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EXHIBIT 10.11
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.
INTERACTIVE SERVICES AND EXCLUSIVE CHANNEL AGREEMENT
This Interactive Services and Exclusive Channel Agreement (this
"Agreement"), dated as of October 2, 1999, is made and entered into by and
between America Online, Inc. ("AOL"), a Delaware corporation, with its principal
offices at 00000 XXX Xxx, Xxxxxx, Xxxxxxxx 00000, Travelocity Holdings, Inc., a
Delaware corporation with its principal offices at 4200 Buckingham, MD 1310,
Xxxx Xxxxx, Xxxxx 00000 ("Travelocity" or the "Interactive Content Provider" or
"ICP") and Sabre Inc., a Delaware corporation with its principal offices at 4255
Xxxx Xxxxxx Boulevard, MD 4204, Xxxx Xxxxx, Xxxxx 00000. AOL and ICP are each
referred to herein as a "Party" and collectively as the "Parties".
INTRODUCTION
AOL and ICP each desires that AOL provide access to the ICP Internet
Site and ICP Programming (including the Res System) through the AOL Network,
subject to the terms and conditions set forth in this Agreement. Defined terms
used but not otherwise defined in this Agreement shall be as defined on Exhibit
B attached hereto.
TERMS
1. CARRIAGE
1.1 CARRIAGE AND PROMOTION. Subject to Section 2.5, beginning on the
later to occur of the Launch Date and completion of Site and
Content Preparation (as defined in Section 8.3), and continuing
during the Initial Term of this Agreement, AOL shall provide ICP
with the following, all as set forth on Exhibit A-1: (i) permanent
positioning within the Service, (ii) promotions and navigational
links to the Service from within the AOL Network, and (iii) banner
advertising and search program(s) for the Service within the AOL
Network. The matters described in the preceding sentence and on
Exhibit A-1 and any other promotions provided by AOL to ICP shall
be referred to as the "Promotions." Subject to ICP's reasonable
approval, AOL will have the right to fulfill its promotional
commitments with respect to any of the foregoing by providing ICP
comparable promotional placements in appropriate alternative areas
of the AOL Network. In addition, if AOL is unable to deliver any
particular Promotion, AOL will work with ICP to provide ICP a
comparable promotional placement. Except to the extent expressly
described herein, the exact form, placement and nature of the
Promotions shall be determined by AOL in its reasonable editorial
discretion. In this regard, ICP may reasonably object to AOL's
material changes, in which case the parties shall use good faith
efforts to modify the specific form, placement, and/or nature of
the specific Promotion in order to attempt to address and resolve
such objection. ICP shall comply with the customization and
co-branding requirements set forth in Section 6 and provide the
Content set forth in the Programming Plan (as defined below).
AOL's provision of Promotions in connection with any particular
AOL Property shall be conditioned upon ICP's substantial
compliance with the customization and co-branding requirements set
forth in Section 6 and provision of the Content set forth in the
Programming Plan for such AOL Property.
1.2 LICENSE. During the Term, ICP hereby grants AOL a non-exclusive
license to use, market, store, distribute, reproduce, display,
communicate, perform, translate, adapt, transmit and promote the
ICP Internet Site, the ICP Programming and the Licensed Content
(or any portion of any of the foregoing) through the AOL Network
as AOL may determine in its commercially reasonable discretion,
including without limitation, the right to integrate Licensed
Content on the AOL Network by creating links thereto, provided
that any such link to any such Licensed Content shall present or
contain an ICP Presence. If and to the extent ICP, in its
reasonable, good faith commercial judgment [***] to the Content
within any ICP Presence for any [***] then AOL shall, upon receipt
of notice from ICP regarding such [***] such ICP Presence within
[***] after receipt of such notice from ICP. During
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the Term, ICP also grants AOL a non-exclusive license to use,
license and sublicense any software (and all modifications and
enhancements thereto) necessary for use of the ICP Internet Site
and/or ICP Programming by AOL and/or AOL Members (the "ICP
Software"). ICP acknowledges and agrees that AOL Members worldwide
will have access to the ICP Internet Site, the ICP Programming,
the Licensed Content, and the ICP Software under the licenses
granted in this Section 1.2. During the Term, AOL Members shall
have the right to access and use the ICP Internet Site and ICP
Programming free of charge, other than standard fees and
commissions associated with the travel reservations. Subject to
such licenses, ICP retains all right, title to and interest in the
Licensed Content and the ICP Software. Notwithstanding anything to
the contrary in this Section 1.2 or elsewhere in this Agreement,
AOL shall not focus its marketing and promotional efforts in
respect of the ICP Internet Site, ICP Programming or Licensed
Content in any geographic region outside the United States and
Canada, and shall not specifically target any AOL Members or other
persons or entities as customers or users of, or visitors to, the
ICP Internet Site, ICP Programming or Licensed Content who reside
outside the United States or Canada to receive Promotions that are
designed for or targeted at geographic regions outside the United
States or Canada.
1.3 IMPRESSIONS TARGET. AOL shall provide ICP with at least [***]
Impressions during the Initial Term from ICP Presences on the AOL
Network, as set forth on Exhibit A-1 attached hereto (the
"Impressions Target"), provided that (i) only screens that contain
a link to any portion of the Service will count against the
Impressions Target and (ii) to the extent technically feasible
using AOL's then-current ad serving and measurement systems, only
[***] shall be [***] the [***]. In the event that the Impressions
Target is not met (or will not, in [***] reasonable judgment, be
met) during the Term, then AOL shall not be deemed in breach of
this Agreement, provided, that, in [***] either (a) the Initial
Term shall be extended for up to six months without additional
carriage fees (as contemplated in Section 4.1) payable by ICP
until the Impressions Target is met, and/or (b) AOL shall, within
the following six months, provide ICP with the remaining
Impressions in the form of advertising space within the AOL
Network of comparable value to the undelivered Impressions (as
reasonably determined by the parties) or (c) some combination
thereof; provided, however, that if [***] elected to proceed under
clause (a) above and the Impressions Target is not satisfied at
the end of the six month period referred to in such clause (a),
AOL's obligations under such clause (a) shall cease and AOL shall
be required to provide the remaining Impressions under clause (b)
within the following six month period, and provided, further, that
ICP may, at its option, elect to forego such additional
Impressions, in which case AOL's obligations under this Section
1.3 shall be deemed satisfied. AOL shall have the right to provide
such additional Impressions toward the Impressions Target from
time to time during the Initial Term in the form of advertising
space within the AOL Network of comparable value to the
undelivered Impressions (as reasonably determined and agreed by
the Parties).
2. PROGRAMMING; MANAGEMENT; CROSS-PROMOTION
2.1 CONTENT. The ICP Internet Site and ICP Programming shall consist
of the Content described on the programming plan attached as
Exhibit A-2 (the "Programming Plan") and shall not contain any
pointers or links to any other area on or outside the AOL Network
(including any other ICP Interactive Site), other than as
expressly described on Exhibit A-2, without AOL's prior written
consent. ICP will maintain the Core Systems and the Res System
accessible through the ICP Internet Site and ICP Programming and
will be responsible for arranging for the connection of the Res
System to the Travel Systems (through the Core Systems). Upon
AOL's reasonable request, to the extent technically and
commercially feasible, ICP shall integrate into the ICP Internet
Site and/or the ICP Programming (i) additional Content or services
provided by AOL or a third party (including Travel Suppliers, as
defined herein) including, without limitation, by integrating
additional tools, functionality, features and/or applications into
the Res System, and/or (ii) additional revenue generating
inventory or
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services, provided that ICP does not already offer commerce
inventory at such time on the ICP Internet Site or ICP Programming
that is comparable in all material respects to such additional
commerce inventory. In connection with such integration, ICP
shall, without limitation, (a) provide AOL and the applicable
third party Content or service provider, to the extent technically
and commercially feasible, with the appropriate booking modules
and other necessary technology or assistance to integrate the Res
System with the above-referenced Content, services or commerce
inventory, as applicable and (b) display, in a mutually agreed
upon format, branding and attribution for the third party provider
of any integrated Content (including Travel Suppliers). Pages
containing third party Content (including Travel Suppliers')
hosted by such third party shall display such third party's
branding as reasonably determined by AOL. ICP shall inform AOL of
relevant search terms and terminology associated with popular
areas and functionality within the ICP Internet Site and ICP
Programming for AOL's promotional and Content integration
purposes. The inclusion of any additional Content for distribution
through the AOL Network (including, without limitation, any
features, functionality or technology) not expressly described on
Exhibit A-2 shall be subject to AOL's reasonable prior written
approval.
2.2 MANAGEMENT.
(a) Management. ICP shall design, create, edit, manage, review,
update, host and maintain the ICP Internet Site, ICP
Programming and the Licensed Content in a timely and
professional manner and in accordance with the terms of
this Agreement and shall keep the Licensed Content current,
accurate and well-organized at all times. ICP shall
provide, maintain and support the ICP Software and any
hardware necessary to operate, maintain and support the ICP
Software, the ICP Internet Site and ICP Programming. Except
as specifically provided for herein, AOL shall have no
obligations of any kind with respect to the ICP Internet
Site or ICP Programming. ICP shall be responsible for
hosting, and any hosting or communication costs associated
with, the pages of the Service as described in Exhibit A-2
(including without limitation the ICP Internet Site)
including, without limitation, the costs associated with
any agreed-upon direct connections between the AOL Network
and the ICP Internet Site or ICP Programming. ICP shall
ensure that the Licensed Content within the ICP Internet
Site and ICP Programming is substantially similar in all
material respects to the Content distributed by ICP through
any other ICP Interactive Site, including, without
limitation, quality, breadth, depth, timeliness,
functionality, features, prices of products and services
and terms and conditions, except as otherwise expressly
stated on Exhibit A, and subject to any limitations imposed
by any ICP supplier (it being agreed that (i) any such
limitation may not be imposed at ICP's direction and (ii)
if an ICP supplier imposes any such limitation, ICP shall
be required to make [***] such supplier that ICP be allowed
to satisfy its obligations under this sentence (the matters
referred to in clauses (i) and (ii) of this parenthetical
being hereinafter referred to as the "ICP Supplier
Limitation Standard")); provided that any specific changes
in Content required hereby shall be subject to AOL's review
and reasonable approval and the terms of this Agreement. In
connection with the foregoing sentence, and to the extent
commercially and technically feasible, ICP shall provide
AOL with the opportunity to add any new Content developed
by ICP into the Service as soon as such Content becomes
generally available. To the extent such performance is
within ICP's direct control (e.g., including pursuant to a
relationship with an independent contractor), ICP shall use
commercially reasonable best efforts to ensure that, on
average, the ICP Internet Site and ICP Programming perform
with respect to page size, loading speed and download time,
at least equal to the performance of the remainder of the
Service. ICP's management of the ICP Internet Site and ICP
Programming (including the Res System) shall also be
subject to the obligations set forth in subsection (b)
below and Exhibits E and F, subject to limitations imposed
by ICP's suppliers and to the extent such performance is
within ICP's direct control (it being agreed that the ICP
Supplier Limitation Standard shall be satisfied).
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(b) Performance Standards. Except as provided in this Agreement
or otherwise mutually agreed, ICP shall use its
commercially reasonable best efforts to comply with the
performance standards (the "Performance Standards") set
forth in Exhibit E, including, without limitation, with
respect to the ICP Programming and ICP Internet Site, as
well as complying with AOL's then current reasonable
applicable commercial specifications and guidelines. To the
extent Performance Standards are not established for any
portion of the Licensed Content or services provided by ICP
hereunder, ICP will use its commercially reasonable best
efforts to provide such Licensed Content or perform such
services at a level of accuracy, quality, completeness, and
responsiveness which meets or exceeds prevailing industry
standards. Upon any discovery by ICP, or receipt by ICP of
written notice by AOL, of failure by ICP to meet a
Performance Standard, (a) ICP shall promptly investigate
the failure and inform AOL in writing of such failure and
the "root causes" thereof (to the extent they can be
determined) no later than five (5) business days after ICP
discovers the failure or receives such written notice by
AOL, (b) ICP shall develop an action plan for remedying the
failure within five (5) business days thereafter with
consultation from AOL, and (c) within thirty (30) days of
development of such action plan, ICP shall fully institute
such plan and reach compliance with the applicable
Performance Standard. In the event ICP has not complied
with the Performance Standard at the end of such 30-day
period, then upon written notice to ICP, AOL may (in
addition to any other available remedies) decrease or cease
the promotion, exclusivity and/or other commitments AOL
provides to ICP hereunder, in which event AOL will be
relieved of the proportionate amount of any promotional
commitment made to ICP by AOL hereunder corresponding to
such decrease in promotion and all revenue threshold(s) set
forth in Section 4 will each be adjusted proportionately to
correspond to any decrease in promotion and other
obligations. AOL may, in its sole but reasonable
discretion, enter into agreements with third parties to
provide products or services sufficient to cure ICP's
failure to comply with the Performance Standards, provided
that AOL shall [***]: (i) so that any such substitute or
replacement products or services are [***] to cure ICP's
failure to comply with such Performance Standard and (ii)
to ensure that the term of any such agreement shall be as
[***] to the [***] that ICP and AOL shall mutually agree in
good faith will be [***] remedy ICP's failure to comply
with the Performance Standards; and provided, further, that
where ICP's failure to comply with such Performance
Standard materially and negatively impacts the AOL Member
experience, then AOL may take any such action with respect
to cessation or reduction of the promotion or distribution
of the ICP Internet Site and/or ICP Programming referred to
in the preceding sentence at any time prior to or after the
expiration of such 30-day period until such noncompliance
is corrected. In addition, if ICP fails to comply with any
material term of this Agreement other than a Performance
Standard, including without limitation ICP's promotional
obligations under Section 2.4, then upon written notice to
ICP, AOL will have the right (in addition to any other
available remedies) to decrease or cease the promotion or
any other contractual obligations of AOL hereunder until
such time as ICP corrects its non-compliance, in which
event during such period of non-compliance AOL will be
relieved of the proportionate amount of any promotional
commitment made to ICP by AOL hereunder directly
corresponding to such decrease in promotion and the
relevant revenue threshold(s) set forth in Section 4 will,
as appropriate, be adjusted proportionately to correspond
to any decrease in promotion and other obligations during
such period of non-compliance. Notwithstanding the
foregoing, if Performance Standards or other ICP
obligations are not met by ICP because of (a) breaches by
AOL of its obligations under this Agreement; (b) conditions
in the AOL Network for which ICP is not responsible and has
expended commercially reasonable efforts to address; or (c)
a Force Majeure Event, then such non-compliance shall not
be deemed a Dispute and ICP shall be excused from the
Performance Standards or such other ICP obligations for as
long as such condition exists
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(provided, however, that in the case of a Force Majeure
Event, AOL will have its rights set forth in the two
preceding sentences).
(c) Management Team. The Parties shall designate a management
team comprised of representatives from ICP and AOL to
implement the ICP Internet Site and ICP Programming on the
AOL Network, develop annual design and implementation
plans, and determine annual budgets therefor. In addition,
the management team will work to maximize revenue
(including Advertising Revenue and Commissions) by
coordinating advertising sales programs. Each of ICP and
AOL will specifically evaluate its respective
representatives on the management team and compare their
performance to the performance of the Parties objectives
(i.e., maximizing Advertising Revenues and Commissions). In
addition, a steering committee made up of one executive of
ICP and one executive of AOL will oversee the management
team and will approve annual designs and budgets, and will
be responsible for addressing issues arising out of the
management team.
2.3 LOWEST PRICE COMMITMENT; SPECIAL OFFERS. ICP shall ensure that the
prices for Products offered to AOL Members through the ICP
Internet Site and ICP Programming do not exceed prices for
substantially similar Products offered by or on behalf of ICP
through any other ICP Interactive Site, and all products and
services offered on any ICP Interactive Site shall be made
available to AOL Members as Products hereunder, where technically
feasible; provided, however, that the foregoing commitments are
subject to the limitations imposed by ICP's suppliers (it being
agreed that the ICP Supplier Limitation Standard shall be
satisfied). In addition, ICP shall, at all times, promote through
the ICP Internet Site and ICP Programming at least one exclusive
special offer to AOL Members (the "Special Offers"). The Special
Offers made available by ICP to AOL Members shall provide a
meaningful member benefit to AOL Members, such as discounted
fares, free upgrades or other price discounts, product
enhancements, unique service benefits or other special features.
ICP shall provide AOL with reasonable prior notice of Special
Offers so that AOL can market the availability of such Special
Offers in the manner AOL deems appropriate in its editorial
discretion. ICP and AOL will regularly work together to create
other effective and mutually agreeable promotions for AOL Members.
AOL may negotiate special and promotional offers to be made to AOL
Members by third parties (other than ICP Competitors) and ICP
shall use commercially reasonable best efforts to implement and
integrate into the ICP Internet Site and ICP Programming any
special or promotional offers made by such third parties to AOL
Members, including by using commercially reasonable best efforts
to permit such third party offers to be booked through the Res
System, to the extent applicable and provided that ICP receives a
commission for such services at its standard percentage rates
based on the actual price charged for such offer. At AOL's
reasonable request, the reservations main pages within the ICP
Internet Site and ICP Programming shall incorporate a "bargains"
or "specials" link that links to an area promoting all special and
promotional offers within the Service by ICP, AOL and/or such
third parties.
2.4. CROSS-PROMOTION.
2.4.1. COOPERATION. Each Party shall cooperate with and reasonably
assist the other Party in supplying material for marketing
and promotional activities in connection with this
Agreement.
2.4.2. INTERACTIVE SITE. (a) [***] promotional buttons on the
xxx.xxxxxxxxxxx.xxx or any successor site, ICP shall
include an AOL promotional button (the "AOL Promos")
appearing on such site no less prominently than the button
of any other Interactive Service, to promote such AOL
products or services as AOL may designate (for example, the
America Online brand service, the CompuServe brand service,
the XXX.xxx site, the Digital City services or the AOL
Instant Messenger service). AOL will provide the creative
Content to be used in the AOL Promos. ICP shall post (or
update, as the case
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may be) the creative Content supplied by AOL within the
spaces for the AOL Promos within five days of its receipt
of such Content from AOL. Without limiting any other
reporting obligations of the Parties contained herein, ICP
shall provide AOL with monthly written reports specifying
the number of impressions to the pages containing the AOL
Promos during the prior month. In the event that AOL elects
to serve the AOL Promos on the xxx.xxxxxxxxxxx.xxx or any
successor site from an ad server controlled by AOL or its
agent, ICP shall take all reasonable operational steps
necessary to facilitate such ad serving arrangement,
including, without limitation, inserting HTML code
designated by AOL on the pages of the xxx.xxxxxxxxxxx.xxx
or any successor site on which the AOL Promos will appear
and sizing the AOL Promo to the correct size for AOL's
server (90x30 pixels or 70x70 pixels).
(b) To the extent that ICP chooses to provide additional
tools and technology for xxx.xxxxxxxxxxx.xxx or any
successor site, ICP shall provide AOL with the opportunity
to provide such tools and technology for
xxx.xxxxxxxxxxx.xxx or any such successor site and the
parties will negotiate in good faith to reach an agreement
within ten (10) business days on the material terms
thereof, provided, however, that neither party shall be
under any obligation to reach agreement with respect to the
provision of such additional tools or technology.
2.4.3. OTHER MEDIA. In ICP's television, radio, print and "out of
home" (e.g., buses and billboards, point of purchase and
other "place-based" promotions) advertisements and in any
publications, programs, features or other forms of media
over which ICP exercises [***] editorial control, ICP will,
commencing upon the later of (x) the Launch Date and (y)
the date of completion of Site and Content Preparation (as
defined in Section 8.3), in conjunction with its domestic
U.S. advertising, use Promotional Efforts (as defined
below) to include specific references or mentions (orally
where possible) of the availability of the ICP Internet
Site through the AOL Properties. Except when prevented by
the circumstances set forth under clauses (a) - (d) of the
definition of Promotional Efforts below, ICP will include
with the listing, mention, reference or display of or
navigation to the "URL" for any ICP Interactive Site a
reasonably equivalent listing of the "keyword" term on AOL
for the ICP Internet Site, which listing shall conform to
the keyword guidelines attached hereto as Exhibit G, and
which shall be displayed in a manner no less prominent than
any other similar promotion. All such references or
mentions of AOL, and the use of AOL's trademarks, trade
names and service marks in connection therewith, shall be
in accordance with Section II of Exhibit C. For purposes of
this Section 2.4.3, "Promotional Efforts" shall mean that
ICP shall include such listings, mentions or references in
all of its advertising but may exclude such listings,
mentions or references (a) in trade shows and trade
advertising, (b) where it is commercially or technically
infeasible or infeasible due to material time and space
limitations (provided, that this exception shall not permit
ICP to exclude such listings, mentions or references solely
for creative reasons), (c) where ICP is advertising solely
Content that is not available (and is not required
hereunder to be made available) through the ICP Internet
Site and/or ICP Programming, and (d) where ICP is not
permitted to include them as a result of an arrangement,
including any co-op arrangement, with a third party entered
into in good faith in which ICP does not have primary
control over the content of the advertisement (e.g., a
joint promotion with American Airlines in which American
Airlines refuses to permit any such listing, mention or
reference).
2.4.4. PREFERRED ACCESS PROVIDER. ICP shall not promote any
Interactive Service as the preferred access provider
through which a user can access ICP's travel services (and
ICP
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shall not implement or authorize any other promotions on
behalf of any third parties which are inconsistent with the
foregoing); provided, however that nothing herein shall
limit ICP's right to promote any other Interactive Service
as a means through which a user can access ICP's travel
services; provided, further, that nothing herein shall
prevent ICP from promoting AOL as its preferred access
provider if ICP shall elect, in its sole discretion, to do
so.
2.5 OEM ALTERNATIVE. If (i) ICP exercises its right under Section 4.3
to convert to the OEM alternative (the "OEM Alternative") or (ii)
AOL elects to extend this Agreement in accordance with Section 8.1
by converting to the OEM Alternative (and during any subsequent
extension thereof), the following provisions shall apply:
2.5.1 CONTINUATION OF SERVICE. Except as expressly provided
otherwise in this Section 2.5, following the date of
effectiveness of the OEM Alternative (the "OEM Effective
Date"), ICP shall (i) continue to provide, maintain and
operate the Res System and (ii) provide, maintain and
operate (x) the ICP Internet Site (but, with respect to
Licensed Content thereon, only OEM Licensed Content (as
hereinafter defined)), (y) the ICP Programming (but, with
respect to Licensed Content therein, only OEM Licensed
Content) and (z) all Licensed Content except such Licensed
Content that AOL elects in its discretion not to license
("OEM Licensed Content") to, for and through the AOL
Network in accordance with the terms of this Agreement (the
matters referred to in clauses (i) and (ii) above being
hereinafter collectively referred to as the "OEM Full
Package").
2.5.2 AOL CARRIAGE AND PROMOTIONAL OBLIGATIONS. Following the OEM
Effective Date and throughout the Term, AOL shall continue
to (i) promote the Service as an integral part of its
programming offerings throughout the AOL Properties and
(ii) provide ICP with permanent positioning within the
Service which positioning is readily accessible to AOL
Members. AOL shall be relieved of all other obligations
contained in this Agreement in respect of carriage,
promotions and Impressions.
2.5.3 EXCLUSIVITY FOLLOWING OEM EFFECTIVE DATE. Upon the OEM
Effective Date, the exclusivity provisions of Sections 3.1
and the right of first offer provisions of Section 3.2
shall terminate except that AOL shall not permit any
Advertising or any Content of any ICP Competitor to appear
or be presented upon any pages hosted by ICP within the
Service, except to the extent AOL is permitted pursuant to
Sections 3.1(a)(3), 3.1(b), 3.1(e) or 3.2 to do so prior to
the OEM Effective Date; provided, however, that AOL may, in
its sole discretion, elect, pursuant to Section 8.1, to
continue to be bound by all of the exclusivity provisions
of Sections 3.1 and 3.2 after the OEM Effective Date.
2.5.4 REVISED ADVERTISING AND COMMISSION REVENUE ALLOCATION. Upon
the OEM Effective Date, (i) ICP's obligations under
Sections 4.1 and 4.2.2 and (ii) AOL's obligations under
Section 4.2 shall cease, provided that neither party shall
be relieved of its obligations to the other party in
respect of periods ending on or prior to the OEM Effective
Date. In addition, each party shall be relieved of its
obligations under Sections 4.4, 4.9 and 4.11. Following the
OEM Effective Date: (i) ICP shall be entitled to (x) [***]%
of the Commissions and (y) [***]% of all Advertising
Revenue derived from pages containing only OEM Licensed
Content; and (ii) AOL shall be entitled to all other
Advertising Revenue.
2.5.5 TERMINATION OF PROMOTIONAL AND RELATED OBLIGATIONS. Upon
the OEM Effective Date, ICP shall be relieved of its
obligations under Section 2.4, provided that ICP thereafter
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during the Term shall continue to have the right in its
sole discretion, but not the obligation, to continue to use
the "keyword" term on AOL for the ICP Internet Site, ICP
Programming and OEM Licensed Content in accordance with the
keyword guidelines attached hereto as Exhibit G.
