CONFIDENTIAL
EXHIBIT 10.8
EXCITE/PREVIEW TRAVEL - TRAVEL CHANNEL AGREEMENT
This agreement ("Agreement") is entered into as of the 30th day of September,
1997 ("Effective Date"), by and between Excite, Inc., a California corporation,
located at 000 Xxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000 ("Excite"), and Preview
Travel, Inc., a Delaware corporation, located at 000 Xxxxx Xxxxxx, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000 ("Preview Travel").
RECITALS
A. Excite maintains a site on the Internet at xxxx://xxx.xxxxxx.xxx and owns
and/or manages related Web sites worldwide (collectively, the "Excite
Network") which, among other things, allow its users to search for and
access content and other sites on the Internet.
B. Within the Excite Network, Excite currently organizes certain content into
topical channels, including a travel and destinations channel (the "Excite
Travel Channel").
C. Excite also maintains and/or manages certain Web pages which may be
delivered to users via email, desktop "channels" or Internet "push"
technologies (collectively, "Broadcast Pages") which may incorporate
content supplied to Excite by third parties for the purpose of providing
value to Excite users and providing access to the content, products and/or
services of such third parties.
D. Preview Travel is engaged in the business of online travel reservations and
owns or has the right to distribute certain travel-related content. Preview
Travel owns and maintains a Web site or sites (collectively, the "Preview
Travel Sites") through which it conducts online travel reservations and
makes its content available to its users.
E. Excite and Preview Travel wish to combine their travel-related content to
create co-branded travel content and reservations services and to make the
content and services available through the Excite Network, the Broadcast
Pages and the Preview Travel Sites.
Therefore, the parties agree as follows:
1. CREATION OF CO-BRANDED TRAVEL CONTENT AND RESERVATIONS SERVICES
a) Preview Travel and Excite will cooperatively create and program co-
branded areas containing travel and destinations content and providing
access to Preview Travel's online reservations services (the
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"Co-Branded Areas"). Excite and Preview Travel each will have
dedicated staff creating and programming the Co-Branded Areas. The
parties will mutually determine the appropriate level of staffing
assigned to these tasks.
b) Preview Travel and Excite will each contribute content ("Content") to
the Co-Branded Areas mutually selected from that which resides on the
Preview Travel Sites and the Excite Travel Channel. The parties may
elect to collaborate on the development of additional content to be
included in the Co-Branded Areas during the term of this Agreement.
c) Content license agreements with third parties applicable to third
party content to be incorporated into the Co-Branded areas will be
handled in separate agreements and subject to mutual agreement of the
parties. Excite and Preview Travel will each make good faith efforts
to obtain the approval of such third parties to allow the distribution
of any licensed third party content through the Co-Branded Areas.
d) Preview Travel will make good faith efforts to ensure that the Excite
Travel Channel will at all times have the option to feature the full
array of content and functionality as made generally available by
Preview Travel via other third-party relationships or via its own
branded service, subject to agreement of the applicable third parties.
e) Preview Travel will be solely responsible for its direct costs
associated with creating and programming the Co-Branded Area,
excluding the licensing of third party content, which will be
apportioned between Excite and Preview Travel subject to mutual
agreement by the parties.
f) Preview Travel will be the premier provider and default reservations
service for the Excite Travel Channel. No other provider of consumer
travel reservations services will be promoted or advertised within the
Excite Travel Channel for the duration of this Agreement. Preview
Travel will provide Excite with a list of competing providers of
consumer travel reservations services to which this exclusion will
apply (Exhibit A). Preview Travel may update Exhibit A once per
quarter.
g) Preview Travel will have a right of first refusal to negotiate with
Excite to provide Excite with travel reservations services and/or
travel-related functionality in the Excite Travel Channel not provided
by Preview Travel under this Agreement. In the event that Excite
intends to provide new travel reservations services and/or travel-
related functionality in the Excite Travel Channel, Excite will
promptly notify Preview Travel of its intent in writing and invite
Preview Travel to
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exercise its right of first refusal. In providing notice to Preview
Travel of its intent to make available any new travel reservations
services and/or travel-related functionality in the Excite Travel
Channel, Excite will provide Preview Travel with the proposed material
terms relevant to the new travel reservations services and/or travel-
related functionality.
h) Within five (5) business days of its receipt of a notice under Section
1(g), Preview Travel will deliver to Excite a written response stating
whether Preview Travel wishes to exercise its right of first refusal.
