Website Linking And License Agreement
This Agreement is entered into on this 21st day of March, 2001, by and
between XxxxxxXxx.xxx Inc., a Delaware corporation (herein "XxxxxxXxx.xxx") and
the Affiliate whose name, state of formation or other identifying characteristic
is set forth on the signature page of this Agreement. The addresses of the
parties to this Agreement as well as the dates of execution of this Agreement by
XxxxxxXxx.xxx and Affiliate are set forth on the signature page.
Recitals
A. This Agreement is qualified in its entirety by the definitions set
forth in Section 1 of this Agreement. Terms or phrases not specifically defined
in Section 1 should be read in accordance with their general usage and context
within this Agreement. All defined terms or phrases are identified with a bold
face font and the first letter of each defined word or the first letter of each
word in a defined phrase is capitalized throughout this Agreement.
B. XxxxxxXxx.xxx will provide its proprietary hotel, rental automobile,
cruise, airline and rail reservation system (the "XxxxxxXxx.xxx Proprietary
Site") to Affiliate by providing Affiliate access to the XxxxxxXxx.xxx
Proprietary Site on the terms and conditions set forth in this Agreement.
C. XxxxxxXxx.xxx and Affiliate understand and agree that in the
performance of this Agreement each party may have access to information of the
other party, their respective parents, subsidiaries and affiliates, and their
respective customers and suppliers, including but not limited to, trade secrets,
marketing and business plans and technical specification and information.
XxxxxxXxx.xxx and Affiliate agree to the following terms and conditions:
1. Defined Terms. The terms set forth in this Section are defined as follows:
(a) "Affiliate Customers" mean customers who purchase travel from the
Designated Affiliate Pages on the XxxxxxXxx.xxx Proprietary Site. An Affiliate
Customer will also be deemed a customer of XxxxxxXxx.xxx.
(b) "Affiliate Site" means the world wide web site owned and operated by
Affiliate that contains a XxxxxxXxx.xxx Proprietary Link accepted as to
substance, background image, color, look and feel by Affiliate and which is
identified by its URL designation set forth on the signature page of this
Agreement.
(c) "Confidential Information" means trade secrets, marketing and business
plans and technical specification and information, which upon being declared in
writing as confidential information, whether by letter or by the use of a
confidential or
proprietary stamp or legend, prior to or at the time of disclosure to the other
party, becomes Confidential Information.
(d) "Designated Affiliate Pages" means those pages on the XxxxxxXxx.xxx
Proprietary Site which are specifically designed for use in connection with the
Affiliate Site, which are to be linked to via the XxxxxxXxx.xxx Proprietary Link
on the Affiliate Site and which have been accepted as to substance, background
image, color, look and feel by Affiliate.
(e) "XxxxxxXxx.xxx Proprietary Link" means the URL link provided to
Affiliate by XxxxxxXxx.xxx for placement on the Affiliate Site, which is
identified by its URL designation set forth on the signature page of this
Agreement and which links the Affiliate Site to the Designated Affiliate Pages
on the XxxxxxXxx.xxx Proprietary Site.
(f) "XxxxxxXxx.xxx Proprietary Site" means the World Wide Web site
identified by its URL designation xxxx://xxx.XxxxxxXxx.xxx or any of its
subdirectories, including the Designated Affiliate Pages.
2. Obligations of XxxxxxXxx.xxx.
(a) Technical Support. At the request of Affiliate, XxxxxxXxx.xxx will
make available XxxxxxXxx.xxx technical administrators to modify all link colors,
backgrounds and logos of the XxxxxxXxx.xxx Proprietary Link on the Affiliate
Site and all link colors, backgrounds and logos on the Designated Affiliate
Pages such that there is a reasonable integration of the XxxxxxXxx.xxx
Proprietary Link and the Designated Affiliate Pages with the Affiliate Site.
(b) Affiliate Site Development Cost. Development of the Affiliate Site
shall be at the cost and expense of the Affiliate except as provided in Section
2(a) of this Agreement.
(c) Affiliate Customer Service. XxxxxxXxx.xxx will maintain a toll-free
number provided and serviced by XxxxxxXxx.xxx personnel at all reasonable times
to assist Affiliate Customers with travel assistance, grievances, complaints and
provide other related travel services in the ordinary course of business in
accordance with standard travel industry practice. Affiliate agrees and
acknowledges that XxxxxxXxx.xxx is responsible for reservation fulfillment and
customer service. All reservation inquiries shall be directed exclusively to
XxxxxxXxx.xxx.