2.5.6 TERMINATION OF CERTAIN CONTENT AND PERFORMANCE RIGHTS AND
OBLIGATIONS. If, following the OEM Effective Date AOL shall
request, pursuant to Section 2.1, that ICP undertake (or
cause to be undertaken by any ICP affiliate or independent
contractor) any work in order to integrate any additional
Content or services into the ICP Internet Site and/or the
ICP Programming, AOL shall at its option, either (i)
promptly reimburse ICP for ICP's actual, all in, cost of
performing (or causing to be performed) such work
(including allocable costs of hardware, software, labor,
overhead and depreciation as determined in accordance with
then current audit principles) with the exception of minor
or incidental changes, plus a margin of [***]% of such
actual, all in cost, provided, however, that ICP shall, as
promptly as practicable after such a request by AOL,
provide AOL with a good faith estimate of such actual, all
in cost, or (ii) pay to ICP, in accordance with Section
4.5, [***]% of all Advertising Revenue from Advertising
appearing on pages containing any such additional Content.
Upon the OEM Effective Date, ICP shall only be required to
use commercially reasonable best efforts to satisfy its
obligations under Section 2.2.
2.5.7 REVISIONS TO OEM LICENSED CONTENT. Upon any request by AOL
on or after the OEM Effective Date, (i) ICP shall remove
any ICP or other branding and attribution from within the
OEM Licensed Content and (ii) AOL may request alterations
to the user interface of the ICP Internet Site, ICP
Programming, the Res System and OEM Licensed Content and
ICP shall perform such work if it is commercially and
technically feasible to do so. AOL shall promptly reimburse
ICP for ICP's actual, all in, cost of performing (or
causing to be performed) such work (including allocable
costs of hardware, software, labor, overhead and
depreciation as determined in accordance with then current
audit principles) with the exception of minor or incidental
changes, plus a margin of [***]% of such actual, all in,
cost; provided, however, that ICP shall, as promptly as
practicable after such a request by AOL, provide AOL with a
good faith estimate of such actual, all in cost.
2.5.8 TERM. If ICP exercises its rights under Section 4.3 to
convert to the OEM Alternative, AOL shall have the right to
terminate this Agreement (i) upon thirty (30) days prior
written notice to ICP pursuant to Section 4.3, or (ii)
thereafter by written notice to ICP not less than thirty
(30) days prior to the expiration of any Contract Year
during the Initial Term. This Agreement and the OEM
Alternative shall terminate upon the expiration of the
Initial Term, provided that if AOL elects, upon the
expiration or termination of the Initial Term, to extend
this Agreement in accordance with Section 8.1 or 8.2 by
converting to the OEM Alternative, this Agreement shall be
extended in accordance with Section 8.1, and subject to
further extension, in accordance with Section 8.1. In
either event, both ICP and AOL shall retain their rights to
terminate this Agreement in accordance with Section 8.2.
2.5.9 CONTINUED EFFECTIVENESS OF AGREEMENT. Except to the extent
expressly provided in this Section 2.5, following the OEM
Effective Date, this Agreement shall remain in full force
and effect.
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3. PREMIER STATUS
3.1 EXCLUSIVITY. AOL agrees that beginning on (i) the later of the
Launch Date and completion of Site and Content Preparation, ICP
shall be prominently positioned on the AOL Properties and the
Service as set forth in the Programming Plan, (ii) the Merger
Date, the Res System shall, subject to paragraphs (a) through (e)
and Section 3.2 below and the continuing availability on the AOL
Properties of the Preview Reservations Engine pursuant to the
Preview Agreement, be the exclusive Reservations Engine for all
travel-related services, including, but not limited to, air, car,
hotel, Vacation Packages and Cruises within the AOL Properties and
the Service and (iii) the Merger Date, AOL shall not, subject to
paragraphs (a) through (e) and Section 3.2 below, promote or
market the travel-related products or services of any ICP
Competitor within the AOL Properties and the Service. AOL will use
its commercially reasonable best efforts to ensure that all of its
agreements or arrangements with [***] for promotion, marketing,
distribution or carriage on the AOL Properties entered into
beginning on the date of execution of this Agreement [***] a
provision [***] promoting an ICP Competitor on any of the AOL
Properties [***] AOL is [***] promoting an ICP Competitor under
this Section 3. In addition, notwithstanding the foregoing
exclusivity, no provision of this Agreement shall limit AOL's
ability (on or off the AOL Properties except as provided in
paragraph (c) below) to:
(a) promote, market or distribute:
(1) [***];
(2) [***], AND
(3) [***]; or
(4) [***].
(b) subject to Section 4.2, sell Advertising, including
standard placements in any shopping area or channel, to
any Travel Suppliers (IT BEING AGREED THAT THE TWO CLICK
REQUIREMENT SHALL NOT APPLY TO A TRAVEL SUPPLIER'S OWN
RESERVATIONS ENGINE OR A RESERVATIONS ENGINE PROVIDED TO
A TRAVEL SUPPLIER BY A THIRD PARTY CONTRACTOR);
(c) enter into an agreement with any third party for the
primary purpose of acquiring new AOL Members pursuant to
which such third party is allowed to promote or market
products or services off the AOL Properties in a
co-branded or "private label" environment solely to AOL
Members that are acquired as a result of such agreement;
(d) create editorial commentary or contextual links, such as
news stories, editorial features, stock quotes or search
results, relating to any travel-related company,
including ICP Competitors, Travel Suppliers and Ancillary
Service Providers, provided that AOL shall not [***] any
[***] in any [***] any such [***] creating or presenting
any such editorial commentary or contextual links; or
(e) undertake activities or perform duties pursuant to: (i)
existing agreements between: (x) AOL and any
travel-related interactive content or service provider
(whether an ICP Competitor or not) other than Travel
Suppliers, pursuant to which such travel-related
interactive content or service provider makes a
Reservations Engine available on any AOL Property or the
Service or (y) between AOL and any ICP Competitor
pursuant to which such ICP Competitor promotes
travel-related Content on any AOL Property or the
Service, provided that all such material existing
agreements, described in clauses (x) and (y) above, of
which [***] are
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[***] this Agreement, which [***] each such [***] and the
[***] and [***] of each such [***]; or (ii) any
agreements to which AOL becomes a party subsequent to the
Merger Date as a result of a merger, acquisition or other
similar transaction; provided, that (x) nothing in this
paragraph (e)(ii) shall relieve AOL of its obligation to
comply with the exclusivity provisions set forth in the
first paragraph of this Section 3.1, and (y) after the
Merger Date AOL may not extend or consent to the
extension of the term of any such arrangements without
the prior written consent of ICP. "Knowledge" means, for
purposes of this Section 3.1(e), the knowledge of any of
the officers or employees of AOL, after due inquiry.
Subject to Section 3.1(a) above, ICP acknowledges that AOL
does not and cannot guarantee that AOL Members will not be
able to access alternative Reservations Engines through the
AOL Properties (e.g., using an Internet browser).
3.2 ANCILLARY SERVICE PROVIDERS. ICP's exclusivity (INCLUDING ANY "TWO
CLICK REQUIREMENT") does not apply to Ancillary Services (as
defined below); provided, however, that AOL shall not enter into
any agreement or arrangement with any person or entity other than
a Travel Supplier for the provision by such person or entity
primarily of Ancillary Services (an "Ancillary Service Provider")
unless AOL first provides ICP with the opportunity to provide such
Ancillary Service and the Parties, after good faith negotiations,
fail to reach agreement within ten (10) business days on the
material terms pursuant to which ICP shall provide such Ancillary
Service; provided, however, that neither party shall be under any
obligation to reach agreement with respect to ICP providing such
Ancillary Services. Any arrangement or agreement between AOL and
any Ancillary Service Provider shall be non-exclusive (i.e., shall
permit AOL to enter into agreements and arrangements with other
parties (including ICP) to provide the same or a similar Ancillary
Service). Any Ancillary Service provided by any Ancillary Service
Provider (other than ICP) shall be integrated in the Service as a
clear secondary alternative to the Res System. "Ancillary Service"
shall mean a service for which AOL provides contextually
integrated commerce placements (i.e., permanent promotional
placements for purposes of securing bookings for or through the
Ancillary Services) within the Service that relates to primarily
travel auction services, primarily travel-related consolidation
services or primarily travel-related time share services, in each
case through which travel can be booked, or to primarily
travel-related classifieds. All of AOL's agreements with Ancillary
Service Providers in respect of an Ancillary Service which require
AOL to provide such Ancillary Service Provider with contextually
integrated commerce placements within the Service [***].
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4. PAYMENT; REPORTING
4.1 PAYMENTS. ICP shall pay AOL Two Hundred Million Dollars
($200,000,000), subject to and in accordance with the following
provisions:
4.1.1. Technology License. ICP shall pay AOL a non-refundable
guaranteed payment of Ten Million Dollars ($10,000,000) on
the Merger Date for the technology license being granted by
AOL to ICP for certain AOL Tools pursuant to this
Agreement.
4.1.2. Trademark License. ICP shall pay AOL a payment of [***] for
the trademark license being granted by AOL to ICP pursuant
to this Agreement, which amount shall be paid as follows:
(a) a non-refundable guaranteed payment of $2,500,000 on
the Merger Date and (b) [***] on or before thirty (30) days
prior to each of the dates that are twelve (12) months,
eighteen (18) months, twenty-four (24) months, thirty (30)
months, thirty-six (36) months and forty-two (42) months,
respectively, from the Launch Date, all of which payments
shall be non-refundable except such payments totaling
[***].
4.1.3. Carriage Payments. ICP shall pay AOL in respect of the
carriage, exclusivity, premier status, and other rights and
benefits afforded ICP hereunder, the following amounts:
Contract Year 1: a non-refundable guaranteed payment
of Twenty-Seven Million Five Hundred Thousand
Dollars ($27,500,000) on the Merger Date.
Contract Year 2: a non-refundable payment of [***]),
which amount shall be paid in two equal
installments on or before thirty (30) days
prior to each of the dates that are twelve
(12) months and eighteen (18) months,
respectively, from the Launch Date.
Contract Year 3: a non-refundable payment of [***],
which amount shall be paid in two equal
installments on or before thirty (30) days
prior to each of the dates that are
twenty-four (24) months and thirty (30)
months, respectively, from the Launch Date.
Contract Year 4: a non-refundable payment of [***],
which amount shall be paid in two equal
installments on or before thirty (30) days
prior to each of the dates that are
thirty-six (36) months and forty-two (42)
months, respectively, from the Launch Date.
Contract Year 5: a payment of [***], which amount
shall be paid as follows:
(a) a [***] (in accordance with Section 4.3)
payment of [***] to be prepaid as
follows: (1) [***] on or before thirty
(30) days prior to each of the dates
that are twelve (12) months and eighteen
(18) months, respectively, from the
Launch Date (collectively, the "First
Prepayment"); (2) [***] on or before
thirty (30) days prior to each of the
dates that are twenty-four (24) months
and thirty (30) months, respectively,
from the Launch Date (collectively, the
"Second Prepayment"); and (3) [***] on
or before thirty (30) days prior to each
of the dates that are thirty-six (36)
months and forty-two (42) months,
respectively, from the Launch Date
(collectively, the "Third Prepayment").
Each of the First Prepayment, Second
Prepayment and Third Prepayment are
designated as [***] against
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[***] payments and are specifically
[***] in accordance with Section [***]
if this Agreement is converted to the
OEM Alternative (i.e., if ICP elects to
convert to the OEM Alternative and such
election is not properly nullified in
accordance with Section 4.3) pursuant to
Section 4.3 or if AOL terminates this
Agreement pursuant to Section 4.3 after
ICP elects to convert this Agreement to
the OEM Alternative.
(b) a non-refundable payment of [***], to be
paid in two equal installments on or
before thirty (30) days prior to each of
the dates that are forty-eight (48)
months and fifty-four (54) months,
respectively, from the Launch Date.
4.2 ICP ADVERTISING REVENUE AND COMMISSIONS SHARE.
4.2.1 Within thirty (30) days after the end of each quarter
during each Contract Year, AOL shall pay ICP [***]%) of all
Advertising Revenues collected by AOL during such quarter
from sales of:
(i) Advertising placed on pages within the Service;
(ii) Advertising placed on pages within the AOL Properties
on which the Res System or the ICP Programming or any
portion thereof is integrated (as opposed to linked to
from or promoted on);
(iii) Advertising to Qualified Travel Suppliers placed on
pages outside of the Service but within the AOL
Properties; and
(iv) Advertising to Ancillary Service Providers placed on
pages outside of the Service but within the AOL
Properties.
Notwithstanding the foregoing, if Advertising Revenues for
such Contract Year plus any Elected Payments, in the
aggregate, exceed the Advertising Revenues Hurdle
applicable to such Contract Year, AOL shall pay ICP with
respect to Advertising Revenues attributed to the remainder
of such Contract Year in excess of such Advertising Revenue
Hurdle:
(i) [***] percent ([***]%) of Advertising Revenues
collected by AOL from sales of Advertising placed on
pages within the Service;
(ii) [***] percent ([***]%) of Advertising Revenues
collected by AOL from sales of Advertising placed on
pages within the AOL Properties on which the Res
System and/or ICP Programming is integrated (as
opposed to in linked to from or promoted on);
(iii) [***] percent ([***]%) of Advertising Revenues
collected by AOL from the sale to Qualified Travel
Suppliers of Advertising outside of the Service but
within the AOL Properties; and
(iv) [***] percent ([***]%) of Advertising Revenues
collected by AOL from sales of Advertising to
Ancillary Service Providers placed on pages outside of
the Service but within the AOL Properties.
AOL shall have the right, at any time, from time to time,
and in its sole discretion (except as provided in the
following provision), to pay ICP Elected Payments;
provided, however, that AOL may not make an Elected Payment
with respect to the Advertising Revenue Hurdle applicable
to the fourth Contract Year without ICP's prior written
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consent (which ICP may grant or withhold in its sole
discretion) if and to the extent that Advertising Revenues
for the fourth Contract Year are less than [***]% of the
Advertising Revenue Hurdle set forth below for the fourth
Contract Year. "Elected Payments" shall mean those amounts
that AOL pays to ICP for the purpose of satisfying an
Advertising Revenue Hurdle and/or the Cumulative OEM Hurdle
Amount in excess of Advertising Revenues.
"Advertising Revenue Hurdle" shall mean, for each
corresponding Contract Year, the amount set forth below
opposite such Contract Year:
First Contract Year: $[***]
Second Contract Year: $[***]
Third Contract Year: $[***]
Fourth Contract Year: $[***]
Fifth Contract Year: $[***]
4.2.2 Subject to Section 2.5.4, during each Contract Year, ICP
shall pay AOL [***] percent ([***]%) of Commissions for
such Contract Year.
4.3 OEM HURDLES. On or before each of the dates (each, a "Review
Date") which are sixty (60) days prior to the last day of the
second, third and fourth Contract Years, respectively, if the
total Advertising Revenues during the Term plus the aggregate
amount of all Elected Payments made during the Term plus AOL's
good faith projection of the Advertising Revenues for the fourth
quarter of such Contract Year (collectively, the "Projected Ad
Revenues and Elected Payments") do not equal or exceed the
Cumulative OEM Hurdle Amount (as defined below) required to be
achieved by the last day of such Contract Year, then ICP shall
have the right, by giving AOL written notice within thirty (30)
days after such Review Date, to convert this Agreement into the
OEM Alternative as described in Section 2.5. Notwithstanding the
foregoing, any such election by ICP shall be nullified, and this
Agreement shall not convert to the OEM Alternative, if, prior to
the expiration of such Contract Year, either (a) the actual
Advertising Revenues during the Term plus Elected Payments made
during the Term equal or exceed the Cumulative OEM Hurdle Amount
required to be achieved by the last day of such Contract Year; or
(b) AOL pays ICP the shortfall between Advertising Revenues during
the Term plus Elected Payments paid to ICP during the Term and the
Cumulative OEM Hurdle Amount for such Contract Year; provided,
however, that AOL may not make an Elected Payment with respect to
the Cumulative OEM Hurdle Amount for the fourth Contract Year
without ICP's prior written consent (which ICP may grant or
withhold in its sole discretion) if and to the extent that
Advertising Revenues during the Term plus Elected Payments paid to
ICP prior to the last day of the fourth Contract Year are less
than [***]% of the Cumulative OEM Hurdle Amount required to be
achieved by the last day of such Contract Year. If ICP elects to
convert this Agreement into the OEM Alternative, and such election
is not nullified pursuant to the preceding sentence, then AOL
shall have the right, at its option, to terminate this Agreement
by giving ICP written notice by the later of (i) thirty (30) days
following such election by ICP or (ii) the last day of the
applicable Contract Year.
"Cumulative OEM Hurdle Amount" shall mean, as of the last day
of each corresponding Contract Year, the amount set forth
below opposite such Contract Year:
Second Contract Year: $[***]
Third Contract Year: $[***]
Fourth Contract Year: $[***]
In the event this Agreement is converted to the OEM Alternative
pursuant to this Section 4.3 or if AOL terminates this Agreement
pursuant to this Section 4.3, AOL shall [***] to ICP (I) [***]
plus
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the [***] if such conversion to the OEM Alternative occurred with
respect to the first Review Date, (II) [***] plus the [***] and
[***] if such conversion to the OEM Alternative occurred with
respect to the second Review Date, or (III) [***] plus the [***]
if such conversion to the OEM Alternative occurred with respect to
the third Review Date. Such refunds shall be paid by AOL within
thirty (30) days after the conversion to the OEM Alternative or
the date of termination.
4.4 ADDITIONAL REVENUE STREAMS. In the event ICP receives or desires
to receive, directly or indirectly, any compensation in connection
with the Service (other than Advertising Revenues and Commissions)
or otherwise restructures the nature of its transactions with AOL
Users (e.g., establishment of club memberships or conducting
auctions) (collectively, "Additional Revenues"), ICP shall
promptly inform AOL in writing and the Parties shall negotiate in
good faith regarding the equitable portion of such Additional
Revenues that shall be shared with AOL. Any portion shared with
AOL shall, at a minimum, satisfy the Parties' joint goal that AOL
receive its equitable share of revenues generated by ICP
(including any new or incremental revenues) in connection with the
Service. If the Parties cannot, after negotiating in good faith
with each other, reach an agreement regarding Additional Revenues
for a period of thirty (30) days after ICP's request to negotiate,
ICP shall not be permitted to collect such Additional Revenues or
restructure the nature of its transactions with AOL Users.
4.5 PAYMENT SCHEDULE. Except as otherwise specified herein, each Party
agrees to pay the other Party all amounts received and owed to
such other Party as described herein on a quarterly basis within
[***] days following the end of the quarter in which such amounts
were collected by such Party. The first quarter for which payment
is to be made shall begin on the Launch Date.
4.6 WIRED PAYMENTS. All payments by ICP hereunder shall be paid in
immediately available, non-refundable U.S. funds wired to the
"America Online" account, Account Number [***] at the [***], 1
[***], Xxx Xxxx, Xxx Xxxx 00000 ([***]), or such other account of
which AOL shall give ICP written notice. All payments by AOL
hereunder shall be paid in immediately available, non-refundable
U.S. funds wired to the "Sabre Inc." account, Account Number [***]
at Citibank NA, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (ABA:
[***]), or such other account of which ICP shall give AOL written
notice.
4.7 SALES REPORTS. ICP shall provide AOL in an automated manner with a
monthly report accompanying the payments to be made pursuant to
this Section 4 (as applicable) in a mutually agreeable format
consistent with the reports provided to AOL by its other
interactive content providers, detailing the following activity in
such period (and any other information mutually agreed upon by the
Parties or reasonably necessary for measuring revenue activity by
ICP through the ICP Internet Site and ICP Programming):
Commissions, Additional Revenues, Overrides, number of profiles
created, transactions by type (air, hotel, car) and by source
(Travel Channel, XXX.xxx, other channels), chargebacks and credits
for returned or cancelled goods or services (and, where possible,
an explanation of the type of reason therefor, e.g., bad credit
card information, poor customer service, etc.), and credit card
processing fees charged and/or collected by the credit card
issuer. AOL will be entitled to use the Sales Reports in its
business operations, subject to the terms of this Agreement, and
AOL acknowledges that such reports may contain Confidential
Information as defined herein.
4.8 FRAUDULENT TRANSACTIONS. To the extent permitted by applicable
laws, ICP shall provide AOL with a prompt report of any fraudulent
order, including the date, screenname and amount associated with
such order, following ICP obtaining knowledge that the order is,
in fact, fraudulent.
4.9 AOL USAGE REPORTING. AOL shall make available to ICP a monthly
report specifying for the prior month aggregate usage and
Impressions with respect to ICP's presence on the AOL Network,
which are similar in substance and form to the reports provided by
AOL to other content partners similar to ICP.
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4.10 ICP INTERNET SITE REPORTING. If and to the extent ICP otherwise
collects and processes the following data regarding impressions by
AOL Members, ICP will supply AOL with monthly reports which
reflect total impressions by AOL Members to the ICP Internet Site
during the prior month, the number of and dollar value associated
with the transactions involving AOL Users and any registration
information obtained from AOL Members at the ICP Internet Site
during the period in question. ICP represents that all URLs
related to the ICP Internet Site are listed on Exhibit A-2 and ICP
shall provide AOL with an update of such list promptly upon any
change thereto.
4.11 PROMOTIONAL COMMITMENTS. ICP shall provide to AOL a monthly report
documenting its compliance with any promotional commitments it has
undertaken pursuant to this Agreement in the form attached as
Exhibit D hereto, and ICP shall provide AOL with "click-through"
data with respect to the promotions specified in Section 2.4.
4.12 MONTHLY REPORTS. AOL shall provide to ICP a monthly written report
of all Advertising Revenues as of the end of the preceding month,
which report shall specify, among other information, the total
amount of Advertising Revenues for such preceding month, and the
year-to-date total amount of Advertising Revenues. ICP will be
entitled to use such reports in its business operations, subject
to the terms of this Agreement, and ICP acknowledges that such
reports may contain Confidential Information as defined herein.
5. ADVERTISING AND MERCHANDISING
5.1 ADVERTISING SALES. AOL owns all right, title and interest in and
to the advertising and promotional spaces within the AOL Network
(including, without limitation, advertising and promotional spaces
on any AOL forms or pages preceding or framing the ICP Internet
Site or ICP Programming and any AOL pages on which ICP Programming
resides). The specific advertising inventory within any such AOL
forms or pages shall be as reasonably determined by AOL. AOL shall
have the exclusive right to license or sell Advertisements in and
through the Service (including the ICP Internet Site and ICP
Programming) subject to payments due to ICP from AOL in accordance
with Section 4.2 of this Agreement. ICP shall not incorporate or
link to any promotional, advertising or sponsorship elements on
the ICP Internet Site or ICP Programming without AOL's prior
written consent. AOL shall have the right to elect to serve
Advertisements on the ICP Internet Site and ICP Programming,
either directly on its own server or by contracting with a third
party server, and ICP shall take all reasonable steps necessary to
facilitate AOL's serving of the Advertisements, including without
limitation, maintaining the computer code on the ICP Internet Site
and ICP Programming in order to display the Advertisements.
5.2 INTERACTIVE COMMERCE. Any merchandising permitted hereunder
through the ICP Internet Site and/or ICP Programming shall be
subject to (i) the then-current requirements of AOL's merchant
certification program, (ii) AOL's standard terms and conditions
applicable to its interactive marketing partners, and (iii) prior
approval by AOL of all products, goods and services to be offered
through the ICP Internet Site or the ICP Programming (such AOL
approval shall not be unreasonably withheld). ICP will take
reasonable steps, taking into account commercial and technical
feasibility, to conform its promotion and sale of Products through
the ICP Internet Site and ICP Programming to the then-existing
technologies identified by AOL which are optimized for the AOL
Properties including, without limitation, any "quick checkout"
tool which AOL may implement to facilitate purchase of Products by
AOL Users through the ICP Internet Site.
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6. CUSTOMIZED ICP PROGRAMMING AND ICP INTERNET SITE
6.1 CUSTOMIZATION. ICP shall customize all ICP Programming and the ICP
Internet Site for AOL Users as follows:
(a) ICP shall customize and co-brand the ICP Internet Site and
ICP Programming for distribution over the AOL Properties
using AOL's design guideline templates and co-branding
requirements, including any requirements set forth on
Exhibit A. ICP shall make any changes to the customization
and/or co-branding of the ICP Internet Site and ICP
Programming to conform to the standard requirements of any
AOL Property or otherwise reasonably requested by AOL
during the Term. In addition, the user interface of the
ICP Internet Site and ICP Programming and all design
aspects of the screens outside of the Res System shall be
subject to AOL's approval.
(b) ICP shall host all pages of the Service to be hosted by
ICP under a co-branded domain name (i.e., xxx.xxx.xxx,
xxx.xxxxxxxx.xxx, xxx.xxxxxxxxxx.xxx, etc.) and traffic to
pages hosted on such domain name shall be deemed to be AOL
traffic. ICP agrees that for the purpose of third party
industry measurement metrics (such as Media Metrix and
Relevant Knowledge), the traffic (i.e., page views) within
such pages and sites shall be exclusively attributable to
AOL; provided that AOL will work with ICP to enable third
party industry measurement services to attribute credit
for such traffic to ICP through a syndication report, or
such other report developed by Media Metrix or other third
party measurement service, in accordance with such
measurement service's policies provided that AOL continues
to receive primary credit for such traffic, including as
necessary for ranking purposes.
(c) ICP shall not take any action the result of which is to
provide AOL Members accessing the ICP Programming or
linking to the ICP Internet Site with access to
advertisements or promotions of, or links to, AOL Direct
Competitors. ICP shall [***] not to take any action as a
result of which AOL Members accessing the ICP Programming
or linking to the ICP Internet Site receive or have access
to advertisements or promotions of, or links to, (i) other
parties that ICP should reasonably know are competitive
with AOL in AOL's core businesses (including any
Interactive Service), (ii) product categories in which AOL
or the applicable AOL Property has an exclusive or other
preferential relationship of which they have informed ICP
in writing or (iii) which are otherwise in violation of
the applicable AOL Property's then-current standard
advertising policies as provided to ICP in writing. ICP
shall have a period of [***] days from its receipt of
written notice from AOL that it is in breach or alleged
breach of any provision of this Section 6.1(c) to cure
such breach, provided that ICP acknowledges that AOL shall
have the right to prevent AOL Members from receiving or
accessing such advertisements, promotions and links prior
to the expiration of such [***] day period.
