MARKETING & SERVICES AGREEMENT
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THIS MARKETING & SERVICES AGREEMENT ("Agreement") is made and entered
into as of July 19, 1999 ("Effective Date") by and among United Air Lines, Inc.
("UA"), a Delaware corporation with offices located at 1200 E. Algonquin Road,
Elk Grove, Illinois 60007, Buy.com, Inc. ("Buy.com"), a Delaware corporation
with offices located at 21 Brookline, Aliso Viejo, California 92656, and
BuyTravel.com LLC ("BuyTravel.com"), a Delaware limited liability company with
offices located at Aliso Viejo, California 92656 (UA, Buy.com and Buy Travel.com
collectively, the "Parties").
WHEREAS, UA and Buy.com are creating BuyTravel.com for the purpose of
marketing and selling airline tickets and other travel and travel-related
products and services over the World Wide Web;
WHEREAS, UA and Buy.com agree that each of them shall undertake
certain advertising and other marketing activities on behalf of BuyTravel.com,
as well as provide or make available to BuyTravel.com certain services and
functionality;
NOW THEREFORE, in consideration of the mutual and dependent promises
hereinafter set forth, the Parties, intending to be legally bound, hereby agree
as follows:
1. DEFINITIONS AND RULES OF INTERPRETATION.
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1. "Affiliate" means with respect to any Party: (i) any individual,
partnership, corporation trust, limited liability company or other
entity (a "Person") directly or indirectly controlling, controlled by
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or under common control with such Party; (ii) any Person owning or
controlling outstanding securities representing 15% or more of the
voting power with respect to matters generally voted upon by
shareholders of such Party; (iii) any officer, director, manager,
trustee or general partner of such Party; or (iv) any Person who is
an officer, director, manager, trustee or general partner or holder of
5% or more of the voting securities of any Person described in clauses
(i) through (ii).
2. "Buy.com Related Entities" means Related Entities of Buy.com.
3. "Buy.com Service" means an electronic commerce retail shopping service
provided by Buy.com through its Web site. As of the Effective Date,
such services include the following "stores": "BUYCOMP.COM,"
"BUYSOFT.COM,""BUYGAMES.COM," "BUYMUSIC.COM," "BUYSURPLUS.COM" and
"BUYBOOKS.COM."
4. "BuyTravel.com Data" means any and all data, information and content
(but not the look, feel or presentation) of such content, in whatever
media type or form, provided to, or generated or obtained by,
BuyTravel.com, or on its behalf by either Party or any other entity.
BuyTravel.com Data does not include Travel Vendor Data, but does
include Site Customer Data.
5. "Closing" means the closing of the formation of BuyTravel.com and the
execution and delivery of this Agreement, and the Operating Agreement
for BuyTravel.com.
6. "Customer Service Support" means customer service support related
directly to travel reservations, including such support for product or
service inquiries, bookings and ticketing of travel services. Such
Customer Service Support may be provided by toll-free telephone
support, e-mail or other commercially reasonable means.
7. "Damages" means all losses, awards, causes of action, claims,
obligations, demands, assessments, fines and penalties (civil or
criminal), liabilities, expenses and costs (including litigation costs
and reasonable attorneys' fees), bodily or other personal injuries,
damage to tangible property, and any other damages, of any kind or
nature actually suffered by an entity.
8. "Intellectual Property" means all patents and patent applications;
trademarks, service marks, and trademark or service mark registrations
and applications, trade names, Internet domain names, logos, designs,
slogans, and general intangibles of like nature, together with all
goodwill related to the foregoing; copyrights, copyright
registrations, renewals and applications for copyrights; software,
technology, trade secrets and other confidential information, know-
how, proprietary processes, formulae, algorithms, models and
methodologies, rights of privacy and publicity, and license agreements
relating to any of the foregoing.
9. "Related Entities" means, with respect to any entity, that entity's
Affiliates, and that entity and its Affiliates' respective directors,
officers, employees and agents.
10. "Site Customer Data" means any and all data, information and content
(but not the look, feel or presentation of such content) concerning
any customers, potential customers or Web site visitors of
BuyTravel.com, including any and all information relating to
customers, potential customers or visitors to any Web sites operated
by or on behalf of BuyTravel.com, or users of BuyTravel.com services
through any other channels, such as wireless or other services. Site
Customer Data does not include Travel Vendor Data.