If Preview Travel informs Excite that it intends to exercise its right
of first refusal, the parties will use good faith efforts to quickly
negotiate and execute a written agreement regarding the new travel
reservations services and/or travel-related functionality based, to
the fullest extent possible, on the terms of this Agreement. For
fifteen (15) business days after Preview Travel's affirmative response
(or such longer period as is agreed by the parties in writing), Excite
will conduct negotiations regarding the new travel reservations
services and/or travel-related functionality exclusively with Preview
Travel. Thereafter, Excite may conduct negotiations with third parties
to obtain the travel reservations services and/or travel-related
functionality concurrently with its negotiations with Preview Travel
on terms (including, without limitation, terms related to carriage,
revenue share and programming requirements) substantially identical
to, and not more favorable to such third parties than, the terms last
offered to Preview Travel.
i) The Co-Branded Areas will display with equal prominence the name
and/or brands of both Preview Travel and Excite. Preview Travel and
Excite will collaborate on the "look and feel" of the Co-Branded Areas
including, but not limited to, the display, appearance and placement
of the parties' respective names and/or brands and of advertising
displayed on the Co-Branded Areas. Subject to the other provisions of
this Agreement, Excite will have final approval over the "look and
feel" and programming of the Co-Branded Area displayed in the Excite
Travel Channel. Subject to the other provisions of this Agreement,
Preview Travel will have final approval over the "look and feel" and
programming of the Co-Branded Area displayed in the Preview Travel
sites.
j) Preview Travel and Excite will each use reasonable efforts to
implement the Co-Branded Areas promptly after the execution of this
Agreement. The parties will meet and confer as soon as possible after
the execution of this Agreement to prepare an implementation schedule.
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2. DISTRIBUTION OF THE CO-BRANDED AREAS
a) The Co-Branded Areas will be made available through the Excite Travel
Channel and the Preview Travel Site. The Co-Branded Areas may be made
available, as deemed appropriate in Excite's sole discretion, through
Web sites in the Excite Network marketed primarily to users in the
United States and Canada.
b) Reasonable excerpts or portions of the Excite Travel Channel may be
incorporated by Excite into Broadcast Pages. Excite will determine the
"look and feel" of the Broadcast Pages.
3. TRAVEL-RELATED BULLETIN BOARDS AND CHAT EVENTS
a) Preview Travel will monitor and moderate Excite's travel-related
bulletin boards on a schedule to be determined by the parties.
b) Excite will provide, at its expense, a chat auditorium as the venue
for a regular series of travel-related chat "events" to be hosted by
Preview Travel no less frequently than three times per month. Hosts
will be individuals with recognized expertise in the travel field. The
events will afford participants an opportunity to interact with the
hosts. A moderator, provided by Preview Travel, will select questions
from the audience for the host to answer.
4. PROMOTION
a) Excite will undertake all reasonable efforts to promote the Excite
Travel Channel throughout the Excite Network. Excite will use such
vehicles as promotion on Excite's home page or Excite Search results
pages, inclusion of the Excite Travel Channel in the "Try These First"
listing of Web sites displayed on Excite Search results pages, cross-
linking within channels and other appropriate means to promote and
drive traffic into the Excite Travel Channel.
b) Excite and Preview Travel will promote the Excite Travel Channel on
their respective Web sites through mutually-determined, comparable
numbers of unsold advertising banner impressions.
c) Preview Travel will conduct, at its expense and on a minimum monthly
basis, give-aways to be displayed on the Excite Network promoting the
Excite Travel Channel as mutually determined by the parties.
d) Excite will promote the travel-related chat event series on its chat
events page, as well as on the front page of the People and Chat
Channel (xxxx://xxx.xxxxxx.xxx/xxxxxxx/xxxx). At its discretion,
Excite
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may promote high profile hosts on the Excite home page and/or the
front page of the Excite Travel Channel.
e) Preview Travel will undertake reasonable efforts to promote the chat
events and Excite's services throughout the Preview Travel Sites. The
promoted Excite Services will include, at a minimum (subject to
Preview Travel's existing agreements with third parties):
i) Excite Search will be the exclusive Internet search and
navigation service on all Web pages in the Preview Travel
Sites in which Preview Travel displays links to Internet
search and navigation services.
