Domestic Sites”) and Kayak’s European-based websites having domain names of xxx.xxxxx.xx.xx, xxx.xx.xxxxx.xxx, xxx.xxxxx.xx, xxx.xx.xxxxx.xxx, xxx.xxxxx.xx, xxx.xxxxx.xx, xxx.xx.xxxxx.xxx, and xxx.xx.xxxxx.xxx (the “Kayak European Sites”) and any subdomains or successors thereof, as accessed by any medium or means now known or hereafter developed, including without limitation, wireless, broadband and handheld devices. |
1.9 | “Kayak Service” means Kayak’s software and hardware that facilitate User search, comparison and purchase activities by enabling Queries and generating Results at the Kayak Sites, including any future travel-related functionality and enhancements to the Kayak Sites. |
1.10 | “Kayak Brand Features” means all trademarks, service marks, logos and other distinctive brand features of Kayak and/or its Affiliates that are used in or relate to their business and which are set forth in Exhibit D. |
1.11 | “Major Air Suppliers” means American Airlines Inc., Continental Airlines Inc., Delta Air Lines Inc., Northwest Airlines Inc., United Airlines Inc., and US Airways Inc., and any successors or Affiliates thereto, as long as these entities operate a material portion of their U.S. flights existing as of the Effective Date and participate directly in the Kayak Service (unless such entity’s lack of direct participation is the result of Kayak’s election not to have such entity participate). |
1.12 | “Major Hotel Chains” means Hilton Hotels Corp., Hyatt Corp., Intercontinental Hotels Group PLC, Marriott International Inc., Starwood Hotels and Resorts Worldwide Inc., and Wyndham Worldwide, and any successors or Affiliates thereto, as long as such entity participates directly in the Kayak Service (unless such entity’s lack of direct participation is the result of Kayak’s election not to have such entity participate). |
1.13 | “Named Online Travel Agency” means []*, and any of their affiliated companies, with the exception of []*, an affiliated company of []*. |
1.14 | Net Revenue |
(A) | “Net Revenue for Orbitz Domestic Online Travel Agencies” means, []*. |
(B) | “Estimated Net Revenue for Ebookers Sites” means, []*. |
(C) | “Net Revenue for Ebookers Sites” means, []*. |
1.15 | “Online Travel Agency” means any entity that is primarily engaged in the online provision of reservation services on behalf of an unaffiliated Supplier and is accredited by the Airlines Reporting Corporation (or any like organization performing similar functions with respect to travel agencies and their distribution of air, lodging or rental car reservations). Without limiting the following and their successors and Affiliates are deemed to be Online Travel Agencies: Priceline, Travelweb, Travelocity, Expedia, OneTravel, Xxxxxx.xxx, TravelNow, Hotwire. Xxxxxxxxxx.xxx, Mobissimo, Last Minute Travel, Xxxxxxxxxx.xxx, MSN Travel, Yahoo Travel, AOL Travel and (to the extent Google launches such a service) Google Travel, Opodo, Travelrepublic, edreams, First Choice, Go Voyages, xxxxxxxxxxxx.xx and Urlaub |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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1.16 | “Orbitz Booking” means when a Click results in the purchase of a travel, or travel-related, product or service through an Orbitz Site. By way of clarification, the purchase of air travel would result in a passenger name record (“PNR”). |
1.17 | “Orbitz Brand Features” means all trademarks, service marks, logos and other distinctive brand features of Orbitz or its Affiliates that are used in or relate to such party’s business, including without limitation those listed in Exhibit A. |
1.18 | “Orbitz Content” means, to the extent permitted by Orbitz’ Suppliers, Travel Data provided by, or available on, Orbitz Sites, including availability, schedule, destination, price, travel provider brand features (e.g. name and logo), aircraft type and room type. |
1.19 | “Orbitz Domestic Online Travel Agency” means any or all U.S. targeted Online Travel Agencies owned or operated by or on behalf of Orbitz. For clarity, the Ebookers Sites (and any sub-domains thereof) shall not be considered an “Orbitz Domestic Online Travel Agency”. |