11. "Site URL" means the uniform resource locator(s) for BuyTravel.com,
including "www.buytravel.com."
12. "Travel Vendor" means a provider of travel services, such as an
airline, automobile rental company or hotel chain.
13. "Travel Vendor Business" means a Travel Vendor's products and
services, and its customers' and potential customers' use of that
Travel Vendor's products and services.
14. "Travel Vendor Data" means, with respect to a Travel Vendor, any and
all data, information and content, in whatever media form or type,
relating to its Travel Vendor Business, including all data,
information and content provided to, generated or obtained by, or on
behalf of, BuyTravel.com relating to that Travel Vendor or in
connection with fulfilling BuyTravel.com's obligations that relate to
that Travel Vendor. Such Travel Vendor Data includes information
included in, or relating to, PNRs, SIRs, TCNs, bookings, ticketing,
rates, fares, fare rules, classes of service, seat availability,
inventory, scheduling, travel-related documents (such as boarding
passes, baggage tags, itineraries, receipts and manifests), in-flight
and in-flight status information, seat maps and assignments, and
information relating to or generated under that Travel Vendor's
frequent flier and other programs and services. Travel Vendor Data
also includes any and all data, information and content derived from
or based on any of the foregoing.
15. "UA-Related Entities" means Related Entities of UA.
16. Rules of Interpretation. This Agreement is the result of the Parties'
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negotiations, and no provision of this Agreement shall be construed
for or against either Party because of the authorship of that
provision. As used in this Agreement:
1. Neutral pronouns and any variations thereof shall be deemed
to include the feminine and masculine and all terms used in
the singular shall be deemed to include the plural, and vice
versa, as the context may require;
2. The word "or" has the inclusive meaning "and/or";
3. The words "hereto," "this Agreement" and words of similar
import refer to this Agreement as a whole, including any
attachments to this Agreement, as the same may from time to
time be amended or supplemented and not any subdivision
contained in this Agreement;
4. The words "including" and "such as" when used herein are not
intended to be exclusive and in all cases mean "including
without limitation and such as, by way of example but
without limitation," respectively; and
5. Captions or headings are only for reference and are not to
be considered in interpreting this Agreement.
2. UA-PROVIDED RESOURCES.
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1. Hosting of BuyTravel.com Web Site. UA will be responsible for
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actively working with BuyTravel.com to negotiate a web-site hosting
services agreement between BuyTravel.com and a web-site hosting
services company, which agreement is anticipated to provide for
services and service levels as set forth in Schedule A hereto. In the
event the Board of Managers of BuyTravel.com (the "Board") determines
to discontinue using the services of the chosen hosting services
provider, UA and BuyTravel.com will actively work together in
selecting and negotiating an arrangement with another hosting services
provider.
2. Selection of CRS Service Provider. Notwithstanding any other
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provision of this Agreement, UA shall have sole discretion in the
selection of a CRS service provider, or service providers, to support
BuyTravel.com. UA will select a CSR
provider from the full service CRS list attached as Schedule B hereto
(the "CRS List") and can make any changes to the selection as long as
the successor provider is on the CRS List. If any new CRS providers
emerge, UA may select one of these providers as long as it meets
mutually accepted criteria (i.e., full service, unbiased, display
provider).
3. Customer Service. UA will be responsible for actively working with
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BuyTravel.com to negotiate a customer service agreement between
BuyTravel.com and a customer service provider. In the event the Board
determines to discontinue using the services of the chosen customer
service provider, UA and BuyTravel.com will work together in selecting
and negotiating an agreement with another customer service provider.
4. Fares. UA will throughout the term make available to BuyTravel.com
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all travel fares on UA operated flight segments, including without
limitation standard published fares and E-Fares_, that are generally
available to the public through a CRS or through public Internet
sites.
5. Responsibility for Third Parties. Under no circumstances will UA be
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liable or otherwise responsible for any actions of any third party
service providers to BuyTravel.com, including any Web site hosting
service provider(s), and customer service support providers.