3. Limited License.
(a) Grant of License to Affiliate. XxxxxxXxx.xxx grants to Affiliate
during the term of this Agreement, a non-exclusive worldwide limited license:
(i) to provide to users of the Affiliate Site access to the XxxxxxXxx.xxx
Proprietary Link and the Designated Affiliate Pages on the XxxxxxXxx.xxx
Proprietary Site along with the content contained therein; and (ii) at the
Affiliate's sole cost and expense, the Affiliate may
create materials that incorporate elements of or information contained in the
XxxxxxXxx.xxx Proprietary Site and copy, display, publish and distribute the
content of the XxxxxxXxx.xxx Proprietary Site for promotional purposes. Each
party hereby grants to the other during the term of this Agreement the right to
use such trademarks or trade names of the granting party as may be agreed upon
(in a separate writing) for inclusion in the Affiliate Site, the XxxxxxXxx.xxx
Proprietary Site, the XxxxxxXxx.xxx Proprietary Link and the Designated
Affiliate Pages as long as the granting party maintains quality control over the
marks and any use of the marks inures to the benefit of the granting party.
Affiliate shall prominently display on the Designated Affiliate Pages the phrase
"Powered by XxxxxxXxx.xxx" on all XxxxxxXxx.xxx search form pages.
(b) Grant of License to XxxxxxXxx.xxx. Upon obtaining the prior written
consent of Affiliate, the Affiliate grants to XxxxxxXxx.xxx a non-exclusive
royalty-free license during the term of this Agreement to use, reproduce,
electronically distribute and publicly display the Designated Affiliate Pages
for the promotion for which the written consent is given.
4. Preference on the Site.
While Affiliate may use, promote and offer another web site as a provider
of Internet travel services, Affiliate agrees that XxxxxxXxx.xxx shall remain
the preferred provider of internet travel services on the Affiliate site
regardless of any agreement with any other internet travel provider. In order to
satisfy this section of the Agreement, Affiliate shall place the TravelNow
proprietary link as the first Internet travel services provider listed on any
web page in which Affiliate promotes Internet travel services to a customer.
Additionally, the XxxxxxXxx.xxx link or icon on any Affiliate web page that
promotes Internet travel services shall be the same size or larger than the link
to or icon of any other Internet travel service provider.
5. Advertising.
XxxxxxXxx.xxx reserves the right to serve advertising on the Designated
Affiliate Pages. XxxxxxXxx.xxx shall be responsible for the sale and management
of advertising on the Designated Affiliate Pages. All advertising revenue shall
be paid to XxxxxxXxx.xxx. Affiliate shall exercise no control over the design,
placement or content of any advertising appearing on the Designated Affiliate
Pages, however, XxxxxxXxx.xxx agrees that all advertising on the Designated
Affiliate Pages shall not contain any sexually explicit material or advertise
any adult-oriented sites.
6. Compensation.
XxxxxxXxx.xxx agrees to pay to the Affiliate a commission calculated as
set forth on Exhibit A.
7. Reporting and Payment.
Booking statistics relating to Affiliate, including daily activity and
monthly and quarterly reports may be accessed by Affiliate on the XxxxxxXxx.xxx
Proprietary Site by Affiliate providing Affiliate's unique user name and
password. Affiliate, at Affiliate's own expense, may elect to inspect
XxxxxxXxx.xxx's accounts and records (to verify the amount of commissions earned
by Affiliate) at intervals of six (6) months during the term of this Agreement.
Affiliate agrees that XxxxxxXxx.xxx will be the only party to xxxx and collect
booking commissions from any travel supplier. Affiliate shall be paid as
provided on Exhibit A.
8. Limited Warranty; Indemnity.
(a) Limited Warranty. XxxxxxXxx.xxx warrants that (i) to the best of its
knowledge, it has the right to provide the content of the XxxxxxXxx.xxx
Proprietary Site, including the content of the Designated Affiliate Pages and
(ii) to the best of its knowledge, at the time of delivery of the content of the
XxxxxxXxx.xxx Proprietary Site and the Designated Affiliate Pages, such content
will not materially violate or infringe the rights of any third party.
Similarly, Affiliate warrants that (i) to the best of its knowledge, it has the
right to provide the content of the Affiliate Site and any information provided
to XxxxxxXxx.xxx by Affiliate for inclusion in the XxxxxxXxx.xxx Proprietary
Link or the Designated Affiliate Pages and (ii) to the best of its knowledge, at
the time of delivery of the content or information provided to XxxxxxXxx.xxx by
Affiliate for inclusion in the XxxxxxXxx.xxx Proprietary Link or the Designated
Affiliate Pages, such content or information will not materially violate or
infringe the rights of any third party.
