= CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. ALLIANCE AND LICENSE AGREEMENT
Exhibit 10.18
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
ALLIANCE AND LICENSE AGREEMENT
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National Geographic Society (“NGS”) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ |
▇▇▇▇▇▇▇▇ Expeditions, Inc. (“Lindblad”) ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇▇ |
| Contact Person: |
Contact Person: |
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Tel. No.: Fax No.: Email: |
Tel. No.: Fax No.: Email: |
THIS ALLIANCE AND LICENSE AGREEMENT (“Agreement”) is dated as of December 12, 2011 (the “Effective Date”), between:
(1) National Geographic Society (“NGS”), and
(2) ▇▇▇▇▇▇▇▇ Expeditions, Inc. (“▇▇▇▇▇▇▇▇”).
[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
1. DEFINITIONS. All words appearing within the text of this Agreement with initial letter capitalized (except the first word of a sentence and proper nouns) and all words appearing within underlined section captions with initial letter capitalized and within quotation marks are specifically defined terms for purposes of this Agreement, the definitions for which are set below. Words that appear within parentheses and quotation marks with initial letters capitalized are specifically defined terms for purposes of this Agreement defined by the text immediately preceding the parentheses. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
All capitalized terms used herein and not otherwise defined in this Agreement shall have the meanings set forth below:
(a) Advertising and Trip Materials: All advertising, promotional, publicity and consumer materials which are produced by or for ▇▇▇▇▇▇▇▇ which bear any of the Licensed Property (including, but not limited to, letters, brochures, advertisements, pre-trip materials, website content and other marketing materials).
(b) ATA: Academic Travel Abroad, is the call center for NGE, responsible for maintaining the toll free number receiving all incoming calls.
(c) Business Day: Means the following five (5) days of the United States calendar week: Monday, Tuesday, Wednesday, Thursday and Friday, but specifically excludes any said day listed above on which a United States holiday during which federal government offices are closed in the United States occurs during the applicable calendar year of the Term.
(d) Competing Trip: Means a ▇▇▇▇▇▇▇▇ Trip on a “river-going” ship where the parties mutually agree in writing in advance that such trip will not be a NGE/▇▇▇▇▇▇▇▇ Trip and where NGE is promoting a substantially similar NGE Trip (that is not a NGE/▇▇▇▇▇▇▇▇ Trip) to the same destination. ▇▇▇▇▇▇▇▇ may promote the Competing Trips in its “Explorations” catalog; however ▇▇▇▇▇▇▇▇ may not use the Licensed Property in individual brochures promoting the Competing Trip. As of the Effective Date, the ▇▇▇▇▇▇▇▇ Trip to [*] Competing Trip.
(e) Competitive Cruise Ship: Any cruise ship marketed primarily to the United States market, operated by anyone other than ▇▇▇▇▇▇▇▇, having a capacity [*] passengers.
(f) Licensed Content: Certain copyrights, photography, images, artwork, design and style elements owned by, or licensed to, NGS that NGS may from time to time authorize ▇▇▇▇▇▇▇▇ to use pursuant to this Agreement.
(g) Licensed Marks: [*] and those certain other trademarks, names, titles, logos and symbols owned by NGS that NGS may from time to time authorize ▇▇▇▇▇▇▇▇ to use pursuant to this Agreement. ▇▇▇▇▇▇▇▇ agrees that the Licensed Marks must be used in strict conformance with the National Geographic Brand/Design Identity Guidelines. Relevant portions of such guidelines and technical specifications for use of the Licensed Marks, and master copies of the Licensed Marks are available at ▇▇▇.▇▇.▇▇▇.▇▇▇.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(h) Licensed Property: Collectively, the Licensed Marks and Licensed Content.
(i) ▇▇▇▇▇▇▇▇ Ships: Any ship owned by ▇▇▇▇▇▇▇▇, including NG-Branded Ships, or a ship chartered by ▇▇▇▇▇▇▇▇ and approved pursuant to the Section headed QUALITY CONTROLS AND PROCEDURES.
(j) ▇▇▇▇▇▇▇▇ Trips: Any trip offered and operated by ▇▇▇▇▇▇▇▇, including (a) pre- or post-trip extensions, (b) trips on ▇▇▇▇▇▇▇▇ Ships, (c) any trip by charter companies that charter a ▇▇▇▇▇▇▇▇ Ship, but excluding any trips by conveyance other than ship, unless specifically identified and agreed in writing by NGE and ▇▇▇▇▇▇▇▇. Unless otherwise specifically stated, ▇▇▇▇▇▇▇▇ Trips specifically include NGE/▇▇▇▇▇▇▇▇ Trips. The parties also agree that ▇▇▇▇▇▇▇▇ Trips include the trips offered and operated by ▇▇▇▇▇▇▇▇ to Peru.
(k) Net Revenues: All monies and the fair market value of any other consideration received by ▇▇▇▇▇▇▇▇ from Participants [*] (including, without limitation, from [*]) in payment for all ▇▇▇▇▇▇▇▇ Trips, including without limitation [*], [*]: (a) [*] and [*], including [*]; (b) [*] of all kinds made by Participants including, without limitation[*] made in the [*]; (c) revenues from [*] by ▇▇▇▇▇▇▇▇ to Participants (other than NGE/▇▇▇▇▇▇▇▇ Trips’ Participants); (d) [*]; and (e) [*]. ▇▇▇▇▇▇▇▇ shall recognize Net Revenue in the month a ▇▇▇▇▇▇▇▇ Trip departs, in accordance with accounting principles generally accepted in the United States.
(l) NG-Branded Ships: Any ship owned by ▇▇▇▇▇▇▇▇ that operates under the name “National Geographic” and is approved by NG. As of the Effective Date, NG has approved the following five (5) NG-Branded Ships: National Geographic Explorer, National Geographic Endeavour, National Geographic Islander, National Geographic Sea Lion, and National Geographic Sea Bird.
(m) NG Expeditions Traveler and Inquirer Database: The database consisting of persons who have traveled with NG Expeditions, who are booked to travel with NG Expeditions, who have been at any time waitlisted on NGE Trips, who have been booked at any time to travel with NG Expeditions and have cancelled, or who have inquired about NG Expeditions at any time or who have responded to NG Expeditions marketing activities at any time.
(n) NGE: National Geographic Expeditions, the travel program of the National Geographic Society marketed under the service ▇▇▇▇ “National Geographic Expeditions.”
(o) NGE/▇▇▇▇▇▇▇▇ Trips: All ▇▇▇▇▇▇▇▇ Trips, other than Competitive Trips, and promoted by NGE in its catalog, website and any other marketing channel used by NGE.
(p) NGE/▇▇▇▇▇▇▇▇ Trip Participant: Any individual who travels on a NGE/▇▇▇▇▇▇▇▇ Trip and books through any NGE channel (e.g. NGE phone line, NGE web site, etc.) or any individual who books through a ▇▇▇▇▇▇▇▇ phone line, ▇▇▇▇▇▇▇▇ website or a travel agent, and identifies themselves or is identified as being sourced through NGE channels or promotions.
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(q) NGE Trips: These are trips offered or operated by NGE. Unless otherwise specifically stated, NGE Trips include NGE/▇▇▇▇▇▇▇▇ Trips; however, all NGE Trips other than NGE/▇▇▇▇▇▇▇▇ Trips are outside the scope of this Agreement.
(r) NGS Marketing Database: A database of names and related purchase and, where available, demographic information maintained by NGS, in accordance with applicable privacy law, of NGS members, lapsed members and customers with mailing addresses in the United States which is available to NG Expeditions for marketing and promotional purposes. The NGS Marketing Database excludes the NG Expeditions Traveler and Inquirer Database and special databases that NGS maintains (e.g. for mission programs, development, etc.).
(s) Notice: Sending, in writing, all notices and the like, required under this Agreement, by a reputable private overnight delivery service or by certified or registered mail, charges prepaid, to the Contact Person and the address of ▇▇▇▇▇▇▇▇ and NGS as set forth on page 1 of this Agreement, unless said address is later changed by Notice given to the other parties. In addition to the Contact Person for NGS set forth on page 1 of this Agreement, a copy of any and all legal notices shall be sent by Notice to: National Geographic Society, Law, Business & Governmental Affairs, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President. Notice shall be deemed to be received and effective on the next Business Day following the day on which Notice was deposited with a reputable overnight delivery service or two (2) Business Days after mailing by registered or certified mail. For review and approval requests, notice may be given by email and will be considered delivered as of the date sent (with confirmation of receipt) to the email address identified from time to time by the relevant party.
(t) Other Providers: Public and private carriage operators, hotels, ground operators, suppliers, tourist agencies, and other independent contractors or vendors whose services are retained by ▇▇▇▇▇▇▇▇ for the benefit of Participants.
(u) Participant: Any individual passenger who travels on a ▇▇▇▇▇▇▇▇ Trip.
(v) Quarter: The term “Quarter” shall be the calendar quarters ending March 31, June 30, September 30 and December 31 of each calendar year.
(w) Royalty: The percentage amounts specified in the Section headed TERMS OF PAYMENT that ▇▇▇▇▇▇▇▇ shall pay to NGS.
(x) Tour Operator Agreement: A separate agreement of the same date as this Agreement between NGS and ▇▇▇▇▇▇▇▇ for ▇▇▇▇▇▇▇▇’▇ provision of services for the NGE/▇▇▇▇▇▇▇▇ Trips.
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2. PURPOSE. NGS and ▇▇▇▇▇▇▇▇ have set forth their agreement to collaborate with each other for their mutual benefit.
(a) NGS and ▇▇▇▇▇▇▇▇ have an existing Agreement with an Effective Date of October 3, 2006 (“Existing Agreement”), and they hereby desire to terminate the Existing Agreement and have the terms of this Agreement replace the Existing Agreement in its entirety.
(b) ▇▇▇▇▇▇▇▇ acknowledges and agrees that: (i) all rights not specifically and expressly granted to ▇▇▇▇▇▇▇▇ in this Agreement are reserved to NGS; (ii) all usages of the Licensed Property pursuant to this Agreement shall inure to the benefit of NGS; (iii) ▇▇▇▇▇▇▇▇ shall not have proprietary rights of any nature in and to the Licensed Property and may use Licensed Property only during the Term on or in connection with the ▇▇▇▇▇▇▇▇ Trips strictly in accordance with the provisions of this Agreement; and (iv) ▇▇▇▇▇▇▇▇ shall not claim any proprietary rights in and to the Licensed Property and will not contest by legal proceedings or otherwise the validity of the Licensed Property, the rights of NGS therein, or the validity of this Agreement or any part thereof
(c) NGS will use reasonable efforts to demonstrate support of the alliance created by this Agreement, by devoting sufficient resources and priority to its specific obligations herein that they will be achieved in a prompt and a commercially reasonable manner. Specifically, but without limitation, NGS acknowledges that “expedition travel” is by its nature subject to commercial risks and uncertainties.
3. TERM. This Agreement commences as of the Effective Date and expires December 31, 2017 (the “Term”). This Agreement applies to any ▇▇▇▇▇▇▇▇ Trips scheduled to occur during the period of time commencing on January 1, 2012, and continuing through December 31, 2017. The Agreement may be terminated prior to its scheduled expiration pursuant, but without limitation, to the provisions of the Section with the heading, TERMINATION. The Term may be extended if both parties mutually agree in a written amendment to this Agreement signed by both parties.
4. ▇▇▇▇▇▇▇▇ TRIPS DEVELOPMENT, ADMINISTRATION AND OPERATION.
(a) ▇▇▇▇▇▇▇▇ is responsible for all development, administration and operation of the ▇▇▇▇▇▇▇▇ Trips and all associated expenses.
(b) ▇▇▇▇▇▇▇▇ and NGE will work together to identify key strategic destinations, program enhancement opportunities, and NG Experts and to develop marketing strategies and possible other areas of collaboration.
(c) In consultation with NGS, ▇▇▇▇▇▇▇▇ will design and assemble each itinerary for each ▇▇▇▇▇▇▇▇ Trip, and submit it to NGS for review and comment. In developing the slate of ▇▇▇▇▇▇▇▇ Trips for any calendar year, ▇▇▇▇▇▇▇▇ will take into account considerations and interest of NGE and its travelers.
(d) Following the process outlined in Section (c) above and in accordance with Exhibit ▇. ▇▇▇▇▇▇▇▇ will provide a list of planned destinations for the calendar year to NGS. NGS will review for possible enhancement opportunities, and will collaborate with ▇▇▇▇▇▇▇▇ on which enhancements to incorporate into the itineraries.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(e) ▇▇▇▇▇▇▇▇ will hire, manage, and pay qualified staff necessary to operate each ▇▇▇▇▇▇▇▇ Trip, including but not limited to the expedition leader; naturalists and other experts; and local guides. Each staff shall have credentials reasonably qualifying such person to provide substantive, informative, and educational talks to the Participants, and [*] stations each ▇▇▇▇▇▇▇▇ Ship will have expertise in the region that is the destination of the ▇▇▇▇▇▇▇▇ Trip. Upon NGS’ request, ▇▇▇▇▇▇▇▇ will provide NGS with biographical information for any staff members, and if NGS has serious concerns about the use of a particular staff member, ▇▇▇▇▇▇▇▇ agrees to give substantial consideration to NGS’ views in making a decision about future use of the staff person.