3. BUY.COM PROVIDED RESOURCES.
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1. Marketing, Advertising Sales, & E-Commerce Expertise. Buy.com shall
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provide BuyTravel.com with the following:
1. Marketing support, including access to Buy.com's marketing
professionals, as well as consulting services and access to
any technology or expertise used by or available to Buy.com
for creating, implementing, managing or otherwise supporting
marketing and related activities.
2. Advertising sales support, including for the BuyTravel.com
Web site and any other sites or services operated by or on
behalf of BuyTravel.com, other than advertising sales
support directed at Travel Vendors, which shall be the
responsibility of BuyTravel.com employees. Such support
shall include consulting services and access to any
technology or expertise used by or available to Buy.com for
creating, implementing, managing or otherwise supporting
advertising and related activities.
3. Electronic commerce support, including consulting services
and access to any technology or expertise used by or
available to Buy.com for creating, implementing, managing or
otherwise supporting electronic commerce business processes
and functionality.
2. Credit Card Processing. Buy.com shall provide, or cause to be
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provided, credit card processing functionality to BuyTravel.com, and
all such ancillary functionality and services that are typically
associated with such credit card processing functionality, through
Buy.com's arrangements and relationships with credit card service
providers.
3. BuyTravel.com Storefront Placement & Support.
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1. Buy.com shall provide BuyTravel.com with prominent
storefront space on the Buy.com home page ("BuyTravel.com
Storefront"). The BuyTravel.com Storefront space shall be
(i) no smaller in actual size than the storefront space
afforded any other Buy.com Service, and (ii) no less
prominent than any other Buy.com Service's storefront;
provided, that this determination shall be made over a
rolling six (6) month period as described in the following
sentence. BuyTravel.com and UA acknowledge and agree that
Buy.com shall have the right to maintain the flexibility to
rotate the size, placement and prominence of the various
storefronts in connection with marketing and promotional
activities for the various storefronts so long as
BuyTravel.com receives comparable treatment with respect to
clauses (i) and (ii) above over any rolling six (6) month
period.
2. Buy.com shall make available to BuyTravel.com all
functionality, features, connectivity and services it makes
available to or through any other Buy.com Services, which
are appropriate for BuyTravel.com and for which it is not
prohibited from providing to BuyTravel.com. Buy.com and UA
agree and acknowledge that BuyTravel.com is intended to
present to the BuyTravel.com end user an interface and user
environment with the
same general look, feel, functionality and performance
comparable to the other Buy.com Services.
3. Buy.com agrees that BuyTravel.com shall have control over
the content and organization of the BuyTravel.com
Storefront, except that BuyTravel.com will, subject to
reasonable notice and time to comply, comply with reasonable
requests of Buy.com with respect to the BuyTravel.com
Storefront to the extent such requests relate to maintaining
a consistent "look and feel" to the various storefronts on
the Buy.com home page or to the extent such requests relate
to removing or altering content that violates or allegedly
violates any third party rights or applicable law.
BuyTravel.com shall be responsible for obtaining any
licenses, releases, waivers or other documentation
perfecting the right to use any content placed on or within
the BuyTravel.com Web site, and BuyTravel.com shall be
responsible for confirming the factual accuracy and
compliance with all applicable law with respect to any
content placed on or within the BuyTravel.com Web site.
Buy.com shall obtain, at Buy.com's cost, all right, title
and interest in and to the URL name "BuyTravel.com" and
shall grant a license to BuyTravel.com use such name, and
associated trademarks, pursuant to the terms of Section 11b
below.
4. Consistent with the requirements of sections 3.d(i),
3.d(ii), and 3.d (iii) hereof, and with the consent of
Buy.com, which shall not be unreasonably withheld, Buy.com
shall provide and maintain all links necessary, as
determined by BuyTravel.com, from the Buy.com Web site to
BuyTravel.com, its support infrastructure providers, and
business partner Web sites.
4. EMPLOYEES. Upon mutual agreement of Buy.com and UA, all individuals working
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for BuyTravel.com shall be employees of either Buy.com or UA who are
seconded to BuyTravel.com pursuant to an Employee Secondment Agreement
between the seconding entity and BuyTravel.com in a form and at a
compensation level approved by the Board of Managers of BuyTravel.com.