ii) My Excite Channel will be one of the personalized Internet
information service on all Web pages in the Preview Travel
Sites in which Preview Travel displays links to personalized
Internet information services.
iii) Excite NewsTracker will be one of the personalized Internet
news clipping service on all Web pages in the Preview Travel
Sites in which Preview Travel displays links to personalized
Internet news clipping services.
iv) Preview Travel will create a Web page or pages in the
Preview Travel Sites promoting the distribution of the
Excite PAL "buddy list" application to Preview Travel's
users. The promotional page or pages will be linked to
Excite's FTP server to allow downloads of the Excite PAL
client. Excite and Preview Travel will collaborate on the
"look and feel" of the Excite PAL promotional page or pages.
Other than paid advertisements from other vendors and/or
distributors of buddy list applications, Preview Travel will
not promote buddy list applications other than Excite PAL.
v) Preview Travel will create a Web page or pages in the
Preview Travel Sites promoting registration for the
MailExcite free email service to Preview Travel's users. The
promotional page or pages will be linked to Excite's
registration page for MailExcite. Excite and Preview Travel
will collaborate on the "look and feel" of the MailExcite
promotional page or pages. Other than paid advertisements
from other vendors and/or distributors of free email
services, Preview Travel will not promote free email
services other than MailExcite.
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vi) The parties will determine the appropriate promotion of
additional Excite services as they become commercially
available.
a) Preview Travel will promote Excite in all print and packaging
materials associated with ticket delivery and/or reservation
confirmations for Excite Travel Channel transactions.
b) Preview Travel will promote, equal to or greater than any other
partner (excluding promotions under agreements between Preview Travel
and America Online, Inc. ("AOL")), Excite's services (including the
Excite Travel Channel), in any Preview Travel publications and radio
and TV programming, subject to Excite's agreement to participate in
such off-Web promotions at a cost no greater than Preview Travel's
"most favored nation" media rates charged to Preview Travel's
strategic partners, excluding promotions covered by agreements with
AOL.
1. SET-UP FEE, REVENUE GUARANTEE PAYMENTS AND PAGE VIEW GUARANTEES
e) One million dollars ($1,000,000) will be due from Preview Travel to
Excite upon execution of this Agreement as compensation for costs of
initiating access to the Excite Network, programming costs associated
with the incorporation of the Co-Branded Area into the Excite Network,
set-up costs and other expenses associated with Excite's initiation of
the links, placements, advertisements and promotions contemplated by
this Agreement. This set-up fee will be paid in four equal
installments of [*] each,
commencing on the three-month anniversary of the execution of this
Agreement and continuing thereafter every three months until the
entire set-up fee has been paid.
f) Separate and apart from the set-up fee, Preview Travel will pay
revenue guarantee payments to Excite as follows:
Year 1: [ * ]
Year 2: [ * ]
Year 3: [ * ]
Year 4: [ * ]
Year 5: [ * ]
TOTAL: TWENTY-THREE MILLION DOLLARS ($23,000,000)
g) In each year, revenue guarantee payments will be made in equal
quarterly installments commencing on the three month anniversary of
the execution of this Agreement and continuing thereafter every three
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months until all of the annual guarantees have been paid in full,
subject to the other provisions of this Agreement.
h) Excite guarantees Preview Travel that it will deliver the following
annual page views to the Excite Travel Channel:
Year 1: [*]
Year 2: [*]
Year 3: [*]
Year 4: [*]
Year 5: [*]
i) At the conclusion of each twelve (12) month period following the
launch of the Co-Branded Areas (which shall be deemed to be the
earlier of (i) the actual launch of the Co-Branded Areas or (ii)
October 1, 1997), the parties will compare the actual page views
delivered to the Excite Travel Channel against the page view
guarantees set forth above.
v) In the event that the actual annual page views are less than
the applicable annual guarantee, the difference will be
added to the next year's page view guarantee.
vi) In the event that the total of the actual page views over
the five-year term of the Agreement is less than the total
of the five years' guaranteed page views, the Agreement will
be continued without additional guarantee payments on the
part of Preview Travel until the total of the five years'
guaranteed page views has been delivered. This make good
period is to be delivered by Excite in the shortest possible
period, not to exceed [*], given the available page views at
the time.