1.20 | “Orbitz Domestic Transaction” means each airline ticket, hotel room, car rental booking, vacation package or cruise cabin booked as a result of a click from an applicable Result on a Kayak Site to an Orbitz Domestic Online Travel Agency web site. By way of example, if a click results in the purchase of two airline tickets and one hotel room booked separately, this would equal three transactions. If a click results in the purchase of a vacation package that includes two airline tickets and one hotel room, this would equal one transaction. |
1.26 | “Orbitz Site(s)” means the web sites located at xxxXxxxxx.xxx, xxx.XxxxxXxxxxxx.xxx or one or more additional Orbitz Domestic Online Travel Agencies as mutually agreed by the parties, and the Ebookers Sites, including any subdomains or successors of any of the foregoing, as accessed by any medium or means now known or hereafter developed, including without limitation, wireless, broadband and handheld devices. Upon 30 days’ prior written notice from Orbitz to Kayak, the list of Orbitz Sites may be expanded to include additional Orbitz Domestic Online Travel Agency web sites owned or operated by Orbitz and primarily intended for use by consumers booking travel and travel-related products and services. For clarity, the addition of any Ebookers Sites shall be made only by mutual agreement of the parties. |
1.27 | “Orbitz User Information” means the service tag, customer ID (assigned by Orbitz), booking date, PNR ID, passenger names, itinerary price, currency code, number of air segments, airline name, number of car segments, car rental company, number of hotel segments, hotel name, check-in date, origin, destination, departure date and arrival date (including any updates and corrections thereto) assigned by Orbitz to, collected by Orbitz from or provided to Orbitz by users of the Orbitz Sites (including Users). |
1.21 | “Query” means a request for Travel Data submitted by a User. |
1.22 | “Query-to-Bookings Ratio” means the ratio between the number of Queries submitted to each Orbitz Site by the Kayak Service across all paths (air, car, hotel, etc.) and the number of Orbitz Bookings generated by the resulting Clicks on such Orbitz Site. |
1.23 | “Result” means the Travel Data provided by the Kayak Service in response to a Query which consists of one or more specific itineraries. For clarification, an advertisement which does not provide a specific itinerary related to a Query (e.g., banner ads and sponsored text links) is not a Result. |
1.24 | “Screen Scraping” means capturing Travel Data through an automated means (such as a computer program). |
1.25 | “Supplier” means any entity that is primarily engaged in the supply and direct sale of travel and travel-related products and services (e.g., air carriers, hotel chains, car rental companies, cruise lines). |
1.28 | “Term” means the period from the Effective Date until this Agreement expires or is terminated pursuant to its terms. |
1.29 | “Travel Data” means prices, availability, schedules, images, descriptions, locations and other relevant data provided in conjunction with the sale of travel and travel-related products and services. |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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1.30 | “User” means an individual or entity that accesses the Kayak Sites or uses the Kayak Service to view Travel Data or otherwise research travel and travel-related products and services. |
1.31 | “XML Data Feed” means a data feed provided in XML format. |
2. | Kayak Rights and Responsibilities. |
2.1 | Inclusion of Orbitz Content and Link to Orbitz Site in Results. Kayak will include Orbitz Content relevant to a Query in the Results of such Query on all Kayak Sites. Kayak will incorporate into any Result displaying Orbitz Content a hyperlink to the Orbitz Sites from which such Orbitz Content was obtained. The parties will cooperate to determine the landing page to which Users are transferred on the Orbitz Sites to maximize the likelihood of sale of travel and travel-related products and services via the Orbitz Site. Kayak shall not permit any Orbitz Content, or any Results derived in whole or in part from Orbitz Content, to link to any web site other than the relevant Orbitz Sites, excluding data derived from the Query, provided, however, that, solely to the extent Orbitz’ contract(s) with third-party provider(s) of such content so permit, and that Orbitz does not incur an additional charge for distributing