(d) ICP shall provide continuous navigational ability for AOL
Members to return to an AOL-designated point on the
applicable AOL Property from the ICP Internet Site or ICP
Programming (which, at AOL's option, may be satisfied
through the use of a hybrid browser format), which shall
include links to AOL-designated areas from each tool and
functionality within the ICP Internet Site and ICP
Programming. ICP shall use its commercially reasonable
best efforts to ensure that navigation back to the AOL
Network from the ICP Internet Site, whether through a
particular pointer or link, the "back" button on an
Internet browser, the closing of an active window, or any
other return mechanism, shall not be interrupted by ICP
through the use of any intermediate screen or other device
not specifically requested by the user, including without
limitation through the use of any html pop-up
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window or any other similar device. Rather, such AOL
traffic shall be pointed directly back to the AOL Network
as designated by AOL.
(e) Within the ICP Programming and the ICP Internet Site, ICP
shall, [***], use AOL's "quick checkout" and "suitcase"
tools and technology. To the extent ICP wishes to include
any other tools and technology within the ICP Programming
and the ICP Internet Site, including without limitation,
real time instant messaging, calendaring, local content,
and photograph services similar to AOL's You've Got
Pictures service, chat and message boards, ICP shall,
[***], use AOL's tools and technology for all such
products. The tools and technology described in this
subsection are referred to herein as "AOL Tools." If it is
not [***] to use AOL Tools within the ICP Programming or
ICP Internet Site, ICP shall not be able to use any tools
or technology competitive with the core functionality of
the relevant AOL Tool within the ICP Internet Site or ICP
Programming without AOL's prior written consent. In the
event ICP uses any AOL Tools, AOL and ICP shall enter into
a license agreement, to be mutually agreeable to both
parties, pursuant to which AOL will license to ICP, on a
[***], mutually agreed upon AOL Tools to be integrated
into the ICP Internet Site. AOL will be responsible for
and will provide to ICP all updates and fixes for the AOL
Tools [***] to ICP, as such bug fixes and updates are made
commercially available.
(f) AOL Members shall not be required to go through a
registration process (or any similar process) in order to
access and use the ICP Internet Site, ICP Programming or
the Licensed Content, except as set forth on Exhibit A or
approved in writing by AOL, subject to AOL's privacy
policies. On the AOL Service and the CompuServe Service,
AOL will use commercially reasonable efforts to [***] ICP
with [***] needed by ICP to establish a [***] of the
Service. On XXX.xxx, XxxxxXxxxx.xxx, Digital City and
Netscape Netcenter, AOL and ICP will work together to
create a seamless registration process incorporating
existing registration information (i.e., "Universal
Registration"). Where such registration information is not
available, ICP will not require registration until such
user books travel arrangements. During the Term and for
the two (2) year period after the expiration or
termination thereof, ICP shall allow AOL Members to access
and use any ICP Interactive Site on terms and conditions
no less favorable than the terms and conditions available
to other general users of such ICP Interactive Site.
6.2 LINKS ON ICP INTERNET SITE. The Parties will work together on
mutually acceptable links (including links back to AOL) within the
ICP Internet Site in order to create a robust and engaging AOL
Member experience and ICP shall modify links, from time to time at
AOL's reasonable request, to direct AOL Members to other areas
within the AOL Network. ICP shall take reasonable efforts to
ensure that AOL traffic is generally either kept within the ICP
Internet Site or ICP Programming or channeled back into the AOL
Network. To the extent that AOL notifies ICP in writing that, in
AOL's reasonable judgment, links from the ICP Internet Site or ICP
Programming cause an excessive amount of AOL traffic to be
diverted outside of such site and the AOL Network in a manner that
has a detrimental effect on the traffic flow of the AOL audience,
then ICP shall immediately reduce the number of links out of such
site(s). In the event that ICP cannot or does not so limit
diverted traffic from such site, AOL reserves the right to
terminate such links from the AOL Network to such site.
6.3 LINKS FROM ICP INTERNET SITE. All links to ICP, Preview and
Travelocity (including, e.g. banners, links, favorite places,
keywords, and xxx.xxxxxxx.xxx) from the AOL Properties shall go to
the ICP Internet Site or ICP Programming, except for links to
xxx.xxxxxxxxxxx.xxx when AOL Members enter the URL:
"xxx.xxxxxxxxxxx.xxx" or links to any other ICP Interactive Site
created by ICP in the future not contemplated by this Agreement
when AOL Members enter the URL for such ICP Interactive Site.
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6.4 REVIEW. ICP shall allow appropriate AOL personnel to have access
to all ICP Programming and the ICP Internet Site for the purpose
of reviewing such sites to determine compliance with the
provisions of this Agreement.
7. SOLICITATION; USER INFORMATION
7.1 RELATIONSHIP WITH AOL MEMBERS.
7.1.1 SOLICITATION OF SUBSCRIBERS. (a) During the Term and for
the two-year period following the expiration or termination
of this Agreement, neither ICP nor its affiliates will use
the AOL Network (including, without limitation, the e-mail
network contained therein) to solicit AOL Members (as
hereinafter defined) from whom ICP has received Member
Information on behalf of or for the benefit of another
Interactive Service or any product or service competitive
with products or services offered through AOL or the AOL
Network. Notwithstanding the foregoing, ICP shall have the
right to send [***] during the [***] day period immediately
prior to the expiration of this Agreement to each [***]
from whom ICP has [***] informing such [***] that ICP will
no longer be providing services through the AOL Network,
provided that such [***] shall be subject to the other
terms of this Section 7 and the contents thereof shall be
subject to AOL's prior written approval, not to be
unreasonably withheld or denied. More generally, ICP will
not send unsolicited, commercial e-mail (i.e., "spam") or
other online communications through or into AOL's products
or services, absent a Prior Business Relationship. For
purposes of this Agreement, a "Prior Business Relationship"
will mean that the AOL Member to whom commercial e-mail or
other online communication is being sent has voluntarily
either (i) engaged in a transaction with ICP or (ii)
provided information to ICP through a contest,
registration, or other communication, which included clear
notice to the AOL Member that the information provided
could result in commercial e-mail or other online
communications being sent to that AOL Member by ICP or its
agents. Any commercial e-mail or other online
communications to AOL Members which are otherwise permitted
hereunder will (a) include a prominent and easy means to
"opt-out" of receiving any future commercial communications
from ICP and (b) shall also be subject to AOL's
then-standard restrictions on distribution of bulk e-mail
(e.g., related to the time and manner in which such e-mail
can be distributed through or into the AOL product or
service in question).
(b) ICP shall ensure that its collection, use and
disclosure of information obtained from AOL Members
under this Agreement ("Member Information") complies
with (i) all applicable laws and regulations and (ii)
AOL's standard privacy policies, available on the AOL
Service at the keyword term "Privacy". ICP will not (x)
disclose Member Information collected hereunder to any
third party in a manner that identifies AOL Members as
end users of an AOL product or service, (y) rent, sell
or barter Member Information, or (z) use Member
Information collected under this Agreement to market
another Interactive Service. Nothing herein shall
prevent ICP from using Member Information to compile,
for ICP's internal use, statistical or demographic
information or for other legal purposes
("Compilations"); such Compilations may only be used
for ICP's internal purposes and shall be deemed to be
AOL Confidential Information, provided that, ICP shall
be able to use such aggregate numbers included in the
Compilations for general information purposes.
7.1.2 E-MAIL NEWSLETTERS. Any e-mail newsletters sent to AOL
Members by ICP or its agents shall (i) be subject to AOL's
policies on use of the e-mail functionality, including but
not limited to AOL's policy on unsolicited bulk e-mail,
(ii) be sent only to AOL Members
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requesting to receive such newsletters, (iii) not contain
Content which violates AOL's Terms of Service, and (iv)
contain only advertisements, links, marketing or promotion
that are approved by AOL and shall in no event contain any
advertisements, links, marketing or promotion for any other
Interactive Service or for any ICP Interactive Site other
than the ICP Internet Site and ICP Programming.
7.1.3 AOL MEMBER COMMUNICATIONS. To the extent ICP is permitted
by this Agreement to send communications to AOL Members (in
accordance with the other requirements contained herein):
in any such communications to AOL Members (including,
without limitation, e-mail messages), ICP will limit the
subject matter of such communications to those categories
of products, services and/or content that are specifically
contemplated by this Agreement and shall not include any
advertising, promotional, sponsorship or other commercial
messages without AOL's prior written approval. In addition,
ICP will not, in any such communication, encourage AOL
Members to take any action inconsistent with the scope and
purpose of this Agreement, including without limitation,
the following actions: (i) using an interactive site other
than the ICP Internet Site for the purchase of Products,
(ii) using Content other than the Licensed Content; (iii)
bookmarking of interactive sites; or (iv) changing the
default home page on the AOL browser. Additionally, with
respect to such AOL Member communications, in the event
that ICP encourages an AOL Member to purchase products
through such communications, ICP shall ensure that (a) the
AOL Network is expressly promoted as the primary means
through which the AOL Member can access the ICP Internet
Site (including without limitation by stating the
applicable Keyword Search Term and including direct links
to specific offers within the ICP Internet Site) and (b)
any link to the ICP Internet Site will link to a page which
indicates to the AOL Member that such user is in a site
which is affiliated with the AOL Network. All
communications with AOL Members and service and marketing
materials, whether online or offline (including, without
limitation, e-mails, customer service calls, mailings,
ticket jackets, etc.) shall be co-branded with AOL and ICP
and subject to AOL's approval on a case by case basis with
respect to such co-branding, such approval not to be
unreasonably withheld or delayed.
7.2 CUSTOMER DATA; AOL DATA. Any personal customer data generated
directly from Core Systems operations through the Res System,
otherwise derived from the ICP Internet Site or ICP Programming,
or produced by ICP in performing its obligations hereunder,
including, without limitation, customer names, addresses and
travel frequency but excluding credit card information and AOL
screennames (the "Customer Data"), shall be and remain during the
Term the joint property of the Parties. Upon the expiration or
termination of this Agreement, ownership of the Customer Data
shall revert to AOL and ICP shall have no further rights or
interest in the Customer Data and shall promptly provide all
Customer Data to AOL in the form in which such data is maintained
by ICP or, if AOL so elects, destroy the Customer Data. AOL agrees
that during the Term, ICP may use the Customer Data subject to the
terms of this Agreement and AOL's then-applicable privacy
policies; provided that ICP (a) shall comply with the foregoing
Section 7.1, (b) shall provide users the right to have their
Customer Data deleted form any database created by or on behalf of
ICP, and (c) shall not have the right to use the Customer Data to
market or promote any consumer direct airline travel information
and reservations systems reasonably construed to be in competition
with the Res System. Any data provided by AOL to ICP (e.g., usage
reports) (the "AOL Data") shall be and remain the property of AOL,
and the AOL Data will be promptly returned to AOL by ICP in the
form in which such data is maintained by ICP or, if AOL so elects,
will be destroyed, upon (i) AOL's request, (ii) expiration or
termination of this Agreement for any reason, or (iii) with
respect to any particular AOL Data, on such earlier date that the
same is no longer required by ICP in order to provide the services
required hereunder. ICP will not use the AOL Data for any purpose
other than that of providing such services, nor will the AOL Data,
or any part thereof, be disclosed, sold, assigned, leased, or
otherwise disposed of to third parties by
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ICP or commercially exploited by or on behalf of ICP, its
employees or agents. ICP will not possess or assert any lien or
other right against or to the AOL Data.
8. TERM, TERMINATION, SITE AND CONTENT PREPARATION, PRESS RELEASES
8.1 TERM. Unless earlier terminated as set forth herein, the initial
term of this Agreement (the "Initial Term") shall commence on the
Merger Date and expire five (5) years from the Launch Date,
provided that not less than one hundred eighty (180) days prior to
the expiration of the Initial Term, the Parties shall inform one
another of their intention, if any, to extend this Agreement and
if both Parties wish to seek to extend the Agreement, the Parties
shall negotiate in good faith to reach agreement on the terms of
any such extension. Notwithstanding the foregoing, AOL must inform
ICP at least [***] days prior to the expiration of the Term as to
whether AOL will exercise its rights to convert to the OEM
Alternative, as described in Section 2.5, or allow the Agreement
to expire. If AOL elects to convert to the OEM Alternative in
accordance with Section 2.5, then AOL must provide ICP written
notice, at least [***] days prior to the expiration of the Initial
Term, as to the following: (1) whether the OEM Alternative will be
(x) exclusive (i.e., AOL will remain subject to and bound by the
exclusivity provisions of Sections 3.1 and 3.2) or (y)
non-exclusive (i.e., AOL will be bound by the exclusivity
provisions of Sections 3.1 and 3.2 only to the extent that those
provisions do not terminate in accordance with Section 2.5.3) and
(2) whether the OEM Alternative will include, and entitle AOL to
(x) the OEM Full Package or (y) just the Res System (the
information in clauses (1) and (2), collectively, the "OEM
Information"), and upon the expiration of the Initial Term this
Agreement shall be extended for one (1) year under the OEM
Alternative. AOL may extend the OEM Alternative for three (3)
additional one-year terms by giving ICP at least [***] prior
written notice thereof prior to the expiration of the then-current
term (which notice shall include the OEM Information to apply to
such extension term), provided further, however, that nothing in
the preceding proviso or elsewhere in this Agreement shall
obligate ICP to remain or continue in the business of providing
online travel reservations services and/or the type of services
otherwise provided under this Agreement.
8.2 TERMINATION. Either Party may terminate this Agreement at any time
in the event of a material breach by the other Party which remains
uncured after thirty (30) days written notice thereof unless such
breach arises from circumstances constituting a Force Majeure
Event. If and when a Party (the "Prevented Party") is prevented
from performing any material obligation hereunder as a result of a
Force Majeure Event, such Party shall (i) give prompt written
notice to the other Party (the "Non-Prevented Party") of its
inability to perform such material obligation and (ii) promptly
take commercially reasonable steps to remove the effects of such
Force Majeure Event preventing its performance. A Prevented Party
shall not be deemed to be in breach of (and shall not be liable
for breach of contract in respect of) any contractual obligation
that it is prevented from performing as a result of such Force
Majeure Event. If, despite such commercially reasonable steps,
such Force Majeure Event prevents the performance of such material
obligation by the Prevented Party, the Non-Prevented Party may
take all commercially reasonable steps to mitigate its damages
resulting from the Prevented Party's inability to perform such
material obligation. If such Force Majeure Event continues to
prevent the Prevented Party from performing a material obligation
hereunder for a continuous period of [***], the Non-Prevented
Party may terminate this Agreement without any liability to either
Party as a result of such inability to perform such material
obligation. If such Force Majeure Event continues to prevent the
Prevented Party from performing a material obligation and, as a
result thereof, the Prevented Party cannot obtain the substantial
benefits afforded the Prevented Party under this Agreement for a
continuous period of [***], the Prevented Party may terminate this
Agreement without any liability to either Party as a result of
such inability to perform such material obligation. In addition,
either Party may terminate this Agreement immediately following
written notice to the other Party if the other Party ceases to do
business, becomes or is declared insolvent or bankrupt, is the
subject of any proceeding related to its liquidation or insolvency
which is not
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dismissed within ninety (90) days or makes an assignment for the
benefit of creditors. In addition, in the event of a Change of
Control of ICP by or with an AOL Direct Competitor or any
affiliate thereof, AOL shall have the right to terminate this
Agreement upon thirty (30) days written notice to ICP; provided,
however, that, if, in connection with any such potential Change of
Control, ICP provides written notice to AOL of such potential
Change of Control, then AOL will notify ICP, in writing within
thirty (30) days whether it intends to: (i) terminate this
Agreement pursuant to this Section; (ii) convert the Agreement to
the OEM Alternative; or (iii) continue this Agreement with no
change; provided, further that if AOL fails to provide such
written notice AOL shall be deemed to have elected to terminate
this Agreement. Any such written notification from AOL shall be
binding for only 30 days, provided that a definitive agreement is
signed within such 30-day period and such transaction is
consummated within six (6) months from the date of signing of any
such definitive agreement. In addition, in the event that AOL is
eligible to exercise any of its termination rights pursuant to
this Agreement, AOL may elect to convert this Agreement to the OEM
Alternative as of the date such termination would have taken
effect, in which event AOL shall retain its rights to renew the
OEM Alternative as described in Section 8.1. If (x) the Merger
Agreement is terminated for any reason whatsoever prior to the
"Closing" (as defined in the Merger Agreement) and/or (y) the
Merger fails to close on or before the "Termination Date" (as
defined in the Merger Agreement), as such date may be extended by
the parties to the Merger Agreement, for any reason whatsoever,
then ICP and AOL shall each have the right to terminate this
Agreement with no liability whatsoever, whether fixed, contingent
or otherwise, except as provided in the next sentence. If the
Merger fails to close on or before February 1, 2000, for any
reason whatsoever, then ICP may, in its sole discretion, pay AOL
Two Million Dollars ($2,000,000) as a prepayment to be applied to
the amount due from ICP to AOL on the Merger Date pursuant to
Section 4.1.3; provided, however, that AOL may terminate this
Agreement if ICP shall fail to make such Two Million Dollar
($2,000,000) payment on or before February 1, 2000; provided,
further, that if the Merger fails to close on or before March 31,
2000, for any reason whatsoever, (x) AOL shall have the right to
terminate this Agreement with no liability whatsoever, whether
fixed, contingent or otherwise, and (y) AOL shall retain such Two
Million Dollar ($2,000,000) payment, provided, that if AOL does
not exercise its right to terminate this Agreement in accordance
with clause (x), such Two Million Dollar ($2,000,000) payment
shall continue to be applied as a prepayment of the amount due by
ICP to AOL on the Merger Date pursuant to Section 4.1.3. The
delivery by any party of a notice to terminate this Agreement
pursuant to this Section 8.2 shall automatically give rise to a
Dispute to be resolved pursuant to Section VI of Exhibit C other
than for a termination for a Change of Control of ICP by or with
an AOL Direct Competitor which is not disputed by ICP.
8.3 SITE AND CONTENT PREPARATION. If the Res System is not integrated
into the Service by the Launch Date or the Preview Reservations
Engine does not remain integrated into the Service on the Launch
Date in an manner similar to its integration on the date of
execution of this Agreement, then for each day following the
Launch Date that the Res System (or the Preview Reservations
Engine) is not so integrated, the following changes will be made
to the Term: (i) when the reason for such failure is due to AOL
(including, without limitation, a failure by AOL to satisfy its
obligations under the Preview Agreement with respect to the
integration of the Preview Reservations Engine within the Service)
then the Term of the Agreement will be extended by one (1) day for
each day by which AOL delayed such launch (and any period by which
the term is extended shall be added to the last Contract Year of
the Initial Term) and (ii) when the reason for such failure is due
to ICP, then the Impressions Target, the Advertising Revenue
Hurdles, the Commissions Hurdles, and the Cumulative OEM Hurdle
Amounts will be proportionally adjusted based on the length of
such delay. "Site and Content Preparation" shall mean in
connection with the respective obligations of each Party
hereunder, that the Party having such obligation shall have:
completed all necessary production work (including completion of
all necessary training for AOL's proprietary "Rainman" publishing
tool) for the ICP Internet Site, and all ICP Programming
(including programming all Licensed Content thereon); customized
and configured the ICP Internet Site and all ICP Programming in
accordance with this
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Agreement; and completed all other necessary work (including,
without limitation, all AOL site testing set forth on Exhibit E)
to prepare the ICP Internet Site all ICP Programming to launch on
the AOL Properties as contemplated hereunder. In the event that
Site and Content Preparation has not been achieved by September 1,
2000 as a result of a Party's non-performance in respect of the
elements of Site and Content Preparation to be performed by such
Party, then in addition to any other remedies available, the other
Party shall have the right to terminate this Agreement if such
non-performance or delayed performance has not been cured within
thirty (30) days following written notice to the non-performing
party. Nothing in this Section 8.3 shall prejudice any rights that
either AOL or ICP may have under this Agreement or at common law.
8.4 PRESS RELEASES. Each Party will submit to the other Party, for its
prior written approval, which will not be unreasonably withheld or
delayed, any press release or any other authorized public
statement ("Press Release") regarding the transactions
contemplated hereunder. Notwithstanding the foregoing, either
Party may issue Press Releases and other disclosures as required
by law without the consent of the other Party and in such event,
the disclosing Party will provide at least five (5) business days
prior written notice of such disclosure. The failure to obtain the
prior written approval of the other Party shall be deemed a
material breach of this Agreement, whereby the non-breaching Party
may terminate this Agreement immediately following written notice
to the other Party, and the cure provision of Section 6.2 of this
Agreement shall not apply. Because it would be difficult to
precisely ascertain the extent of the injury caused to the
non-breaching party, in the event of such material breach, the
non-breaching party may elect to either (a) terminate this
Agreement immediately upon notice to the other Party, or (b) as
liquidated damages, elect to modify the Impression commitment
hereunder by [***] (either an increase in Impressions if AOL has
materially breached the Agreement or a decrease in Impressions if
ICP has materially breached the Agreement). The Parties agree that
the liquidated damages set forth are a reasonable approximation of
the injury that would be suffered by the non-breaching Party.
8.5 AOL PLUS. Notwithstanding anything to the contrary in this Section
8.5 or elsewhere in this Agreement, AOL Plus shall only be an AOL
Property for a period of one (1) year from the later of the Launch
Date and the launch date of AOL Plus and all of the Parties'
rights and obligations with respect to AOL Plus (including,
without limitation, carriage and exclusivity) shall terminate
after such date. To the extent that AOL seeks to [***] Content
and/or a Reservations Engine [***], AOL shall provide [***] to
provide [***] Content and/or Reservations Engine for [***] and the
[***] will [***] in [***] to reach an [***] within ten (10)
business days on the material [***] thereof; provided, however,
that neither party shall be under any obligation to [***] with
respect to the [***] of [***] Content or Reservations Engine for
[***].
9. PRIOR AGREEMENTS.
9.1 EFFECT OF MERGER. Notwithstanding anything to the contrary herein,
the Travelocity Agreement shall remain in full force and effect
after the date of execution of this Agreement until such agreement
expires or terminates pursuant to its terms as amended herein. The
execution of this Agreement by AOL and ICP shall not prejudice the
rights of either party under the Travelocity Agreement, provided
that Sabre and AOL hereby waive any rights they may have arising
from any actual or potential breach of the Travelocity Agreement
as a result of execution of this Agreement or performance
hereunder. The Travelocity Agreement is hereby amended (i) to the
extent necessary to permit the parties hereto to commence the
integration work contemplated by this Agreement, including without
limitation integrating the ICP Programming within the AOL
Properties, (ii) to terminate on the later to occur of (I) the
Launch Date and (II) the earlier to occur of (x) the launch of the
ICP Internet Site on the CompuServe Service and Netscape Netcenter
and (y) expiration or termination of the Travelocity Agreement
pursuant to the terms thereof (the dates of the events described
in clauses (I) and (II) are collectively defined as the
"Travelocity Agreement Termination Date"); and (iii) such that
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between the Launch Date and the Travelocity Agreement Termination
Date, each Party's obligations with respect to payments,
promotions, and impressions (and in each case the reporting
obligations associated therewith) and exclusivity shall terminate
under the Travelocity Agreement and shall be superceded as of the
Launch Date by the corresponding terms set forth in this
Agreement. The DCI Agreement (as defined below) shall terminate on
the earlier to occur of (x) the launch of the ICP Internet Site on
Digital City pursuant to this Agreement and (y) the expiration or
termination of the DCI Agreement pursuant to its terms. In
addition, upon or immediately following the Merger, ICP shall
assign this Agreement and the Travelocity Agreement to the
Combined Entity and cause the Combined Entity to assume all
obligations under such agreements. "Combined Entity" shall mean
the operating entity created in connection with transactions
contemplated by the Merger of Travelocity and Preview.
9.2 GUARANTEE. Sabre hereby guarantees the performance by ICP of all
of ICP's obligations and duties under this Agreement from the date
of this Agreement through the Merger Date, including all payments
to be made on the Merger Date by ICP, which payments total the sum
of (x)[***] and (y) any amount which ICP may elect to pay pursuant
to Section 8.2; provided that such guarantee shall, in all events,
terminate upon the later of (i) the Merger Date and (ii) the
payment of the [***] and any amounts ICP elects to pay pursuant to
Section 8.2; provided, further, that notwithstanding anything to
the contrary in this Section 9.2, such guarantee shall in all
events terminate upon the termination of the Merger Agreement
prior to the closing of the Merger.
9.3 ESCROW. Upon a Change of Control of ICP (other than a Change of
Control involving Sabre or its affiliates), AOL may, within thirty
(30) days following such Change of Control, elect, upon giving
written notice to ICP, to require ICP to implement an escrow
arrangement with respect to ICP's payments to AOL under Section
4.1 (the "Escrow Arrangement"). If AOL makes such an election, ICP
and AOL will mutually agree on a third party that will act as
escrow agent, which agreement shall not be unreasonably withheld
or delayed. Under the Escrow Arrangement, beginning on the first
day of each six-month payment period, ICP will transfer to the
escrow agent an amount equal to the sum of the amount that would
be owed to AOL at the end of such six-month period assuming AOL's
performance of its obligations under the Agreement (each such
six-month advance payment a "Pre-Funded Amount"). The escrow agent
will make payment to AOL of any Pre-Funded Amount on the date upon
which such amounts would have been paid to AOL by ICP if the
Escrow Arrangements had not been implemented. AOL's right to
receive the Pre-Funded Amount from the escrow agent will be
identical to AOL's right to receive payment from ICP under this
Agreement.