vii) In the event that actual annual page views in any applicable
year differ from the applicable annual page view guarantee
by [*] or more, the parties will negotiate
in good faith to increase or decrease the remaining annual
page view guarantees and revenue guarantee payments to
reflect the increase or decrease in the value of the
Agreement created by the higher- or lower-than-expected page
views. If the parties are unable to negotiate an appropriate
amendment to the annual page view guarantees and revenue
guarantee payments after ninety (90) days following notice
from a party that it desires to commence such negotiations,
Excite will be entitled to terminate the Agreement upon
notice to Preview Travel if the applicable annual page views
have exceeded the applicable annual guarantee by [*] or
more, and Preview
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Travel will be entitled to terminate the Agreement upon
notice to Excite if the applicable annual page views have
been less than the applicable annual guarantee by [ * ] or
more. Reviews of the delivery of actual page views against
the annual page view guarantees will take place on an annual
basis.
6. ADVERTISING AND SPONSORSHIP REVENUE AND COMMISSION SHARING
a) The parties' respective sales forces will cooperatively sell
advertising and sponsorships for the Co-Branded Areas that appear on
both the Excite Travel Channel and the Preview Travel Sites without
creating confusion in the marketplace. Within ninety (90) days of the
execution of this Agreement, the parties will evaluate the optimal
sales force structure to maximize the mutual revenue opportunity.
b) Preview will receive [*]of the "Net Advertising Revenue" that accrues
during the term of this Agreement from advertising banners that appear
on the Co-Branded Areas on both sites. "Net Advertising Revenue" means
the gross revenue from banner advertising that accrues to the parties
during the applicable payment period, minus (i) each party's actual
sales agency discounts and commissions, both internal and external, in
an amount not to exceed twenty percent (20%) of the gross revenue,
(ii) any royalties paid by either party for content displayed in the
Co-Branded Areas from sources other than Preview (if applicable) and
(iii) any portion of the banner advertising revenue required to be
shared by either party with content providers other than Preview for
content displayed in the Co-Branded Areas (if applicable).
c) Sharing of Net Advertising Revenue will commence thirty (30) days
after the launch of the Co-Branded Areas. Payments of shared Net
Advertising Revenue will be due within twenty (20) days of the end of
each calendar quarter with respect to revenue recognized by either
party during such calendar quarter.
d) Preview Travel will share standard commissions earned by Preview
Travel through the Co-Branded Areas, subject to the following
conditions:
i) If in any calendar quarter during the term of this Agreement
the total of [*] of such standard commissions earned by
Preview Travel cumulatively from the inception of this
Agreement plus [*]of the Net Advertising Revenue derived
from the Co-Branded Areas cumulatively from the inception of
this Agreement exceeds the pro rata share of
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the revenue guarantees applicable to the same cumulative
period, Preview Travel will pay Excite [*] of the standard
commissions earned thereafter during such calendar quarter
by Preview Travel through the Co-Branded Areas.
ii) If the total of [*] of such standard commissions earned by
Preview Travel cumulatively from the inception of this
Agreement plus [*]of the Net Advertising Revenue derived
from the Co-Branded Areas cumulatively from the inception of
this Agreement is equal to or less than the pro rata share
of the revenue guarantees applicable to the same cumulative
period, Preview Travel will not be obligated to pay Excite
any share of the standard commissions earned by Preview
Travel through the Co-Branded Areas during the same
cumulative period.
iii) Payments of shared commissions will be due to Excite within
twenty (20) days of the end of each calendar quarter in
which the commission revenue is recognized by Preview
Travel.
iv) Nothing in this Section 6(d) shall be construed to require
the return or refund of any portion of commissions paid by
Preview Travel to Excite in the event that, subsequent to
such payment, the total of [*] of such standard commissions
earned by Preview Travel cumulatively from the inception of
this Agreement plus [*] of the Net Advertising Revenue
derived from the Co-Branded Areas cumulatively from the
inception of this Agreement is equal to or less than the pro
rata share of the revenue guarantees applicable to the same
cumulative period.