such content. Orbitz Content specifically consisting of descriptive hotel data (hotel name, location, neighborhood, star rating, text description, amenity list, and static pictures), may be displayed on pages which contain links to other web sites and further provided that descriptive hotel data is attributed to Orbitz and links to the applicable Orbitz Site where appropriate. For purposes of clarification, clicks on the foregoing links qualify as Clicks. Kayak will not materially modify any Orbitz Content, but is under no obligation to display data in its entirety provided, however, that any incomplete display of Orbitz Content shall not disadvantage an Orbitz Site as compared to any non-Orbitz Result, nor shall it compromise Orbitz brand integrity. |
2.2 | Display of Travel Data. []*. |
2.3 | Sponsored Hotel Placement. Kayak will display an Orbitz only listing as the first sponsored hotel result []*. |
2.6 | Speed of Results. Kayak will use commercially reasonable efforts to ensure that Results are returned on the Kayak Site as quickly as possible. For clarification, commercially reasonable efforts include (a) processing Queries to Suppliers and Online Travel Agencies simultaneously and (b) either displaying Results on an “as- received” basis or displaying all Results simultaneously. |
2.8 | Modifications to the Kayak Sites: Enhancements to Kayak Sites. Kayak will use commercially reasonable efforts to provide Orbitz with reasonable notice prior to any known or scheduled material modifications to the Kayak Service, or any marketing or promotional events, that Kayak reasonably expects to result in a significant increase in Query volume. Kayak may from time to time offer enhancements to the functionality or services provided on the Kayak Sites. |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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2.10 | Kayak Support. Kayak will appoint a relationship manager to act as the primary point of contact between the parties with respect to this Agreement and will assign account management resources to assist in the day-to-day implementation of this Agreement and to promptly resolve technical problems having an adverse impact on the performance of the Orbitz Sites. |
3. | Orbitz Rights and Responsibilities. |
4. | Exclusivity. |
4.1 | Exclusivity. |
[]*.
4.2 | Exceptions to Exclusivity. |
[]*
5. | Payments and Reporting Obligations; Audit Right. |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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Notwithstanding the Orbitz Domestic OTA Net Revenue Share Fee indicated on Exhibit E, Orbitz shall pay Kayak a minimum average Orbitz Domestic OTA Net Revenue Share Fee of []* (“Orbitz Domestic OTA Airline Ticket Floor”). However, if such Orbitz Domestic OTA Airline Ticket Floor is []* of Orbitz’s total Net Revenue from the applicable Orbitz Transactions, Orbitz shall have the right to terminate this Agreement effective upon 60 days written prior notice to Kayak.
5.2 | No Assurances Regarding Volumes or Net Revenue. While the parties will endeavor to encourage Users to make Clicks and Bookings, neither party makes any guarantees to the other party regarding the number of Clicks or the amount of Net Revenue that will be generated by any Bookings resulting from Clicks. |
5.3 | No Charge for Access to or Inclusion of Orbitz Content. Orbitz will provide Kayak with access to the Orbitz Content as described in Section 3.1 at no charge. Kayak will include Orbitz Content in the Results as described in Section 2.1 at no charge. |
5.4 | Tracking, Reporting and Audit. |
(i) | Provide 30-Day Look Back Tracking of Bookings and associated revenue per Booking generated from Clicks; |
(ii) | Attribute Bookings to Clicks only when the Kayak Service was the last paid link (with Orbitz emails to be included as paid links) within the 30-day look back window according to the 30-Day Look Back Tracking mechanism; and |
(iii) | Function as described in Exhibit B. |
If Orbitz does not currently have a tracking mechanism which meets these requirements, then Kayak and Orbitz agree to implement a third party tracking system which to be agreed upon by both parties. Any incremental set-up or ongoing cost incurred for the implementation of a new tracking system will be shared equally between Kayak and Orbitz.