9.4 PREVIEW AGREEMENT BREACHES.
(a) AOL hereby agrees not to terminate the Preview Agreement
for any breach or alleged breach thereof which arose prior
to the date of execution of this Agreement of which AOL
has Knowledge on the date hereof.
(b) To the extent that, as of the date of this Agreement, AOL
has Knowledge of any pending or threatened third party
claim against AOL in respect of which AOL has or may have
a right of indemnification or other claim against Preview
(a "Third Party Claim"), AOL shall specify the nature and
amount of such pending or threatened Third Party Claim in
Schedule 9 to this Agreement.
(c) If AOL determines in good faith during the Relevant Period
(as defined in (g) below) that Preview is in breach or
alleged breach of the Preview Agreement, AOL shall provide
reasonably prompt written notice thereof to ICP, which
notice shall specify the nature of such breach or alleged
breach. Except as provided in Section 9.4(d) below, ICP
shall have the right, but not the obligation, for a period
of 30 days following the date of such notice, to cure such
breach or alleged breach on behalf of Preview. If, at the
end of such 30-day
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period, such breach or alleged breach has not been cured
by ICP or otherwise, AOL shall, subject to Section 9.4(e)
below, have the right to take any and all actions it
would otherwise be entitled to take under the Preview
Agreement. In addition, during the Relevant Period, AOL
shall provide reasonably prompt written notice to ICP of
any Third Party Claim not described in Schedule 9 hereto
of which AOL obtains Knowledge, which notice shall
provide substantially the same information provided in
such Schedule with respect to the Third Party Claims
described therein.
(d) If AOL provides notice to ICP of any breach by Preview of
the Preview Agreement relating to a payment owed by
Preview to AOL after the date of this Agreement and
payable pursuant to Section 4.1 of the Preview Agreement
taking into account all defenses, rights and remedies of
the Parties under the Preview Agreement (a "Preview
Payment Breach"), ICP shall pay to AOL the amount owed
but not paid by Preview to AOL, which amount in no event
shall exceed the total amount owed by Preview to AOL
under Section 4.1 of the Preview Agreement during the
Relevant Period.
(e) Notwithstanding anything to the contrary in this Section
9.4 or elsewhere in this Agreement or in the Preview
Agreement, commencing on the date of execution of this
Agreement and continuing through the end of the Relevant
Period, [***] thereof or [***] thereunder by Preview (or
any successor to Preview), even if such [***] and is not
[***] by Preview, ICP or otherwise; provided, however,
that nothing in this Section 9.4 or elsewhere in this
Agreement shall [***] (if permitted to do so in
accordance with [***]) upon the occurrence of one or more
of the following events or actions (each, a "Catastrophic
Event"): (i) the Preview Reservations Engine is
unoperational or inaccessible to AOL Members for a period
of more than forty-eight (48) hours in any one hundred
twenty (120) hour period (the "Minimum Downtime Period")
due to a cause or reason not attributable to AOL; (ii) a
substantial majority of the Content licensed or provided
by Preview to AOL pursuant to the Preview Agreement is
inaccessible or unavailable to AOL Members for the
Minimum Downtime Period due to a cause or reason not
attributable to AOL; (iii) Preview commits fraud or
malicious conduct; or (iv) intentional, repeated breaches
of material provisions of the Preview Agreement by
Preview that substantially deprives AOL of its rights and
benefits under the Preview Agreement or which causes AOL
substantial commercial or reputational harm and which
Preview has failed to cure despite notice thereof from
AOL and a reasonable opportunity to do so.
(f) If Preview commits any breach of or default under the
Preview Agreement which breach or default (1) gives Sabre
the right to either not close the Merger or to terminate
the Merger Agreement and (2) would otherwise give AOL the
right to terminate the Preview Agreement in accordance
with the terms thereof, then Sabre shall, within thirty
(30) days following the date of receipt of notice from
AOL of such default pursuant to Section 9.4(c), notify
AOL in writing whether it (a) elects to either not close
the Merger or to terminate the Merger Agreement based on
such breach or default (a "Merger Termination Election")
or (b) waives such breach or default as a basis for not
closing the Merger or terminating the Merger Agreement (a
"Waiver Election"). If Sabre makes a Merger Termination
Election in accordance with the preceding sentence,
nothing in this Section 9.4 or elsewhere in this
Agreement shall prevent AOL from terminating the Preview
Agreement in accordance with the terms thereof. If Sabre
makes a Waiver Election in accordance with the second
preceding sentence and such breach or default is not a
Catastrophic Event, then AOL shall have no right to
terminate the Preview Agreement for such breach or
default during the Relevant Period.
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(g) ICP covenants to AOL that it will not fail to close the
Merger based on a Preview Payment Breach or a breach or
default in respect of which Sabre has made a Waiver
Election.
(h) For purposes of this Section 9.4: (i) the "Relevant
Period" means the period commencing on the date of
execution of this Agreement and ending on the earlier of
(x) the completion of the Site and Content Preparation
and (y) September 1, 2000; and (ii) "Knowledge" means
actual knowledge of the officers or employees of AOL
responsible for supervising or managing AOL's overall
relationship with Preview, including the Preview
Agreement.
(i) The Parties acknowledge and agree that if the Merger
fails to close for any reason whatsoever, Preview shall
have no rights under this Agreement, including, without
limitation, Section 9.4, as a third party beneficiary or
otherwise.
9.5 EFFECTIVENESS. Upon due execution of this Agreement by all the
Parties hereto, this Agreement shall become effective as of the
date first written above, notwithstanding that the Term may not
have commenced.
9.6 REFUND FROM EXISTING TRAVELOCITY AGREEMENT. The Parties agree
that, on the Launch Date, each Party shall pay the other Party
(provided the other Party has performed its obligations
thereunder) any amounts owed by such Party to the other Party
under the Travelocity Agreement, including the pro rata share of
any advance payments made pursuant to the Travelocity Agreement.
10. TERMS AND CONDITIONS. The terms and conditions set forth on the
Exhibits attached hereto are hereby made a part of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-25-
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date first written above.
AMERICA ONLINE, INC., A DELAWARE CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Print Name: Xxxxx X. Xxxxxxx
Title: President, Business Affairs
Date: October 3, 1999
TRAVELOCITY HOLDINGS, INC., A DELAWARE CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Print Name: Xxxxxxx X. Xxxxx
Title: President and CEO
Date: October 3, 1999
SABRE INC., A DELAWARE CORPORATION, SOLELY AS TO SECTIONS 9.1, 9.2 AND 9.4(F)
By: /s/ Xxxxxxx X. Xxxxx
Print Name: Xxxxxxx X. Xxxxx
Title: President, Xxxxxxxxxxx.xxx
Date: October 3, 1999
-26-
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[EXHIBIT A-1 CARRIAGE PLAN ]
YEAR ONE
SELLABLE
IMPRESSIONS YEAR TWO YEAR THREE YEAR FOUR
-----------------------------------------------------------------------------------------------------------------------------------
TRAVEL PRODUCT (ALL BRANDS)
------------------------------------------------------------------
AOL ([***]% GROWTH) 156,000,000 195,000,000 243,750,000 304,687,500
XXX.XXX ([***]% GROWTH) 39,866,667 49,833,333 62,291,667 77,864,583
COMPUSERVE ([***]% GROWTH) 7,222,222 9,027,778 11,284,722 14,105,903
NETSCAPE 65,000,000 81,250,000 101,562,500 126,953,125
DCI 51,037,037 63,796,296 79,745,370 99,681,713
BROADBAND
-----------------------------------------------------------------------------------------------------------------------------------
SHOPPING - TRAVEL ANCHOR (AOL, XXX.XXX, 4,350,202 5,220,242 6,264,291 7,517,149
COMPUSERVE, NETSCAPE)
------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------------------
CALENDAR (AOL, XXX.XXX, DCI, NETSCAPE,
COMPUSERVE)
-----------------------------------------------------------------------------------------------------------------------------------
CALENDAR - TRADESHOWS (DIRECTORY INTEGRATION ./ 2,000,000 2,500,000 3,125,000 3,906,250
PROMOTION)
CALENDAR - TRADESHOW BANNERS 5,000,000 6,250,000 7,812,500 9,765,625
CALENDAR - CONCERTS / LOCAL EVENTS (DIRECTORY 7,000,000 8,750,000 10,937,500 13,671,875
INTEGRATION ./ PROMOTION)
EVENT WATCH - REMINDER UPDATES > IN DEVELOPMENT N/A
CLICK TO ADD AGENDA (REQUIRES FORMATTING OF DATA N/A
BY PARTNER)
TRAVEL COUNTDOWN CALENDARS N/A
-----------------------------------------------------------------------------------------------------------------------------------
DCI
------------------------------------------------------------------
TRAVEL X HOT DEALS PROMOTION 6,400,000 12,700,000 17,800,000 23,100,000
DCI MAIN - TOP 24 TICKER 22,100,000 41,700,000 58,300,000 75,800,000
OTHER PROMOTIONS (NON-TRAVEL) 13,400,000 26,800,000 37,500,000 48,800,000
YEAR FIVE TOTAL IMPRESSIONS
-------------------------------------------------------------------------------------------------
TRAVEL PRODUCT (ALL BRANDS) 2,619,076,447
-----------------------------------------
AOL ([***]% GROWTH) 380,859,375 1,280,296,875
XXX.XXX ([***]% GROWTH) 97,330,729 327,186,979
COMPUSERVE ([***]% GROWTH) 17,632,378 59,273,003
NETSCAPE 158,691,406 533,457,031
DCI 124,602,141 418,862,558
BROADBAND
-------------------------------------------------------------------------------------------------
SHOPPING - TRAVEL ANCHOR (AOL, XXX.XXX, 9,020,579 32,372,463
COMPUSERVE, NETSCAPE)
-----------------------------------------
-------------------------------------------------------------------------------------------------
CALENDAR (AOL, XXX.XXX, DCI, NETSCAPE, 234,898,438
COMPUSERVE)
-------------------------------------------------------------------------------------------------
CALENDAR - TRADESHOWS (DIRECTORY INTEGRATION ./ 4,882,813 16,414,063
PROMOTION)
CALENDAR - TRADESHOW BANNERS 12,207,031 41,035,156
CALENDAR - CONCERTS / LOCAL EVENTS (DIRECTORY 17,089,844 57,449,219
INTEGRATION ./ PROMOTION)
EVENT WATCH - REMINDER UPDATES > IN DEVELOPMENT 50,000,000
CLICK TO ADD AGENDA (REQUIRES FORMATTING OF DATA 20,000,000
BY PARTNER)
TRAVEL COUNTDOWN CALENDARS 50,000,000
-------------------------------------------------------------------------------------------------
DCI 561,700,000
-----------------------------------------
TRAVEL X HOT DEALS PROMOTION 27,700,000 87,700,000
DCI MAIN - TOP 24 TICKER 91,000,000 288,900,000
OTHER PROMOTIONS (NON-TRAVEL) 58,600,000 185,100,000
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------------------------------------------------------------------------
NETSCAPE
------------------------------------------------------------------------
HOMEPAGE 36,000,000 45,000,000 56,250,000 70,312,500
ADS IN SPORTS, ENTERTAINMENT AND WEATHER 24,000,000 30,000,000 37,500,000 46,875,000
TARGETED CO-BROWSING BOOKMARK (NO BUSINESS
MODEL TO DATE)
------------------------------------------------------------------------
XXX.XXX
------------------------------------------------------------------------
XXX.XXX HOMEPAGE 12,000,000 15,000,000 18,750,000 23,437,500
ADS IN SPORTS, ENTERTAINMENT AND WEATHER 24,000,000 30,000,000 37,500,000 46,875,000
HOMETOWN TRAVEL, RECREATION 10,200,000 12,750,000 15,937,500 19,921,875
TIMESAVERS - TRAVEL 4,200,000 5,250,000 6,562,500 8,203,125
SEARCH - TRAVEL RELATED TRY THESE FIRST 24,000,000 30,000,000 37,500,000 46,875,000
------------------------------------------------------------------------
AOL
------------------------------------------------------------------------
WELCOME SCREEN 100,000,000 125,000,000 156,250,000 195,312,500
EXIT SCREEN 49,000,000 61,250,000 76,562,500 95,703,125
SPECIAL EVENTS, INCLUDING: 7,125,000 562,500 10,559,125 2,195,907
SUMMER OLYMPICS INTEGRATION (2000)
WINTER OLYMPICS INTEGRATION (2002)
WOMEN'S WORLD CUP INTEGRATION (2003)
WORLD CUP INTEGRATION (2002)
WORLD SERIES GOLD
SUPERBOWL GOLD
BANNERS IN SPORTS, PERSONAL FINANCE,
NEWS, WEATHER, INTERNATIONAL AND CAREERS
AOL MAPS 12,000,000 15,000,000 18,750,000 23,437,500
AOL LIVE EVENTS (6 ANNUALLY. IMPRESSIONS ARE 3,000,000 3,750,000 4,687,500 5,859,375
PROMOTIONAL TO EVENT)
TRAVEL & INTERNATIONAL CHAT AND MESSAGE BOARDS 56,000,000 70,000,000 87,500,000 109,375,000
------------------------------------------------------------------------
COMPUSERVE
------------------------------------------------------------------------
BUSINESS TRAVEL 24,000,000 30,000,000 37,500,000 46,875,000
ARTS & ENTERTAINMENT 18,000,000 22,500,000 28,125,000 35,156,250
BUSINESS & PROFESSIONAL 90,000,000 112,500,000 140,625,000 175,781,250
HOME & FAMILY 9,000,000 11,250,000 14,062,500 17,578,125
RUN OF COMPUSERVE 102,000,000 127,500,000 159,375,000 199,218,750
-----------------------------------------
NETSCAPE 692,421,875
-----------------------------------------
HOMEPAGE 87,890,625 295,453,125
ADS IN SPORTS, ENTERTAINMENT AND WEATHER 58,593,750 196,968,750
TARGETED CO-BROWSING BOOKMARK (NO BUSINESS 200,000,000
MODEL TO DATE)
-----------------------------------------
XXX.XXX 610,603,125
-----------------------------------------
XXX.XXX HOMEPAGE 29,296,875 98,484,375
ADS IN SPORTS, ENTERTAINMENT AND WEATHER 58,593,750 196,968,750
HOMETOWN TRAVEL, RECREATION 24,902,344 83,711,719
TIMESAVERS - TRAVEL 10,253,906 34,469,531
SEARCH - TRAVEL RELATED TRY THESE FIRST 58,593,750 196,968,750
-----------------------------------------
AOL 2,032,263,821
-----------------------------------------
WELCOME SCREEN 244,140,625 820,703,125
EXIT SCREEN 119,628,906 402,144,531
SPECIAL EVENTS, INCLUDING: 1,098,633 21,541,165
SUMMER OLYMPICS INTEGRATION (2000) -
WINTER OLYMPICS INTEGRATION (2002) -
WOMEN'S WORLD CUP INTEGRATION (2003) -
WORLD CUP INTEGRATION (2002) -
WORLD SERIES GOLD -
SUPERBOWL GOLD -
BANNERS IN SPORTS, PERSONAL FINANCE,
NEWS, WEATHER, INTERNATIONAL AND CAREERS 61,035,156 205,175,781
AOL MAPS 29,296,875 98,484,375
AOL LIVE EVENTS (6 ANNUALLY. IMPRESSIONS ARE 7,324,219 24,621,094
PROMOTIONAL TO EVENT)
TRAVEL & INTERNATIONAL CHAT AND MESSAGE BOARDS 136,718,750 459,593,750
-----------------------------------------
COMPUSERVE 1,994,308,594
-----------------------------------------
BUSINESS TRAVEL 58,593,750 196,968,750
ARTS & ENTERTAINMENT 43,945,313 147,726,563
BUSINESS & PROFESSIONAL 219,726,563 738,632,813
HOME & FAMILY 21,972,656 73,863,281
RUN OF COMPUSERVE 249,023,438 837,117,188
-28-
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-------------------------------------------------------------------------------
GUARANTEED IMPRESSIONS 8,777,644,762
-------------------------------------------------------------------------------
IN THE EVENT AOL PROVIDES AN EXCESS OF ANY ANNUAL IMPRESSIONS TARGET IN ANY
YEAR, THE IMPRESSIONS TARGET FOR THE SUBSEQUENT YEAR SHALL BE REDUCED BY THE
AMOUNT OF SUCH EXCESS.
ANY SHORTFALL IN IMPRESSIONS AT THE END OF A YEAR WILL NOT BE DEEMED A BREACH OF
THIS AGREEMENT BY AOL; INSTEAD SUCH SHORTFALL WILL BE ADDED TO THE IMPRESSIONS
TARGET FOR THE NEXT YEAR.
ANY SHORTFALL IN IMPRESSIONS FROM A PARTICULAR AOL PROPERTY OR AREA WITHIN AN
AOL PROPERTY MAY BE MADE UP BY OVER-DELIVERY OF IMPRESSIONS IN ANOTHER AOL
PROPERTY OR AREA.
-29-
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[EXHIBIT A-2 PROGRAMMING REQUIREMENTS DOCUMENT]
ICP will cooperate in the redesign of the Service, emphasizing integrated
content and functionality designed to increase online bookings, user experience,
and transaction revenues. To that end, ICP will abide by the following
programming requirements:
GENERAL PROGRAMMING PRINCIPLES
Design and UI
Subject to technological and commercial feasibility, ICP will customize its
products and content to meet the design specifications developed by AOL and its
designated design firm, from time to time, including but not limited to UI,
design templates, branding, and navigation architecture. The inventory,
performance, functionality, and look-and-feel of ICP's customized site are all
subject to AOL's reasonable approval. ICP will assist AOL in connection with all
issues in connection with navigation architecture and UI within the booking
engine and transaction centers.
Customization
In addition to the customization requirements set forth in Section 6.1, ICP will
customize its product(s) for carriage on the AOL Properties. Customization will
consist of the following:
o ICP will create a version of the ICP Internet Site customized for distribution
through each of the AOL Properties by (x) developing the ICP Internet Site so as
to contain no links outside of the ICP Internet Site other than to AOL or third
party Content determined by AOL, or advertisements pursuant to this Agreement,
(y) displaying on each page of the ICP Internet Site framing (e.g., C-frame,
side navigation/menu bars, headers and footers) of size and type determined by
AOL, with consultation with ICP, and which contain branding for the applicable
AOL Property and ICP as determined by AOL, links to the applicable AOL Property,
a search box and promotional spaces to be programmed by AOL, and (z) matching
the look and feel of the applicable AOL Property on the ICP Internet Site.
Content used on the Service may include attribution by using the providing
party's name or logo.
o Contextual integration of ancillary services into ICP's products that may
differ from platform to platform, including, without limitation, book sales
(e.g., Amazon and B&N), luggage & merchandise, weather, mapping, currency
converter, message boards, and other community features.
o All pages of the Service hosted by ICP will be hosted under a co-branded
domain name (i.e., xxx.xxx.xxx, xxx.xxxxxxxx.xxx, xxx.xxxxxxxxxx.xxx, etc.) and
traffic to pages hosted on such domain name shall be deemed to be AOL traffic.
IN ADDITION TO THE FOREGOING, ICP WILL PERFORM SUCH OTHER CUSTOMIZATION OF ITS
PRODUCT(S) AS REQUESTED BY AOL AND MUTUALLY AGREED BY THE PARTIES.
HOSTING
ICP will host all pages within the ICP Internet Site on an AOL domain name
(e.g., xxx.xxx, xxxxxxxxxx.xxx, xxxxxxxx.xxx, xxx.xxx), and will assume all
costs associated with their maintenance and updating. Exceptions to the previous
sentence are outlined below:
Reservation System. ICP will host all pages within the Res System and assumes
all costs associated with their maintenance and updating. Notwithstanding the
previous sentence, AOL reserves the right to host the initial input screen for
the Res System (air, car, hotel, cruises, and vacation packages), including but
not limited to the following fields: Destination, origin city, number of
passengers, date of departure, date of return, preferred airline, preferred
rental agency, preferred hotel chain, sort priorities, user id, password,
pick-up location, drop-off location.
Xxxxx'x Database. As warranted by technical and performance issues and
contractual limitations, AOL may, upon reasonable notice to ICP, elect to host
the Xxxxx'x database on its own servers and to pour the data into templates of
its design in order to integrate into integrated search or personalization
functionality. In such an event, ICP will work with AOL to facilitate the
transition from its own servers and to establish a scheduled maintenance and
updating procedure based on Xxxxx'x updating schedule, provided that the Parties
obtain necessary sublicenses. The Parties will use commercially reasonable best
efforts to obtain necessary sublicenses, provided that ICP shall not bear
additional fees from Xxxxx'x with such sublicenses.
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31
INTEGRATION
AOL may, in its editorial discretion, integrate third party Content within the
Service, including, without limitation, Content of Travel Suppliers, Ancillary
Services and Content related to rewards and/or mileage programs. ICP shall
integrate such Content into the Service in accordance with the terms of this
Agreement, including by making such Content available through a unified search
or other UI, provided such integration is technologically and commercially
feasible. Any specific references herein to ICP's integration obligations shall
in no way limit the generality of this paragraph.
SPECIFIC CONTENT & FUNCTIONALITY REQUIREMENTS
1) Reservation Engine
ICP will provide AOL with online booking capabilities via the Sabre CRS for
airline tickets, car rentals, hotels and other lodging, Cruises and Vacation
Packages. Specific booking requirements appear under categories devoted to Air,
Car, Hotel, Vacations, and Preferences & Profiles, below. General booking
requirements are as follows:
a) Calendar integration. ICP will integrate CRS-driven information into users'
AOL calendar application, including but not limited to reminders,
reservations, saved itineraries, reservations on 24-hour hold, and
specials, as determined by AOL.
b) Trip Suitcase/My Travel Integration. ICP will integrate information about
bookings, reservations, and planned itineraries into AOL's Trip Suitcase/My
Travel functionality, as determined by AOL. This information may be
displayed automatically on the main screen of a user's My Travel area.
c) ICP will create and maintain user Profiles and Preferences, which can be
automatically applied to streamline and narrow a user's search and booking
requests. See Profiles & Preferences, below.
d) ICP will co-brand the entire booking process, including all screens
appearing within the booking stream, email reservation confirmations and
customer-service notices, and any regular mail correspondence including but
not limited to paper-based tickets, confirmation notices, one-to-one
marketing, etc, each of which shall be subject to AOL's approval, not to be
unreasonably withheld or delayed.
e) ICP will implement changes to the booking engine (functional, design, and
UI) reasonably requested by AOL and recommended by user testing.
f) ICP will work with AOL to identify ways to either eliminate the
registration process, pre-register AOL users, or give non-registered users
a trial period that requires no registration.
Airline Reservation Engine
ICP will provide AOL with airline booking functionality that is comparable or
superior in scope, flexibility, ease-of-use, and value pricing to the booking
products offered on any ICP Interactive Site. As part of its airline booking
functionality, ICP will at minimum provide the following in a UI mutually agreed
upon by AOL and ICP:
a) Express Air Booking, giving users the ability to find and book a round-trip
ticket on user-specified dates and airlines within four screens (currently,
such screens are the request screen, selection screen, review screen and
confirmation screen).
b) Long-form booking, giving users the maximum number of options for selecting
the airline, number of trip legs, date and time of departure.
c) Best Fare Finder, giving users the ability to do lowest fare look-ups for
500 city pairs when the user's travel dates are flexible. For each
low-price flight option, ICP will provide a calendar indicating possible
days of departure and return. Users will be required to register with
ICP/AOL only at the point when the user wishes to access the CRS to check
availability and to book. In addition, ICP will merge Best Fare Finder with
its regular booking engine to create a unified UI and product offering,
using similar concepts to those currently employed by ICP on Yahoo Travel.
ICP agrees to work with AOL to customize the way in which such results are
displayed.
d) Seating charts, giving users the ability to select their preferred seat
from a seating-availability chart. ICP agrees to support the additional
customer-service volumes surrounding such functionality.
e) 24-hour-hold capability on all reservations, contingent upon the
cooperation and/or acceptance of this functionality by domestic and/or
international airlines.
f) Fare Alert emails. Users must be able to specify up to 5 routes (including
fare notification start and stop dates) for which they are pricing tickets
and receive an e-mail update as soon as the price drops below the
user-specified threshold. Upon request and as commercially feasible, ICP
will work with AOL to extend this functionality to pager and cell-phone
notifications, and also agrees to provide AOL a data feed of Fare Alert
updates that can be used to populate My Travel main screens, customized for
each registered user.