7. NEW BUSINESS OPPORTUNITIES
a) Preview Travel and Excite will cooperate in the development of a
program to acquire and rapidly promote to Excite's users "distressed",
"opportunistic" or other travel-related opportunities made available
by travel vendors on short notice. The parties will negotiate in good
faith to implement appropriate expense allocations and revenue sharing
for any such opportunities.
b) The parties will jointly explore additional travel-related online
commerce opportunities and will negotiate in good faith to implement
appropriate compensation for any such activities.
8. EXCLUSIVITY
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a) During the term of this Agreement, Excite will not enter into a
similar travel content agreement with any of Preview Travel's direct
competitors listed in Exhibit A. Preview Travel may reasonably update
the list of its direct competitors in Exhibit A on a quarterly basis.
b) During the term of the Agreement, Preview Travel will not enter into a
similar agreement with any of Excite's competitors including, but not
limited to, [*].
9. TERM
The term of this Agreement will be five (5) years, commencing on the
Effective Date.
10. TERMINATION
a) Either party may terminate this Agreement if the other party
materially breaches its obligations hereunder and such breach remains
uncured for thirty (30) days following the notice to the breaching
party of the breach.
b) All payments that have accrued prior to the termination or expiration
of this Agreement will be payable in full within thirty (30) days
thereof.
c) The provisions of Section 14 (Confidentiality), Section 15 (Warranty
and Indemnity), Section 16 (Limitation of Liability) and Section 17
(Dispute Resolution) will survive any termination or expiration of
this Agreement.
11. PUBLICITY
Neither party will make any public statement, press release or other
announcement relating to the terms of or existence of this Agreement
without the prior written approval of the other. Notwithstanding the
foregoing, the parties agree to issue an initial press release
regarding the relationship between Excite and Preview Travel, the
timing and wording of which will be mutually agreed upon.
12. CONTENT OWNERSHIP AND LICENSE
a) Preview Travel will retain all right, title and interest in and to its
Content worldwide (including, but not limited to, ownership of all
copyrights, moral rights and other intellectual property rights
therein). Subject to the terms and conditions of this Agreement,
Preview Travel hereby
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grants to Excite a royalty-free, non-exclusive, worldwide license to
use, reproduce, distribute, transmit and publicly display Preview
Travel's Content in accordance with this Agreement and to sub-license
Preview Travel's Content to Excite's wholly-owned subsidiaries or to
joint ventures in which Excite participates (excluding Preview
Travel's direct competitors then listed in Exhibit A) for the sole
purpose of using, reproducing, distributing, transmitting and publicly
displaying Preview Travel's Content in accordance with this Agreement
to the extent permitted by Preview Travel's third party Content
licensors.
b) Preview Travel will retain all right, title, and interest in and to
the Preview Travel Sites worldwide (including, but not limited to,
ownership of all copyrights, look and feel and other intellectual
property rights therein).
c) Excite will retain all right, title and interest in and to its Content
worldwide (including, but not limited to, ownership of all copyrights,
moral rights and other intellectual property rights therein). Subject
to the terms and conditions of this Agreement, Excite hereby grants to
Preview Travel a royalty-free, non-exclusive, worldwide license to
use, reproduce, distribute, transmit and publicly display Excite's
Content in accordance with this Agreement
d) Excite will retain all right, title, and interest in and to the Excite
Network, the Excite Travel Channel and the Broadcast Pages worldwide
(including, but not limited to, ownership of all copyrights, look and
feel and other intellectual property rights therein).
13. TRADEMARK OWNERSHIP AND LICENSE
a) Preview Travel will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to Excite hereunder.
b) Excite will retain all right, title and interest in and to its
trademarks, service marks and trade names worldwide, subject to the
limited license granted to Preview Travel hereunder.
c) Each party hereby grants to the other a non-exclusive, limited license
to use its trademarks, service marks or trade names only as
specifically described in this Agreement. All such use shall be in
accordance with each licensor's reasonable policies regarding
advertising and trademark usage as established from time to time.
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Excite / Preview Travel Agreement 11
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d) Upon the expiration or termination of this Agreement, each party will
cease using the trademarks, service marks and/or trade names of the
other except:
i) As the parties may agree in writing; or
ii) To the extent permitted by applicable law.