7. | Confidential Information; Publicity; No Disparagement. |
7.1 |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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third parties except to such party’s (and its Affiliates’) employees, officers, directors, consultants, accountants, investors with a confidentiality agreement, attorneys (all of the foregoing on a need-to-know basis), or except as otherwise required by law (including or in connection with a public offering of shares of stock). Each party shall use the same degree of care in connection with the other party’s confidential information as it does with its own confidential information, but in any event no less than a reasonable degree of care. Neither party shall make any public announcement regarding the existence of this Agreement without the other party’s prior written approval and consent. If this Agreement or any of its terms must be disclosed under any law, rule or regulation, the disclosing party shall (i) give written notice of the intended disclosure to the other party at least five (5) days in advance of the date of disclosure, (ii) redact portions of this Agreement to the fullest extent permitted under any applicable laws, rules and regulations, and (iii) submit a request, to be agreed upon by the other party, that such portions and other provisions of this Agreement requested by the other party receive confidential treatment under the laws, rules and regulations of the body or tribunal to which disclosure is being made or otherwise be held in the strictest confidence to the fullest extent permitted under the laws, rules or regulations of any other applicable governing body. The obligations of confidentiality set forth in this Section 7.1 shall not apply to the extent that (i) such information was known to the receiving party prior to its disclosure by the disclosing party, (ii) such information is or becomes part of the public domain through no fault of the receiving party, or (iii) such information was independently developed by the receiving party without use of or reliance on the disclosing party’s information. |
7.3 | No Disparagement. During the Term, Kayak will not disparage Orbitz and Orbitz will not disparage Kayak. |
8. | Representations and Warranties; Disclaimer of Warranties; Limitation of Liability. |
8.1 | Representations and Warranties. |
(a) Each party represents and warrants that it is (in the case of Kayak) a corporation or (in the case of Orbitz) a limited liability company duly formed in its state of formation, it has all rights to enter into this Agreement and to grants the rights herein, and it will comply with all applicable laws in connection with performing its obligations hereunder.
(b) Kayak represents and warrants that it shall not use as a domain name, as part of a domain name, as a metatag or pay for placement term or purchase or use search engine any Orbitz trademarks now or hereafter used by Orbitz or its Affiliates or other keywords which contain Orbitz trademarks or which are confusingly similar thereto, including common misspellings, including but not limited to: Orbitz, Cheaptickets, HotelClub, RatesToGo, or ebookers. Further, Kayak represents and warrants that it will not use any “spyware” or any other service that results in any of the Orbitz Sites being referenced in regard to internet searches for the Orbitz Brand Features or misdirecting users to (or from) the Orbitz Sites.
(c) Orbitz represents and warrants that it shall not use as a domain name, as part of a domain name, as a metatag or pay for placement term or purchase or use search engine any Kayak trademarks now or hereafter used by Kayak or its Affiliates or other keywords which contain Kayak trademarks or which are confusingly similar thereto, including common misspelings, including but not limited to: Kayak, SideStep or Travelpost. Further, Orbitz represents and warrants that it will not use any “spyware” or any other service that results in any of the Kayak Sites being referenced in regard to internet searches for the Kayak Brand Features or misdirecting users to (or from) the Kayak Sites.