(a) NGS hereby grants to ▇▇▇▇▇▇▇▇ a non-exclusive license to use the Licensed Property for the advertising and promotion of ▇▇▇▇▇▇▇▇ Trips in the United States, its territories and possessions (collectively, the “Territory”). In the event ▇▇▇▇▇▇▇▇ wishes to use the Licensed Property in advertising and promotion directed at a specific region outside the Territory, NGS and ▇▇▇▇▇▇▇▇ may mutually agree in writing in advance. In addition, NGS hereby grants to ▇▇▇▇▇▇▇▇ a non-exclusive license to use the Licensed Property in association with the ▇▇▇▇▇▇▇▇ Expeditions name, trademarks, service marks and logos in connection with promotional and public relations communications in the Territory relating to ▇▇▇▇▇▇▇▇ Trips departing during the Term to destinations worldwide, subject to the terms, limitations and conditions of this Agreement. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇ shall make no use of the Licensed Property:
(i) In association with any third party trademark in any promotion or communication for the ▇▇▇▇▇▇▇▇ Trips, except pursuant to approvals granted pursuant to the Section headed QUALITY CONTROLS AND PROCEDURES.
(ii) To promote ▇▇▇▇▇▇▇▇ Trips to persons domiciled outside the Territory except to persons who are on ▇▇▇▇▇▇▇▇’▇ mailing list by virtue of being: past guests; waitlisted or cancelled guests; persons who have, at any time, inquired about ▇▇▇▇▇▇▇▇ Trips; or persons who have responded to ▇▇▇▇▇▇▇▇ marketing activities targeted to the Territory. The parties acknowledge that such persons as described under the exceptions in the foregoing sentence currently constitute and during the Term will constitute an insubstantial percentage of ▇▇▇▇▇▇▇▇’▇ mailing list.
(b) ▇▇▇▇▇▇▇▇ shall use commercially reasonable efforts, and [*], to sell, advertise, promote and support its sale of the ▇▇▇▇▇▇▇▇ Trips throughout the Term, unless specifically stated in the Tour Operator Agreement. Advertising and Trip Materials shall be subject to the review and/or approval process set forth in the Section headed QUALITY CONTROLS AND PROCEDURES.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(c) ▇▇▇▇▇▇▇▇ will showcase NGS as an institution on the NG-Branded Ships and on other ▇▇▇▇▇▇▇▇ Ships operating NGE/▇▇▇▇▇▇▇▇ Trips and will make every effort to ensure all on-board materials, as well as verbal and digital communications, will reflect the ▇▇▇▇▇▇▇▇ and NGS co-branding subject to the process set forth in the Section headed QUALITY CONTROLS AND PROCEDURES. NGS and ▇▇▇▇▇▇▇▇ will work together to identify opportunities for ▇▇▇▇▇▇▇▇ or NGE to advertise in NGS media or for ▇▇▇▇▇▇▇▇ to sponsor NGS programs. Opportunities will be evaluated by ▇▇▇▇▇▇▇▇ and decided upon entirely in the context of merit and desirability to promote mutual goals.
(d) NGS and ▇▇▇▇▇▇▇▇ will develop and mutually agree on a plan to sell NGS [*] in the stores onboard ▇▇▇▇▇▇▇▇ Ships.
(e) ▇▇▇▇▇▇▇▇ shall alert NGS of any media representatives (whether print, broadcast, internet, or any other kind) to be participating on or within a ▇▇▇▇▇▇▇▇ Trip, and obtain approval from NGS for any significant publicity activity arranged by or with the cooperation of ▇▇▇▇▇▇▇▇ featuring National Geographic elements including licensed content or National Geographic Experts
(f) While each organization operates separate and unique marketing programs, there exist media or platforms, such as Internet search campaigns, where these efforts may overlap. In the event that such a circumstance arises, NGE and ▇▇▇▇▇▇▇▇ will collaborate to efficiently and effectively promote the ▇▇▇▇▇▇▇▇ Trips in these media. The parties agree that ▇▇▇▇▇▇▇▇ will defer to NGE with respect to any name that includes “National Geographic” except for the names of the NG-Branded Ships.
(g) NGE and ▇▇▇▇▇▇▇▇ agree that the terms set forth in Exhibit D identify and govern the existing terms for collaboration on the NGE loyalty program for ▇▇▇▇▇▇▇▇ Trips. In addition, NGE and ▇▇▇▇▇▇▇▇ agree to work together to support other membership programs developed by National Geographic. NGS grants to ▇▇▇▇▇▇▇▇ a non-exclusive, non-transferable right and license to use the NGS Marketing Database for the purpose of promoting, via mail, the sale of ▇▇▇▇▇▇▇▇ Trips, subject to NGS approval of each use.
(i) The parties agree to work together to identify and execute means other than mail (such as email) whereby ▇▇▇▇▇▇▇▇ Trips will be marketed to the persons on such database, consistent with applicable law and subject to the restrictions which NGS imposes on use of its e-mail database. Uses of the NGS Marketing Database described in the previous sentence shall be subject to all the terms of this Agreement, and there shall be [*] for such uses.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(ii) NGS agrees to provide list selection assistance to ▇▇▇▇▇▇▇▇ for the purpose of better selection and segmentation of the NGS Marketing Database. ▇▇▇▇▇▇▇▇ shall reimburse NGS for out-of-pocket costs incurred, in performing functions related to list selection. NGS current charges are:
| ● | To perform a merge/purge, the one-time set up fee for each mailing is approximately [*] and selection cost, subject to change, are (a) [*] per [*] names for lists up to [*] names, (b) [*] per [*] names for lists ranging from [*] names through [*], and (c) [*] per [*] names for lists of more than [*] names. |
| ● | For statistical modeling, the cost is currently [*]. |
(iii) ▇▇▇▇▇▇▇▇ acknowledges that the NGS Marketing Database shall remain the property solely and exclusively of NGS. ▇▇▇▇▇▇▇▇ shall use the NGS Marketing Database only as provided in this Agreement, and shall not disclose the contents of the NGS Marketing Database to any third party, or permit any agent, employee, or contractor to do so. ▇▇▇▇▇▇▇▇ agrees, after each and every use of the NGS Marketing Database (i.e., a mailing or a sales analysis), to destroy any copies of the NGS Marketing Database and return to NGS or destroy all unused mailing labels created from the NGS Marketing Database. ▇▇▇▇▇▇▇▇ agrees to comply with all laws and regulations applicable to the use of data, including but not limited to data and privacy laws.
6. CUSTOMER CONTACT.
(i) ▇▇▇▇▇▇▇▇ will receive and process all customer requests for information and reservations for ▇▇▇▇▇▇▇▇ Trips. ▇▇▇▇▇▇▇▇ is responsible for fulfillment of inquiries, reservations, including airline reservations, customer service, development and distribution of pre-trip and post-trip materials, and all associated expenses.
(ii) All pre-trip materials for ▇▇▇▇▇▇▇▇ Trips will be co-branded with the Licensed Property (including, but not limited to packing suggestions, travel fact sheets, a reading list, emergency contact information and a final itinerary noting any revisions to published marketing copy). ▇▇▇▇▇▇▇▇ will submit all pre-trip materials to NGS for review before sending any pre-trip materials to Participants
(iii) ▇▇▇▇▇▇▇▇ is continuing the development of an online system for the delivery of travel documents to Participants. ▇▇▇▇▇▇▇▇ agrees to collaborate with NGE to ensure that this online system meets NGE requirements with regard to data capture, data security, click-thru links, and content elements and shall make no use of this system for NGE/▇▇▇▇▇▇▇▇ Trip Participants until NGE provides its final written approval. ▇▇▇▇▇▇▇▇ will manage post-trip administration for all Participants, including distribution of evaluation forms to Participants, including all ▇▇▇▇▇▇▇▇/NGE Trip Participants. Upon request from NGS, ▇▇▇▇▇▇▇▇ will provide NGS with copies of evaluation forms
completed by Participants on ▇▇▇▇▇▇▇▇ Trips. During the Term, ▇▇▇▇▇▇▇▇ and NGE may collaborate on a program for electronic delivery of or on-line evaluations for ▇▇▇▇▇▇▇▇ Trips. ▇▇▇▇▇▇▇▇ shall make no use of such an electronic evaluation process for NGE/▇▇▇▇▇▇▇▇ Trip Participants until NGS provides its final written approval.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(b) For ▇▇▇▇▇▇▇▇ Trips, ▇▇▇▇▇▇▇▇ will provide the following National Geographic enhancements to the pre-trip materials provided to all Participants.
(ii) ▇▇▇▇▇▇▇▇ will also cover expenses for a program in which all Participants (one per household) receive a [*] to the National Geographic magazine [*]. NGS will provide these [*] to ▇▇▇▇▇▇▇▇ for a [*] per subscription and invoice ▇▇▇▇▇▇▇▇ no more frequently than monthly based on actual redemptions.
(c) In collaboration with NGS, ▇▇▇▇▇▇▇▇ will ensure that all customer contact staff and expedition staff receive a briefing and training program on NGS, its mission and programs, with updates no less frequently than [*] during each year of the Term.
(d) ▇▇▇▇▇▇▇▇ will perform invoicing and collect payments from Participants.
(e) ▇▇▇▇▇▇▇▇ will promptly forward to NGS any significant complaint letters, calls and e-mails related to the administration and delivery of any ▇▇▇▇▇▇▇▇ Trip, as received, and will notify NGS of any significant problem impacting NGS or ▇▇▇▇▇▇▇▇, as soon as practicable after ▇▇▇▇▇▇▇▇ becomes aware of it.
7. NGS EXPERTS.
(a) NGS and ▇▇▇▇▇▇▇▇ will collaborate on the identification of individuals whose services ▇▇▇▇▇▇▇▇ may engage as NGS-associated experts including photographers, researchers and other representatives (“NGS Experts”), as requested and available, to give educational lectures on the ▇▇▇▇▇▇▇▇ Trips. Specifically, NG and ▇▇▇▇▇▇▇▇ will identify photographers to accompany all departures aboard the National Geographic Explorer and all ▇▇▇▇▇▇▇▇ Trips classified as “photo expeditions.” Each NGS Expert shall have credentials reasonably qualifying such person to provide substantive, informative, and educational talks to the Participants, and will have expertise in the region that is the destination of the ▇▇▇▇▇▇▇▇ Trip or as a photographer, as appropriate. NGS and ▇▇▇▇▇▇▇▇ will work together to identify and approach potential NGS Experts.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(b) Engagement of NGS Experts shall be by a written contract between ▇▇▇▇▇▇▇▇ and the NGS Expert, and ▇▇▇▇▇▇▇▇ will provide NGS with a photocopy of the contract that has been signed by both the NGS Expert and ▇▇▇▇▇▇▇▇ prior to commencement of each ▇▇▇▇▇▇▇▇ Trip featuring a NGS Expert. In the event an NGS Expert cancels, NGS and ▇▇▇▇▇▇▇▇ will coordinate to identify a suitable replacement.
(c) ▇▇▇▇▇▇▇▇ agrees to pay [*] of any NGS Expert on each ▇▇▇▇▇▇▇▇ Trip featuring a NGS Expert and to pay [*] of each NGS Expert, including [*]. The [*] for each NGS Expert shall be at the [*] set by NGE for NGE Trips [*] and include the travel day(s) listed in the itinerary published, payable within 30 days of the completion of the ▇▇▇▇▇▇▇▇ Trip. ▇▇▇▇▇▇▇▇ will also pay the NGS Expert [*] ▇▇▇▇▇▇▇▇ Trip to cover [*], within 30 days of completion of the ▇▇▇▇▇▇▇▇ Trip. ▇▇▇▇▇▇▇▇ will also provide [*]equivalent to [*] per person at [*] hosted by the NGS Expert. Each Expert will enjoy the same [*] privileges as ▇▇▇▇▇▇▇▇ Expedition staff. ▇▇▇▇▇▇▇▇ may, in its sales literature (approved by NGS), refer to the planned participation of NGS Experts.
(d) NGS shall provide to ▇▇▇▇▇▇▇▇ appropriate identifying materials (curriculum vitae, photograph, etc.), suitable for promotional purposes, pre-approved by each NGS Expert, such that no review process beyond that set forth in the Section headed QUALITY CONTROLS AND PROCEDURES will be necessary. ▇▇▇▇▇▇▇▇ agrees to send the NGS Expert copies of all pre-trip materials sent to the Participant
(e) NGS and ▇▇▇▇▇▇▇▇ will work to identify opportunities to enable more of ▇▇▇▇▇▇▇▇’▇ experts to have some form of relationship with NGS editorial, research and film divisions.
(a) NGS recognizes that ▇▇▇▇▇▇▇▇ has a long history of working successfully with a number of organizations and affinity groups. NGS agrees with offering space on ▇▇▇▇▇▇▇▇ Trips to non-profit museums, historical societies, conservation groups, and university alumni associations. With respect to other groups, ▇▇▇▇▇▇▇▇ agrees not to offer space on ▇▇▇▇▇▇▇▇ Trips to organizations whose mission is inconsistent with the NGS mission or brand. In case of doubt, ▇▇▇▇▇▇▇▇ shall discuss the matter in advance with NGS and if NGS holds a reasonable opinion that such inconsistency exists, ▇▇▇▇▇▇▇▇ agrees not to work with such organization.
(b) It is the parties’ general intention that except for specific ▇▇▇▇▇▇▇▇ discount programs set forth in Exhibit B ▇▇▇▇▇▇▇▇ Discount Programs Currently In Place Beyond The General Discount Programs Offered In The Brochures and any loyalty programs offered by either NGE or ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ pricing and special offers will be [*] for all Participants, whether groups or individuals, booking under [*] circumstances. ▇▇▇▇▇▇▇▇ agrees to use its best commercial judgment in applying this principle, with [*] and the [*] as primary considerations.