Neither of Buy.com nor UA will have any liability for any actions or
omissions of employees seconded to BuyTravel.com, and BuyTravel.com shall
indemnify and hold harmless Buy.com and the Buy.com Related Entities, or UA
and the UA Related Entities, as applicable, from and against any and all
Damages arising
from such actions or omissions. BuyTravel.com will only be charged the
costs approved by the Board of Managers of BuyTravel.com.
5. PARTIES' CONTROL OF PROVIDED RESOURCES. Each Party shall have sole control
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over the manner in which it provides the resources and other support it is
obligated to provide to BuyTravel.com under this Agreement, except as
expressly set forth otherwise or as otherwise agreed by the Parties, or a
Party and BuyTravel.com, in writing.
6. BUYTRAVEL.COM ADVERTISING & MARKETING SUPPORT.
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1. UA Advertising Support. UA agrees to incur on behalf of BuyTravel,
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without reimbursement, costs and expenses relating to advertising,
including co-branded advertising, and other marketing support to
BuyTravel.com with a gross value totaling US$18,000,000 over the first
three (3) years after the Effective Date ("UA Advertising
Commitment"). During this three-year period, and in satisfaction of
part of the UA Advertising Commitment, UA will spend at least
$100,000 per month, averaged over six (6) month rolling periods, on
advertising and other marketing expenditures on the Buy.com Web site.
The UA Advertising Commitment may be, but is not required to be, in
incremental, new expenditures on advertising and other marketing
efforts. Such UA Advertising Commitment expenditures may also be in
the form of expenditures on advertising and other marketing efforts
through UA channels (such as advertising in Hemispheres or on UA
ticket envelopes) or through bartering and other arrangements with
third parties, in which case the fair market value of such advertising
or other marketing effort will be credited toward the UA Advertising
Commitment. In all instances, however, such activity must clearly
emphasize BuyTravel.com as a substantial element of such activity to
qualify as part of the UA Advertising Commitment.
2. Buy.com Advertising Support. Buy.com agrees to incur on behalf of
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BuyTravel.com, without reimbursement, costs and expenses related to
co-branded advertising and other marketing support to BuyTravel.com
with a gross value totaling US$18,000,000 over the first three (3)
years after the Effective Date ("Buy.com Advertising Commitment"). The
Buy.com Advertising Commitment may be, but is not required to be, in
the form of incremental, new expenditures on advertising and other
marketing efforts. Such UA Advertising Commitment expenditures may
also be in the form of expenditures on advertising and other marketing
efforts through bartering and other arrangements with third parties,
in
which case the fair market value of such advertising or other
marketing effort will be credited toward the UA Advertising
Commitment. In all instances, however, such activity must clearly
emphasize BuyTravel.com as a substantial element of such activity to
qualify as part of the Buy.com Advertising Commitment.
3. Supplier and BuyTravel.com Relations. UA will use commercially
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reasonable efforts to assist BuyTravel.com in marketing to other
airlines to obtain their participation in providing E-Fares products
through BuyTravel.com and to obtain their advertising and promotional
support of BuyTravel.com. UA will appoint an individual who will have
as a responsibility the pursuit of beneficial business relationships
between BuyTravel.com and Travel Vendors. For a period of not less
than the time from the date of this Agreement until the general market
launch of the BuyTravel.com web site, each of Buy.com and UA will
appoint an individual who will each have as their primary
responsibility the role of primary contact between them and between
each of them and BuyTravel.com to address and support issues related
to BuyTravel.com and to foster support of BuyTravel.com within their
respective organizations.
4. Advertising & Publicity. Neither Party, nor anyone on such Party's
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behalf, shall publish, distribute or otherwise disseminate any press
release, advertising or publicity matter having any reference to the
other Party or to BuyTravel.com, unless and until such matter shall
have first been submitted to and approved in writing by the other
Party.
5. Co-Branded Advertising Criteria. The value to BuyTravel.com of any co-
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branded advertising efforts will be based upon the percentage of the
advertising space or time dedicated to BuyTravel.com multiplied by the
total cost of the advertisement, as determined in accordance with
standard advertising criteria used in co-branded advertising. Both
Parties agree to develop marketing and advertising plans with a
reasonably diverse mix of media consistent with the object of the
marketing or advertising message.