8.2 | EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EACH PARTY AND ITS AFFILIATES (AS DEFINED IN SECTION 1.1 HEREOF) AND SUPPLIERS DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. |
8.3 | NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO (A) INDEMNITY OBLIGATIONS ARISING UNDER SECTION 9 OR (B) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, EACH PARTY’S TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED []*. NOTWITHSTANDING THE ABOVE, ANY BREACH OF SECTIONS 2.1, 2.2, 4 OR 10 OF THIS AGREEMENT SHALL INCREASE EACH PARTY’S TOTAL CUMULATIVE LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT TO []*. |
9. | Indemnification. |
10. | Term and Termination. |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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10.2 | Termination. |
(c) | Non-Exclusive Remedy. The foregoing rights of termination shall be in addition to any other legal or equitable remedies that the terminating party might have. |
11. | Ownership. |
12. | Intentionally left blank. |
13. | General Provisions. |
13.4 | Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without regard to the conflicts of laws principles thereof. |
13.5 |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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foregoing, either party may assign this Agreement to an entity that acquires all or substantially all of its stock or assets, provided that assignee assumes all of the obligations of the assignor under this Agreement; and further provided that Kayak may not assign this Agreement to an Online Travel Agency without Orbitz’ prior written consent, which Orbitz may grant or withhold at its sole discretion. |
If to Kayak: | If to Orbitz: | |
Kayak Software Corp. | Orbitz Worldwide, LLC | |
ATTN: Chief Executive Officer | ATTN: President, Chief Executive Officer | |
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0 | 000 Xxxx Xxxxxxx Xxxxxx, Xxxxx 0000 | |
Xxxxxxx, XX 00000 | Xxxxxxx, XX 00000 | |
Facsimile: 000-000-0000 | Facsimile: 000-000-0000 | |
cc: Legal Department | cc: Legal Department |
13.9 | Headings. The section headings contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement. |
13.11 | Dispute Resolution. |
(i) | Submission: Rules. Either party will be entitled to submit a Dispute to the American Arbitration Association (“AAA”) for binding arbitration in New York, New York by providing written notice to the other party and to AAA. Discovery will be conducted in accordance with Rules 26 through 36 and Rule 45 of the Federal Rules of Civil Procedure. |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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(iv) | Legal and Equitable Remedies. Neither party will be entitled to file a legal action against the other party until the arbitration is concluded, but nothing herein prohibits a party from requesting temporary injunctive relief from any court of competent jurisdiction. Either party may at any time apply to a court of competent jurisdiction for equitable relief. |
13.13 | Costs. Each party will pay its own expenses and costs incidental to the implementation of the transactions contemplated by this Agreement. |
This Promotion Agreement has been executed by the parties effective as of the Effective Date.
KAYAK SOFTWARE CORP. | ORBITZ WORLDWIDE, LLC | |||||||
By: | /s/ Xxxxx Xxxxxx | By: | /s/ Xxxxx Xxxxxx | |||||
Name: | Xxxxx Xxxxxx | Name: | Xxxxx Xxxxxx | |||||
Title: | CEO | Title: | SVP, CORP DEVP |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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Exhibit A
Orbitz Brand Features and Trademark Usage Guidelines
Orbitz Brand Features
– word xxxx and stylized logo
Cheap Tickets – word xxxx and stylized logo
Xxxxxxx.xxx – word xxxx and stylized logo
Any other xxxx (word xxxx or stylized logo) in connection with an Orbitz Site that the parties mutually agree to add to the list set forth in Section 1.23 of the Agreement
Copyrighted designs of Orbitz Sites
Slogans of Orbitz Sites
Orbitz Trademark Usage Guidelines
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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Exhibit B
Detailed Requirements for Tracking System
Tracking System Objectives: The purpose of the tracking system (“System”) is to allow for Bookings generated from Clicks to be tracked using 30-Day Look Back Tracking and otherwise in accordance with the terms of this Agreement.
Data Collection:
a. | Summary: The System will function by using URL parameters to identify sources and by using cookies to identify visitors coming from those sources. |
Data Presentation:
a. | Data Aggregation: The System aggregates all user conversion data collected through the scripting and processes it. |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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Exhibit C
Projected Query Volume
Kayak Site: |
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Product | Month 1 | Month 2 | Month 3 | |||||||||||||
Air | ||||||||||||||||
Hotel | ||||||||||||||||
Car |
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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Exhibit D
Kayak Brand Features and Trademark Usage Guidelines
Kayak Brand Features
Kayak – word xxxx and stylized logo
Kayak Network - word xxxx and stylized logo
Any other xxxx (word xxxx or stylized logo) in connection with a Kayak Site as set forth in Section 1.6 of the Agreement
Copyrighted designs of Kayak Sites
Slogans of Kayak Sites
Kayak Trademark Usage Guidelines
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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Exhibit E
Revenue Share Schedule
[]*
* | CONFIDENTIAL TREATMENT REQUESTED. OMITTED PORTIONS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. |
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