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9. CHANGES IN ITINERARY, AND TRIP CANCELLATIONS.
(a) ▇▇▇▇▇▇▇▇ may change or cancel a ▇▇▇▇▇▇▇▇ Trip to accommodate the needs, interests, health or safety of or in the event of changed circumstances beyond the control of ▇▇▇▇▇▇▇▇ that create a danger to Participants’ health and safety or threaten the successful completion of the scheduled itinerary, subject to notifying NGS of significant changes as soon as practicable before or after such change. In establishing itineraries and in determining whether to change or cancel an itinerary, ▇▇▇▇▇▇▇▇ will act prudently in accordance with its past and existing practices, with the safety and health of Participants and crew being the paramount concern and taking into account all other relevant factors including Participant satisfaction concerns, reputation of the parties hereto, risk to the ▇▇▇▇▇▇▇▇ Ship, insurance matters, and commercial concerns.
(b) If NGS has good faith material concerns with respect to the safety, health or welfare of the Participants, ▇▇▇▇▇▇▇▇ agrees to consult with NGS and to give substantial consideration to NGS’ views prior to making a decision concerning any initial itinerary or any cancellation or change of itinerary. Notwithstanding the foregoing, both parties agree that a ▇▇▇▇▇▇▇▇ Trip will not be operated in any destination where the U.S. State Department has a Travel Warning, or where travel by U.S. citizens is generally prohibited by U.S. law. If such a Warning is issued prior to departure, ▇▇▇▇▇▇▇▇ will determine whether to re-route the ▇▇▇▇▇▇▇▇ Trip, cut short the duration of the ▇▇▇▇▇▇▇▇ Trip or cancel the departure, and notify NGS of the change.
(c) In the event a Travel Warning is issued for an area where a ▇▇▇▇▇▇▇▇ Trip is in progress, ▇▇▇▇▇▇▇▇ agrees to evacuate those Participants as quickly as possible. ▇▇▇▇▇▇▇▇ agrees to provide refunds to Participants in accordance with the applicable terms and conditions provided to Participants. Notwithstanding the foregoing, in the event of a general act of terrorism or any other significant event that causes booked Participants on a ▇▇▇▇▇▇▇▇ Trip to have legitimate concerns about their individual safety, welfare, or ability to enjoy their ▇▇▇▇▇▇▇▇ Trip, and to request to cancel their participation, ▇▇▇▇▇▇▇▇ agrees to consult with NGS and to give substantial consideration to NGS’ views prior to making a decision concerning the Participants requests.
10. REPRESENTATIVES. In order to facilitate the operation of this Agreement in a manner consistent with both parties’ educational mission and reputation for quality, ▇▇▇▇▇▇▇▇ shall name a staff member as the designated NGS representative for the alliance between ▇▇▇▇▇▇▇▇ and NGS. ▇▇▇▇▇▇▇▇ shall pay NGS a sum each year sufficient to cover 50% of salary, bonus, benefits, and other related costs for two NGS staff persons who will reside at NGS offices. NGS agrees to review bonus goals in advance with ▇▇▇▇▇▇▇▇. NGS will invoice ▇▇▇▇▇▇▇▇ on the first date of each calendar quarter; however, NGS may invoice ▇▇▇▇▇▇▇▇ for the initial payment within thirty days (30) of such staff person’s hire date. In the event the staff person’s employment ends or is terminated during a quarter and there is a gap before NGS fills the position, NGS will reflect such change in its next invoice. NGS will consult with ▇▇▇▇▇▇▇▇ prior to filling such position to ensure that the person hired for the position is acceptable to both parties. The parties shall mutually agree on the annual amount [*] for such staff position, with [*] in accordance with NGS employment policies.
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11. ▇▇▇▇▇▇▇▇ COMMUNICATION. Within [*] of each ▇▇▇▇▇▇▇▇ board meeting, ▇▇▇▇▇▇▇▇ will provide NGS a summary of major decisions, situations, issues, or actions related to or impacting ▇▇▇▇▇▇▇▇. [*].
12. NON-COMPETITION.
(a) During the Term, ▇▇▇▇▇▇▇▇ shall not enter into any agreements with Discovery Communications, Inc., or its affiliates or subsidiaries (“Discovery”) other than the purchase of advertising on any Discovery media or the license of film or video that LEX captures and owns (“LEX Media”) on a non-exclusive basis, as long as the LEX Media is non-branded, non-identifiable and excludes any footage of NGS staff or experts or the NGS name or trademarks. Other than as set forth in the immediately preceding sentence, ▇▇▇▇▇▇▇▇ shall make no sale, transfer or otherwise provide any photography or other media (other than described above) created by or for ▇▇▇▇▇▇▇▇ on any of the ▇▇▇▇▇▇▇▇ Trips to Discovery. ▇▇▇▇▇▇▇▇ also agrees that it shall neither participate in any filming by or for Discovery, nor permit any representatives of Discovery, or independent producers producing for Discovery, to work or film on location on board any of the ▇▇▇▇▇▇▇▇ Trips.
(b) NGS will not, during the Term, grant any third party the right to use the Licensed Property as the name (in whole or in part) of a Competitive Cruise Ship; provided, however, NGS is under no restriction regarding (i) use of the Licensed Property in connection with any products to be sold on or to Competitive Cruise Ships; (ii) any activities related to the NGS Credit Card program; (iii) any activities related to a NGS membership program; or (iv) any agreements with a Competitive Cruise Ship with respect to advertising by the Competitive Cruise Ship in NGS media (e.g., publications, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, television or the National Geographic Channel). None of the restrictions on NGS in this Section apply to any marketing or promotional activities outside of the Territory nor shall they be construed in any way whatsoever to limit any NGS editorial products.
(c) To avoid confusion in the marketplace, ▇▇▇▇▇▇▇▇ agrees that it will not use the National Geographic / ▇▇▇▇▇▇▇▇ Expeditions co-branded presentation or any similar format in any marketing materials directed to any affinity group, tour operator, or other organization, as of the Effective Date of this Agreement.
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13. [*] PASSAGE.
(a) ▇▇▇▇▇▇▇▇ will make available to NGS, on a [*] basis, [*] cabins in each calendar year of the Term, with no more than [*] cabin per any particular ▇▇▇▇▇▇▇▇ Trip, unless otherwise mutually agreed in writing. Except as otherwise specified in the preceding sentence, the timing and allotment of this [*] allowance will be on a mutually agreed basis. Of the [*] cabins described above, any of such cabins that remain unused by NGS at the end of the year will be [*] cabins for the next year, and the parties will mutually agree upon the timing and allotment of such [*] cabins. NGS may use up to [*] of its cabin allocations for any land programs the parties may mutually agree to operate, with no more than [*] cabin equivalent allocations for any [*] land Itinerary. In addition, ▇▇▇▇▇▇▇▇ will make available to NGS, on a [*] basis, up to [*] cabins, subject to availability of the cabins 120 days in advance of the departure date and mutual agreement on the timing.
(b) As mutually agreed, ▇▇▇▇▇▇▇▇ will make available [*] cabin(s) on ▇▇▇▇▇▇▇▇ Ships for NGS television, film, magazine, book or research projects.
(c) The [*] cabins referenced in Section (a) are separate from, and incremental to, any cabins that may be provided by ▇▇▇▇▇▇▇▇ in Section (b) or to NGS Experts with whom ▇▇▇▇▇▇▇▇ contracts to perform services on any ▇▇▇▇▇▇▇▇ Trips.
14. TERMS OF PAYMENT.
(a) Royalty Payments. ▇▇▇▇▇▇▇▇ shall pay NGS a Royalty equal to [*] from ▇▇▇▇▇▇▇▇ Trips, excluding [*] from NGE/▇▇▇▇▇▇▇▇ Trip Participants and [*] from a Competing Trip. Under no circumstance shall any [*] be subject to both a Royalty under this Agreement and an “NGS Fee” specified in the Tour Operator Agreement.
(b) Royalty Term. Royalties shall begin with the first ▇▇▇▇▇▇▇▇ Trip departing on or after January 1, 2012 and continue through the last ▇▇▇▇▇▇▇▇ Trip departing on or before December 31, 2017.
(c) Timing of Payments. All Royalty Payments shall be made to NGS no later than thirty (30) days after the last day of each Quarter for all ▇▇▇▇▇▇▇▇ Trips departing during such Quarter. Simultaneously with such Payments, ▇▇▇▇▇▇▇▇ shall submit its respective Reports pursuant to this Agreement.
(d) Payment Instructions. All payments to NGS shall be made by check or wire transfer in United States dollars. Checks shall be made payable to National Geographic Society and shall be sent by ▇▇▇▇▇▇▇▇ to the following:
| National Geographic Expeditions |
| Attn: |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. |
| ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ |
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Payment by wire transfer shall be directed as follows:
| Bank Name: | ||
| Address: | ||
| ABA#: | ||
| Account Title: | National Geographic Society | |
| Account No.: | ||
| Attention: | ||
| Notation: | ||
At the time any wire transfer is initiated, ▇▇▇▇▇▇▇▇ shall provide written notice by email or fax to the NGS Contact Person identified on page 1 of this Agreement indicating that the payment is being remitted.
(e) Late Payments. A finance charge of [*] per month shall be payable on any payment beginning as of the thirtieth (30th) day after payment is due and continuing on the outstanding balance from time to time until paid in full. Such late payment charge, however, shall not be assessed if and for so long as, ▇▇▇▇▇▇▇▇’▇ delay in payment is caused in material part by an Event of Force Majeure (as such term is defined below).
(f) Currency. All Participant transactions relating to the ▇▇▇▇▇▇▇▇ Trips shall be conducted in U.S. dollars.
15. REPORTS AND RECORDS.
(a) Quarterly Reporting. ▇▇▇▇▇▇▇▇ shall render to NGS reports, duly certified by an officer of ▇▇▇▇▇▇▇▇ to be true and accurate, for each Quarter during the Term (the “Report”). The Report for each Quarter shall be delivered to NGS no later than thirty (30) days after the last day of the Quarter. Each Report shall include the following information in a format acceptable to NGS: For all ▇▇▇▇▇▇▇▇ Trips departing during the Quarter: (i) the date and itinerary of each ▇▇▇▇▇▇▇▇ Trip; (ii) the number of Participants, including cancelled Participants; (iii) the invoiced price for each Participant, and the invoiced price related to any pre- or post-trip extension(s); (iv) gross revenues from the ▇▇▇▇▇▇▇▇ Trips on a per-trip basis during the Quarter as of the last day of the Quarter, broken down by source of revenue; (v) a computation of the Royalty Payments due NGS as specified in the Section headed Royalty Payments within the Section TERMS OF PAYMENT, above; and (vi) an itemization of all allowable deductions, if any; and such other information concerning the operation of ▇▇▇▇▇▇▇▇ Trips and relevant to the calculation of Royalty Payments as requested by NGS.
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(b) Books of Account; Audits. ▇▇▇▇▇▇▇▇ shall keep full and accurate books of account and business records and copies of all documents and other material relating to this Agreement at ▇▇▇▇▇▇▇▇’▇ principal office. Such books of account, business records, documents and materials shall be open for audit or inspection, once per calendar year, by NGS’ authorized representatives, who shall be at liberty to make copies thereof, during ▇▇▇▇▇▇▇▇’▇ regular business hours upon five (5) days Notice and shall remain available for a period of [*] after delivery of the last Report due NGS hereunder. At NGS’ request, ▇▇▇▇▇▇▇▇ shall provide an authorized employee to assist in the examination of ▇▇▇▇▇▇▇▇’▇ records. All information revealed to NGS or its representatives and auditors under this subsection shall be treated as confidential. If NGS should conduct an audit for any period of time, and the [*] or computation of Royalty Payments due as shown by ▇▇▇▇▇▇▇▇’▇ Reports for any such period of time should be found to be understated then: (i) within ten (10) days of Notice ▇▇▇▇▇▇▇▇ shall pay the amount of the understatement of Royalty Payments due NGS plus interest thereon for each day the correct payment was due NGS computed at an annual rate of [*] calculated on the date on which payment is made to NGS; and (ii) if the amount of such understatement shall be more than [*] of the amount previously reported to NGS, then within ten (10) days of Notice ▇▇▇▇▇▇▇▇ shall pay to NGS the reasonable professional fees and direct out-of-pocket expenses incurred in conducting such audit. The receipt or acceptance by NGS of any Reports furnished pursuant to this Agreement, or the receipt or acceptance of any royalty payments made, or the fact that NGS has previously audited the periods covered by such Reports, shall not preclude NGS from questioning their accuracy at any time. If any inconsistencies or mistakes are discovered in such statements or payments, appropriate adjustments shall be made immediately by the parties.
16. ▇▇▇▇▇▇▇▇/NGS FUND FOR CONSERVATION, RESEARCH AND EXPLORATION. ▇▇▇▇▇▇▇▇ and NGS will continue to support the “▇▇▇▇▇▇▇▇ / NGS Fund” to support exploration, research and conservation projects pursuant to the agreement set forth in Exhibit E (“▇▇▇▇▇▇▇▇ / NGS Fund Agreement”). The parties desire to amend the ▇▇▇▇▇▇▇▇ / NGS Fund Agreement, as follows:
(a) REPLACE all reference to “License Agreement” with “Alliance and License Agreement.”
(b) REPLACE the last sentence in the second paragraph under Paragraph 1 with the following language:
Upon expiration or termination of the Alliance and License Agreement, this Agreement shall terminate except that the Board shall continue to operate and NGS shall continue to administer third party contributions (i.e. funds raised pursuant to Paragraph 3.1, below). Upon expiration or termination of this Agreement NGS shall transfer all unspent or uncommitted Designated Royalties to it general fund to be dispersed as prioritized by NG Mission Programs.