(b) Indemnity. In the event of any claim by any third party against the
Affiliate arising out of a breach of XxxxxxXxx.xxx's warranty contained in
Section 8(a), XxxxxxXxx.xxx shall defend such claim, suit or action in
Affiliate's name but at XxxxxxXxx.xxx's expense. XxxxxxXxx.xxx shall indemnify
and hold harmless Affiliate against any judgment, liability, loss, cost or
damage (including litigation costs and reasonable attorney's fees) arising from
or related to such claim, whether or not such claim is successful. Similarly, in
the event of any claim by any third party against XxxxxxXxx.xxx arising out of a
breach of Affiliate's warranty contained in Section 8(a), Affiliate shall defend
such claim, suit or action in XxxxxxXxx.xxx's name but at Affiliate's expense.
Affiliate shall indemnify and hold harmless XxxxxxXxx.xxx against any judgment,
liability, loss, cost or damage (including litigation costs and reasonable
attorney's fees) arising from or related to such claim, whether or not such
claim is successful.
9. Confidential Information.
(a) Financial Information as Confidential Information. The financial
information regarding the calculation of and the amounts paid hereunder by
XxxxxxXxx.xxx as provided in Section 6 and Exhibit A to Affiliate shall be
considered Confidential Information.
(b) Management of Confidential Information. Each party agrees that: (i)
all Confidential Information shall remain the exclusive property of the owner;
(ii) it shall maintain, and shall cause its employees and agents and
subcontractors to maintain, the confidentiality and secrecy of the other party's
Confidential Information; (iii) it shall take all reasonable action necessary to
ensure that its employees and agents do not copy, publish, manipulate, disclose
to others or otherwise use the Confidential Information of the other party; and
(iv) it shall return or destroy all copies of the other parties Confidential
Information upon request of the other party, and indemnify and hold harmless the
owner from and against all damages and expenses (including attorney fees and
costs) arising from a breach of this provision.
(c) Exclusion to Confidential Information. Notwithstanding the foregoing,
Confidential Information shall not include any information to the extent it (i)
is or becomes a part of the public domain through no act or omission on the part
the receiving party, (ii) is disclosed to third parties by the owner without
restriction on such third parties, (iii) is in the receiving party's possession,
without actual or constructive knowledge of an obligation of confidentiality
with respect thereto, at or prior to the time of disclosure under this
Agreement, (iv) is disclosed to the receiving party by a third party having no
obligation of confidentiality with respect thereto, (v) is independently
developed without access or reference to the disclosing party's Confidential
Information, or (vi) is released from confidential treatment by written consent
of the disclosing party.
10. Limitation on Damages.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORY FOR ANY SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT
MATTER OF THIS AGREEMENT.
11. Agreement Term; Termination.
(a) Term of Agreement. The term of this Agreement shall commence on the
date of execution by XxxxxxXxx.xxx as set forth on the signature page of this
Agreement and, unless terminated earlier under Section 12(b), shall terminate
five(5) years from the date on which the term of this Agreement commenced.
(b) Termination for Default. If either party shall materially breach any
provision contained in this Agreement and such breach shall not have been cured
within thirty (30) days after written notice thereof has been given to the
appropriate party, the party giving such notice may then give further written
notice to such other party terminating this Agreement, in which event this
Agreement and rights granted hereunder shall terminate on the date specified in
such further notice. The foregoing sentence will be disregarded if either party
in its sole judgment believes that the breach by the other party of this
agreement constitutes an immediate and material threat to its integrity and
this Agreement shall terminate immediately without the requirement of any notice
to the other party.
(c) Removal Upon Termination. Upon the termination of this Agreement for
any reason, the Affiliate shall immediately terminate all access to the
Designated Affiliate Pages through the XxxxxxXxx.xxx Proprietary Link, and the
license under Section 3 hereof shall automatically terminate.
(d) Survival of Payment Obligations. Termination of this Agreement shall
not affect the obligation of either party to pay the amounts owing or to become
owning pursuant to this Agreement on or before the date of such termination.
12. Miscellaneous.
(a) Force Majeure. If either party is prevented from performing any of its
duties and obligations hereunder in a timely manner by reason of any act of God,
strike, labor dispute, flood, public disaster, equipment, software or technical
malfunctions or failures, power failures or interruptions or any other reason
beyond its reasonable control, such condition shall be deemed to be a valid
excuse for delay of performance or for nonperformance of any such duty or
obligation for the period during which such condition exists.
(b) Relationship of the Parties. Notwithstanding anything to the contrary,
this Agreement does not and shall not be deemed to constitute a partnership or
joint venture between the parties and neither party nor any of their respective
directors, officers, employees or agents shall, by virtue of the performance of
their obligations under this Agreement, be deemed to be an agent or employee of
the other.