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32
Placement
ICP's airline booking engine will receive the following placements:
a) Contingent upon AOL design decisions made during the Travel Channel
redesign, the input fields for Origin City and Destination City may appear
on the main screen of Travel, as well as tabbed selections for one-way,
round-trip, and multi-leg travel. Such placement will not feature the ICP
brand.
b) Contingent upon AOL design decisions made during the Travel Channel
redesign, the ICP Res Engine may appear on two versions of the Air Center
screen:
o A customized Air Center screen displaying the following:
o The Best Fare Finder results based on user input from the Travel
Channel main screen, displayed in a customized UI to be determined by
AOL and ICP.
o The Express round-trip booking module with pre-populated user ID,
origin and destination fields.
o Access to the long-form version of the booking engine.
o Access to the Preferences & Profiles component of My Travel.
o A non-customized Air Center screen, displaying the following:
o Prominent positioning for the input fields for the Express booking
module, with the origin city pre-populated with the user's local
airport (pending localization).
o Access to Best Fare Finder
o Access to the long-form booking engine.
o Access to the Preferences and Profiles component of My Travel.
c) Contextual integration within the Xxxxx'x Destination Guides and within all
other destination-content providers, contingent upon the cooperation of
such third-party providers. For all such contextual placements, ICP agrees
to provide a pre-populated Express booking module.
d) Contextual integration within the Travel Bargains area, contingent upon the
cooperation of the third-party manager of the area. ICP agrees to provide
the following:
o Airfare bargains, specials, and AOL member specials for inclusion within
the relevant areas of Travel Bargains. ICP agrees to work with the
third-party manager of this area to incorporate its air bargains into the
overall bargains database, including adhering to any fielding and attribute
requirements.
o Pre-populated Express booking modules tied to all qualified air bargains
managed by the third-party manager of the area. ICP agrees to work with
this third-party manager to facilitate implementation.
e) The Express Trip and Airline areas of the Business Travel Center, as long
as this area shall exist. See below.
f) ICP will work with AOL to integrate the Res System within all areas where
AOL may, in its editorial discretion, request contextual integration of an
airline-reservation product. Such areas might include: Personalogic
Decision Guides, customized My Travel areas, seasonal feature packages,
Travel Interest areas, event-based programming, and local and weekend
travel.
Hotel & Lodging Reservation Engine
ICP will provide AOL with hotel- and lodging-booking functionality that is
comparable or superior in scope, flexibility, ease-of-use, and value pricing to
the booking products offered on any ICP Interactive Site. As part of its
lodging-booking functionality, ICP will at minimum provide the following in a UI
mutually agreed upon by AOL and ICP:
a) The ability to book hotel rooms at any of more than 40,000 hotels
worldwide, including major hotel chains accessed through the Sabre CRS.
Smaller inns, hotels, B&Bs, vacation rentals and timeshares accessed via
World Res will be implemented by ICP, using ICP's commercially reasonable
best efforts, within 90 days of such functionality becoming available to
Sabre, the scope of such offerings to equal or exceed that of
Xxxxxxxxxxxx.xxx, Xxxx.xxx, and RCI. ICP further agrees to work with AOL to
create a unified search that allows a user to obtain from a single
lodging-search query complete information (possibly in a tabbed set-up)
about each available lodging type including "Major Hotel Chains", "Small
Inns and Hotels", "Bed-and-Breakfasts," "Vacation Rentals," and
"Timeshares."
b) ICP will geo-code and implement proximity searches for all lodging
properties appearing within the databases of ICP and its partners.
c) The ability to store member preferences and profiles about hotels that can
be used to streamline and narrow hotel searches. These preferences include
but are not limited to: preferred hotel chains, guest-reward memberships,
all-suite, apartment, bed and breakfast, convention facility, extended
stay, first class, historical, luxury, motel, ranch and resort. Up to three
preferences may be selected. Additionally, one of the following special
amenities may also be searched: business center, meeting facility, pets
allowed, casino, recreational facilities, wheelchair accessible, children's
program, golf, tennis, fitness center, pool and restaurants.
d) Hotel specials, discounts, and AOL-only member specials for integration
into the Hotel Center and Hotel Bargains areas.
-32-
33
Placement
ICP's hotel-booking engine will receive the following placements:
a) Contingent upon AOL design decisions made during the Travel Channel
redesign, the input fields for Destination City (and possibly date range)
may appear on the main screen of Travel. Such placement will not feature
the ICP brand.
b) Contingent upon AOL design decisions made during the Travel Channel
redesign, the Res System will appear on two versions of the Hotel & Lodging
Center screen:
o A customized Hotel Center screen displaying the following:
o The input fields for the Hotel booking module, including but not
limited to pre-populated user ID and destination fields, as well as input
fields for date of arrival and departure, preferred hotel chain, and
number of rooms required.
o A contextual link to the Xxxxx'x-reviewed hotels in that destination.
o Promotion of any ICP-negotiated hotel or lodging specials in that
destination.
o A contextual link to Bed & Breakfasts in that destination.
o Access to the Preferences & Profiles component of My Travel.
o A non-customized Hotel Center screen, displaying the following:
o Prominent positioning for the input fields for the hotel booking
module.
o Access to the Preferences and Profiles component of My Travel.
o A link to the Xxxxx'x Hotel Finder.
o A link to the XxxxxxXxxxxxxxxx.xxx site.
c) Contextual integration with all qualified hotels and lodging within the
Xxxxx'x Destination Guides and within all other destination-content
providers, contingent upon the cooperation of such third-party providers.
For all such contextual placements, ICP agrees to provide a pre-populated
booking module.
d) Contextual integration within the Travel Bargains area, contingent upon the
cooperation of the third-party manager of the area. ICP agrees to provide
the following:
o Hotel bargains, specials, and AOL-only member specials for inclusion
within the relevant areas of Travel Bargains. ICP agrees to work with the
third-party manager of this area to incorporate its lodging bargains into
the overall bargains database, including adhering to any fielding and
attribute requirements.
o Pre-populated booking modules tied to all qualified lodging bargains
offered by the third-party manager of the area. ICP agrees to work with
this third-party manager to facilitate implementation.
e) The Express Trip and Hotel areas of the Business Travel Center, as long as
this area shall exist. See Business Travel Center, below.
f) ICP will integrate the Res System within all areas where AOL may, in its
editorial discretion, request contextual integration of a
lodging-reservation product. Such areas might include: Personalogic
Decision Guides, customized My Travel areas, seasonal feature packages,
Travel Interest areas, event-based programming, and local and weekend
travel.
Car-Rental Reservation Engine
ICP will provide AOL with car-rental reservations functionality that is
comparable or superior in scope, flexibility, ease-of-use, and value pricing to
the booking products offered on any ICP Interactive Site. As part of its
rental-reservations functionality, ICP will at minimum provide the following in
a UI mutually agreed upon by AOL and ICP:
a) The ability for users to reserve and book rental cars in destinations
worldwide from a minimum of 20 rental agencies, including but not limited
to Xxxxx, Xxxx, Budget, Dollar, National, Enterprise, Alamo, and Payless.
Users must be able to specify pick-up and drop-off locations and dates,
preferred rental agencies, and car type and/or make.
b) The ability to search for low-cost rental cars.
c) The ability to store member preferences and profiles about rental cars that
can be used to streamline and narrow searches. These preferences include
but are not limited to: preferred rental agencies, frequent-rental reward
memberships, preferred car size and make.
d) Car-rental specials, discounts, and AOL-only member specials for
integration into the Car-Rental Center and Car-Rental Bargains areas.
Placement
ICP's car-rental booking engine will receive the following placements:
a) Contingent upon AOL design decisions made during the Travel Channel
redesign, the input fields for the car-rental pick-up location may appear
on the main screen of Travel. Such placement will not feature the ICP
brand.
-33-
34
b) Contingent upon AOL design decisions made during the Travel Channel
redesign, the ICP car-rental booking engine may appear on two versions of
the Car-Rental Center screen:
o A customized Car-Rental Center screen displaying the following:
o Low-cost rental car search results based on user input from the
Travel Channel main screen, displayed in a customized UI to be
determined by AOL and ICP.
o The rental-car booking module with pre-populated user ID and
destination fields.
o Access to the Preferences & Profiles component of My Travel.
o A non-customized Car-Rental Center screen, displaying the following:
o Prominent positioning for the input fields for the car-rental booking
module.
o Ability to search for low-cost rental cars
o Access to the Preferences and Profiles component of My Travel.
c) Contextual integration within the Xxxxx'x Destination Guides and within all
other destination-content providers, contingent upon the cooperation of
such third-party providers. For all such contextual placements, ICP agrees
to provide a pre-populated booking module.
d) Contextual integration within the Travel Bargains area, contingent upon the
cooperation of the third-party manager of the area. ICP agrees to provide
the following:
o Car-rental bargains, specials, and AOL member specials for inclusion
within the relevant areas of Travel Bargains. ICP agrees to work with the
third-party manager of this area to incorporate its car-rental bargains
into the overall bargains database, including adhering to any fielding and
attribute requirements.
o Pre-populated car-rental booking modules tied to all qualified rental
bargains offered by the third-party manager of the area. ICP agrees to work
with this third-party manager to facilitate implementation.
e) The Express Trip and Car areas of the Business Travel Center, as long as
this area shall exist. See below.
f) ICP will integrate the Res System within all areas where AOL may, in its
editorial discretion, request contextual integration of a car-rental
reservation product. Such areas might include: Personalogic Decision
Guides, customized My Travel areas, seasonal feature packages, Travel
Interest areas, event-based programming, and local and weekend travel.
Vacations
o ICP will offer customized versions of its Vacation Package and Cruise products
on AOL that match or surpass its other Web-based offerings in terms of quantity
and quality of Cruise and Vacation Packages, and value pricing. Unless otherwise
approved by AOL, ICP will provide AOL members with a selection of no fewer than
2,000 Vacation Packages, although ICP agrees to increase this number as
necessary to remain competitive within the industry. Substantially all of these
packages shall be bookable online.
o ICP will provide the same or a superior level of detail about each trip as is
currently found on the xxx.xxxxxxxxxxx.xxx site. This includes but is not
limited to thumbnail sketches of each trip (photo, link to Cruise or trip
details, link to Cruise line or resort details, price/price range, and vacation
length); itinerary maps; itinerary and activity details; ship profiles with
photos; photos of resort rooms; facility/accommodation description; sailing
dates; prices; and a booking module or toll-free reservation number.
o ICP will customize its Vacation Packages and Vacation Package search results
according to a design spec, UI, and information architecture determined by AOL,
and to brand the vacation-finder product as the AOL Vacation Finder. Contingent
upon decisions to be made by AOL during the travel-service redesign, AOL will
create the following Vacation Package sub-categories:
o Romance o Family
o Theme Park
o Hotel & Resort
o Golf
o Skiing
o Sports
o Adventure & Active
o Learning & Culture
o Cruise
o Casino Resorts
o Bargains
o ICP will make its Vacation Packages fully searchable through a unified search.
As such, ICP will create a database of all its Vacation Packages with the
following search attributes at minimum:
o Destination
o Price Range
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o Amenities (pool, child care, etc.)
o Activities (Swimming, Sailing, Hiking, etc.)
o All inclusive/ Land Only
o Months Available
o Cruise Line or Package Supplier
o In the event that AOL partners with a third-party content provider (e.g.,
Discovery Channel) that offers its own branded packages, ICP will incorporate
them into its own Vacation Package offering and/or integrate such third party
provider into AOL's unified search, as technologically and commercially
feasible.
o ICP will offer a Vacation Bargains area, consisting of significantly
discounted Vacation Packages across all major vacation and Cruise categories.
ICP will work with its vacation suppliers to guarantee that all vacation
bargains promoted within the Bargains area represent at least a 10% discount off
the published package price and that suppliers will not artificially inflate
base prices for their packages in order to meet the discount threshold. If
technically and commercially feasible, ICP will provide suppliers with a
back-end tool to manage their inventory, including the ability to automatically
discount packages and enter them into the Bargains area.
o Upon request, ICP agrees to contextually integrate into the Vacation Center
links to other AOL services and content including, but not limited, to
destination guides, travel interests, and feature articles (dynamically generate
from a database).
o ICP will update all of its content in timely fashion, with a frequency that is
equal or superior to that of any other Web-based Cruise suppliers. AOL reserves
the right to remove the ICP Vacation Packages or categories that are out of date
from the Vacation Center and partner with a third-party provider of its choice.
o [***]
o
In addition to the requirements set forth in paragraph 13 below, ICP will
operate dedicated, co-branded, toll-free telephone numbers for customer support,
travel reservation, booking and availability services with respect to travel
vacations for AOL Members, seven days a week. The co-branded toll-free number
for travel vacations will be operated from 7:00 am pst to 8:00 pm pst, Monday
through Friday, and 8:00 am pst to 7:00 pm pst, Saturday and Sunday. If these
hours are not sufficient to meet AOL Members purchasing needs, sales, and
customer feedback, these hours will be extended and/or staffing will be
increased as mutually agreed by the Parties. . AOL members shall receive the
same level of service which ICP provides to its other users, which shall be of a
quality that meets or exceeds industry standards. The ICP toll-free number must
be prominently displayed throughout the vacation area.
Preferences & Profiles
a) ICP will provide registered AOL users of the Res System with the same or a
superior level of personalization, in the form of preferences and profiles, as
it currently provides on any ICP Interactive Site. This includes, but is not
limited to, the following:
o The ability to store and apply member preferences and profile information
regarding airlines, frequent-flier mileage programs, age, airline
seating, airline meals, hotel chains, guest-reward programs,
smoking/non-smoking rooms, car-rental agencies, car size and make, and
car-rental reward programs.
o The ability for users to edit, delete, or augment their personal
information at any time.
o The ability for users to apply or disregard their preferences during each
booking session.
o The ability to save itineraries prior to booking, and to access them at
any time.
o The ability to save frequently traveled trips for quick re-booking.
o The ability for users to see their travel history (e.g., past trips
booked through ICP, etc.) for a time period agreed to by AOL and ICP.
o The ability to include multiple passengers with multiple profiles on a
single account.
b) In addition, ICP will ensure that Preview's members are seamlessly
transitioned to the ICP back-end with minimum disturbance and churn.
c) AOL reserves the right to host the profiles/preferences of all AOL Members
and all users who register with the ICP through an AOL platform. ICP will
maintain a mirror database of information required by and/or furnished to
ICP by registered users. ICP agrees to work with AOL to develop a
bi-directional updating procedure to ensure that AOL Member profiles remain
current on both sites.
c) ICP will provide incentive opportunities for non-registrants to sign up for
the Service. These include but are not limited to first-time discounts,
mileage awards, companion fares, and free gifts.
d) ICP will make any back-end technical modifications necessary to allow AOL
to implement progressive personalization, meaning the ability to build up a
profile of a member over a long period of time (with their permission),
without requiring them to fill out an exhaustive personalization profile.
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e) ICP will implement the "trip suitcase" concept, allowing users to "pack"
information including, but not limited to, reservations, Vacation Package
descriptions, destination content, mini-guides, and Personalogic decision
guide results, to assist them in the trip-planning process.
2) Destination Guides
ICP will provide the database of Xxxxx'x-based destination content that is
currently maintained and developed by Preview. Upon the expiration of the
existing contract with Xxxxx'x, ICP shall use its commercially reasonable best
efforts to continue such relationship. This product will consist of the
following:
a) Xxxxx'x destination database, currently consisting of over 200 cities,
resorts, and islands worldwide, with contextual integration of reservation
modules, currency converter, mapping, broadband video, photo galleries,
local events, message boards, and book collections.
b) Xxxxx'x Hotel Finder, consisting of an index, search function, and reviews
for all hotels appearing in the Xxxxx'x destination database.
c) Xxxxx'x Restaurant Finder, consisting of an index, search function, and
reviews for all restaurants appearing in the Xxxxx'x destination database.
d) Xxxxx'x Mini-guides, allowing users to create printable, customized
mini-guides of any major destination appearing within the Xxxxx'x database.
e) Where relevant, all pages in the Destination Guides shall have links to the
ICP booking engine.
Placement
The Preview-maintained Xxxxx'x database will be carried in the Destination
Guides area of the Travel Channel along with other content providers of AOL's
choice. At AOL's sole discretion, the destinations content may be contextually
integrated or linked into any other area of the service including, but not
limited to, the Vacations area; the Hotel, Car, and Air reservation centers; the
Bargains and Member Specials area; the Cruise area and other Travel Interests;
message boards; and AOL's mapping product. Where relevant, the Destination
Guides shall have links to the ICP booking engine.
Branding
AOL reserves the right to sublimate the ICP brand in favor of the Xxxxx'x brand
within the destination guides and all related promotions. This includes but is
not limited to any tabs, links, advertising, promotions, and pull-down menus
related to the Destination Guides product.
Requirements
o Unified Search. ICP will cooperate with AOL in the creation of a unified
destination search capable of returning results from multiple content providers
including, but not limited to, Xxxxx'x, Rough Guides, Lonely Planet, Travefile,
and Mobil Guides.
o Design and UI. AOL and ICP will work together to create a mutually agreed-upon
UI, design, and navigation architecture for the Xxxxx'x destination database,
although any such design must meet the then-prevailing design specs of the
Service and the other Destination Guides product(s).
o Trip Suitcase. ICP will allow users to select and store content selections
from the Xxxxx'x destination database in trip "suitcases" or virtual folders as
part of the trip-planning process. ICP will cooperate with AOL in the creation
of the trip suitcase concept, including making any necessary changes within the
database structure or tagging. Under no circumstances will ICP allow members to
use Xxxxx'x content within professionally printed customized guidebooks without
written permission from Xxxxx'x Travel Publications.
o Hosting. Subject to paragraph entitled "Hosting" above, The Xxxxx'x database
will be hosted and maintained by ICP on its own servers.
o Maintenance & Updating. ICP will update the destination content within the
database on an annual basis.
o Expansion of Coverage. ICP will extend the breadth and depth of its Xxxxx'x
coverage in a mutually agreed-upon timeframe. Extension of coverage includes but
is not limited to the introduction of country-based navigation and content (as
opposed to city based), including complete coverage of all European countries
and all 50 of the United States.
o ICP will cooperate with AOL in the creation of a browse/fantasize component of
the Xxxxx'x destination guides involving the creation of introductory text
nuggets for use with pop-up balloons and image-mapped country and state/province
maps intended to help users select a destination.
o ICP will work with AOL to integrate additional third-party content and
services into the destination guides, including but not limited to dynamically
rendered feature articles, lowest fares localized to users' airports, additional
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broadband offerings, local events, HTML-based message boards, Hometown site
collections, You've Got Pictures albums, merchandizing, special travel values,
bargains, and AOL-only member specials.
o In the event that AOL licenses additional destination content from other
providers, ICP will integrate any relevant services controlled by ICP, including
but not limited to booking modules, lowest fares, currency conversion, and local
events; provided that the foregoing integration is technologically and
commercially feasible.
3) Tools & Utilities
Upon request and as commercially and technically feasible, ICP will provide AOL
with co-branded versions of the following utilities with UI approved by AOL:
o Flight Paging
o Best Fare Finder
o Currency Converter
o Seat Maps
o Fare Watcher Email
In the event that AOL already offers a utility (e.g., currency converter) also
provided by ICP, AOL will use its own version in the Service. The parties will
mutually agree on which, if any, utilities will be replaced by ICP utilities.
Utilities falling under this clause include: Currency Converter, Miles Manager,
Flight Tracker, Flight-Arrival Notification, Fare Aware, International Holiday
Calendar, and World Clock. Not included in this clause are utilities that have
cross-service carriage, including Maps & Directions and Weather. The Parties
will integrate links to the Res System from appropriate tools and utilities
(e.g., Best Fare Finder, Seat Maps).
4) Newsletters and Emails
Subject to the terms of this Agreement, including Section 7, ICP may send
e-mails directly to AOL users under the following circumstances: reservation
confirmations or changes; fare alerts; billing queries; pre-trip reminders
and/or services (e.g., weather forecasts, events, etc.); post-trip
customer-service queries and survey solicitation (see Survey, below), provided
such e-mails are clearly co-branded and do not incorporate or link to any other
Web site, including any promotional, sponsorship or advertising links to a
third-party or any ICP Interactive Site. Information pertaining to any special
offers, discounts, new products, services, and content not directly related to a
specific reservation or member query may be sent out only as part of the Travel
Channel's umbrella newsletter. Although AOL reserves the right to edit for
length and clarity any submissions to the newsletter, AOL will use good-faith
attempts to include all qualifying ICP messages in the AOL Travel Newsletter,
provided such messages promote features, specials, or content appearing on the
Service.
5) Surveys
ICP will cooperate with AOL and a third-party publisher in the creation of an
annual travel survey of AOL members for promotion within the AOL service and
offline. Given AOL's goal to survey only qualified respondents, ICP will send
destination-specific surveys to AOL members returning from trips booked through
ICP (e.g., a member returning from a trip to Paris would receive a Paris
survey), and to forward completed surveys to AOL for tabulation. ICP will be
credited for its role in the annual survey but the survey itself will be
co-branded by AOL and the third-party publisher.
6) Bargains
ICP will use commercially reasonable best efforts to make discounts, specials,
and promotions that are negotiated with travel suppliers available through AOL's
Travel Bargains area, managed by Independent Traveler. This includes, but is not
limited to, adhering to standardized protocols for tagging bargains and
populating a bargains database. ICP will work with Independent Traveler to
develop and maintain a mutually agreed-upon method for delivering and updating
bargain information. In addition, ICP will work with Independent Traveler to
integrate pre-populated booking modules into all Independent Traveler bargains
that can be booked through the Res System.
7) AOL Member Specials
ICP will use commercially reasonable best efforts to secure a regular supply of
AOL member-only specials from travel suppliers that are bookable through the Res
System. Such specials include but are not limited to significant price
discounts, mileage incentives, free gifts, and perks.
Placement
AOL Member Specials will receive the following placements, contingent upon
navigation-architecture decisions made during the Travel Channel redesign:
a) On the main screen of registered users' My Travel areas, where relevant and
contingent upon promotional space availability.
b) Within the AOL Member Specials area of Travel Bargains (see above)
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c) On Air, Car, and Hotel Center screens, where relevant and contingent upon
programming-space availability.
d) Within the Travel Channel newsletter, contingent upon programming-space
availability.
8) Broadband including AOL Plus
ICP will make available to AOL all broadband assets under its control (or to
which it has rights) for integration into AOL Plus. These include but are not
limited to the video, photographic, and slideshow assets of News Net. In
addition, ICP will integrate into its AOL-only services any broadband assets
that AOL may provide by itself or through designated third-party suppliers
including, but not limited to, IPIX and Discovery Channel. Where relevant, these
broadband assets shall be used to funnel reservations to the Res System. ICP
will provide ongoing supply of travel videos, some of which may include Xxxx
and/or IPIX enhancements.
9) Localization
ICP will cooperate with AOL in the delivery of localized content to its members,
either using the billing addresses of AOL and CompuServe members or via a user
opt-in process on other platforms. To that end, ICP will make any necessary
back-end technical modifications to permit a localized data feed in the
following products, if available:
a) Fare Finder or Best Fare Finder
b) Air-inclusive Vacation Packages or specials.
c) Lodging specials and discounts, including bed and breakfasts, small inns,
vacation rentals, timeshares, and chain hotels.
d) Internet specials (air, car, and hotel), including weekend E-fares.
e) Travel bargains or special offers, including air, car, hotel, and Cruise.
f) Local events and attractions (e.g., festivals, ski passes, etc.)
10) Community
ICP will use commercially reasonable best efforts to integrate, with the goal of
integrating with 90 days after such request of AOL, AOL's community products
into the Service, ICP Internet Site or ICP Programming, as designated by AOL.
These products include but are not limited to message boards; chats; Hometown
and selected Hometown sites; You've Got Pictures and selected member photo
albums; and member reviews and ratings for hotels, restaurants, Vacation
Packages, and attractions. In the meantime, ICP will provide its existing member
ratings and review product for hotels, Vacation Packages, and restaurants.
11) Content Partners
a) ICP will cooperate with existing partners within the Service as long as
their AOL contracts endure for the purpose of integrating content and
utilities to develop a better product and travel buying experience for
AOL's Members, provided the foregoing is technologically and commercially
feasible. These partners include, but are not limited to, Independent
Traveler, Family Travel Network, Vicinity or its equivalent,
Xxxxxxxxxxxxxxx.xxx, Travelon, Xxxx.xxx (Res Engine excluded), Max Miles,
Cendant, Travelfile, and Planet Out.
b) ICP understands AOL's intention to integrate into its travel service
additional content and utility providers, including but not limited to
Rough Guides, Mobil Guides, Lonely Planet, and GORP. In the event that AOL
partners with any third-party provider, ICP will use commercially
reasonable best efforts to integrate its booking modules and products into
the content and services of the new partner.
c) In the event that AOL and ICP hold contracts with the same third-party
supplier (e.g., xxxxxxxxxxxxxxx.xxx), AOL will continue to maintain its
relationship with the third party. The Parties will mutually agree upon
which contracts provide the greatest value for the Parties, including
superior products and maximizing revenue.
12) Business Travel Center
ICP will provide booking modules for the Air, Car, Hotel and Express Trip areas
of the existing AOL Business Travel Center
13) Co-Branded Toll Free Number
o ICP will establish, obtain and operate dedicated, co-branded, toll-free
telephone numbers for customer support, travel reservation, booking and
availability services for AOL Members, seven days a week. The Parties shall
mutually agree upon the co-branding attribution and branding. AOL members shall
receive the same level of service which ICP provides to its other users, which
shall be of a quality that meets or exceeds industry standards. The ICP
toll-free number shall be displayed in areas of the AOL Properties as the
Parties shall agree.
14) Travel Interests
In the event that ICP creates content and utilities around specific travel
interests such as skiing or family travel, AOL agrees to review ICP's product
for possible integration into the Service. Under no circumstances shall AOL pay
ICP for such products.
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EXHIBIT B -- DEFINITIONS
DEFINITIONS. The following definitions shall apply to this Agreement:
ADVERTISING. Advertisements or promotions, banners, buttons, pointers,
integration, links, sponsorships and similar services and rights.