(c) Establish a maximum amount of [*] in the aggregate to be paid out from the Designated Royalty, (definition below) for grants in any calendar year under the ▇▇▇▇▇▇▇▇ / NGS Fund Agreement.
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(d) REPLACE sub-Paragraph 3.3 of the ▇▇▇▇▇▇▇▇ / NGS Fund Agreement with the following language:
| 3.3 | Under the terms of the Alliance and License Agreement and upon the receipt of the final royalty check for each calendar year, NGS will designate to the LEX/NGS Fund [*] of the royalties paid by LEX (the “Designated Royalty”). The Designated Royalty payment will begin with the calendar beginning January 1, 2011. NGS will continue to make a Designated Royalty payment through December 31, 2015. |
| 3.4 | Upon the receipt of the final deferred royalty payment as outlined in Alliance and License Agreement, NGS will make an additional Designated Royalty payment to reflect the period from January 1, 2010 through December 31, 2010. No Designated Royalty will be due for any period prior to January 1, 2010. |
| 3.5 | The Designated Royalty shall be used for grants issued by the Fund, as well as expenses associated with administering the Fund. |
| 3.6 | For purposes of clarification, if LEX fails to be current in payments at any time during the Term, no Designated Royalties shall be due from NGS or shall accrue from such past due balances. |
17. QUALITY CONTROLS AND PROCEDURES.
(a) Warranty of Quality. ▇▇▇▇▇▇▇▇ represents and warrants that each ▇▇▇▇▇▇▇▇ Trip will be [*], including but not limited to facilities, maintenance, accommodations and programs, and shall provide a [*]. ▇▇▇▇▇▇▇▇ further represents and warrants that it will take all steps reasonably necessary to ensure the safety and enjoyment of all Participants, and that it will operate in compliance with all applicable legal requirements, standards, laws, regulations and ordinances, in the United States and in each country in which a ▇▇▇▇▇▇▇▇ Trip is conducted. Given the complex nature of the travel business, and the multitude of factors beyond ▇▇▇▇▇▇▇▇’▇ control that can influence the success of a ▇▇▇▇▇▇▇▇ Trip, ▇▇▇▇▇▇▇▇ cannot guarantee 100% customer satisfaction. There will on occasion be complaints, the nature of which may be beyond the scope of ▇▇▇▇▇▇▇▇’▇ influence. However, ▇▇▇▇▇▇▇▇ agrees to respond to all reasonable Participant complaints, and strive for 100% customer satisfaction. In the unlikely event that a Participant is dissatisfied with a ▇▇▇▇▇▇▇▇ Trip for a discernable reason, and brings it to the attention of NGS, NGS and ▇▇▇▇▇▇▇▇ will develop a mutually agreed response, which may include a [*] ▇▇▇▇▇▇▇▇.
(b) Inspection. NGS or its representatives (e.g., inspectors or surveyors) shall have the right to inspect the ▇▇▇▇▇▇▇▇ Ships, at sea or at the shipyard, at any time once during each calendar year of the Term in order to ascertain compliance with the health, safety and quality provisions of this Agreement. Such inspections may be announced in advance or may be unannounced, and shall not interfere with the operation of the ▇▇▇▇▇▇▇▇ Ship nor result in displacement of any Participants.
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(c) General Procedures.
(i) General. ▇▇▇▇▇▇▇▇ agrees to retain all materials relating to reviews in its files during the Term of this Agreement and for [*] thereafter. NGS agrees to designate part of the job responsibilities of the staff persons described in the Section headed REPRESENTATIVES to facilitate reviews and approvals.
(ii) Timing and Standard of Review. The parties mutually acknowledge and agree that (a) any material delays in the process of preparing, approving, printing, and distribution of promotional materials are likely to have a material adverse effect on bookings; and (b) ▇▇▇▇▇▇▇▇’▇ own proprietary marks, and the goodwill associated with them, are of long standing and of sufficient value that ▇▇▇▇▇▇▇▇ has full incentive, and ▇▇▇▇▇▇▇▇ hereby agrees, to exercise its best efforts to assure that all Advertising and Trip Materials are of high quality, accurate, and carefully reviewed for textual and factual correctness, and will not risk any adverse associations to be connected with either ▇▇▇▇▇▇▇▇ or NGS. ▇▇▇▇▇▇▇▇ shall submit all materials required to be submitted to NGS hereunder as well in advance of the date on which ▇▇▇▇▇▇▇▇ desires to commence production and/or use of the material as practicable, so that NGS shall have adequate time to independently evaluate and comment upon the same. With each submission, ▇▇▇▇▇▇▇▇ shall specify in writing a reasonable time period for NGS’ response. NGS will use reasonable efforts to provide a response to ▇▇▇▇▇▇▇▇ within the specified time frame. If ▇▇▇▇▇▇▇▇ has not received any response from NGS by the end of the specified time frame (or such other time frame that was agreed upon by the parties), ▇▇▇▇▇▇▇▇ will provide written notice by email to [*] or another NGS designee that a response is requested by the close of the next business day. If ▇▇▇▇▇▇▇▇ receives no response from NGS by the close of the next business day, ▇▇▇▇▇▇▇▇ may go forward and NGS shall have no right to disapprove such material thereafter. If, however, NGS believes that the initial time period specified by ▇▇▇▇▇▇▇▇ is not reasonable, NGS will promptly notify ▇▇▇▇▇▇▇▇ thereof. If the parties cannot come to resolution on the time period, and ▇▇▇▇▇▇▇▇ follows the procedures outlined above and has not received a substantive response from NGS on the submission, ▇▇▇▇▇▇▇▇ may thereafter proceed to use the materials, but without prejudice to NGS’ right to establish that the time period specified by ▇▇▇▇▇▇▇▇ was unreasonable and was therefore a material breach of the Agreement by ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ will make reasonable efforts to address NGS’ comments to NGS’ satisfaction. NGS shall have the right to disapprove any materials submitted hereunder in writing if it determines that the materials in question would impair the value and goodwill associated with the Licensed Marks or the Licensed Content by reason of (i) their use of materials or content which are inconsistent with NGS’ public image or the image of the Licensed Property or are inaccurate or which may in any way disparage or adversely affect NGS or its reputation; or (ii) their use of materials or content which are unethical, immoral, or offensive to good taste (the standards set forth in (i) and/or (ii) constituting “Cause”). In the event that ▇▇▇▇▇▇▇▇ goes forward in spite of NGS’ disapproval, NGS shall have the right to terminate this Agreement as provided in the Section (ii) headed TERMINATION.
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(d) Itineraries; Advertising and Trip Materials.
(i) In accordance with the schedule in Exhibit A, ▇▇▇▇▇▇▇▇ will present to NGS proposed ▇▇▇▇▇▇▇▇ Trip itineraries for each calendar year of the Term, including retail prices, for NGS’ review. In collaboration with ▇▇▇▇▇▇▇▇, NGS will review all Itineraries with regional experts affiliated with NGS to solicit feedback on the itineraries and identify opportunities to add in special National Geographic experiences. ▇▇▇▇▇▇▇▇ will incorporate the special National Geographic experiences, where feasible and appropriate. ▇▇▇▇▇▇▇▇ will specify a reasonable time period for NGS to alert ▇▇▇▇▇▇▇▇ of any material concerns relating to the Itineraries. ▇▇▇▇▇▇▇▇ will make reasonable efforts to address NGS’ concerns to NGS’ satisfaction. Additionally, ▇▇▇▇▇▇▇▇ will notify NGS of any changes in or refinements to a published Itinerary, and the process outlined above will apply.
(ii) The NGS and ▇▇▇▇▇▇▇▇ co-branded presentation and mission statement is attached in Exhibit C NGS and ▇▇▇▇▇▇▇▇ Mission Statement and Co-Branding. NGS and ▇▇▇▇▇▇▇▇ shall mutually agree on any changes to the co-branded style or mission statement for use in promoting the association between NGS and ▇▇▇▇▇▇▇▇ with respect to the ▇▇▇▇▇▇▇▇ Trips. All uses of the Co-Branding on Advertising and Trip Materials shall contain either the agreed upon NGS and ▇▇▇▇▇▇▇▇ Mission Statement in its entirety or an alternate statement mutually agreed by the parties. ▇▇▇▇▇▇▇▇ agrees to follow the guidelines made available online on the National Geographic Brand/Design Identity Guidelines website in the creation of all Advertising and Trip Materials. ▇▇▇▇▇▇▇▇ will designate a person within its organization to help ensure compliance with all guidelines.
(iii) ▇▇▇▇▇▇▇▇ shall not use any of the Licensed Property in connection with any press releases relating to the ▇▇▇▇▇▇▇▇ Trips without first receiving the written approval of NGS. ▇▇▇▇▇▇▇▇ shall not use any of the Licensed Property in connection with any magazine, newspaper, television, radio, billboard or other advertisements (collectively, “Media Materials”) without first receiving the written approval of NGS. ▇▇▇▇▇▇▇▇ will submit Media Materials that use any of the Licensed Property to NGS for review in the manner provided in Section (ii) of General Procedures, above. With regard to materials for the ▇▇▇▇▇▇▇▇ Trips other than Media Materials (e.g., brochures, newsletters, pre-trip materials, website content and other customer communications), ▇▇▇▇▇▇▇▇ will submit such materials that use any of the Licensed Property to NGS for review in the manner provided in Section (ii) of General Procedures, above.
(iv) ▇▇▇▇▇▇▇▇ will provide NGS, [*], with copies of all published ▇▇▇▇▇▇▇▇ Trip brochures at the time of publication.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(e) Maintenance of Quality. With respect to materials that are required to be reviewed or approved by NGS hereunder, ▇▇▇▇▇▇▇▇ agrees to maintain the quality of such materials up to the specifications, quality, and finish of the sample of such item reviewed or approved by NGS, and agrees not to change the item in any material respect without first submitting to NGS samples showing such proposed changes and obtaining written approval of such samples by NGS. From time to time after it has commenced printing of Advertising and Trip Materials, ▇▇▇▇▇▇▇▇, upon request, shall furnish [*] to NGS a reasonable number of random production samples of any Advertising and Trip Materials specified by NGS in its request.
(f) Costs and Expenses. ▇▇▇▇▇▇▇▇ shall bear the sole responsibility and expense for submission, preparation, protection, shipping, insurance and storage of all artwork, designs, text, writings, lettering, drawings, samples, sound recordings, videos or similar materials and all creative and manufacturing materials prepared by or for ▇▇▇▇▇▇▇▇ with respect to the design or production of the Advertising and Trip Materials.
(g) Images; Reimbursement for Artwork. If ▇▇▇▇▇▇▇▇ requests NGS to furnish any photographs, artwork, transparencies, reproductions or other such similar materials (collectively, “Artwork”) of the Licensed Property, ▇▇▇▇▇▇▇▇ agrees to reimburse NGS, as applicable, for its transparency reproduction, digital scanning, printing and other costs in supplying said Artwork. ▇▇▇▇▇▇▇▇ agrees to reimburse NGS for the full amount of each such Artwork expense within thirty (30) days of receipt of NGS’ invoice stating the cost and nature of the expenditure. If ▇▇▇▇▇▇▇▇ wishes to use photographs originating with NGS for the purposes of promoting the ▇▇▇▇▇▇▇▇ Trips, ▇▇▇▇▇▇▇▇ shall so notify NGS, and NGS will provide ▇▇▇▇▇▇▇▇ rights to use select photographs for the purpose of promoting the ▇▇▇▇▇▇▇▇ Trips [*] to ▇▇▇▇▇▇▇▇, provided that NGS has the right to license such photographs to ▇▇▇▇▇▇▇▇ [*]. ▇▇▇▇▇▇▇▇ will be responsible for acquiring and clearing rights and ensuring that model releases have been secured, if necessary, for any such photographs. All uses of such photographs will be subject to NGS review, and will include all appropriate photo credits, as directed by NGS. ▇▇▇▇▇▇▇▇ will be responsible for any incremental expenses related to rights acquisition for an image in cases where NGS does not have the right to license it to ▇▇▇▇▇▇▇▇.
(h) Return of Artwork. All Artwork furnished to ▇▇▇▇▇▇▇▇ by or on behalf of NGS shall remain the property of NGS or its respective owner, and ▇▇▇▇▇▇▇▇ shall, upon NGS request, promptly return all Artwork delivered to ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ agrees that it shall return all Artwork in the same, undamaged condition as delivered by NGS.
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18. PROTECTION OF LICENSED PROPERTY.
(a) Recognition. ▇▇▇▇▇▇▇▇ acknowledges that the Licensed Property is famous throughout the world and has significant value for use in connection with the sale of travel-related goods and services, and further that all of ▇▇▇▇▇▇▇▇’▇ uses of the Licensed Property under this Agreement shall, as between ▇▇▇▇▇▇▇▇ and NGS, inure to the benefit of NGS. ▇▇▇▇▇▇▇▇ acknowledges that it is not acquiring any interests or rights in the use of the Licensed Property apart from the license set forth in this Agreement. ▇▇▇▇▇▇▇▇ shall make no use the Licensed Property in any manner which may, in NGS’ reasonable judgment, be inconsistent with NGS’ public image or which may in any way disparage or adversely affect NGS or its reputation, nor shall ▇▇▇▇▇▇▇▇, or any of its agents or employees, take any actions or conduct the operation of ▇▇▇▇▇▇▇▇’▇ business as it relates to the ▇▇▇▇▇▇▇▇ Trips in any manner which may, in NGS’ reasonable judgment, be inconsistent with NGS’ public image or which may disparage NGS or its reputation.