14. CONFIDENTIALITY
a) For the purposes of this Agreement, "Confidential Information" means
information about the disclosing party's (or its suppliers') business
or activities that is proprietary and confidential, which shall
include all business, financial, technical and other information of a
party marked or designated by such party as "confidential or
"proprietary"; or information which, by the nature of the
circumstances surrounding the disclosure, ought in good faith to be
treated as confidential.
b) Confidential Information will not include information that (i) is in
or enters the public domain without breach of this Agreement, (ii) the
receiving party lawfully receives from a third party without
restriction on disclosure and without breach of a nondisclosure
obligation or (iii) the receiving party knew prior to receiving such
information from the disclosing party or develops independently.
c) Each party agrees (i) that it will not disclose to any third party or
use any Confidential Information disclosed to it by the other except
as expressly permitted in this Agreement and (ii) that it will take
all reasonable measures to maintain the confidentiality of all
Confidential Information of the other party in its possession or
control, which will in no event be less than the measures it uses to
maintain the confidentiality of its own information of similar
importance.
d) Notwithstanding the foregoing, each party may disclose Confidential
Information (i) to the extent required by a court of competent
jurisdiction or other governmental authority or otherwise as required
by law or (ii) on a "need-to-know" basis under an obligation of
confidentiality to its legal counsel, accountants, banks and other
financing sources and their advisors.
e) The terms and conditions of this Agreement will be deemed to be the
Confidential Information of each party and will not be disclosed
without the written consent of the other party.
15. WARRANTY AND INDEMNITY
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a) Preview Travel warrants that it owns, or has obtained the right to
distribute and make available as specified in this Agreement, its
online reservations service and any and all content provided to Excite
or made available to third parties in connection with this Agreement.
b) Preview Travel will indemnify, defend and hold harmless Excite, its
affiliates, officers, directors, employees, consultants and agents
from any and all third party claims, liability, damages and/or costs
(including, but not limited to, attorneys fees) arising from:
i) The breach of any warranty, representation or covenant in
this Agreement;
ii) Any claim that Preview Travel's online reservations service
or content infringes or violates any third party's
copyright, patent, trade secret, trademark, right of
publicity or right of privacy or contains any defamatory
content; or
iii) Any claim arising from content displayed on the Preview
Travel Site (other than Excite's).
Excite will promptly notify Preview Travel of any and all such claims
and will reasonably cooperate with Preview Travel with the defense
and/or settlement thereof; provided that, if any settlement requires
an affirmative obligation of, results in any ongoing liability to or
prejudices or detrimentally impacts Excite in any way and such
obligation, liability, prejudice or impact can reasonably be expected
to be material, then such settlement shall require Excite's written
consent (not to be unreasonably withheld or delayed) and Excite may
have its own counsel in attendance at its own expense at all
proceedings and substantive negotiations relating to such claim.
c) Excite warrants that it owns, or has obtained the right to distribute
and make available as specified in this Agreement, any and all content
provided to Preview Travel or made available to third parties in
connection with this Agreement.
d) Excite will indemnify, defend and hold harmless Preview Travel, its
affiliates, officers, directors, employees, consultants and agents
from any and all third party claims, liability, damages and/or costs
(including, but not limited to, attorneys fees) arising from:
i) The breach of any warranty, representation or covenant in
this Agreement;
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Excite / Preview Travel Agreement 13
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ii) Any claim that Excite's content infringes or violates any
third party's copyright, patent, trade secret, trademark,
right of publicity or right of privacy or contains any
defamatory content; or
iii) Any claim arising from content displayed on the Excite
Network or Broadcast Pages (other than Preview Travel's).
Preview Travel will promptly notify Excite of any and all such claims
and will reasonably cooperate with Excite with the defense and/or
settlement thereof; provided that, if any settlement requires an
affirmative obligation of, results in any ongoing liability to or
prejudices or detrimentally impacts Preview Travel in any way and such
obligation, liability, prejudice or impact can reasonably be expected
to be material, then such settlement shall require Preview Travel's
written consent (not to be unreasonably withheld or delayed) and
Preview Travel may have its own counsel in attendance at its own
expense at all proceedings and substantive negotiations relating to
such claim.
e) EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY
WARRANTY IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT AND
HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
REGARDING SUCH SUBJECT MATTER.
16. LIMITATION OF LIABILITY
EXCEPT UNDER SECTIONS 15(b) AND 15(d), IN NO EVENT WILL EITHER PARTY
BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF EITHER PARTY FOR
DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY
OTHER LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE AMOUNTS
ACTUALLY PAID BY PREVIEW TRAVEL TO EXCITE HEREUNDER.