ADVERTISING REVENUE. The aggregate amount of all cash paid or payable to AOL for
Advertising that has been sold for placement on the pages described in Section
4.2.1 (other than local advertising on Digital City) and all carriage,
performance and other Advertising-related fees or revenues, at such time as such
cash is recognized as revenue by AOL in accordance with applicable generally
accepted account principles, less (i) actual third party commissions, (ii) AOL
sales expenses not to exceed [***] of such aggregate amount, (iii) all other
amounts, fees and revenues received by AOL that are not related to Advertising,
including without limitation, license fees, web design fees and revenues from
software sales, in each case, only if derived from an agreement entered into on
a good faith, bona fide basis without the intention of minimizing Advertising
revenues and (iv) any amounts not collected by AOL and more than ninety (90)
days past due.
AFFILIATE. Any agent, distributor, or franchisee of AOL, or an entity in which
AOL or ICP holds at least a nineteen percent (19%) equity interest.
AOL DIRECT COMPETITOR. (a) an entity who offers either: (i) online or Internet
connectivity services (e.g., an Internet service provider); or (ii) an
interactive portal site or portal service featuring a broad selection of
aggregated third party interactive content (or navigation thereto) (e.g., an
online service or search and directory service); and (b) [***]. AOL shall have
the right to substitute other entities which are online shopping channels for
entities already on the foregoing list every six months, provided that the total
number of entities on the list shall not include more than eight (8) entities.
AOL PLUS. The specific Content and functionality which is available through the
U.S. version of the America Online brand service and which is accessible solely
through a high speed (generally over 100 kbps) broadband distribution platform,
specifically excluding (a) the components of the AOL Service accessible through
narrowband distribution platforms, (b) XXX.xxx, any AOL Interactive Site and the
international versions of an America Online service (e.g., AOL Japan) and any
broadband component available through such AOL Properties and versions (c) the
CompuServe brand service and any other CompuServe products or services whether
broadband or narrowband, (d) Netscape Netcenter and any other Netscape products
or services whether broadband or narrowband, (e) "ICQ" "AOL NetFind," "AOL
Instant Messenger," "Digital City" "NetMail," "Real Fans", "Love@AOL",
"Entertainment Asylum," "AOL Hometown" or any similar independent product,
service or property which may be offered by, through or with the U.S. version of
the America Online brand service or the broadband component thereof, (f) any
programming or content area offered by or through the U.S. version of the
America Online brand service over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled by
other parties and member-created Content areas), whether broadband or
narrowband, (g) any yellow pages, white pages, classifieds or other search,
directory or review services or Content offered by or through the U.S. version
of the America Online brand service whether broadband or narrowband, (h) any
property, feature, product or service which AOL or its affiliates may acquire
subsequent to the date of this Agreement and (i) any other version of an America
Online service and (and broadband Content associated therewith) which is
materially different from the narrow-band U.S. version of the America Online
brand service, by virtue of its branding, distribution, functionality, Content
or services, including, without limitation, any co-branded version of the
service and any version distributed through any platform or device other than a
desktop personal computer.
AOL SERVICE. The narrow-band U.S. version of the America Online(R) brand
service, specifically excluding (a) XXX.xxx and any other AOL interactive site,
(b) the international versions of an America Online service (e.g., AOL Japan),
(c) the CompuServe(R) brand service and any other CompuServe products or
services, (d) Netscape Netcenter(TM) and any other Netscape(R) products or
services, (e) "ICQ(TM)," "AOL NetFind(TM)," "AOL
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Instant Messenger(TM)," "Digital City(TM)," "NetMail(TM)," "Love@AOL",
"Entertainment Asylum," "AOL Hometown" or any similar independent product,
service or property which may be offered by, through or with the U.S. version of
the America Online(R) brand service, (f) any programming or content area offered
by or through the U.S. version of the America Online(R) brand service over which
AOL does not exercise complete operational control (including, without
limitation, Content areas controlled by other parties and member-created Content
areas), (g) any yellow pages, white pages, classifieds or other search,
directory or review services or Content offered by or through the U.S. version
of the America Online(R) brand service, (h) any property, feature, product or
service which AOL or its affiliates may acquire subsequent to the date of this
Agreement and (i) any other version of an America Online service which is
materially different from the narrow-band U.S. version of the America Online
brand service, by virtue of its branding, distribution, functionality, Content
or services, including, without limitation, any co-branded version of the
service and any version distributed through any broadband distribution platform
or through any platform or device other than a desktop personal computer.
XXX.XXX. AOL's primary Internet-based interactive site marketed under the
"XXX.XXX(TM)" brand, specifically excluding (a) the AOL Service, (b) any
international versions of such site, (c) XxxxxXxxxx.xxx, Netscape Netcenter, any
other CompuServe or Netscape products or services or interactive sites, (d)
"ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)" or any
similar independent product or service offered by or through such site or any
other AOL Interactive Site, (e) any programming or Content area offered by or
through such site over which AOL does not exercise complete operational control
(including, without limitation, Content areas controlled by other parties and
member-created Content areas), (f) any programming or Content area offered by or
through the U.S. version of the America Online(R) brand service which was
operated, maintained or controlled by the former AOL Studios division, (g) any
yellow pages, white pages, classifieds or other search, directory or review
services or Content offered by or through such site or any other AOL Interactive
Site, (h) any property, feature, product or service which AOL or its affiliates
may acquire subsequent to the date of this Agreement and (i) any other version
of an America Online Interactive Site which is materially different from AOL's
primary Internet-based Interactive Site marketed under the "XXX.XXX(TM)" brand,
by virtue of its branding, distribution, functionality, Content or services,
including, without limitation, any co-branded versions and any version
distributed through any broadband distribution platform or through any platform
or device other than a desktop personal computer.
AOL LOOK AND FEEL. The distinctive and particular elements of graphics, design,
organization, presentation, layout, user interface, navigation, trade dress and
stylistic convention (including the digital implementations thereof) within the
AOL Network and the total appearance and impression substantially formed by the
combination, coordination and interaction of these elements.
AOL MEMBER(S). Subscribers to the AOL Service or CompuServe Service (including
any sub-accounts under an authorized master account) and authorized users of any
portion of the AOL Network.
AOL NETWORK. (i) The AOL Service, as well as XXX.xxx, Compuserve Service,
Netscape Netcenter, Digital City and AOL Plus, and (ii) any other product or
service owned, operated, distributed or authorized to be distributed by or
through AOL or its Affiliates worldwide through which such party elects to offer
the ICP Internet Site, ICP Programming and/or Licensed Content (which may
include, without limitation, AOL-related Internet sites, "offline" information
browsing products, international versions of the AOL brand service, or
Compuserve).
AOL PROPERTIES. The AOL Service, XXX.xxx, the Compuserve Service, Netscape
Netcenter, Digital City and AOL Plus.
AOL USER. Those AOL Members who purchase products through the ICP Internet Site
or the ICP Programming.
CHANGE OF CONTROL. (a) The consummation of a reorganization, merger or
consolidation or sale or other disposition of substantially all of the assets of
a party or (b) the acquisition by any individual, entity or group (within the
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meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1933,
as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
shares of common stock of such party; or (ii) the combined voting power of the
then outstanding voting securities of such party entitled to vote generally in
the election of directors.
COMPUSERVE SERVICE. The standard HTML version of the narrow-band U.S. version of
the CompuServe brand service, specifically excluding (a) any international
versions of such service (e.g., NiftyServe), (b) any web-based service including
"XxxxxXxxxx.xxx", "xxxxxx.xxx" and "xx.xxx", or any similar product or service
offered by or through the U.S. version of the CompuServe brand service, (c)
Content areas owned, maintained or controlled by CompuServe affiliates or any
similar "sub-service," (d) any programming or Content area offered by or through
the U.S. version of the CompuServe brand service over which CompuServe does not
exercise complete or substantially complete operational control (e.g.,
third-party Content areas), (e) any yellow pages, white pages, classifieds or
other search, directory or review services or Content (f) any co-branded or
private label branded version of the U.S. version of the CompuServe brand
service, (g) any version of the U.S. version of the CompuServe brand service
which offers Content, distribution, services or functionality materially
different from the Content, distribution, services or functionality associated
with the standard, narrow-band U.S. version of the CompuServe brand service,
including, without limitation, any version of such service distributed through
any platform or device other than a desktop personal computer, (h) any property,
feature, product or service which CompuServe or its affiliates may acquire
subsequent to the date of this Agreement, (i) the America Online brand service
and any independent product or service which may be offered by, through or with
the U.S. version of the America Online brand service and (j) the HMI versions of
the CompuServe brand service.
XXXXXXXXXX.XXX. CompuServe's primary Internet-based Interactive Site marketed
under the "XxxxxXxxxx.xxx(TM)" brand, specifically excluding (a) the CompuServe
Service and AOL Service, (b) any international versions of such site, (c)
XXX.xxx, Netscape Netcenter, any other AOL or Netscape products or services or
interactive sites, (d) "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant
Messenger(TM)," "NetMail(TM)" or any similar independent product or service
offered by or through such site or any other AOL or CompuServe Interactive Site,
(e) any programming or Content area offered by or through such site over which
AOL does not exercise complete operational control (including, without
limitation, Content areas controlled by other parties and member-created Content
areas), (f) any programming or Content area offered by or through the U.S.
versions of the America Online(R) brand service or CompuServe brand service
which was operated, maintained or controlled by the former AOL Studios division,
(g) any yellow pages, white pages, classifieds or other search, directory or
review services or Content offered by or through such site or any other AOL or
CompuServe Interactive Site, (h) any property, feature, product or service which
AOL or its affiliates may acquire subsequent to the date of this Agreement and
(i) any other version of an AOL or CompuServe Interactive Site which is
materially different from CompuServe's primary Internet-based Interactive Site
marketed under the "XxxxxXxxxx.xxx(TM)" brand, by virtue of its branding,
distribution, functionality, Content or services, including, without limitation,
any co-branded versions and any version distributed through any broadband
distribution platform or through any platform or device other than a desktop
personal computer.
COMMISSIONS. The aggregate amount of standard gross commissions (based on
commission schedules published in the GDS and available for review by all
approved ARC agencies) paid to or received by ICP or its agents which are
generated from AOL Members using the ICP Internet Site or ICP Programming
through the AOL Properties and/or from the co-branded toll-free telephone
number(s), in each case less all third party refunds, rebates, exchanges, and/or
taxes. Commissions shall include Overrides.
CONFIDENTIAL INFORMATION. Any information relating to or disclosed in the course
of this Agreement, which is, or should be reasonably understood to be,
confidential or proprietary to the disclosing Party, including, but not limited
to, the material terms of this Agreement, information about AOL Members,
technical processes and formulas, source codes, product designs, sales, cost and
other unpublished financial information, product and business plans, projections
and marketing data. "Confidential Information" shall not include information (a)
already lawfully known to or independently developed by the receiving Party, (b)
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disclosed in published materials, (c) generally known to the public, or (d)
lawfully obtained from any third party.
CONTENT. Text, images, video, audio (including, without limitation, music used
in time relation with text, images, or video), and other data, products,
services, advertisements, promotions, links, pointers, technology and software.
CONTRACT YEAR. Any twelve (12) month period commencing on the Launch Date or any
anniversary thereof.
CORE SYSTEMS. The systems between the RMG and the Travel Systems, that serve as
the back-end systems for the Res System.
CRUISE. Any offer solely relating to travel by ocean liner which is offered
directly by a travel agent and reserved through a CRS.
DCI AGREEMENT. The enhanced insertion order between Travelocity and Digital
City, if any, entered into by such parties prior to the Merger Date of the
Agreement and after the date of execution of the Agreement.
DIGITAL CITY. The standard, narrow-band U.S. version of Digital City's local
content offerings marketed under the Digital City(R) brand name, specifically
excluding (a) the AOL Service, XXX.xxx or any other AOL Interactive Site, (b)
any international versions of such local content offerings, (c) the
CompuServe(R) brand service and any other CompuServe products or services (d)
"Driveway," "ICQ(TM)," "AOL NetFind(TM)," "AOL Instant Messenger(TM)," "Digital
City," "NetMail(TM)," "Love@AOL", "Entertainment Asylum," "AOL Hometown," "My
News" or any similar independent product, service or property which may be
offered by, through or with the standard narrow band version of Digital City's
local content offerings, (e) any programming or Content area offered by or
through such local content offerings over which AOL does not exercise complete
operational control (including, without limitation, Content areas controlled by
other parties and member-created Content areas), (f) any yellow pages, white
pages, classifieds or other search, directory or review services or Content
offered by or through such local content offerings, (g) any property, feature,
product or service which AOL or its affiliates may acquire subsequent to the
date of this Agreement, (h) any other version of a Digital City local content
offering which is materially different from the narrow-band U.S. version of
Digital City's local content offerings marketed under the Digital City(R) brand
name, by virtue of its branding, distribution, functionality, Content or
services, including, without limitation, any co-branded version of the offerings
and any version distributed through any broadband distribution platform or
through any platform or device other than a desktop personal computer, and (i)
Digital City- branded offerings in any local area where such offerings are not
owned or operationally controlled by AOL, Inc. or DCI (e.g., Chicago, Orlando,
South Florida, and Hampton Roads).
FORCE MAJEURE EVENT. Acts of God, war, warlike conditions, strikes or other
labor disputes, work stoppage, fire, flood, communications failures of third
party suppliers, valid or invalid acts of government or any other cause, whether
similar or dissimilar, beyond the reasonable control of a Party.
ICP COMPETITOR means: [***]
(b) [***]
(ii) each Competitive Person, if any, added to the list of ICP Competitors at
any time during each of the five (5) consecutive twelve (12) month periods
following the date of execution of this Agreement, provided that, subject to
ICP's rights under clause (iii) below, only one (1) Competitive Person may be
added to the list of ICP Competitors during each such twelve (12) month period;
and
(iii) so long as this Agreement has not been converted to the OEM Alternative,
any other person or entity which ICP has elected, in its sole discretion, to
substitute for an existing Competitive Person and, provided that any Competitive
Person removed from the list of Competitive Persons pursuant to this clause
(iii) may at any time (prior to the conversion of this Agreement to the OEM
Alternative) be re-included on such list if another Competitive Person is
removed therefrom and provided, further, that ICP may substitute a Competitive
Person to the list of Competitive Persons no more than one (1) time in each of
the five (5) consecutive 12 month periods referred to above.
[***
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Notwithstanding anything to the contrary, each time that ICP desires to either
substitute a new Competitive Person for a Competitive Person already on the list
of Competitive Persons pursuant to clause (iii) or add a new Competitive Person
to the list of Competitive Persons pursuant to clause (ii), ICP shall provide
written notice thereof to AOL. If AOL executes a definitive agreement with such
Competitive Person within 30 days of ICP's notice to AOL, pursuant to which such
Competitive Person provides services that would otherwise be prohibited by
Section 3.1, such agreement must have a term of less than one year from the time
such services launch on the AOL Properties and shall be non-renewable and may
not be extended for so long as such Competitive Person remains on the list of
Competitive Persons. If AOL does not execute a definitive agreement with such
Competitive Person within such 30-day period, then AOL shall be precluded from
entering into an agreement with such person or entity for so long as such
persons or entity remains on the list of Competitive Persons set forth above.
ICP INTERACTIVE SITE. Any interactive site or area (other than ICP Programming),
including any mirrored site or area, which is managed, maintained or owned by
ICP or its agents or to which ICP provides and/or licenses information, content
or other materials, including, by way of example and without limitation, (i) an
ICP site on the World Wide Web portion of the Internet or (ii) a channel or area
delivered through a "push" product such as the Pointcast Network or interactive
environment such as Microsoft's proposed Active Desktop or interactive
television service such as WebTV.
ICP INTERNET SITE. Each of the versions of the xxx.xxxxxxxxxxx.xxx Internet site
which are customized for distribution through the AOL Network in accordance with
this Agreement. The xxx.xxxxxxxxxxx.xxx Internet site shall mean the site,
currently located at xxx.xxxxxxxxxxx.xxx and any successor thereto, and any
Content offered on or through such site. It shall not include the generally
available version of the xxx.xxxxxxxxxxx.xxx site or any other version of such
site other than the version customized for distribution through this Agreement.
ICP PRESENCE. Any (a) ICP trademark or logo, (b) headline or picture from ICP
Content, (c) teaser, icon, or link to the ICP Internet Site or ICP Programming
or the Service and/or (d) other Content which originates from, describes or
promotes ICP or ICP's Content or the Service.
ICP PROGRAMMING. Any (a) area within the AOL Network which is developed,
programmed, and/or managed by ICP, in whole or in part, pursuant to this
Agreement and all Content thereon (including, without limitation, message
boards, chat and other AOL Member-supplied content areas contained therein) and
(b) Content provided to AOL by or on behalf of ICP pursuant to this Agreement
for distribution on or through the AOL Network other than on the ICP Internet
Site. ICP Programming shall include without limitation, the Res System.
IMPRESSION. User exposure to an ICP Presence, as such exposure may be reasonably
determined and measured by AOL in accordance with its standard methodologies and
protocols.
INDUSTRY AIRLINE SYSTEMS. The computer reservation systems operated under the
brand names or trade names ABACUS, AMADEUS, APOLLO, GALILEO, GEMINI, GETS,
SYSTEM ONE, SABRE and WORLDSPAN, and any successors thereto.
INTERACTIVE SERVICE. An entity who offers either: (i) online or Internet
connectivity services (e.g., an Internet service provider); or (ii) an
interactive portal site or portal service featuring a broad selection of
aggregated third party interactive content (or navigation thereto) (e.g., an
online service or search and directory service) and/or marketing a broad
selection of products and/or services across numerous interactive commerce
categories (e.g., an online mall or other leading online commerce site); (iii) a
persistent desktop client; or (iv) communications software capable of serving as
the principal means through which a user creates, sends or receives electronic
mail or real time or "instant" online messages (whether by telephone, computer
or other means), including without limitation, greeting cards.
KEYWORD SEARCH TERMS. (a) The Keyword(TM) online search terms made available on
the AOL Service, combining AOL's Keyword(TM) online search modifier with a term
or phrase specifically related to ICP (and determined in accordance with the
terms of this Agreement), and (b) the Go Word online search terms made available
on CompuServe, combining CompuServe's Go Word online search modifier with
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a term or phrase specifically related to ICP and determined in accordance with
the terms of this Agreement).
LAUNCH DATE. April 1, 2000.
LICENSED CONTENT. All Content provided by or on behalf ICP or its agents on or
through the ICP Internet Site and/or the AOL Network in connection with the
subject matter of this Agreement, including without limitation all ICP
Programming.
MERGER. The merger contemplated by the Merger Agreement.
MERGER AGREEMENT. That certain Agreement and Plan of Merger dated as of October
3, 1999 between Sabre, ICP, Xxxxxxxxxxx.xxx Inc. and Preview.
MERGER DATE. The date of closing of the Merger.
NETSCAPE NETCENTER. Netscape Communications Corporation's primary Internet-based
interactive site marketed under the "Netscape Netcenter(TM)" brand, specifically
excluding (a) the AOL Service and the CompuServe Service, (b) XXX.xxx and
XxxxxXxxxx.xxx, (c) any international versions of such site, (d) "ICQ," "AOL
Netfind(TM)," "AOL Instant Messenger(TM)," "NetMail(TM)," "AOL Hometown," "My
News," "Digital City(TM)," or any similar independent product or service offered
by or through such site or any other AOL Interactive Site, (e) any programming
or Content area offered by or through such site over which AOL does not exercise
complete operational control (including, without limitation, Content areas
controlled by other parties and member-created Content areas), (f) any
programming or Content area offered by or through the U.S. version of the
America Online(R) brand service which was operated, maintained or controlled by
the former AOL Studios division (e.g., Electra), (g) any yellow pages, white
pages, classifieds or other search, directory or review services or Content
offered by or through such site or any other AOL Interactive Site, (h) any
property, feature, product or service which AOL or its affiliates may acquire
subsequent to the date of this Agreement and (i) any other version of an AOL or
Netscape Communications Corporation Interactive Site which is materially
different from Netscape Communications Corporation's primary Internet-based
Interactive Site marketed under the "Netscape Netcenter(TM)" brand, by virtue of
its branding, distribution, functionality, Content or services, including,
without limitation, any co-branded versions and any version distributed through
any broadband distribution platform or through any platform or device other than
a desktop personal computer (e.g. Custom NetCenters built specifically for third
parties).
OVERRIDES. The aggregate amounts received from airlines by ICP or its agents for
performance over and above standard sales targets set by such airlines,
including without limitation, any amounts based on percentage of target volume,
flat fee arrangements, or other non-cash incentives.
PREVIEW. Preview Travel, Inc., a Delaware corporation.
PREVIEW AGREEMENT. The Interactive Services Agreement, dated as of September 1,
1997, between AOL and Preview and the Database Agreement, dated as of September
25, 1997, between AOL and Preview.
PRODUCT. Any product, good or service which ICP (or others acting on its behalf
or as distributors) offers, sells, provides, distributes or licenses to AOL
Users directly or indirectly through (i) the ICP Internet Site or ICP
Programming (including through any Interactive Site linked thereto), (ii) any
other electronic means directed at AOL Users (e.g., e-mail offers), or (iii) an
"offline" means (e.g., toll-free number) for receiving orders related to
specific offers within the ICP Internet Site or ICP Programming requiring
purchasers to reference a specific promotional identifier or tracking code,
including, without limitation, products sold through surcharged downloads (to
the extent expressly permitted hereunder).
QUALIFIED TRAVEL SUPPLIER. Any national or international Travel Supplier
offering a Reservations Engine and booking and availability functionality for
air, rental car, hotels, Cruises, and/or Vacation Packages under its own brand
and paying AOL annual Advertising Revenues in excess of [***] for Advertising on
the AOL Properties or receiving permanent promotional placements on any main
channel screen of an AOL Property.
RES SYSTEM. The ICP brand computerized reservations system, which includes a
screen interface and programming behind the screen that is connected to
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the Core Systems that is connected to the Travel Systems, together with the Core
Systems and the RMG.
RESERVATION ENGINE. A computerized reservations system that provides consumers
with flight and fare information and the ability to make reservations and
purchase tickets on all airlines whose information is general available through
Industry Airline Systems and also provides hotel and car rental reservation
information (and the ability to make those reservations).
RMG. The remote managed gateway connecting the AOL Network to the Core Systems
and the Travel Systems. ICP will be responsible for maintenance of the part of
the RMG connecting the Core Systems up to the RMG Focal Point.
RMG FOCAL POINT. The focal point within the RMG in which ICP's and AOL's
equipment and software directly interface (i.e., connect).
SERVICE. The Travel Channels of the AOL Properties, including the ICP
Programming contained therein, and the ICP Internet Site.
SABRE. Sabre Inc., a Delaware Corporation.
TERM. The period beginning on the Merger Date and ending upon the expiration or
earlier termination of this Agreement, including all extensions or continuations
of this Agreement including, without limitation, any extension related to the
OEM Alternative.
TRAVEL CHANNEL. The following travel channels in the AOL Properties specified,
as well as any and all successors: AOL Service travel channel, XXX.xxx travel
webcenter, Netscape travel channel, AOL Plus travel channel or department,
Compuserve travel channel and the Digital City travel department.
TRAVEL INFORMATION/RESERVATIONS. Travel information, pricing and reservations
for, among other things, airlines, hotels, and car rentals, all as generally
available through the major Airline Systems.
TRAVEL SUPPLIER. Any supplier of travel services, such as, without limitation,
airlines, hotels, rental car companies, cruise lines, and vacation packages and
other third party travel-related services selling under their own brands.
TRAVEL SYSTEMS. Any computerized reservations systems that provide booking and
availability information (and the ability to make reservations) on (i) all
airlines whose information is generally available through Industry Airline
Systems and (ii) with respect to hotels, car rentals, cruise supplies, and other
travel service information.
TRAVELOCITY AGREEMENT. Trademark License Agreement, dated December 24, 1997,
between Netscape Communications Corporation and The Sabre Group, Inc.; and
Netscape Communications Corporation Marketplace Services Agreement, dated
December 23, 1997, between Netscape Communications Corporation and The Sabre
Group, Inc.
VACATION PACKAGES. Any leisure travel offer involving two or more of the
following travel features: air, hotel (or other lodging), car (or other land
transportation), Cruises, adventure, which is offered directly by a travel agent
and reserved through a CRS.
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EXHIBIT C -- STANDARD LEGAL TERMS AND CONDITIONS
I. AOL NETWORK
CONTENT. ICP represents and warrants that all Content contained within the ICP
Internet Site and ICP Programming and all Licensed Content (i) does and will
conform to AOL's applicable Terms of Service, the terms of this Agreement and
any other standard, written policy of AOL and any applicable AOL Property, (ii)
does not and will not infringe on or violate any copyright, trademark, U.S.
patent, rights of publicity, moral rights or any other third party right,
including without limitation, any music performance or other music related
rights, and (iii) does not and will not contain any Content which violates any
applicable law or regulation ((i), (ii) and (iii) collectively, the "Rules"). In
the event that AOL notifies ICP in writing that any such Content, as reasonably
determined by AOL, does not comply or adhere to the Rules, then ICP shall use
its best efforts to block access by AOL Members to such Content. In the event
that ICP cannot, through its best efforts, block access by AOL Members to such
Content in question, then ICP shall provide AOL prompt written notice of such
fact. AOL may then, at its option, either (i) restrict access from the AOL
Network to the Content in question using technology available to AOL or (ii) in
the event access cannot be restricted, direct ICP to remove any such Content.