(b) Injunctive Relief. ▇▇▇▇▇▇▇▇ acknowledges and agrees that the Licensed Property possess a special, unique and extraordinary character that makes difficult the assessment of the monetary damages that would be sustained as a result of the unauthorized use of the Licensed Property. ▇▇▇▇▇▇▇▇ recognizes that the unauthorized or unapproved use of the Licensed Property will cause immediate and irreparable damage to NGS for which NGS would not have an adequate remedy at law. Therefore, ▇▇▇▇▇▇▇▇ agrees that, in the event of said unauthorized or unapproved use of the Licensed Property by ▇▇▇▇▇▇▇▇, in addition to such other legal and equitable rights and remedies as shall be available to NGS, NGS shall be entitled to injunctive and other equitable relief without breach of the arbitration Sections of this Agreement and without any abridgement of the powers of the arbitrators, without the necessity of proving damages or furnishing a bond or other security.
(c) Use of Licensed Property; Ownership of Intellectual Property. ▇▇▇▇▇▇▇▇ agrees not to use at any time during the Term or thereafter any other trademark, brand name, trade name, symbol, logo, design, character or the like which is similar to or may be confused with the Licensed Property. ▇▇▇▇▇▇▇▇ will not take any action that will harm or prejudice the Licensed Property or NGS’ rights therein in any way during the Term or thereafter. All copyright, trademark, trade dress or other intellectual property and proprietary rights in the Advertising and Trip Materials arising from ▇▇▇▇▇▇▇▇’▇ use, adaptation or modification of the Licensed Property, and any other intellectual property and proprietary rights in materials developed under this Agreement that employ the Licensed Property and were developed for the first time by or for ▇▇▇▇▇▇▇▇ for use in connection with the Advertising and Trip Materials shall be for the benefit of and procured in the name of NGS, notwithstanding their creation by ▇▇▇▇▇▇▇▇ or a third party on ▇▇▇▇▇▇▇▇’▇ behalf, and shall hereby be deemed a work made for hire within the meaning of the United States Copyright Laws. ▇▇▇▇▇▇▇▇ further hereby assigns to NGS any and all rights, throughout the world and in perpetuity, in and to the materials described in the preceding sentence, and ▇▇▇▇▇▇▇▇ agrees to execute any documents necessary to perfect such assignments. All intellectual property and proprietary rights in any film, video, still photography or other materials created by NGS or its agents, employees or contractors during any ▇▇▇▇▇▇▇▇ Trip remains the sole property of NGS. Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇ retains all rights to its own pre-existing trademarks and trade names. All intellectual property and proprietary rights in any film, video, still photography or other materials created by ▇▇▇▇▇▇▇▇ or its agents, employees or contractors during or on any of the ▇▇▇▇▇▇▇▇ Trips shall be the sole property of ▇▇▇▇▇▇▇▇, subject, however, to all the provisions of this Agreement to the extent any use of the Licensed Property is employed therein; and ▇▇▇▇▇▇▇▇ shall have the right to protect its unfettered right to use such materials by editing out any or all Licensed Property.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(d) Corporate Use. ▇▇▇▇▇▇▇▇ shall identify itself in all relevant transactions as a licensee of, and separate legal entity from, NGS as opposed to an integrated, divisional or consolidated part of NGS’ business. ▇▇▇▇▇▇▇▇ shall not use any of the Licensed Property in ▇▇▇▇▇▇▇▇’▇ name or in the name of any operating entity or business formed by ▇▇▇▇▇▇▇▇ or in which ▇▇▇▇▇▇▇▇ has a business or financial interest, without the prior written consent of NGS. ▇▇▇▇▇▇▇▇ shall not use or incorporate any of the Licensed Property on or in connection with any business to business communications (boat leases, employment agreements, food services, etc.), business cards, stationery items (except ▇▇▇▇▇▇▇▇ to consumer material, specifically excluding ▇▇▇▇▇▇▇▇ Travel Insurance brochure and any correspondence solely related to ▇▇▇▇▇▇▇▇ Travel Insurance), or other similar materials. ▇▇▇▇▇▇▇▇ further agrees that it shall not use or incorporate, in any manner or form, any of the Licensed Property as a domain name, nor shall ▇▇▇▇▇▇▇▇ seek trademark, copyright or domain name registration of the same, without the prior written consent of NGS.
(e) Infringement. ▇▇▇▇▇▇▇▇ shall promptly advise NGS of any activity potentially infringing upon the Licensed Property and shall further promptly provide Notice to NGS of all claims and potential claims of which it has notice or knowledge and all suits threatened or brought against ▇▇▇▇▇▇▇▇ involving the Licensed Property. Any decision with respect to the protection and defense of the Licensed Property shall be solely in the discretion of NGS and ▇▇▇▇▇▇▇▇ may not take any action with respect thereto without the prior written consent of NGS. In no event shall ▇▇▇▇▇▇▇▇ have the right, without NGS’ prior written consent, to acknowledge the validity of any claim brought by any party in connection with the Licensed Property, to obtain or seek a license from such party, or to take any action which might impair NGS’ ability to contest the claim. ▇▇▇▇▇▇▇▇ shall cooperate with NGS with respect to actions described in this Section which are taken by NGS. The expenses for ▇▇▇▇▇▇▇▇’▇ cooperation shall be subject to NGS’ prior approval and shall be reimbursed by NGS.
(f) Trademark and Copyright Notices. ▇▇▇▇▇▇▇▇ shall affix such copyright, trademark or other legal notice as shall be required by NGS and/or as prescribed by law and any credits required by NGS on the Advertising and Trip Materials. Prior to affixing said copyright, trademark or other legal notice or credit, ▇▇▇▇▇▇▇▇ shall submit the desired content, form, location and size of each said notice for NGS’ review and approval as provided in the Section headed QUALITY CONTROLS AND PROCEDURES.
(g) Trademark Registration Maintenance. ▇▇▇▇▇▇▇▇ shall, at NGS’ request and NGS’ expense, assist NGS in confirming, registering, renewing or prosecuting the rights of NGS or its designee in the Licensed Property, in any country or with any government agency, and ▇▇▇▇▇▇▇▇ shall execute any required documents in this regard, including, but not limited to, providing NGS with all necessary dates and other information sufficient to enable NGS or its designee to apply for and obtain copyright and trademark registrations. Upon request, ▇▇▇▇▇▇▇▇ shall provide NGS, [*],[*] of any Advertising and Trip Material for use as trademark and copyright registration specimens.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(a) ▇▇▇▇▇▇▇▇ agrees to maintain, at its own expense, and on a current basis, the following liability insurance policies with coverage for each ▇▇▇▇▇▇▇▇ Trip as follows:
(i) Commercial General Liability with a minimum limit of [*] per occurrence and [*] in the aggregate;
(ii) Workers’ Compensation insurance with a statutorily required limit and Employers’ Liability with a limit of [*];
(iii) Watercraft Liability including Protection and Indemnity and Maritime liability for [*] (if the Umbrella includes this coverage as an underlying policy) or [*] (if the Umbrella does not) for all ▇▇▇▇▇▇▇▇-owned vessels. If vessel is leased, then vessel owner must provide proof of P&I and Maritime Liability insurance;
(iv) Standard Travel Agents’ Professional Liability insurance (errors and omissions coverage) in the amount of at least [*] per occurrence and in the aggregate;
(v) Automobile Liability insurance covering all ▇▇▇▇▇▇▇▇-owned, non-owned and hired vehicles with a [*]combined single limit;
(vi) Umbrella Liability insurance with a limit of [*] per occurrence and in the aggregate;
(vii) Non-Owned Aircraft Liability insurance with a limit of [*] per occurrence and in the aggregate. This requirement only applies if the Trip includes the charter or hire of any aircraft.
Coverage consistent with the foregoing shall be maintained at all times during the Term, and for a period of at least twelve (12) months thereafter.
(b) ▇▇▇▇▇▇▇▇ agrees to maintain, at its own expense, and on a current basis, worker’s compensation insurance in the statutorily required amount and employer’s liability insurance with a limit of [*]. If ▇▇▇▇▇▇▇▇ cannot provide workers’ compensation insurance to a NGS Expert, ▇▇▇▇▇▇▇▇ agrees to include notice of this omission in the written contract (described in Section headed NGS EXPERTS) between the NGS Expert and ▇▇▇▇▇▇▇▇.
(c) It is understood and agreed that the insurance limits stated above are minimum requirements, and the actual limits of any of the policies in excess of the stated amounts shall not be withheld from NGS should the stated limits be exhausted. ▇▇▇▇▇▇▇▇ shall maintain insurance policies in form, amounts and with such companies as are reasonably acceptable to NGS and licensed to do business in the District of Columbia. Such acceptance will not be unreasonably withheld.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(d) Each policy, with the exception of worker’s compensation and Protection and Indemnity, will be endorsed to list the “National Geographic Society, its subsidiaries, trustees, directors, officers and employees” as an Additional Insureds. The Protection and Indemnity policy will be covered by a “misdirected arrows” endorsement giving NGS similar protection. All policies will state that NGS shall be given at least [*] advance written notice of cancellation. ▇▇▇▇▇▇▇▇ agrees to have its insurance company or companies provide NGS with a certificate of insurance evidencing the above-required insurance within thirty (30) days following the Execution Date.
(e) It is understood and agreed that, with respect to services to be provided by Other Providers, ▇▇▇▇▇▇▇▇ will act solely as an agent of the Other Providers in selling such services to Participants. It is further understood and agreed that all Participants may be subject to the terms and conditions of a contract with Other Providers covering services provided to the Participant. No responsibility and liability is accepted or assumed by ▇▇▇▇▇▇▇▇ or NGS, and ▇▇▇▇▇▇▇▇ and NGS disclaim all responsibility and liability, for those portions of any ▇▇▇▇▇▇▇▇ Trip as to which liability and responsibility are governed by the conditions of the contract of carriage or by contracts with Other Providers.
(f) ▇▇▇▇▇▇▇▇ will specifically include the following highlighted language and this paragraph in any Terms and Conditions that it publishes or distributes:
Responsibility and Other Terms & Conditions: Certain other provisions, concerning among other things, limitations of ▇▇▇▇▇▇▇▇ Expeditions’ and the National Geographic Society’s liability for loss of property, injury, illness, or death during the voyage, will be provided to passengers on the ship’s ticket sent prior to departure, and are also available on our website at (▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇▇), or upon request. By registering for this trip, the guest agrees to all such Terms & Conditions.
20. COMPLIANCE WITH LAWS AND REGULATIONS.
(a) ▇▇▇▇▇▇▇▇ will ensure that its business practices and activities as they relate to the performance of this Agreement and the obligations hereunder, including, but not limited to, the operation and promotion of the ▇▇▇▇▇▇▇▇ Trips, shall be in material compliance with all applicable legal requirements, standards, laws, regulations and ordinances, in the United States and in other applicable jurisdictions in which the ▇▇▇▇▇▇▇▇ Trips operate. ▇▇▇▇▇▇▇▇ will ensure that the ▇▇▇▇▇▇▇▇ Ships meet all applicable statutory, regulatory and classification society health, safety and quality standards, including without limitation International Maritime Organization, SOLAS, and Det Norske Veritas standards. Upon any final and non-appealable finding or determination that ▇▇▇▇▇▇▇▇’▇ business practices or activities have violated any applicable labor laws or regulations, ▇▇▇▇▇▇▇▇ shall take all necessary steps to correct such violation, including without limitation, paying all applicable back wages found due to workers.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(b) To the best of ▇▇▇▇▇▇▇▇’▇ knowledge, the Advertising and Trip Materials will not infringe the patent or intellectual property rights or other rights of third parties.
21. WARRANTIES; INDEMNIFICATIONS; LIMITATIONS ON LIABILITY.
(a) Representations and Warranties. NGS represents and warrants that it has the right to enter into this Agreement and to convey to ▇▇▇▇▇▇▇▇ the rights granted herein, subject to the conditions and limitations set forth herein. ▇▇▇▇▇▇▇▇ represents and warrants that it has the right to enter into this Agreement and has the authority, capacity, finances and other qualifications to perform its obligations hereunder. ▇▇▇▇▇▇▇▇ further warrants that neither it nor any of its officers, directors and principals is (i) a party to any pending or threatened litigation or government administrative proceeding or investigation which, if resolved adversely to ▇▇▇▇▇▇▇▇, would have a material affect on ▇▇▇▇▇▇▇▇’▇ ability to perform its obligations under this Agreement, or which would make any of the other warranties and representations made by ▇▇▇▇▇▇▇▇ in this Agreement untrue, or (ii) currently involved, or has been involved in the past, in any investigation or inquiry made by the Securities and Exchange Commission or any other domestic or foreign governmental body or regulatory organization with authority to administer and/or enforce securities laws and/or regulations.
(b) No Representation as to Revenue; Duty to Inform. ▇▇▇▇▇▇▇▇ agrees and acknowledges that ▇▇▇▇▇▇▇▇ has independently evaluated its business and its ability to utilize this Agreement in its business and to achieve the goals set by ▇▇▇▇▇▇▇▇ for its business, and that NGS has no responsibility or liability to ▇▇▇▇▇▇▇▇ for any failure of ▇▇▇▇▇▇▇▇ to exploit its rights under the Agreement in accordance with ▇▇▇▇▇▇▇▇’▇ own expectations. ▇▇▇▇▇▇▇▇ will notify NGS in the event that ▇▇▇▇▇▇▇▇ discovers it will not be able to fulfill its financial obligations to either NGS, booked guests or any other third parties within [*] of the financial obligations due date.