(c) Press Releases/Announcements/Collateral. All press releases,
announcements, or collateral materials referring to this Agreement must be
approved by both parties before being released to the press or any third party.
(d) Applicable Law. In the event either party brings an action against the
other based on a controversy or claim arising out of or relating to this
contract, or breach thereof, or for the purpose of resolving any dispute
relating to the subject matter of this Agreement the parties agree that (1) if
the action is initiated by XxxxxxXxx.xxx Inc., venue of the proceeding will be
in the county and state where the principal offices of the Affiliate are located
(as set forth below) and the state or federal court in which the action is
brought will have exclusive jurisdiction over the parties and this Agreement
will be governed by and construed in accordance with the laws of the State of
Missouri applicable to contracts made and performed in Missouri without regard
to conflict of law principles; (2) if the action is initiated by Affiliate,
venue of the proceeding will be in Xxxxxx County, Missouri and the state or
federal court in which the action is brought will have exclusive jurisdiction
over the parties and this Agreement will be governed by and construed in
accordance with the laws of the State where the principal offices of the
Affiliate are located (as set forth below) applicable to contracts made and
performed in that state without regard to conflict of law principles.
(e) Assignment; Amendment; Entire Agreement. Neither party shall assign
this Agreement in whole or part without the prior written consent of the other
party except that either party may assign this Agreement in its entirety to its
parent, any subsidiary in which it holds a majority voting interest, or any
affiliate or in connection with a merger, reorganization or sale of a
substantial part of the business to which this Agreement relates. This Agreement
sets forth the entire agreement and understanding of the parties hereto
concerning the subject matter hereof; supersedes and replaces all prior
agreements, arrangements, and understandings between the parties; and may be
amended, modified, superseded or canceled only by a written instrument executed
by both parties. If this agreement can not be transferred by either party the
agreement shall be terminated without any further obligation.
(f) Transfer of Affiliate Site. Prior to the sale or transfer of the
Affiliate Site, Affiliate shall obtain to the agreement of the transfer to be
bound by the terms of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Date of Execution set forth below.
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XxxxxxXxx.xxx Inc XxxxxXxxx.xxx, Corp:
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By: s/Xxxxx Xxxxxx By: s/Xxxxx Xxxxxx
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Print Name: Xxxxx Xxxxxx Print Name: Xxxxx Xxxxxx
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Title: Affiliate Marketing Executive Title: President / CEO
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Address: 000 Xxxx Xxxxxxx Xxxx, Xxxxx 000, Address: 0000 Xxxxxx Xx. Xxxxx
Xxxxxxxxxxx, XX 00000 268 Xxxxxxxxx, XX 00000
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XxxxxxXxx.xxx Proprietary Link
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xxxx://xxx.xxxxxxxxx.xxx/xxxxxx/xxxxxxxxxxx.xxxx?XXXx
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Affiliate Site
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xxxx://xxx.____________
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EXHIBIT A
XxxxxxXxx.xxx Commission Schedule
XxxxxxXxx.xxx agrees to pay Affiliate a commission according to the
following schedule with respect to travel booked by Affiliate Customers through
the XxxxxxXxx.xxx Proprietary Site:
(i) 5% of the gross amount, exclusive of taxes charged to Affiliate
Customers based upon hotel rooms or other lodging products for which the
rental rate is contracted in advance on a net rate basis ("Net Rate Hotel
Rooms"). Commissions with respect to Net Rate Hotel Rooms shall be paid no
later than the 15th day of the month following the month in which such Net
Rate Hotel Rooms are consumed. A room shall be considered consumed upon
check-out by the guest for the stay reserved through the XxxxxxXxx.xxx
Proprietary Site.
(ii)50% of the Industry Standard Commission owed to XxxxxxXxx.xxx with
respect to all fulfilled, consumed and commissionable travel products
booked through the XxxxxxXxx.xxx Proprietary Site other than Net Rate
Hotel Rooms, provided that if XxxxxxXxx.xxx collects less than the
Industry Standard Commission with respect to such bookings, the commission
rate will be 50% of the amount actually received by XxxxxxXxx.xxx Inc.
XxxxxxXxx.xxx will pay such commission to Affiliate no later than the 15th
day of the month following receipt by XxxxxxXxx.xxx of commissions with
respect to such bookings.
For purposes of this Agreement, the "Industry Standard Commission" is
acknowledged to currently be 10% of the room rate with respect to domestic
hotels, 8% of the room rate with respect to international hotels, 8% of
the amount charged with respect to a car rental, 8% of the amount charged
with respect to a rail booking and $10 per airline ticket. The parties
acknowledge that the Industry Standard Commission is subject to change and
that changes in the Industry Standard Commission shall not be grounds for
termination of any part of this Agreement.