ICP will cooperate with AOL's reasonable requests to the extent AOL elects to
implement any such access restrictions.
AOL NETWORK DISTRIBUTION. ICP shall not authorize or permit any third party to
distribute any Content of ICP through the AOL Network absent AOL's prior written
approval. The distribution, placements and/or promotions described in this
Agreement or otherwise provided to ICP by AOL shall be used by ICP solely for
its own benefit, will link to and promote solely the Licensed Content within the
ICP Internet Site or ICP Programming expressly described on Exhibit A and will
not be resold, traded, exchanged, bartered, brokered or otherwise offered or
transferred to any third party or contain any branding other than ICP's
branding. Further, the Content of all such distribution, placements and
promotions shall be subject to AOL's policies relating to advertising and
promotion, including those relating to AOL's exclusivity commitments and other
contractual preferences to third parties.
CHANGES TO AOL PROPERTIES. AOL reserves the right to redesign or modify the
organization, structure, "look and feel," navigation and other elements of the
AOL Service, XXX.xxx, the CompuServe Service, Netscape Netcenter or any other
AOL Property, including without limitation, by adding or deleting channels,
subchannels and/or screens. If AOL eliminates or modifies an area on an AOL
Property in a manner that substantially modifies the nature of the distribution
required under this Agreement in a material adverse fashion, AOL will work with
ICP in good faith to provide ICP, as its sole remedy, with comparable
distribution reasonably satisfactory to ICP.
CONTESTS. ICP shall ensure that any contest, sweepstakes or similar promotion
conducted or promoted through the ICP Internet Site and/or ICP Programming (a
"Contest") complies with all applicable laws and regulations. ICP shall provide
AOL with (i) at least thirty (30) days prior written notice of any Contest and
(ii) upon AOL's request, an opinion from ICP's counsel confirming that the
Contest complies with all applicable federal, state and local laws and
regulations.
DISCLAIMERS. Upon AOL's request, ICP agrees to include within the ICP Internet
and/or ICP Programming a disclaimer indicating that all Licensed Content
(including any products and services) is provided solely by ICP and not AOL, and
any transactions are solely between ICP and AOL Users using or purchasing such
Licensed Content and AOL is not responsible for any loss, expense or damage
arising out of the Licensed Content or services provided through the ICP
Internet Site or ICP Programming (e.g., "In no event shall AOL nor any of its
agents, employees, representatives or affiliates be in any respect legally
liable to you or any third party in connection with any information or services
contained herein and AOL makes no warranty or guaranty as to the accuracy,
completeness, correctness, timeliness, or usefulness of any of the information
contained herein"). ICP shall not in any manner state or imply that AOL
recommends or endorses ICP or its Content.
REWARDS PROGRAMS. ICP shall not offer, provide, implement or otherwise make
available on the ICP Internet Site or ICP Programming any promotional programs
or plans that are intended to provide customers with rewards or benefits in
exchange for, or on account of, their past or continued loyalty to, or patronage
or
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purchase of, the products or services of ICP or any third party (e.g., a
promotional program similar to a "frequent flier" program), unless such
promotional program or plan is provided exclusively through AOL's "AOL Rewards"
program, accessible on the AOL Service at Keyword: "AOL Rewards."
AOL LOOK AND FEEL. ICP acknowledges and agrees that AOL shall own all right,
title and interest in and to the AOL Look and Feel. In addition, AOL shall
retain editorial control over the portions of the AOL pages and forms which
frame the ICP Internet Site or ICP Programming (the "AOL Frames"). AOL may, at
its discretion, incorporate navigational icons, links and pointers or other
Content into such AOL Frames.
OPERATIONS. AOL shall be entitled to require reasonable changes to the ICP
Internet Site and ICP Programming to the extent such site will, in AOL's good
faith judgment, adversely affect operations of the AOL Network.
CLASSIFIEDS. ICP shall not implement or promote any classifieds listing features
through ICP Programming without AOL's prior written approval. Such approval may
be conditioned upon, among other things, ICP's conformance with any
then-applicable service-wide technical or other standards related to online
classifieds.
MESSAGE BOARDS; CHAT ROOMS AND COMPARABLE VEHICLES. Any Content submitted by ICP
or its agents within AOL message boards, AOL chat rooms or any comparable AOL
vehicles will be subject to the license grant relating to submissions to "public
areas" set forth in the AOL Terms of Service. ICP acknowledges that it has no
rights or interest in AOL Member submissions to message boards, chat rooms or
any other vehicles through which AOL Members may make submissions within the AOL
Network. ICP will refrain from editing, deleting or altering, without AOL's
prior approval, any opinion expressed or submission made by an AOL Member within
ICP Programming except in cases where ICP has a good faith belief that the
Content in question violates an applicable law, regulation, third party right or
the applicable AOL Property's Terms of Service.
DUTY TO INFORM. Each party shall promptly inform the other party of any
information related to the ICP Internet Site, ICP Programming or the Licensed
Content which could reasonably lead to a claim, demand or liability of or
against the other party and/or its affiliates by any third party.
RESPONSE TO QUESTIONS/COMMENTS. Each party shall respond promptly and
professionally to questions, comments, complaints and other reasonable requests
regarding the ICP Internet Site, ICP Programming or the Licensed Content, and
shall cooperate and assist the other party in promptly answering the same.
STATEMENTS THROUGH AOL NETWORK. Neither party shall make, publish, or otherwise
communicate any deleterious remarks concerning the other party or its
affiliates, directors, officers, employees, or agents (including, without
limitation, the other party, AOL's business projects, business capabilities,
performance of duties and services, or financial position) which remarks are
based on the relationship established by this Agreement or information exchanged
hereunder. This section is not intended to limit good faith editorial statements
made by a party based upon publicly available information, or information
developed by ICP independent of its relationship with AOL and its employees and
agents.
PRODUCTION WORK. In the event that ICP requests any AOL production assistance,
ICP shall work with AOL to develop detailed production plans for the requested
production assistance (the "Production Plan"). Following receipt of the final
Production Plan, AOL shall notify ICP of (i) AOL's availability to perform the
requested production work, (ii) the proposed fee or fee structure for the
requested production work and (iii) the estimated development schedule for such
work. To the extent the Parties reach agreement regarding implementation of
agreed-upon Production Plan, such agreement shall be reflected in a separate
work order signed by the Parties. All fees to be paid to AOL for any such
production work shall be paid in advance. To the extent ICP elects to retain a
third party provider to perform any such production work, work produced by such
third party provider must generally conform to AOL's production standards
available at Keyword "Styleguide." The specific production resources which AOL
allocates to any production work to be performed on behalf of ICP shall be as
determined by AOL in its sole discretion. With respect to any routine
production, maintenance or related services which AOL reasonably determines are
necessary for AOL to perform in order to support the proper functioning and
integration of the Anchor Tenant Button and the ICP Internet Site ("Routine
Services"), ICP will pay the then-standard fees charged by AOL for such Routine
Services.
PRODUCTION TOOLS. AOL shall determine in its sole discretion, which of its
proprietary publishing tools (each a "Tool") shall be made available to ICP in
order to develop and implement the Licensed Content during the Term. ICP shall
be granted a nonexclusive license to use any such Tool, which license shall be
subject to: (i)
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ICP's compliance with all rules and regulations relating to use of the Tools, as
published from time to time by AOL, (ii) AOL's right to withdraw or modify such
license at any time, and (iii) ICP's express recognition that AOL provides all
Tools on an "as is" basis, without warranties of any kind.
TRAINING AND SUPPORT. AOL shall make available to ICP standard AOL training and
support programs necessary to produce any AOL areas hereunder. ICP can select
its training and support program from the options then offered by AOL. ICP shall
be responsible to pay the fees associated with its chosen training and support
package. In addition, ICP will pay travel and lodging costs associated with its
participation in any AOL training programs (including AOL's travel and lodging
costs when training is conducted at ICP's offices).
EXPIRATION DATE. If the expiration date of this Agreement changes pursuant to
Section 8.3, the Parties shall record such expiration date in a written
instrument signed by both Parties promptly following the determination of such
expiration date pursuant to Section 8.3; provided that, in the absence of such a
written instrument, the expiration date shall be as reasonably determined by AOL
and ICP based on the information available to AOL.
KEYWORDS. Any Keyword Search Terms to be directed to the ICP Internet Site shall
be (i) subject to availability for use by ICP and (ii) limited to the
combination of the Keyword(TM) search modifier combined with a registered
trademark of ICP. AOL reserves the right to revoke at any time ICP's use of any
Keyword Search Terms which do not incorporate registered trademarks of ICP. ICP
acknowledges that its utilization of a Keyword Search Term will not create in
it, nor will it represent it has, any right, title or interest in or to such
Keyword Search Term, other than the right, title and interest ICP holds in ICP's
registered trademark independent of the Keyword Search Term. Without limiting
the generality of the foregoing, ICP will not: (a) attempt to register or
otherwise obtain trademark or copyright protection in the Keyword Search Term;
or (b) use the Keyword Search Term, except for the purposes expressly required
or permitted under this Agreement. This Section shall survive the completion,
expiration, termination or cancellation of this Agreement.
ACCOUNTS. To the extent AOL has granted ICP any accounts on the AOL Service, ICP
will be responsible for the actions taken under or through its accounts, which
actions are subject to AOL's applicable Terms of Service and for any surcharges,
including, without limitation, all premium charges, transaction charges, and any
applicable communication surcharges incurred by any account issued to ICP, but
ICP will not be liable for charges incurred by any account relating to AOL's
standard monthly usage fees and standard hourly charges, which charges AOL will
bear. Upon the termination of this Agreement, all accounts, related screen names
and any associated usage credits or similar rights, will automatically
terminate. AOL will have no liability for loss of any data or content related to
the proper termination of any such account.
CUSTOMER SERVICE. It is the sole responsibility of ICP to provide customer
service to persons or entities purchasing Products through the AOL Network
("Customers"). ICP will bear full responsibility for all customer service,
including without limitation, order processing, billing, fulfillment, shipment,
collection and other customer service associated with any Products offered, sold
or licensed through the ICP Internet Site or ICP Programming, and AOL will have
no obligations whatsoever with respect thereto. ICP will receive all e-mails
from Customers via a computer available to ICP's customer service staff and
generally respond to such e-mails within one business day of receipt. ICP will
receive all orders electronically and generally process all orders within one
business day of receipt, provided Products ordered are not advance order items.
ICP will ensure that all orders of Products are received, processed, fulfilled
and delivered on a timely and professional basis. ICP will bear all
responsibility for compliance with federal, state and local laws in the event
that Products are out of stock or are no longer available at the time an order
is received. ICP will also comply with the requirements of any federal, state or
local consumer protection or disclosure law. Payment for Products will be
collected by ICP directly from customers. ICP's order fulfillment operation will
be subject to AOL's reasonable review.
MERCHANT CERTIFICATION PROGRAM. ICP will participate in any generally applicable
"Certified Merchant" program operated by AOL or its authorized agents or
contractors. Such program may require merchant participants on an ongoing basis
to meet certain reasonable, generally applicable standards relating to provision
of electronic commerce through the AOL Network (including, as a minimum, use of
40-bit SSL encryption and if requested by AOL, 128-bit encryption) and may also
require the payment of certain reasonable certification fees to the applicable
entity operating the program. Each Certified Merchant in good standing will be
entitled to place on its affiliated Interactive Site an AOL designed and
approved button promoting the merchant's status as an AOL Certified Merchant.
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II. TRADEMARKS
TRADEMARK LICENSE. In designing and implementing any marketing, advertising, or
other promotional materials (expressly excluding Press Releases) related to this
Agreement and/or referencing the other Party and/or its trade names, trademarks
and service marks (the "Promotional Materials") and subject to the other
provisions contained herein, ICP shall be entitled to use the following trade
names, trademarks and service marks of AOL: the "America Online(R)" brand
service, "AOL(TM)" service/software and AOL's triangle logo and, in connection
therewith, ICP shall comply with the AOL styleguide available at keyword: "style
guide"; and AOL and its Affiliates shall be entitled to use the trade names,
trademarks and service marks of ICP (collectively, together with the AOL marks
listed above, the "Marks"), provided that each Party: (i) does not create a
unitary composite xxxx involving a Xxxx of the other Party without the prior
written approval of such other Party and (ii) displays symbols and notices
clearly and sufficiently indicating the trademark status and ownership of the
other Party's Marks in accordance with applicable trademark law and practice.
This Section shall survive the completion, expiration, termination or
cancellation of this Agreement with respect to Promotional Materials created or
generated during the Term.
RIGHTS. Each Party acknowledges that its utilization of the other Party's Marks
will not create in it, nor will it represent it has, any right, title or
interest in or to such Marks other than the licenses expressly granted herein.
Each Party agrees not to do anything contesting or impairing the trademark
rights of the other Party.
QUALITY STANDARDS. Each Party agrees that the nature and quality of its products
and services supplied in connection with the other Party's Marks shall conform
to quality standards communicated in writing by the other Party for use of its
trademarks. Each Party agrees to supply the other Party, upon request, with a
reasonable number of samples of any Promotional Materials publicly disseminated
by such Party which utilize the other Party's Marks. Each Party shall comply
with all applicable laws, regulations and customs and obtain any required
government approvals pertaining to use of the other Party's Marks.
PROMOTIONAL MATERIALS. Each Party will submit to the other Party, for its prior
written approval, which shall not be unreasonably withheld or delayed, any
Promotional Materials; provided, however, that after initial public announcement
of the business relationship between the Parties in accordance with the approval
and other requirements contained herein, either Party's subsequent factual
reference in Promotional Materials to the existence of a business relationship
between AOL and ICP, including, without limitation, the availability of the
Licensed Content through the AOL Network, or use of screen shots relating to the
distribution under this Agreement (so long as the AOL Network is clearly
identified as the source of such screen shots) for promotional purposes shall
not require the approval of the other Party. Once approved, the Promotional
Materials may be used by a Party and its affiliates for the purpose of promoting
the distribution of the Licensed Content through the AOL Network and reused for
such purpose until such approval is withdrawn with reasonable prior notice. In
the event such approval is withdrawn, existing inventories of Promotional
Materials may be depleted.
INFRINGEMENT PROCEEDINGS. Each Party agrees to promptly notify the other Party
of any unauthorized use of the other Party's Marks of which it has actual
knowledge. Each Party shall have the sole right and discretion to bring
proceedings alleging infringement of its Marks or unfair competition related
thereto; provided, however, that each Party agrees to provide the other Party,
at such other Party's expense, with its reasonable cooperation and assistance
with respect to any such infringement proceedings.
SEARCH TERMS. To the extent this Agreement sets forth any mechanism by which the
ICP Internet Site or ICP Programming will be promoted in connection with
specified search terms within any AOL product or service, ICP hereby represents
and warrants that ICP has all consents, authorizations, approvals, licenses,
permits or other rights necessary for ICP to use such specified search terms.
Notwithstanding the foregoing, AOL shall have the right to suspend the use of
any search term if AOL has reason to believe continued use may subject AOL to
liability or other adverse consequences.
III. REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that: (i) such Party has
the full corporate right, power and authority to enter into this Agreement, to
grant the licenses granted hereunder and to perform the acts required of it
hereunder; (ii) the execution of this Agreement by such Party, and the
performance by such Party of its obligations and duties hereunder, do not and
will not violate any agreement to which such Party is a party or by which it is
otherwise bound; (iii) when executed and delivered by such Party, this Agreement
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will constitute the legal, valid and binding obligation of such Party,
enforceable against such Party in accordance with its terms; (iv) such Party's
Promotional Materials will neither infringe on any copyright, U.S. patent or any
other third party right nor violate any applicable law or regulation and (v)
such Party acknowledges that the other Party makes no representations,
warranties or agreements related to the subject matter hereof which are not
expressly provided for in this Agreement.
IV. CONFIDENTIALITY
Each Party acknowledges that Confidential Information may be disclosed to the
other Party during the course of this Agreement. Each Party agrees that it will
take reasonable steps, at least substantially equivalent to the steps it takes
to protect its own proprietary information, during the term of this Agreement,
and for a period of three years following expiration or termination of this
Agreement, to prevent the disclosure of Confidential Information of the other
Party, other than to its employees, or to its other agents who must have access
to such Confidential Information for such Party to perform its obligations
hereunder, who will each agree to comply with this section. Notwithstanding the
foregoing, either Party may issue a press release or other disclosure containing
Confidential Information without the consent of the other Party, to the extent
such disclosure is required by law, rule, regulation or government or court
order. In such event, the disclosing Party will provide at least five (5)
business days prior written notice of such proposed disclosure to the other
Party. Further, in the event such disclosure is required of either Party under
the laws, rules or regulations of the Securities and Exchange Commission or any
other applicable governing body, such Party will (i) redact mutually agreed-upon
portions of this Agreement to the fullest extent permitted under applicable
laws, rules and regulations and (ii) submit a request to such governing body
that such portions and other provisions of this Agreement receive confidential
treatment under the laws, rules and regulations of the Securities and Exchange
Commission 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.
V. TREATMENT OF CLAIMS
Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES
(EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
ARISING FROM BREACH OF THIS AGREEMENT, THE USE OF OR INABILITY TO USE THE AOL
NETWORK OR ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY,
"DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE TO THE OTHER
PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE
SUBJECT TO INDEMNIFICATION BELOW. EXCEPT AS PROVIDED BELOW IN THE "INDEMNITY"
SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN $[***];
PROVIDED THAT EACH PARTY SHALL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY
PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY UNDER THE PROVISIONS OF THIS
AGREEMENT.
No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
NEITHER PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK, OR
ANY AOL PUBLISHING TOOLS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING THE PROFITABILITY
OF AOL NETWORK OR THE ICP INTERNET SITE.
INDEMNITY. Each Party will defend, indemnify, save and hold harmless the other
Party and the officers, directors, agents, affiliates, distributors, franchisees
and employees of the other Party from any and all third party claims, demands,
liabilities, costs or expenses, including reasonable attorneys' fees
("Liabilities"), resulting from the indemnifying Party's material breach of any
duty, representation, or warranty of this Agreement. In addition, ICP will
defend, indemnify, save and hold harmless AOL and AOL's officers, directors,
agents, affiliates, distributors, franchisees and employees from any and all
Liabilities arising out of or in any way related to the Licensed Content.
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If a Party entitled to indemnification hereunder (the "Indemnified Party")
becomes aware of any matter it believes is indemnifiable hereunder involving any
claim, action, suit, investigation, arbitration or other proceeding against the
Indemnified Party by any third party (each an "Action"), the Indemnified Party
shall give the other Party (the "Indemnifying Party") prompt written notice of
such Action. Such notice shall (i) provide the basis on which indemnification is
being asserted and (ii) be accompanied by copies of all relevant pleadings,
demands, and other papers related to the Action and in the possession of the
Indemnified Party. The Indemnifying Party shall have a period of ten (10) days
after delivery of such notice to respond. If the Indemnifying Party elects to
defend the Action or does not respond within the requisite ten (10) day period,
the Indemnifying Party shall be obligated to defend the Action, at its own
expense, and by counsel reasonably satisfactory to the Indemnified Party. The
Indemnified Party shall cooperate, at the expense of the Indemnifying Party,
with the Indemnifying Party and its counsel in the defense and the Indemnified
Party shall have the right to participate fully, at its own expense, in the
defense of such Action. If the Indemnifying Party responds within the required
ten (10) day period and elects not to defend such Action, the Indemnified Party
shall be free, without prejudice to any of the Indemnified Party's rights
hereunder, to compromise or defend (and control the defense of) such Action. In
such case, the Indemnifying Party shall cooperate, at its own expense, with the
Indemnified Party and its counsel in the defense against such Action and the
Indemnifying Party shall have the right to participate fully, at its own
expense, in the defense of such Action and the Indemnifying Party shall pay all
the legal fees of the Indemnified Party. Any compromise or settlement of an
Action shall require the prior written consent of both Parties hereunder, such
consent not to be unreasonably withheld or delayed.
Acknowledgment. AOL AND ICP EACH ACKNOWLEDGES THAT THE PROVISIONS OF THIS
AGREEMENT WERE NEGOTIATED TO REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN
THEM OF ALL RISKS (BOTH KNOWN AND UNKNOWN) ASSOCIATED WITH THE TRANSACTIONS
CONTEMPLATED HEREUNDER. THE LIMITATIONS AND DISCLAIMERS RELATED TO WARRANTIES
AND LIABILITY CONTAINED IN THIS AGREEMENT ARE INTENDED TO LIMIT THE
CIRCUMSTANCES AND EXTENT OF LIABILITY. THE PROVISIONS OF THIS SECTION VI SHALL
BE ENFORCEABLE INDEPENDENT OF AND SEVERABLE FROM ANY OTHER ENFORCEABLE OR
UNENFORCEABLE PROVISION OF THIS AGREEMENT.
VI. ARBITRATION
(a) The Parties shall act in good faith and use commercially reasonable efforts
to promptly resolve any claim, dispute, claim, controversy or disagreement (each
a "Dispute") between the Parties or any of their respective subsidiaries,
affiliates, successors and assigns under or related to this Agreement or any
document executed pursuant to this Agreement or any of the transactions
contemplated hereby. If the Parties cannot resolve the Dispute, the Dispute
shall be submitted to the Management Committee for resolution. For ten (10) days
after the Dispute was submitted to the Management Committee, the Management
Committee shall have the exclusive right to resolve such Dispute; provided
further that the Management Committee shall have the final and exclusive right
to resolve Disputes arising from any provision of this Agreement which expressly
or implicitly provides for the Parties to reach mutual agreement as to certain
terms. If the Management Committee is unable to amicably resolve the Dispute
during the ten (10) day period, then the Management Committee will consider in
good faith the possibility of retaining a third party mediator to facilitate
resolution of the Dispute. In the event the Management Committee elects not to
retain a mediator, the Dispute will be subject to the resolution mechanisms
described below. "Management Committee" shall mean a committee made up of a
senior executive from each of the Parties for the purpose of resolving Disputes
under this Section and generally overseeing the relationship between the Parties
contemplated by this Agreement. Neither Party shall seek, nor shall be entitled
to seek, binding outside resolution of the Dispute unless and until the Parties
have been unable to amicably resolve the dispute as set forth in this paragraph
(a) and then, only in compliance with the procedures set forth in this Section.
(b) Except for Disputes relating to issues of (i) intellectual property and
confidentiality, and (ii) any provision of this Agreement which expressly or
implicitly provides for the Parties to reach mutual agreement as to certain
terms (which shall be resolved by the Parties solely and exclusively through
amicable resolution as set forth in paragraph (a), any Dispute not resolved by
amicable resolution as set forth in paragraph (a) shall be governed exclusively
and finally by arbitration; provided, however, that the Parties shall not be
prevented from seeking injunctive relief and such other equitable relief as may
be permitted under applicable law from a court of competent jurisdiction. Such
arbitration shall be
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conducted by the American Arbitration Association ("AAA") in Washington, D.C.
and shall be initiated and conducted in accordance with the Commercial
Arbitration Rules ("Commercial Rules") of the AAA, including the AAA
Supplementary Procedures for Large Complex Commercial Disputes ("Complex
Procedures"), as such rules shall be in effect on the date of delivery of a
demand for arbitration ("Demand"), except to the extent that such rules are
inconsistent with the provisions set forth herein. Notwithstanding the
foregoing, the Parties may agree in good faith that the Complex Procedures shall
not apply in order to promote the efficient arbitration of Disputes where the
nature of the Dispute, including without limitation the amount in controversy,
does not justify the application of such procedures.
(c) The arbitration panel shall consist of three arbitrators. Each Party shall
name an arbitrator within ten (10) days after the delivery of the Demand. The
two arbitrators named by the Parties may have prior relationships with the
naming Party, which in a judicial setting would be considered a conflict of
interest. The third arbitrator, selected by the first two, shall be a neutral
participant, with no prior working relationship with either Party. If the two
arbitrators are unable to select a third arbitrator within ten (10) days, a
third neutral arbitrator will be appointed by the AAA from the panel of
commercial arbitrators of any of the AAA Large and Complex Resolution Programs.
If a vacancy in the arbitration panel occurs after the hearings have commenced,
the remaining arbitrator or arbitrators may not continue with the hearing and
determination of the controversy, unless the Parties agree otherwise.
(d) The Federal Arbitration Act, 9 U.S.C. Secs. 1-16, and not state law, shall
govern the arbitrability of all Disputes. The arbitrators shall allow such
discovery as is appropriate to the purposes of arbitration in accomplishing a
fair, speedy and cost-effective resolution of the Disputes. The arbitrators
shall reference the Federal Rules of Civil Procedure then in effect in setting
the scope and timing of discovery. The Federal Rules of Evidence shall apply in
toto. The arbitrators may enter a default decision against any Party who fails
to participate in the arbitration proceedings.
(e) The arbitrators shall have the authority to award compensatory damages as
well as declaratory relief. Any damages award by the arbitrators shall be
accompanied by a written opinion setting forth the findings of fact and
conclusions of law relied upon in reaching the decision. The award rendered by
the arbitrators shall be final, binding and non-appealable, and judgment upon
such award may be entered by any court of competent jurisdiction. The Parties
agree that the existence, conduct and content of any arbitration shall be kept
confidential and no Party shall disclose to any person any information about
such arbitration, except as may be required by law or by any governmental
authority or for financial reporting purposes in each Party's financial
statements.