(c) ▇▇▇▇▇▇▇▇’▇ Indemnifications. ▇▇▇▇▇▇▇▇ agrees to indemnify and hold NGS, its subsidiaries and affiliates, and their respective officers, directors, and employees, harmless from any liability, damages, loss, cost, expenses, and reasonable attorney’s fees which NGS may hereafter incur, suffer, or be required to pay by reason of or in consequence of bodily injury, sickness, death, property damage, or other loss arising out of ▇▇▇▇▇▇▇▇’▇ negligence or breach of its obligations, warranties or representations herein, except to the extent that such liability, damages, loss, cost, or other expenses are occasioned in whole or in part or caused directly or indirectly by any negligent act or omission of NGS, its subsidiaries, affiliates or their respective officers, directors, and employees. ▇▇▇▇▇▇▇▇ further agrees to indemnify and hold NGS, its subsidiaries and affiliates, and their respective officers, directors, employees, and agents harmless from any and all loss, damage, liability, costs, or expenses, including reasonable attorney’s fees, with respect to any claim arising from NGS’ use of any image(s) or other content provided by ▇▇▇▇▇▇▇▇ or its affiliates or agents to promote the ▇▇▇▇▇▇▇▇ Trips.
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(d) NGS’ Indemnifications. NGS agrees to indemnify and hold ▇▇▇▇▇▇▇▇, its subsidiaries and affiliates, and their respective officers, directors, and employees, harmless from any liability, damages, loss, cost, expenses, and reasonable attorney’s fees which ▇▇▇▇▇▇▇▇ may hereafter incur, suffer, or be required to pay by reason of or in consequence of bodily injury, sickness, death, property damage, or other loss arising out of NGS’ negligence or breach of its obligations, warranties or representations herein, except to the extent that such liability, damages, loss, cost, or other expenses are occasioned in whole or in part or caused directly or indirectly by any negligent act or omission of ▇▇▇▇▇▇▇▇, its subsidiaries, affiliates or their respective officers, directors, and employees. NGS further agrees to indemnify and hold ▇▇▇▇▇▇▇▇, its subsidiaries and affiliates, and their respective officers, directors, employees and agents harmless from any and all loss, damage, liability, costs, or expenses, including reasonable attorney’s fees, with respect to any claim that any Licensed Property, as used by ▇▇▇▇▇▇▇▇ in compliance with all the terms of this Agreement, infringes the intellectual property rights of any third party.
(e) Indemnification of Third-Party Claims. The following provisions shall apply to any claim subject to indemnification which is (A) a suit, action or arbitration proceeding filed or instituted by any third party, or (B) any other form of proceeding or assessment instituted by any government entity.
(i) Notice and Defense. The party or parties to be indemnified (whether one or more, the “Indemnified Party”) will give the party from whom indemnification is sought (the “Indemnifying Party”) prompt Notice of any such claim, and the Indemnifying Party will undertake the defense thereof by representatives chosen by it. Failure to give such Notice shall not affect the indemnifying Party’s duty or obligations under this Section, except to the extent the Indemnifying Party is prejudiced thereby. So long as the Indemnifying Party is defending any such claim actively and in good faith, the Indemnified Party shall not settle such claim. The Indemnified Party shall make available to the Indemnifying Party or its representatives all records and other materials required by them and in the possession or under the control of the Indemnified Party, for the use of the Indemnifying Party and its representatives in defending any such claim, and shall in other respects give reasonable cooperation in such defense.
(ii) Indemnified Party’s Rights. Notwithstanding anything in this Section to the contrary, the Indemnifying Party shall obtain the written consent of the Indemnified Party before the Indemnifying Party settles or compromises any claim or consents to the entry of any judgment which fails to include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified Party of a release from all liability in respect of such claim.
(f) Limitation Of Liability. EXCEPT FOR A CLAIM ARISING FROM A BREACH OF THE OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION AND FOR PAYMENTS TO THIRD PARTIES PURSUANT TO THIS SECTION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, INCURRED BY EITHER PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
22. TERMINATION.
(a) [*] Termination by NGS. In addition to the termination rights stated elsewhere in this Agreement, NGS shall have the right to terminate this Agreement [*], by giving Notice to ▇▇▇▇▇▇▇▇, in any of the following situations:
(i) Default in Payments. If ▇▇▇▇▇▇▇▇ fails to timely make any Royalty Payments, NGS may terminate this Agreement [*]; provided, however, that ▇▇▇▇▇▇▇▇ shall have the opportunity to cure the [*] breach by ▇▇▇▇▇▇▇▇ in any [*] period by making full payment to NGS within [*] of receipt of Notice.
(ii) Approvals. If ▇▇▇▇▇▇▇▇ publishes, distributes, or uses any press releases or any Media Materials which have not been approved as required herein, or any other Advertising and Trip Materials which have been timely disapproved for Cause, or makes any use of the Licensed Property not authorized under this Agreement, or if ▇▇▇▇▇▇▇▇ knowingly conducts a ▇▇▇▇▇▇▇▇ Trip subject to this Agreement in any destination which at the time is prohibited under Section (b) of the Section headed CHANGES IN ITINERARY AND TRIP CANCELLATIONS of this Agreement, NGS may terminate this Agreement [*].
(iii) Insurance Coverage. If ▇▇▇▇▇▇▇▇ fails to comply with the terms of the Section headed INSURANCE AND LIABILITY, NGS may terminate this Agreement [*]; provided, however, that ▇▇▇▇▇▇▇▇ shall have the opportunity to cure such breach by providing documentation to NGS establishing ▇▇▇▇▇▇▇▇’▇ compliance with the Section headed INSURANCE AND LIABILITY within [*] after any lapse of (or initial failure to obtain) the requisite insurance coverage or other breach of the Section headed INSURANCE AND LIABILITY.
(iv) Force Majeure. Should any Event of Force Majeure as defined in the Section Force Majeure in MISCELLANEOUS, below, prevent any ▇▇▇▇▇▇▇▇ Ship from operating ▇▇▇▇▇▇▇▇ Trips for a period of more than [*].
(v) Expiration of Right to Terminate. In the case of the termination rights of NGS pursuant to the foregoing sub-Section (i) through (iv) above, such termination rights shall expire, with respect only to the specific event triggering such right, at the close of business on the [*] following the date on which NGS obtained actual knowledge of the occurrence of such triggering event, except in cases where NGS has allowed ▇▇▇▇▇▇▇▇ time to cure the default, but ▇▇▇▇▇▇▇▇ thereafter does not cure the default, in which case NGS shall retain its termination rights. ▇▇▇▇▇▇▇▇ shall have the burden of proving the actual knowledge of NGS. The expiration of any termination right with respect to any single specific triggering event shall not relieve ▇▇▇▇▇▇▇▇ from any of its obligations hereunder, nor shall such expiration constitute a waiver of any other rights or remedies available to NGS under this Agreement or under applicable law.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(b) Termination by NGS Upon Notice to ▇▇▇▇▇▇▇▇. NGS may terminate this Agreement upon Notice to ▇▇▇▇▇▇▇▇ as set forth below:
(i) Insolvency. In the event of ▇▇▇▇▇▇▇▇’▇ voluntary or involuntary insolvency, commission of an action of bankruptcy, adjudication of bankruptcy, the filing of a petition for voluntary bankruptcy or similar proceeding, or an agreement between ▇▇▇▇▇▇▇▇ and its creditors generally (including trade creditors) is entered into providing for extension or composition of debt, or a receiver is appointed to administer the assets of ▇▇▇▇▇▇▇▇, or the assets of ▇▇▇▇▇▇▇▇ are liquidated, or any distress, execution or attachment is levied on any one or more of the ▇▇▇▇▇▇▇▇ Ships, NGS shall have the right to terminate this Agreement, by giving Notice to ▇▇▇▇▇▇▇▇. In the event of the filing by any third party of a petition for involuntary bankruptcy of ▇▇▇▇▇▇▇▇, NGS shall have the right to terminate this Agreement, by giving Notice to ▇▇▇▇▇▇▇▇, in the event such petition has not been dismissed within [*] after such filing.
(ii) Ownership or Management Change. If ▇▇▇▇▇▇▇▇ experiences a change of control, where change of control means a party acquires a controlling interest in ▇▇▇▇▇▇▇▇ or a substantial portion of ▇▇▇▇▇▇▇▇’▇ assets during the Term or if ▇▇▇▇▇▇▇▇ experiences a change in management where ▇▇▇▇ ▇▇▇▇▇▇▇▇ is in no longer in a senior management role at ▇▇▇▇▇▇▇▇.
(iii) Complaints. Should NGS have credible evidence of a serious pattern or trend of Participant complaints, or if NGS determines in good faith that NGS’ reputation or goodwill may be damaged due to its relationship with ▇▇▇▇▇▇▇▇, and if, after providing ▇▇▇▇▇▇▇▇ with Notice setting forth NGS’ basis for the Notice, ▇▇▇▇▇▇▇▇ fails to address the issues set forth in the Notice within [*].
(c) Termination by ▇▇▇▇▇▇▇▇. In addition to the termination rights stated elsewhere in this Agreement, ▇▇▇▇▇▇▇▇ shall have the right to terminate this Agreement, by giving Notice to NGS, as follows: If the review procedures outlined in the Section headed Timing and Standard of Review, of QUALITY CONTROLS AND PROCEDURES, General Procedures have resulted in a [*] in any calendar year which (i) ▇▇▇▇▇▇▇▇ reasonably believes are unreasonable determinations of Cause on the part of NGS, and (ii) have caused ▇▇▇▇▇▇▇▇ material expense or loss of revenue, then ▇▇▇▇▇▇▇▇ may provide written Notice to NGS specifying its allegations. The parties shall attempt in good faith to resolve the issues specified but, if no written evidence of resolution has been signed by both parties within [*] after service of such Notice, then ▇▇▇▇▇▇▇▇ shall have the right to terminate the Agreement by written Notice served upon NGS within [*] after the next succeeding [*] by NGS within the same calendar year of any ▇▇▇▇▇▇▇▇ submission which meet the criteria established in (i) and (ii) above. If ▇▇▇▇▇▇▇▇ fails to exercise the foregoing termination right, then it shall expire, and any subsequent termination by ▇▇▇▇▇▇▇▇ under this Section (c) may be based only on meeting the above standard for [*]occurring thereafter.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(d) Termination Upon Thirty Days Notice. Should ▇▇▇▇▇▇▇▇ or NGS commit a material breach of any of the terms, conditions or obligations of this Agreement, other than as specified in foregoing Sections (a), (b), and (c), the non-breaching party may terminate this Agreement upon [*] Notice. At the expiration of said [*], the non-breaching party may terminate the Agreement unless: (i) prior to the expiration of said [*]the breach has been cured by the breaching party to the reasonable satisfaction of the non-breaching party; or (ii) the breaching party obtains an extension of the [*] cure period in writing from the non-breaching party, because the breach cannot be cured in [*] and the breaching party has commenced all reasonable efforts to cure said breach. If the breaching party obtains such an extension, the non-breaching party retains the right to terminate the Agreement at the conclusion of the extension period, unless the breach has been cured to the satisfaction of the non-breaching party.
(e) Termination for Failure to Achieve Growth Target. If, in any [*], ▇▇▇▇▇▇▇▇ Expeditions’ Net Revenue growth is [*], NGS or ▇▇▇▇▇▇▇▇ has the right to terminate this agreement by providing [*] advance Notice of intent to terminate within [*] after NGS’ receipt of [*] results.
(f) Termination of Related Agreement. If either party terminates the Tour Operator Agreement, such termination shall act as an effective termination of this Agreement.
23. RIGHTS AND DUTIES AFTER TERMINATION OR EXPIRATION.
(a) Effective Date of Termination. The parties mutually acknowledge that termination of this Agreement prior to its scheduled expiration may cause substantial unbudgeted expense, potentially material loss of revenue, and possible public relations difficulty for one or both parties. It is therefore the intention of both parties that unless it is reasonably deemed necessary to avoid future damage to the terminating party (which may include damage to its goodwill and reputation) or unless NGS terminates pursuant to Sections (i) or (iii) of [*] Termination by NGS in TERMINATION, above, the process of termination by Notice shall be allowed to occur over a period sufficient to allow for mitigation of these forms of injury. Any Notice of termination of this Agreement shall specify an effective date of the termination, which date shall be on or after the operative date of termination. The date on which a party gives Notice of termination for any reason stated in TERMINATION, above, is referred to in this Section as the “Notice Date”; the effective date of termination specified in the Notice of termination is referred to in this Section as the “Effective Date of Termination.”
(b) Use of Licensed Property. Following the Notice Date, ▇▇▇▇▇▇▇▇ shall only be permitted to use the Licensed Property specifically in connection with any ▇▇▇▇▇▇▇▇ Trips with a departure date prior to the Effective Date of Termination. With respect to compliance that involves physical modification or legal action (for example, changing the name of the NGS Ship, to the extent Licensed Property must be physically and legally removed), ▇▇▇▇▇▇▇▇ agrees to begin preparations immediately upon the Notice Date, with an eye to compliance as of the Effective Date of Termination, and to prosecute diligently and complete the process as soon as practicable, but in no event later than [*] after the Notice Date or on the Effective Date of Termination, whichever occurs later.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(c) Disposition of Materials. Promptly after the Effective Date of Termination or the expiration of this Agreement, ▇▇▇▇▇▇▇▇ shall return to NGS any and all materials furnished hereunder to ▇▇▇▇▇▇▇▇ by NGS, and shall promptly dispose of, by delivery to NGS or by destruction, at NGS’ option, and [*] to NGS, all advertising, promotional matter and other written materials bearing the Licensed Property which are then in its possession or subject to its control (other than ▇▇▇▇▇▇▇▇’▇ own file copies).