7. RESTRICTIONS & LIMITATION ON THE OTHER ACTIVITIES.
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1. Restriction on Buy.com Activities. Buy.com agrees and acknowledges
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that it shall not, directly or indirectly, provide, or have any
ownership interest in or otherwise support any entity which provides,
any travel services other than BuyTravel.com during the term of this
Agreement; provided, however, that notwithtstanding the foregoing,
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BuyTravel.com may continue existing business relationships with, or
enter into new business relationships with, an entity which, as part
of its business, provides travel services, as long as Buy.com does not
support or participate in any travel services provided by such
entities.
2. Freedom of Action. Notwithstanding any other provision of this
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Agreement, other than as set forth in Sections 6.d or 7.a above, no
provision of this Agreement shall be construed as limiting or
restricting in any way either Party from undertaking or supporting any
other business activity, whether internal Party activity or third
party activity, in pursuit of its business interests and objectives.
By way of example, but without limitation:
1. Neither Party is in any way restricted from advertising,
marketing or otherwise marketing and promoting its products and
services, or those of any other party, even if in competition
with BuyTravel.com, including by entering into linking, framing,
co-branding, co-marketing or other partnering, alliance or joint
venture agreements with any third parties, except as set forth in
Sections 6.d and 7.a of this Agreement;
2. UA shall not be limited or restricted in any way with respect to
the setting of any prices for UA products and services.
8. CHARGES.
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1. Charges to BuyTravel.com. Unless expressly provided otherwise by the
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Parties, all services and materials provided to BuyTravel.com by UA or
Buy.com shall be provided on a fully allocated cost basis. Any
Intellectual Property licensed by either Party to BuyTravel.com shall
be licensed on a no fee, no royalty basis, except for such third party
license fees and other costs payable to third parties in connection
with the use of such Intellectual Property by or for the benefit of
BuyTravel.com.
2. Transaction Fee. BuyTravel.com will charge the Travel Provider or
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travel consumer a transaction fee plus credit card processing fees.
This transaction fee may be scaled based on the amount of the ticket
or the type of fare, such as, by way of example but without
limitation, standard published fares versus Internet-only fares.
9. TRANSPORTATION RELATIONSHIP.
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1. UA as Preferred Airline. Buy.com and BuyTravel.com will enter into a
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transportation agreement within sixty (60) business days of the
Effective Date with UA whereby UA will be the number one preferred
airline of Buy.com and BuyTravel.com for all business travel by their
employees.
2. Buy.com Corporate Incentive Program. UA will review a corporate
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incentive program for use by Buy.com employees for business travel
that is comparable, in terms of the incentive and terms and
conditions, to competitive incentive plans offered by UA to entities
of similar size, market position, and travel expenditures as Buy.com.
3. "Mileage Plus Premier Executive Status". UA will provide "Mileage Plus
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Premier Executive Status" for two Buy.com executives designated by
Buy.com.
10. COMPUTER EQUIPMENT RELATIONSHIP. UA will introduce Buy.com to its
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purchasing department(s) representatives in an effort to include Buy.com as
a potential supplier of computer equipment or other selected products to UA
and its Affiliates in UA's competitive procurement efforts.
11. INTELLECTUAL PROPERTY.
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1. Licensed Intellectual Property. Unless otherwise expressly provided
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herein or otherwise agreed by the Parties, each Party and its
licensors shall retain all right, title and interest, throughout the
world, in and to all Intellectual Property licensed to BuyTravel.com
or used on behalf of BuyTravel.com, and the other Party is granted no
right, title or interest in or to such other Party's Intellectual
Property under this Agreement.
2. License of BuyTravel.com Domain Name and Mark. Buy.com hereby grants
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to BuyTravel.com the exclusive, worldwide, royalty-free
nontransferable right and license, during the term of this Agreement,
to use the "BUYTRAVEL.COM" ("Mark") and the domain name
"buytravel.com" (the "Domain Name"), with rights to sublicense, and
all rights that may arise under (x) all trademark registrations
applications for the Mark throughout the world, including, without
limitation, any U.S. trademark applications for "BUYTRAVEL.COM," and
(y) the domain name registration for the Domain Name. BuyTravel.com
hereby agrees to use reasonable efforts to ensure that the content,
appearance and functionality of the BuyTravel.com Web site will be of
a quality that is substantially consistent with or better than the Web
sites of Buy.com that include "BUY" in the second level domain name,
such as the Web sites BuyMusic.com and BuyBooks.com. Such license
shall terminate at such time as BuyTravel.com is no longer engaged in
the provision of travel services as a going concern.