(f) Each Party shall pay the fees of its own attorneys, expenses of witnesses
and all other expenses and costs in connection with the presentation of such
Party's case (collectively, "Attorneys' Fees"). The remaining costs of the
arbitration, including without limitation, fees of the arbitrators, costs of
records or transcripts and administrative fees (collectively, "Arbitration
Costs") shall be born equally by the parties. Notwithstanding the foregoing, the
arbitrators may modify the allocation of Arbitration Costs and award Attorneys'
Fees in those cases where fairness dictates a different allocation of
Arbitration Costs between the Parties and an award of Attorneys' Fees to the
prevailing Party as determined by the arbitrators.
(g) Any Dispute that is not subject to final resolution by the Management
Committee or to arbitration under this Section or law (collectively,
"Non-Arbitration Claims") shall be brought in a court of competent jurisdiction
in the State of New York. Each Party irrevocably consents to the exclusive
jurisdiction of the courts of the State of New York and the federal courts
situated in the State of New York, over any and all Non-Arbitration Claims and
any and all actions to enforce such claims or to recover damages or other relief
in connection with such claims or to enforce a judgment rendered in an
arbitration proceeding.
VII. MISCELLANEOUS
AUDITING RIGHTS. Each Party shall maintain complete, clear and accurate records
of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of this Agreement
("Records"). All such Records shall be maintained for a minimum of five (5)
years following termination of this Agreement. For the sole purpose of ensuring
compliance with this Agreement, each party shall have the right, at its expense,
to direct an independent certified public accounting firm subject to strict
confidentiality restrictions to conduct a reasonable and necessary copying and
inspection of portions of the Records of the other party that are directly
related to amounts payable to such party pursuant to this Agreement. Any such
audit may be conducted after
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twenty (20) business days prior written notice, subject to the following. Such
audits shall not be made more frequently than once every twelve months. No such
audit of AOL shall occur during the period beginning on June 1 and ending
October 1. In lieu of providing access to its Records as described above, either
party shall be entitled to provide the other party with a report from an
independent certified public accounting firm confirming the information to be
derived from such Records.
INDEPENDENT CONTRACTORS. The Parties to this Agreement are independent
contractors. Neither Party is an agent, representative or partner of the other
Party. Neither Party shall have any right, power or authority to enter into any
agreement for or on behalf of, or incur any obligation or liability of, or to
otherwise bind, the other Party. This Agreement shall not be interpreted or
construed to create an association, agency, joint venture or partnership between
the Parties or to impose any liability attributable to such a relationship upon
either Party.
NOTICE. Any notice, approval, request, authorization, direction or other
communication under this Agreement will be given in writing and will be deemed
to have been delivered and given for all purposes (i) on the delivery date if
delivered by electronic mail on the AOL Network (to screenname "AOLNotice" in
the case of AOL) or by confirmed facsimile; (ii) on the delivery date if
delivered personally to the Party to whom the same is directed; (iii) one
business day after deposit with a commercial overnight carrier, with written
verification of receipt; or (iv) five business days after the mailing date,
whether or not actually received, if sent by U.S. mail, return receipt
requested, postage and charges prepaid, or any other means of rapid mail
delivery for which a receipt is available. In the case of AOL, such notice will
be provided to both the Senior Vice President for Business Affairs (fax no.
000-000-0000) and the Deputy General Counsel (fax no. 000-000-0000), each at the
address of AOL set forth in the first paragraph of this Agreement. In the case
of ICP, except as otherwise specified herein, the notice address shall be the
address for ICP set forth in the first paragraph of this Agreement, with the
other relevant notice information, including the recipient for notice and, as
applicable, such recipient's fax number or AOL e-mail address, to be as
reasonably identified by AOL.
NO WAIVER. The failure of either Party to insist upon or enforce strict
performance by the other Party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such Party's right to assert or rely upon any
such provision or right in that or any other instance; rather, the same shall be
and remain in full force and effect.
RETURN OF INFORMATION. Upon the expiration or termination of this Agreement,
each Party shall, upon the written request of the other Party, return or destroy
(at the option of the Party receiving the request) all confidential information,
documents, manuals and other materials specified by the other Party.
SURVIVAL. Section 7 of this Agreement and Sections IV, V, VI, and VII of this
Exhibit C, shall survive the completion, expiration, termination or cancellation
of this Agreement. In addition, all payment terms of this Agreement and any
provision which expressly survives or, by its nature, must survive the
completion, expiration, termination or cancellation of this Agreement, shall
survive the completion, expiration, termination or cancellation of this
Agreement.
ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and supersedes
any and all prior agreements of the Parties with respect to the transactions set
forth herein. Neither Party shall be bound by, and each Party specifically
objects to, any term, condition or other provision which is different from or in
addition to the provisions of this Agreement (whether or not it would materially
alter this Agreement) and which is proffered by the other Party in any
correspondence or other document, unless the Party to be bound thereby
specifically agrees to such provision in writing.
AMENDMENT. No change, amendment or modification of any provision of this
Agreement shall be valid unless set forth in a written instrument signed by the
Party subject to enforcement of such amendment.
FURTHER ASSURANCES. Each Party shall take such action (including, but not
limited to, the execution, acknowledgment and delivery of documents) as may
reasonably be requested by the other Party for the implementation or continuing
performance of this Agreement.
ASSIGNMENT. Neither Party shall assign this Agreement or any right, interest or
benefit under this Agreement without the prior written consent of the other
party; provided, however, that either Party may, without the consent of the
other Party, assign this Agreement to a party that controls, is controlled by or
is under common control with such Party or in connection with a merger,
consolidation or acquisition of all or substantially all of such Party's assets;
provided, further, that no such
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assignment shall be deemed to release the assigning Party from its obligations
or liability hereunder. Subject to the foregoing, this Agreement shall be fully
binding upon, inure to the benefit of and be enforceable by the Parties hereto
and their respective successors and assigns.
SUBCONTRACTORS. To the extent ICP utilizes consultants or subcontractors to
perform a material portion of its obligations under this Agreement, such
consultants and/or subcontractors shall be subject to AOL's prior written
approval and ICP shall provide AOL with direct contact information for the
employees of such consultants and/or subcontractors who are responsible for
performing such obligations, which employees shall be available during business
hours for consultation with AOL. AOL hereby approves Sabre.
CONSTRUCTION; SEVERABILITY. In the event that any provision of this Agreement
conflicts with the law under which this Agreement is to be construed or if any
such provision is held invalid by a court with jurisdiction over the Parties to
this Agreement, (i) such provision shall be deemed to be restated to reflect as
nearly as possible the original intentions of the Parties in accordance with
applicable law, and (ii) the remaining terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect.
REMEDIES. Except where otherwise specified and notwithstanding the limitation on
damages described below, the rights and remedies granted to a Party under this
Agreement are cumulative and in addition to, and not in lieu of, any other
rights or remedies which the Party may possess at law or in equity, including
the right to specific performance.
APPLICABLE LAW; JURISDICTION. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the State of New York
except for its conflicts of laws principles.
EXPORT CONTROLS. Both parties shall adhere to all applicable laws, regulations
and rules relating to the export of technical data and shall not export or
re-export any technical data, any products received from the other Party or the
direct product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
HEADINGS. The captions and headings used in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
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EXHIBIT D
PROMOTIONS
Pursuant to the Interactive Services and Exclusive Channel Agreement between
Travelocity Holdings, Inc. ("ICP") and America Online, Inc. ("AOL"), dated as of
_________________, 1999 (the "Agreement"), the following report is delivered to
AOL for the period beginning _____________ and ending __________ (the "Period"):
PROMOTIONAL COMMITMENTS
ICP has completed the following promotions during the Period:
TYPE OF PROMOTION DATE(S) OF DURATION/CIRCULATION OF RELEVANT CONTRACT
PROMOTION PROMOTION SECTION
------------------------------------------------------------------------------------------------------------
1.
------------------------------------------------------------------------------------------------------------
2.
------------------------------------------------------------------------------------------------------------
3.
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EXHIBIT E
PERFORMANCE STANDARDS
1. General. The Res System will, in the aggregate, provide travel-related
services, including, but not limited to, air, car, hotel, vacation package
and cruise booking and availability functionality and travel related
Content that will have performance and quality features equivalent to such
functionality, offered by the leading online travel reservations providers,
including, without limitation, the following standards: (i) pricing of
Products made available through AOL, (ii) scope and selection of Products,
(iii) quality of Products, (iv) customer service and fulfillment associated
with the marketing and sale of Products; and (v) ease of use of the ICP
Internet Site and ICP Programming.
2. ICP Internet Site Infrastructure. ICP will be responsible for all
communications, hosting and connectivity costs and expenses associated with
the ICP Internet Site. ICP will provide all hardware, software,
telecommunications lines and other infrastructure necessary to meet traffic
demands on the ICP Internet Site from the AOL Network. ICP will design and
implement the network between the AOL Service and ICP Internet Site such
that (i) no single component failure will have a materially adverse impact
on AOL Members seeking to reach the ICP Internet Site from the AOL Network
and (ii) no single [***] under ICP's reasonable control will run at more
than [***] average utilization for a [***] in a daily period. In this
regard, ICP will provide AOL, upon request, with a detailed network diagram
regarding the architecture and network infrastructure supporting the ICP
Internet Site. In the event that ICP elects to create a custom version of
the ICP Internet Site in order to comply with the terms of this Agreement,
ICP will bear responsibility for all aspects of the implementation,
management and cost of such customized site.
3. Optimization; Speed. ICP will ensure that: (a) the functionality and
features within the ICP Internet Site are optimized for the client software
then in use by AOL Members; (b) the ICP Internet Site is designed and
populated in a manner that minimizes delays when AOL Users attempt to
access such site and (c) performs with respect to page size, loading speed
and download time at least equal to the performance of the AOL client
software then in use. At a minimum, ICP will ensure that the ICP Internet
Site's data transfers initiate within fewer than [***] on average. Prior to
commercial launch of any material promotions described herein, ICP will
permit AOL to conduct performance and load testing of the ICP Internet Site
(in person or through remote communications), with such commercial launch
not to commence until such time as AOL is reasonably satisfied with the
results of any such testing.
4. User Interface. ICP shall use its commercially reasonable best efforts to
maintain a graphical user interface within the ICP Internet Site that is
competitive in all material respects with interfaces of other similar sites
based on similar form technology. AOL reserves the right to review and
approve the user interface and site design prior to launch of the
Promotions and to conduct focus group testing to assess ICP's
competitiveness in this regard.
5. Technical Problems. ICP agrees to use commercially reasonable efforts to
address material technical problems (over which ICP exercises control)
affecting use by AOL Members of the ICP Internet Site (an "ICP Technical
Problem") promptly following notice thereof. In the event that ICP is
unable to promptly resolve an ICP Technical Problem following notice
thereof from AOL (including, without limitation, infrastructure
deficiencies producing user delays), AOL will have the right to regulate
the promotions it provides to ICP hereunder until such time as ICP corrects
the ICP Technical Problem at issue.
6. Monitoring. ICP will ensure that the performance and availability of the
ICP Internet Site is monitored on a continuous (24 X 7) basis and shall
provide AOL with a technical support plan for 24 x 7 technical support
acceptable to AOL. ICP will provide AOL with contact information (including
e-mail, phone, pager and fax information, as applicable, for both during
and after business hours) for ICP's principal business and technical
representatives, for use in cases when issues or problems arise with
respect to the ICP Internet Site.
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7. Security. ICP will utilize Internet standard encryption technologies (e.g.,
Secure Socket Layer - SSL) to provide a secure environment for conducting
transactions and/or transferring private member information (e.g. credit
card numbers, banking/financial information, and member address
information) to and from the ICP Internet Site. ICP will facilitate
periodic reviews of the ICP Internet Site by AOL in order to evaluate the
security risks of such site. ICP will promptly remedy any security risks or
breaches of security as may be identified by AOL's Operations Security
team.
8. Telecommunications. Where applicable ICP will utilize encryption
methodology to secure data communications between the Parties' data center.
The network between the Parties will be configured such that no single
component failure will control runs at more than [***] average utilization
for a [***] minute peak in a daily period.
9. Technical Performance.
i. ICP will design the ICP Internet Site to support the AOL-Client embedded
versions of the Microsoft Internet Explorer 3.XX and 4.XX browsers (Windows
and Macintosh), the Netscape Browser 4.XX and make commercially reasonable
efforts to support all other AOL browsers listed at:
"xxxx://xxxxxxxxx.xxxx.xxx.xxx."
ii. To the extent ICP creates customized pages on the ICP Internet Site for
AOL Users, ICP develop and employ a methodology to detect AOL Members
(e.g., examine the HTTP User-Agent field in order to identify the "AOL
User-Agents" listed at: xxxx://xxxxxxxxx.xxxx.xxx.xxx and referenced under
the heading "Browser Detection."
iii. ICP will periodically review the technical information made available
by AOL at xxxx://xxxxxxxxx.xxxx.xxx.xxx.
iv. ICP will design its site to support HTTP 1.0 or later protocol as
defined in RFC 1945 and to adhere to AOL's parameters for refreshing or
preventing the caching of information in AOL's proxy system as outlined in
the document provided at the following URL: xxxx://xxxxxxxxx.xxxx.xxx.xxx.
ICP is responsible for the manipulation of these parameters in web based
objects so as allow them to be cached or not cached as outlined in RFC
1945.
v. Prior to releasing material, new functionality or features through the
ICP Internet Site ("New Functionality"), ICP will use commercially
reasonable efforts to either (i) test the New Functionality to confirm its
compatibility with AOL Service client software and (ii) provide AOL with
written notice of the New Functionality so that AOL can perform tests of
the New Functionality to confirm its compatibility with the AOL Service
client software. Should any new material, new functionality or features
through the ICP Internet Site be released without notification to AOL, AOL
will not be responsible for any adverse member experience until such time
that compatibility tests can be performed and the new material,
functionality or features qualified for the AOL Service.
10. AOL Internet Services Partner Support. AOL will provide ICP with access to
the standard online resources, standards and guidelines documentation,
technical phone support, monitoring and after-hours assistance that AOL
makes generally available to similarly situated web-based partners. AOL
support will not, in any case, be involved with content creation on behalf
of ICP or support for any technologies, databases, software or other
applications which are not supported by AOL or are related to any ICP area
other than the ICP Internet Site. Support to be provided by AOL is
contingent on ICP providing to AOL demo account information (where
applicable), a detailed description of the ICP Internet Site's software,
hardware and network architecture and access to the ICP Internet Site for
purposes of such performance and the coordination load testing as AOL
elects to conduct.
11. ICP Programming. The terms and conditions of this Exhibit applicable to the
ICP Internet Site shall apply equally to any ICP Programming that is (a)
programmed in HTML or (b) web-based.
12. Additional Standards. ICP shall diligently monitor the ICP Internet Site
and ICP Programming, including the Res System for fraud and abuse and shall
provide adequate staffing for maintenance of both the ICP Internet Site and
ICP Programming. In the event that fraudulent activity associated with use
of the ICP Internet Site and/or ICP Programming exceeds two times AOL's
average occurrence of fraud for a similar time frame across its credit
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card transaction activities through the AOL Service (as measured by AOL)
(the "Average Fraud Level"), then the Parties shall make such modifications
to any and all applicable operations, systems, information flows related to
fraud prevention and billing as are necessary to reduce such fraudulent
activity to no greater than two times the Average Fraud Level. ICP shall
also work with AOL in developing policies (not otherwise addressed herein)
that are designed to combat any repeated customer service complaints and to
prevent deceptive selling practices.
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EXHIBIT F
ICP SERVICES
1. INTRODUCTION
This Exhibit F describes certain services, functions and responsibilities
of ICP (the "Services"). ICP shall be fully responsible for all services
(including, without limitation, for equipment and software) from the
connection to the Airline Systems to the Core Systems to the RMG Focal
Point (such area shall be known as the "ICP Responsibility Area"). Included
in such responsibilities, ICP shall operate and maintain the Core Systems
and part of the RMG up to the RMG Focal Point, and arrange for the
connection of the Core Systems to the Airline Systems, and then manage and
operate the equipment, software and any other resources within the ICP
Responsibility Area. ICP shall also be fully responsible for providing
support and back-end services in connection with travel reservations
support and ticket processing, including, without limitation, call center
operation and management services and fulfillment services and other
general support functions.
ICP anticipates that the provision of Services will improve over the Term
based on ICP's knowledge of and access to state-of-the-art resources and
technology, implementation of improved methods and procedures for providing
the Services, and efficiencies arising from ICP's provision of the
Services.
2. MANAGEMENT AND OPERATION SERVICES
2.1 Management and Operation of the Equipment. ICP will assume full
management and operational responsibility for the equipment within the
ICP Responsibility Area. Such responsibilities include, at a minimum,
acquiring, installing, upgrading, managing, maintaining, repairing and
replacing all equipment in order to provide the Services.
o ICP shall assume full management and operational responsibility
for host processor(s) functions and services within the ICP
Responsibility Area. ICP's responsibilities during the term of
the Agreement will include, at a minimum: console monitoring and
operations; tape and storage management; and all technical system
support operations. ICP will maintain proper and adequate
facilities, equipment and supplies, and a properly trained and
adequately staffed operations center, including necessary
management and support staff. The hours of operation of the
operations center will be 24 hours per day, 7 days per week.
o ICP will assume full management and operational responsibility
for network functions and services within the ICP Responsibility
Area. ICP's responsibilities will include, at a minimum,
acquiring, installing, upgrading, managing, maintaining,
repairing and replacing all equipment, software, lines and
cabling, as required to perform the network services as the
network may change during the Term. ICP shall implement measures
necessary to ensure confidentiality and protect against
unauthorized access and fraudulent use.
2.2 Software Management and Maintenance. ICP will assume full management
and operational responsibility for the software within the ICP
Responsibility Area, i.e., the "Back-End Systems". Such
responsibilities include, at a minimum, acquiring, installing,
upgrading, managing, maintaining, repairing and replacing all software
in order to provide the Services. Software management and maintenance
will include, at a minimum, the following:
o Corrective maintenance, including correction of systems defects
in accordance with applicable specifications;
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o Preventative maintenance, including prevention of systems
problems by, where appropriate, improving systems documentation,
source code restructuring to the extent the code is accessible,
database/index reorganization, system re-engineering, tool
construction and re-writing un-maintainable modules.
o Upgrading the Back-End Systems: (i) so that the Back-End Systems
are always kept current and competitive (including
cost-competitive) with the major airline reservations systems in
the industry, (ii) pursuant to ICP's normal maintenance
practices, (ii) in a manner that ensures continued eligibility
for support and maintenance by any third-party for such Software,
and (iii) so as to maintain connectivity with the Airline
Systems.
o Tuning of systems to improve operational performance and minimize
resource usage to the extent practicable;
o Development and maintenance of current documentation for the
Back-End Systems, including changes to reflect any modifications
to the Back-End Systems; and
o Implementation of any regulatory requirements.
2.3 Other Management and Operational Responsibilities. ICP shall be
responsible for other management and operation services related to the
ICP Responsibility Area, including, without limitation, the following:
o Disaster Recovery. ICP will assume management and operational
responsibility, as applicable, for the provision of disaster
recovery services in a manner at least consistent with industry
standards. Such services include the management and interface
with third party disaster recovery service providers, and the
development, management and, as applicable, operation of a
disaster recovery plan.
o Security Management. ICP will manage and monitor access to
computer system resources, including system level accounts,
groups, users and passwords and will maintain the security
software. AOL shall have the right to perform a and end-to-end
security audit of the ICP Responsibility Area at AOL's sole
option and expense.
3. SUPPORT AND BACK-END SERVICES
3.1 Call Center Services. ICP shall be responsible for the management of a
call center to answer inquiries from users of the Res System related
to information and reservations on all airlines that are generally
available on major airline reservations systems (the "Call Center").
ICP shall manage and operate the Call Center, providing the resources
necessary to respond promptly to inquiries and customer support
related to information and reservations on all airlines that are
generally available on major airline reservations systems. All
communications (including oral communications) with AOL Users through
the Call Center shall be co-branded with AOL in a manner approved by
AOL in advance. Without limiting the generality of the foregoing,
ICP's services shall include, without limitation:
o Supporting both toll free (800) voice service and online,
real-time assistance to users through instant messages and/or (as
commercially reasonable and necessary) chat/conference room(s).
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o Providing hours of operation that will mirror periods of highest
user activity over all time zones, which, unless mutually agreed,
at a minimum will be between 6:00 am to 10:00 p.m. Pacific Time.
o Staffing the Call Center as necessary to meet or exceed customer
demand for customer support.
o Acknowledging customer complaints within 24 hours of receipt of
complaint and promptly resolving the same, but no later than
within five (5) business days after receipt. ICP shall log all
such complaints and will note the date/time of the complaint,
escalation (if any) and resolution. ICP shall maintain files on
all complaints and resolutions.
o Responding to AOL requests for information on Call Center
operations. ICP understands that from time to time AOL shall make
surprise test calls to the Call Center in order to determine
provision of Call Center services. In the event that AOL
discovers a problem with the services, AOL shall notify ICP, and
the Parties shall meet to discuss the problem. ICP shall take the
steps necessary to correct any problems.
3.2 Fulfillment Services. ICP shall be responsible for the management of
fulfillment services in which ICP shall receive ticket reservation
orders made by customers through the Res System and then print out the
tickets and distribute (i.e., mail) them to customers ("Fulfillment").
ICP shall manage and operate the Fulfillment services, providing the
resources necessary to receive ticket reservation orders made by
customers through the Res System and then printing out the tickets and
distributing them to customers. All communications (including oral
communications) with AOL Users in connection with Fulfillment shall be
co-branded with AOL in a manner approved by AOL in advance. Without
limiting the generality of the foregoing, ICP's services shall
include:
o Using commercially reasonable best efforts to ensure that all
travel documentation is delivered to customers on a timely basis.
ICP shall document all missed deliveries and will keep such
documentation on file for AOL review.
Acknowledging customer complaints within 24 hours of receipt of complaint
consistent with ICP's standard customer service practices. ICP shall log all
such complaints and will note the date/time of the complaint, escalation (if
any) and resolution. ICP shall maintain files on all complaints and resolutions.
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EXHIBIT G
KEYWORD GUIDELINES
PRINT/GRAPHIC
o Preferred listing: (AOL Logo appears) America Online Keyword: Travel
America Online Keyword: Travel
o If necessary, due to space constraints, listing may appear as follows:
AOL KEYWORD: TRAVEL
o Every effort should be made to have 'America Online' spelled out
o Capitalization - listing should appear in initial caps only
Note: When America Online is abbreviated to AOL - AOL must appear in
all caps. K of Keyword must always be capitalized
o Font, Font style and Size must all be consistent
o Listing size must be of equal prominence to that of any/all other URLs
featured
BROADCAST/RADIO
o America Online Keyword must announced entirely (even if an accompanying
graphic is set with AOL versus America Online)
Example voiceover would read:
"For more information, please visit America Online Keyword: Travel"
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[SCHEDULE 1]
--------------------------------------------------------------------------------------------------------------------------
CONTRACT START
PARTNER RELATIONSHIP DATE CONTRACT END BRANDS
--------------------------------------------------------------------------------------------------------------------------
BMD TRAVEL SERVICES, INC. ADVERTISER 7/22/99 4/21/00 AOL
--------------------------------------------------------------------------------------------------------------------------
CENDANT CORPORATION ADVERTISER 1/7/99 9/30/00 AOL, NETSCAPE
--------------------------------------------------------------------------------------------------------------------------
CHEAP TICKETS ADVERTISER 9/11/99 12/31/99 XXX.XXX
--------------------------------------------------------------------------------------------------------------------------
HOTEL RESERVATIONS NETWORK ADVERTISER 4/22/99 6/9/00 AOL, XXX.XXX
--------------------------------------------------------------------------------------------------------------------------
HOTELSAVERS WORLDWIDE ADVERTISER 11/5/98 1/10/00 AOL
--------------------------------------------------------------------------------------------------------------------------
LAS VEGAS RESERVATIONS SYSTEMS, INC. ADVERTISER 7/20/98 9/30/99 AOL
--------------------------------------------------------------------------------------------------------------------------
TRAVELSCAPE ADVERTISER 7/20/98 9/30/99 AOL
--------------------------------------------------------------------------------------------------------------------------
ONSALE, INC. ADVERTISER 9/12/98 7/21/00 SHOPPING, AOL, XXX.XXX,
NETSCAPE, COMPUSERVE
--------------------------------------------------------------------------------------------------------------------------
THE TRAVEL COMPANY ADVERTISER 1/1/99 3/31/00 AOL
--------------------------------------------------------------------------------------------------------------------------
XXXX COMPANY ADVERTISER 9/15/99 11/15/99 COMPUSERVE
--------------------------------------------------------------------------------------------------------------------------
XXXX.XXX ADVERTISER -- -- DCI
--------------------------------------------------------------------------------------------------------------------------
CENDANT CORPORATION CONTENT PARTNER 7/1/97 9/30/01 AOL, XXX.XXX
(TRAVELERS ADVANTAGE)
--------------------------------------------------------------------------------------------------------------------------
XXXX.XXX CONTENT PARTNER (TOOLS) 2/1/99 1/31/00 AOL, XXX.XXX
--------------------------------------------------------------------------------------------------------------------------
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--------------------------------------------------------------------------------------------------------------------------------
CONTRACT CONTRACT
UPCOMING PARTNERS RELATIONSHIP START DATE END BRANDS
--------------------------------------------------------------------------------------------------------------------------------
WORLDRES ADVERTISER -- -- AOL, XXX.XXX, NETSCAPE, COMPUSERVE
--------------------------------------------------------------------------------------------------------------------------------
TRAVELSCAPE ADVERTISER -- -- AOL, XXX.XXX
--------------------------------------------------------------------------------------------------------------------------------
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SCHEDULE 9
None
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