(d) Publicity. The parties agree to work together to develop means of communicating the termination of the Agreement to future Participants of ▇▇▇▇▇▇▇▇ Trips departing after the Effective Date of Termination, and to the public in general as deemed appropriate, in a manner that is factual and that is designed to avoid, where possible, damage to either party’s reputation and goodwill. All such communications shall be subject to mutual approval. For all ▇▇▇▇▇▇▇▇ Trips that depart after the Effective Date of Termination that were promoted using Licensed Property prior to the Notice Date, ▇▇▇▇▇▇▇▇ shall include a notification, to be approved in advance by NGS, in the pre-trip materials that the ▇▇▇▇▇▇▇▇ Trip is no longer associated with NGS. ▇▇▇▇▇▇▇▇ agrees to provide, in its terms and conditions of passage for all ▇▇▇▇▇▇▇▇ Trips promoted using Licensed Property, that termination of the Agreement shall not constitute grounds for refunds or cancellation by Participants.
(e) Royalties. The Royalties provided for herein shall continue to apply to all departures through the Effective Date of Termination or expiration of the Agreement, but shall not apply to later departures except in the event that ▇▇▇▇▇▇▇▇ terminates in accordance with the Section headed Growth in TERMINATION, Termination by NGS Upon Notice to ▇▇▇▇▇▇▇▇ above or except in the event that NGS terminates in accordance with Section Default in Payments in TERMINATION, [*] Termination by NGS above, in which case Royalties will be due to NGS for any Participants who booked on or before the Notice Date on ▇▇▇▇▇▇▇▇ Trips departing after the Effective Date of Termination.
(f) Additional Obligations of ▇▇▇▇▇▇▇▇. In addition to the foregoing:
(i) ▇▇▇▇▇▇▇▇ shall deliver to NGS the entire contents of any database that NGS has provided ▇▇▇▇▇▇▇▇ within [*] of the Effective Date of Termination or expiration of the Agreement;
(ii) ▇▇▇▇▇▇▇▇ shall cancel all NGS Experts on ▇▇▇▇▇▇▇▇ Trips departing after the Effective Date of Termination;
(iii) All rights and licenses herein granted to ▇▇▇▇▇▇▇▇ shall cease and revert to NGS as of the Effective Date of Termination or expiration of the Agreement; and, ▇▇▇▇▇▇▇▇ will only have the right to use the Licensed Marks after the Notice Date to specifically promote any ▇▇▇▇▇▇▇▇ Trips which commence prior to the Effective Date of Termination;
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(iv) ▇▇▇▇▇▇▇▇ hereby warrants that it shall not use the Licensed Property in any manner which may, in NGS’ reasonable judgment, be inconsistent with NGS’ public image or which may in any way disparage or adversely affect NGS or its reputation, nor shall ▇▇▇▇▇▇▇▇, or any of its agents or employees, take any actions or conduct the operation of ▇▇▇▇▇▇▇▇’▇ business as it relates to the ▇▇▇▇▇▇▇▇ Trips in any manner which may, in NGS’ reasonable judgment, be inconsistent with NGS’ public image or which may disparage NGS or its reputation; and
(v) ▇▇▇▇▇▇▇▇ shall promptly deliver all Artwork and confidential information provided to ▇▇▇▇▇▇▇▇ by or on behalf of NGS, and materials in any form to which NGS has ownership rights pursuant to this Agreement.
24. MISCELLANEOUS.
(a) Relationship. This Agreement (and all its provisions) is a license only, and does not constitute a franchise. The parties intend and acknowledge that their relationship created by this Agreement or otherwise is not subject to the franchise or other business opportunity laws of any country or state and sub-division thereof. This Agreement shall not create nor be considered as constituting a partnership, employer-employee relationship, joint venture, or agency. Neither the parties hereto nor any of their employees, representatives or agents shall have the power or authority to bind or obligate any other party, except as explicitly set forth in this Agreement.
(b) Assignment. Without the prior written consent of the other party, which may be withheld for any reason or no reason, neither party may directly or indirectly assign, transfer, sublicense or encumber any of its rights or obligations under this Agreement. For purposes of this Agreement, an assignment of this Agreement will include, without limitation, the following: (i) a transfer or conveyance of the beneficial ownership or control of fifty percent (50%) or more of ▇▇▇▇▇▇▇▇’▇ controlling stock; or (ii) the sale or transfer of all or substantially all of a party’s assets. If either party attempts to assign, transfer, sublicense or otherwise encumber any portion of this Agreement without the other’s prior written consent, such attempted grant, assignment, transfer, sublicense or encumbrance shall be null and void and the non-transferring party shall have the right to terminate this Agreement immediately by providing Notice to the other party.
(c) Force Majeure. Neither NGS nor ▇▇▇▇▇▇▇▇ shall have any liability to the other for failure to perform or delay in performance of any obligations under this Agreement or for any loss or damage due to delay, cancellation, or disruption caused in any manner by the laws, regulations, acts or failure to act, demands, orders, or interpositions of any government or any subdivision or agent thereof, or by acts of God, strikes, fire, flood, war, rebellion, terrorism, insurrection, sickness, quarantine, epidemics, theft, or any other cause(s) beyond the reasonable control of either party whether similar or dissimilar to the foregoing (an “Event of Force Majeure”); provided, however, that in no event shall ▇▇▇▇▇▇▇▇ be excused from its payment obligations to NGS, regardless of any Event of Force Majeure.
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(d) Confidentiality.
(i) Confidentiality of Agreement. Each party agrees to keep the terms and conditions of this Agreement confidential, and will not disclose such terms and conditions to any third party.
(ii) Confidential Information of the Other Party. Each party agrees to maintain in confidence, and neither to disclose to any third party nor to use for any purpose except those covered by this Agreement, all information relating to the other party’s (or its affiliates’) schedules, creations, business plans, costs, names, marketing plans, licensing plans, research or other information relating to the planning, production, licensing or distribution of the other party’s products or services, and other information disclosed in the course of performance of this Agreement of a nature which a reasonable person would consider confidential.
(iii) Exceptions. Notwithstanding the foregoing, a party (“receiving party”) may make disclosure (A) if the prior written consent of the other party (“disclosing party”) has been obtained; (B) on a need-to-know basis to its own attorneys, accountants, consultants and agents who are aware of the terms of this Section headed Confidentiality; (C) as may be required by applicable law or ordered by a court of competent jurisdiction, after giving the disclosing party notice and allowing such party to assist in resisting or limiting such disclosure; (D) as may be necessary in order to protect the receiving party’s rights hereunder; (E) to the extent such information is already in the public domain other than due to a breach by the receiving party; or (F) to the extent the receiving party can establish that it knew such information prior to disclosure by the disclosing party, received such information from a third party not known to owe a duty of confidentiality to the disclosing party, or independently developed such information.
(e) Modifications of Agreement; Remedies. No waiver or modification of the terms of this Agreement shall be valid unless in writing, signed by both parties. Except as otherwise explicitly stated herein, failure by either party to enforce any rights under this Agreement shall not be construed as a waiver of such rights, and a waiver by either party of a default in one or more instances shall not be construed as a continuing waiver or as a waiver in other instances.
(f) Invalidity of Separable Provisions. If any term or provision of this Agreement is for any reason held by arbitrator(s) or order of a court of competent jurisdiction to be invalid, such invalidity shall not affect any other term or provision, and this agreement shall be interpreted as if such term or provision had never been contained in this Agreement; provided, however, that (i) where the provisions of any law causing such invalidity may be waived, they are hereby waived by the parties to the full extent permitted by law, and (ii) where the result of such invalidation would be effectively to deprive either party of a substantial portion of the consideration to be received by such party hereunder, the parties agree to use commercially reasonable efforts to negotiate a valid amendment to this Agreement that would restore the parties to the economic positions occupied under the original Agreement, failing which, after thirty (30) days, the party prejudiced by such invalidation may terminate the Agreement by written notice to the other.
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(g) Survival. Notwithstanding any other provision of this Agreement, the rights and obligations under Sections TERMS OF PAYMENT, REPORTS AND RECORDS, PROTECTION OF LICENSED PROPERTY, INSURANCE OBLIGATIONS, COMPLIANCE WITH LAWS AND REGULATIONS, WARRANTIES; INDEMNIFICATIONS; LIMITATIONS ON LIABILITY, RIGHTS AND DUTIES AFTER TERMINATION OR EXPIRATION, MISCELLANEOUS shall survive the expiration or termination of this Agreement.
(h) Governing Law. This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the District of Columbia, regardless of the place or places of its physical execution and performance, and without regard to the conflict of law rules thereof. For purposes of judicial resolution, NGS and ▇▇▇▇▇▇▇▇ each hereby irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the District of Columbia and further hereby expressly waive any objections to the venue of said courts and the service of process and other legal documents and pleadings by any method approved by said courts.
(i) Dispute Resolution. Each party hereby agrees to attempt to settle any dispute relating to this agreement through non-binding mediation at a mutually agreeable location in the District of Columbia within thirty days or as promptly as possible following notice of the existence of such a dispute from one party to the other. In the event that good faith efforts to mediate do not resolve such dispute, the parties agree to submit such dispute to binding arbitration under the rules of the American Arbitration Association governing the resolution of commercial disputes at a mutually agreeable location in the District of Columbia. The result of such arbitration shall be binding and enforceable in a court of competent jurisdiction. The parties may apply at any time to any state or federal court located within the District of Columbia for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator(s).
(j) Costs, Expenses, and Attorneys’ Fees. In any action, including alternative dispute actions, by either party to collect any amount due under this Agreement or to collect damages caused by any breach of this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including without limitation, reasonable attorneys’ fees.
(k) Counterpart Execution; Facsimile Execution. This Agreement may be executed in any number of counterparts with the same effect as if all of the parties had signed the same document. In place of the transmittal of original documents, and where permitted by applicable law, such executions may be transmitted to the other parties by facsimile, portable document format (pdf) or similar electronic image-based format (collectively, “Facsimile”) and such Facsimile execution shall have the full force and effect of an original signature. All fully executed counterparts, whether original executions or Facsimile executions or a combination, shall be construed together and shall constitute one and the same agreement.
(l) Headings. The paragraph and section headings of this Agreement are inserted only for convenience and shall not be construed as a part of this Agreement.
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(m) Entire Understanding. This Agreement contains the entire understanding of the parties with respect to its subject matter, and, for ▇▇▇▇▇▇▇▇ Trips departing on or after January 1, 2008, supersedes all prior agreements, understandings, representations, communications and proposals, oral or written, relating to the subject matter hereof.
25. EXHIBITS.
The following Exhibits are attached to and incorporated into this Agreement:
| (a) | Exhibit A. |
NGE promotional Calendar
|
| (b) | Exhibit ▇. |
▇▇▇▇▇▇▇▇ Discount Programs Currently In Place Beyond The General Discount Programs Offered In The Brochures
|
| (c) | Exhibit C. |
NGS and ▇▇▇▇▇▇▇▇ Mission Statement and Co-Branding
|
| (d) | Exhibit D. |
Lifelong Explorer Operations
|
| (e) | Exhibit ▇. |
▇▇▇▇▇▇▇▇ / NGS Fund Agreement
|
| NATIONAL GEOGRAPHIC SOCIETY | ▇▇▇▇▇▇▇▇ EXPEDITIONS, INC. | |||
| By: | By: | |||
| Authorized Representative | Authorized Representative | |||
| Print Name: | Print Name: | |||
| Title: | Title: | |||
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EXHIBIT A
Product Development / Marketing Timeline
NGE and ▇▇▇▇▇▇▇▇ agree to cooperate to meet the following schedule in order to complete NGE marketing materials accurately and on time. This schedule may be amended by mutual agreement.
May Catalog
Promoting departures from September current year – May following year
Projected in home date of early May
| 1. | September– Conference call to discuss preliminary plans for ship locations, desired itineraries, trip length, new vs. repeat trips, NG enhancement opportunities, and customer preferences. |
| 2. | October– Itineraries with day-to-day overviews and dates submitted to NGS. |
| 3. | November– NGE decides which itineraries will be featured in its catalog and NGE/▇▇▇▇▇▇▇▇ determine which departures to assign NG Experts. |
| 4. | December– NGE and ▇▇▇▇▇▇▇▇ identify NG Elements to be incorporated into itineraries. |
| 5. | February– Catalog copy as specified in Section 5.2 of the Tour Operator Agreement to be provided by ▇▇▇▇▇▇▇▇. |
July Catalog
Promoting departures from January – December following year (plus early season Antarctica)
Projected in home date of mid-July
| 1. | Mid-November– Conference call to discuss preliminary plans for ship locations, desired itineraries, trip length, new vs. repeat trips, NG enhancement opportunities and customer preferences. |
| 2. | Mid-December– Itineraries with day-to-day overviews and dates submitted to NGS. |
| 3. | Mid-January– NGE decides which itineraries will be featured in its catalog and NGE/▇▇▇▇▇▇▇▇ determine which departures to assign NG Experts. |
| 4. | Mid-February– NGE and ▇▇▇▇▇▇▇▇ identify NG Elements to be incorporated into itineraries. |
| 5. | Early April– Catalog copy as specified in Section 5.2 of the Tour Operator Agreement to be provided by ▇▇▇▇▇▇▇▇. |
January Catalog
Promoting departures from April – January of the following year
Projected in home date of early January
| 1. | Early June– Conference call to discuss preliminary plans for ship locations, desired itineraries, trip length, new vs. repeat trips, NG enhancement opportunities and customer preferences. |
| 2. | Early July– Itineraries with day-to-day overviews and dates submitted to NGS. |
| 3. | Early August– NGE decides which itineraries will be featured in its catalog and NGE/▇▇▇▇▇▇▇▇ determine which departures to assign NG Experts. |
| 4. | Mid-August– NGE and ▇▇▇▇▇▇▇▇ identify NG Elements to be incorporated into itineraries. |
| 5. | Mid-September– Catalog copy as specified in Section 5.2 of the Tour Operator Agreement to be provided by ▇▇▇▇▇▇▇▇. |
All future catalogs will follow a similar repeating pattern.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Exhibit B
▇▇▇▇▇▇▇▇ Discount Programs Currently In
Place Beyond
The General Discount Programs Offered In The Brochures
1. Friends for Life Discounts. This is a [*] discount given to [*] Friends for Life Members (“FFL Members”). These people became FFL Members by traveling between November, 2001 and April, 2002 after September 11th. ▇▇▇▇▇▇▇▇ ran a promotion asking people to travel during these difficult times promising FFL Members discounts in the future if they traveled with us during that time period.