17, DISPUTE RESOLUTION
a) The parties agree that any breach of either of the parties'
obligations regarding trademarks, service marks or trade names and/or
confidentiality would result in irreparable injury for which there is
no adequate remedy at law. Therefore, in the event of any breach or
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Excite / Preview Travel Agreement 14
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threatened breach of a party's obligations regarding trademarks,
service marks or trade names or confidentiality, the aggrieved party
will be entitled to seek equitable relief in addition to its other
available legal remedies in a court of competent jurisdiction. For the
purposes of this section only, the parties consent to venue in either
the state courts of the county in which Excite has its principal place
of business or the United States District Court for the Northern
District of California.
b) In the event of disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, the parties will first attempt to
resolve the dispute(s) through good faith negotiation. In the event
that the dispute(s) cannot be resolved through good faith negotiation,
the parties will refer the dispute(s) to a mutually acceptable
mediator for hearing in the county in which Excite has its principal
place of business.
c) In the event that disputes between the parties arising from or
concerning in any manner the subject matter of this Agreement, other
than disputes arising from or concerning trademarks, service marks or
trade names and/or confidentiality, cannot be resolved through good
faith negotiation and mediation, the parties will refer the dispute(s)
to the American Arbitration Association for resolution through binding
arbitration by a single arbitrator pursuant to the American
Arbitration Association's rules applicable to commercial disputes. The
arbitration will be held in the county in which Excite has its
principal place of business.
18. GENERAL
a) Assignment. Neither party may assign this Agreement, in whole or in
----------
part, without the other party's written consent (which will not be
unreasonably withheld), except that no such consent will be required
in connection with (i) a merger, reorganization or sale of all, or
substantially all, of such party's assets or (ii) Excite's assignment
and/or delegation of its rights and responsibilities hereunder to a
wholly-owned subsidiary or joint venture in which Excite holds a
controlling interest (other than to a Preview Travel competitor then
listed in Exhibit A). Any attempt to assign this Agreement other than
as permitted above will be null and void.
b) Governing Law. This Agreement will be governed by and construed in
-------------
accordance with the laws of the State of California, notwithstanding
the actual state or country of residence or incorporation of Preview
Travel.
________________________________________________________________________________
Excite / Preview Travel Agreement 15
CONFIDENTIAL
c) Notice. Any notice under this Agreement will be in writing and
------
delivered by personal delivery, express courier, confirmed facsimile,
confirmed email or certified or registered mail, return receipt
requested, and will be deemed given upon personal delivery, one (1)
day after deposit with express courier, upon confirmation of receipt
of facsimile or email or five (5) days after deposit in the mail.
Notices will be sent to a party at its address set forth below or such
other address as that party may specify in writing pursuant to this
Section.
d) No Agency. The parties are independent contractors and will have no
---------
power or authority to assume or create any obligation or
responsibility on behalf of each other. This Agreement will not be
construed to create or imply any partnership, agency or joint venture.
e) Force Majeure. Any delay in or failure of performance by either party
-------------
under this Agreement will not be considered a breach of this Agreement
and will be excused to the extent caused by any occurrence beyond the
reasonable control of such party including, but not limited to, acts
of God, power outages and governmental restrictions.
f) Severability. In the event that any of the provisions of this
------------
Agreement are held by to be unenforceable by a court or arbitrator,
the remaining portions of the Agreement will remain in full force and
effect.
g) Entire Agreement. This Agreement is the complete and exclusive
----------------
agreement between the parties with respect to the subject matter
hereof, superseding any prior agreements and communications (both
written and oral) regarding such subject matter. This Agreement may
only be modified, or any rights under it waived, by a written document
executed by both parties.
Preview Travel, Inc. Excite, Inc.
By: /s/ Xxx Xxxxx By: /s/ Xxxxxx X. Xxxx
-------------------- ---------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxxxx X. Xxxx
-------------------- ---------------------
Title: President & CEO Title: EVP - CAO
-------------------- ---------------------
Date: September 30, 1997 Date: September 30, 1997
-------------------- ---------------------
[ADDRESS] 000 Xxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
415.568.6000 (voice)
000.000.0000 (fax)
________________________________________________________________________________
Excite / Preview Travel Agreement 16