2. Friends for Life Enrollees Travel Credits and Discounts. In 2003, ▇▇▇▇▇▇▇▇ offered the FFL Members a further discount program if they advanced ▇▇▇▇▇▇▇▇ certain funds. Depending on the amount FFL Members advanced to ▇▇▇▇▇▇▇▇, FFL Members would receive different levels of future travel credits and discounts, [*] FFL Members enrolled in the program at various levels.
The levels of enrollment were as follows.
| Ø | Enroll at a [*] Level. Enrollee receives up to [*] a year free travel [*] on any of the ▇▇▇▇▇▇▇▇ Trips. For any amounts beyond [*], Enrollee receives a [*] reduction. |
| Ø | Enroll at a [*] Level. Enrollee receives up to [*] a year free travel [*] on any of the ▇▇▇▇▇▇▇▇ Trips. For any amounts beyond [*], Enrollee receives a [*] reduction. |
| Ø | Enroll at a [*] Level. Enrollee receives up to [*] a year free travel [*] on any of the ▇▇▇▇▇▇▇▇ Trips. For any amounts beyond [*], Enrollee receives a [*] reduction. |
| Ø | Enroll at a [*] Level. Enrollee receives up to [*]a year free travel [*] on any of the ▇▇▇▇▇▇▇▇ Trips. For any amounts beyond [*], Enrollee receives a [*] reduction. |
▇▇▇▇▇▇▇▇ books these annual travel credits and the additional discounts as discounts off the cost of the ▇▇▇▇▇▇▇▇ Trips.
3. Participation Certificate Discounts. In 2002, ▇▇▇▇▇▇▇▇ sold [*] Participation Certificate notes (“Notes”) in amounts between [*] and [*] to past travelers of ▇▇▇▇▇▇▇▇. Each Note had a term of [*] years with [*] amortization and paid interest of [*]: [*] in cash and [*] in travel credits on the ▇▇▇▇▇▇▇▇ Trips. ▇▇▇▇▇▇▇▇ books the travel credits from the Notes as discounts off the cost of the ▇▇▇▇▇▇▇▇ Trips. ▇▇▇▇▇▇▇▇ has extended the Notes through December 31, 2009.
4. Friends and Family. When ▇▇▇▇▇▇▇▇ has a bookings shortfall on certain imminent, departures for ▇▇▇▇▇▇▇▇ Trips, in order to add more revenue to a ▇▇▇▇▇▇▇▇ Trip, ▇▇▇▇▇▇▇▇ will often offer a “Friends and Family” promotion. ▇▇▇▇▇▇▇▇ makes the offer to a specific “Friends and Family,” list, and the “Friends and Family” offer is unavailable to the general public. The Friends and Family promotion usually consists of a special rate on it or a significant discount. ▇▇▇▇▇▇▇▇ books the Friends and Family promotion as a discount off the cost of the ▇▇▇▇▇▇▇▇ Trips to which it applies.
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EXHIBIT C
NGS and ▇▇▇▇▇▇▇▇ Mission Statement and Co-Branding
▇▇▇▇▇▇▇▇ Expeditions and National Geographic have joined forces to inspire people to explore and care about the planet through expedition Travel. Our collaboration in exploration, research, technology and conservation provides extraordinary travel experiences and disseminates geographic knowledge around the globe.
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Exhibit D
Lifelong Explorer (LLE) Enrollments
Enrollment Criteria
NGE’s Lifelong Explorer Program (“Program”) enables guests to become eligible for discounts and other benefits upon the completion of their third NGE trip.
Below is a more detailed list of criteria for eligibility in the program:
NGE 3x:
Any guest who travels 3x with NGE is automatically enrolled in the Program.
Any combination of 3x ▇▇▇▇▇▇▇▇ and NGE programs:
Guests who have traveled three times on any ▇▇▇▇▇▇▇▇ Trips, including at least one time as a ▇▇▇▇▇▇▇▇/NGE Trip Participant, will be eligible for membership in the Program.
3x ▇▇▇▇▇▇▇▇ only when booking a non-NGE/▇▇▇▇▇▇▇▇ Trip:
Once ▇▇▇▇▇▇▇▇ confirms that they have traveled with ▇▇▇▇▇▇▇▇ at least 3 times, NGE will honor the discount on the Program and will enroll the guest in NGE’s Program.
3x ▇▇▇▇▇▇▇▇ only when booking a ▇▇▇▇▇▇▇▇ Trip:
▇▇▇▇▇▇▇▇ will provide the equivalent discount to the Participant and enroll that individual in the ▇▇▇▇▇▇▇▇ loyalty program.
If a guest who has traveled on a ▇▇▇▇▇▇▇▇ Trip three or more times took his or her first ▇▇▇▇▇▇▇▇ Trip as part of either a charter or a group and has never traveled as a ▇▇▇▇▇▇▇▇/NGE Trip Participant, that guest will be ineligible for membership in the LLE program.
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As ▇▇▇▇▇▇▇▇ and NGE share no data across the organizations, the only way to handle these circumstances is through direct communication. Understanding the details of past guest travel history, issued credits and donations to the ▇▇▇▇▇▇▇▇/NG Fund will require research by and sharing of research results between ▇▇▇▇▇▇▇▇ and NGE.
The standard process will be for a NGE-identified representative to speak directly with a ▇▇▇▇▇▇▇▇-identified representative to investigate credit usage requests or understanding guest travel history to qualify travelers for NGE’s LLE program.
NGS Fee
The process for handling LLE discounts is outlined in Section Obligations of ▇▇▇▇▇▇▇▇, sub-Section Incentives 5.17 of the Tour Operator Agreement.
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[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
Exhibit E
▇▇▇▇▇▇▇▇ NGS Fund Agreement
AGREEMENT
This Agreement is entered into by National Geographic Society (“NGS”) and ▇▇▇▇▇▇▇▇ Expeditions, Inc. (“LEX”) as of __________ ___, 2007 (the “Effective Date”).
THE PARTIES hereby agree:
| 1. | Plan for Expansion and Administration of Fund |
NGS has established the ▇▇▇▇▇▇▇▇/NGS Fund for Conservation, Research and Exploration (the “Fund”) as set forth in the Alliance and License Agreement between NGS and LEX dated as of October 3, 2006 (“License Agreement”). By this agreement, the parties agree to expand the sources of funding for the Fund. The Fund will be derived primarily from two sources: (a) the Designated Royalty identified in the License Agreement; and (b) donations from Participants on ▇▇▇▇▇▇▇▇ Trips (as such terms are defined in the License Agreement). Upon mutual agreement of the parties, NGS may also accept contributions or matching funds from third party organizations for the Fund. As further described in this Agreement, the parties agree to apply the Fund toward grant-making activities, the purpose of which is to support conservation, education and sustainable development projects. As of the Effective Date, [*] has been released from the Fund to support grants for such purposes; after the Effective Date, all grants from the Fund will be awarded through an advisory board as outlined in Section 2.
The Term of this Agreement shall be co-terminus with the License Agreement and any extension or renewal of the License Agreement. Upon expiration or termination of the License Agreement, this Agreement shall terminate except that the Board shall continue to operate, and NGS shall continue to administer funds, until the Fund has been fully expended.
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| 2. | Grant-Making |
NGS and LEX jointly agree to establish an advisory board to the Fund committed to the cause of environmental and cultural stewardship. This advisory board (the “Board”) shall consist of five (5) members and shall include ▇▇▇▇ ▇▇▇▇▇▇▇▇. To accomplish the purposes of the Fund, the Board shall prepare a plan of action for the Fund, identify and or call for grant proposals, and determine final grant recommendations at least once annually. Final recommendations from the Board will be presented to the Executive VP of Missions of NGS for her review and approval.
| 2.1 | The structure of the Board will be as follows: |
| a. | The President of LEX shall be a Board member and appoint one additional Board member. The President of LEX, Sven-▇▇▇▇ ▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇▇”), will also be the founding Chairman of the Board. |
| b. | The Executive VP of Mission Programs of NGS shall appoint two Board members. |
| c. | The filth Board member shall be jointly appointed by the President of LEX and the Executive VP of Mission Programs of NGS. |
| d. | Each Board member other than the President of LEX and the Executive VP of Mission Programs of NGS shall serve for a term of two years and may be reappointed by the President of LEX and the Executive VP of Mission Programs of NGS, respectively, or in the case of the fifth Board member by joint approval of the President of LEX and the Executive VP of Mission Programs of NGS to additional terms. |
| e. | The party who appoints a Board member may remove that member at any time, with or without cause. |
| f. | The procedures outlined in this Section 2 shall supersede the project review process identified in Section 15(c) of the License Agreement. |
| 2.2 | Similar to all such grant programs operated by NGS, the administration of, and expenditures from, the Fund are subject to review by NGS’s Board of Trustees. |
| 2.3 | The Board shall from time to time adopt policies and procedures concerning meetings, voting, and actions taken by the Board. |
| 3. | Contributions |
| 3.1 | LEX, in collaboration with NGS, shall plan and conduct fundraising efforts aboard each of its expedition ships to collect contributions for the Fund. All fundraising activities aboard the ships will be directed to the Fund, and contributions solicited by LEX shall be remitted directly to NGS. NGS shall review and approve, in advance and in writing, the form of all solicitations for the Fund. The parties will establish a mutually agreeable process for transferring the contributions to the Fund. |
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| 3.2 | Third party contributions to the Fund received by NGS shall be restricted subject to the content of the third party solicitations. It is the intention of the parties that funds solicited from third parties will not be subject to permanent restrictions on expenditure. |
| 3.3 | Under the License Agreement, NGS agreed to designate to the Fund 10% or the royalties paid by LEX under that agreement (the “Designated Royalty”). NGS agrees that the effective date of the Designated Royalties will be for royalties earned beginning January 1, 2006. The Designated Royalty shall be used for grants issued by the Fund, as well as administrative expenses associated with administering the Fund. |
| 4. | Reporting |
| 4.1 | NGS shall report annually to LEX listing the names of the Fund grant recipients and the amount and purpose of awards and other expenditures made through the Fund. |
| 4.2 | NGS shall report quarterly to LEX the contributions to the Fund. |
| 5. | Administration. |
NGS will be responsible for managing and administering the Fund, including compliance with all repotting requirements.
| 6. | Solicitation of Donors. |
NGS will maintain n list of Participants on ▇▇▇▇▇▇▇▇ Trips who become donors to the Fund (the “Fund List”). NGS agrees that is will not use the Fund List to solicit additional donations to NGS or its programs; provided that (a) NGS may use any other list (including its own database), which may contain names that are also on the Fund List, to solicit donations, and (b) if a donor from the Fund List becomes a Grosvenor Council member by virtue of the size of his or her donation, NGS may send any communications that accompany Grosvenor Council membership, however NGS will not actively solicit an additional donation until one year after the initial donation, when NGS may contact that donor to offer continued Grosvenor Council membership.
| 7. | Governing Law. |
This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the District of Columbia, regardless of the place or places of its physical execution and performance, and without regard to the conflict of law rules thereof. For purposes of judicial resolution, NGS and LEX each hereby irrevocably consent to the exclusive jurisdiction of the state and federal courts located in the District of Columbia and further hereby expressly waive any objections to the venue of said courts and the service of process and other legal documents and pleadings by any method approved by said courts.
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| 8. | Dispute Resolution. |
Each party hereby agrees to attempt to settle any dispute relating to this agreement through non-binding mediation at a mutually agreeable location in the District of Columbia within thirty days or as promptly as possible following notice of the existence of such a dispute from one party to the other. In the ▇▇▇▇▇ that good faith efforts to mediate do not resolve such dispute, the parties agree to submit such dispute to binding arbitration under the rules of the American Arbitration Association governing the resolution of commercial disputes at a mutually agreeable location in the District of Columbia. The result of such arbitration shall be binding and enforceable in a court of competent jurisdiction. The parties may apply at any time to any state or federal court located within the District of Columbia for a temporary restraining order, injunction or other interim or conservatory relief, as necessary, without breach of this arbitration agreement and without any abridgment of the powers of the arbitrator(s).
THE PARTIES have executed this Agreement as of the date written above.
| ▇▇▇▇▇▇▇▇ Expeditions, Inc. | National Geographic Society | |||
| By: | By: | |||
| Name: | Sven-▇▇▇▇ ▇▇▇▇▇▇▇▇ | Name: | ▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Title: | President | Title: | Executive Vice President Mission Programs | |
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