3. BuyTravel.com Intellectual Property. Unless otherwise expressly
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provided herein or otherwise agreed by the Parties, BuyTravel.com
shall retain all right, title and interest, throughout the world, in
and to all Intellectual Property developed by BuyTravel.com, and
neither UA nor Buy.com will have any right, title or interest in or to
such Intellectual Property developed by BuyTravel.com. Notwithstanding
the foregoing, at such time is BuyTravel.com is dissolved pursuant to
the Operating Agreement or is otherwise no longer engaged in the
provision of travel services as a going concern (the "Dissolution
Date"), each of Buy.com and UA will have joint ownership of any
Intellectual Property developed by BuyTravel.com prior to the
Dissolution Date ("BuyTravel.com Developed IP), and shall have (I) all
rights to exploit such BuyTravel.com Developed IP without rights of
accounting or reporting to the other owning Party, provided that
neither UA nor Buy.com may grant any right, title or interest in or to
any BuyTravel.com Developed IP to a direct competitor of the other
party of that BuyTravel.com Developed IP for a period of twelve (12)
months from the Dissolution Date, and (II) all rights to bring suit
for any infringement, misappropriation or other violation of the
BuyTravel.com Developed IP without the consent or joinder of the other
owning Party, except as may be required by law (in which case the
other owning Party shall provide reasonable cooperation with such
suit).
4. Jointly-Developed Intellectual Property.
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1. Buy.com, BuyTravel.com and UA agree that any Intellectual
Property developed jointly by any or all of the Parties ("Jointly
Developed IP") shall be owned jointly by the Parties that develop
such Jointly Developed IP. In the absence of an express agreement
to the contrary, each Party making a substantial contribution to
the Jointly Developed IP shall have an equal, undivided interest
in and to such Jointly Developed IP. Any Party that does not make
such a contribution to the development of Jointly Developed IP
shall have no right, title or interest whatsoever in or to such
Jointly Developed IP, except as may be expressly agreed to in
writing by the Parties owning the Jointly Developed IP.
2. Except as otherwise provided, each Party owning any Jointly
Developed IP shall have (I) all rights to exploit such Jointly
Developed IP without rights of accounting or reporting to the
other owning Parties, provided that no Party may grant any right,
title or interest in or to any Jointly Developed IP to a direct
competitor of another owning Party of that Jointly Developed IP
for a period of twelve (12) months from the first commercial use
of that Jointly Developed IP, and (II) all rights to bring suit
for any infringement, misappropriation or other violation of the
Jointly Owned IP without the consent or joinder of the other
owning Parties, except as may be required by law (in which case
the other owning Party or Parties shall provide reasonable
cooperation with such suit).
12. DATA RIGHTS.
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1. Travel Vendor Data.
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1. Buy.com and UA agree and acknowledge that, as among Buy.com, UA,
BuyTravel.com and the Travel Vendors of BuyTravel.com, each such
Travel Vendor (including UA, in its capacity as a Travel Vendor)
shall have exclusive ownership, throughout the world, of all
right, title and interest in and to all Travel Vendor Data
related to flight segments flown by, or products and services
provided by, or otherwise directly related to, that Travel
Vendor. Information that is within the scope of the Travel Vendor
Data definition, but which relates to flight segments or products
and services of multiple Travel Vendors, or otherwise relates to
multiple Travel Vendors, shall be jointly owned by such Travel
Vendors.
2. BuyTravel.com shall take all reasonable measures to protect Travel Vendor
Data from access by, or beneficial use for:
(1) any Travel Vendor (including UA, in its capacity as a Travel Vendor)
or its Related Entities, other than by or for each Travel Vendor with
respect to Travel Vendor Data owned by that Travel Vendor, as set
forth in Section 12.a above; and
(2) Buy.com or its Related Entities, such restriction including UA's
Travel Vendor Data.
3. BuyTravel.com shall use Travel Vendor Data solely to provide the travel
services provided through BuyTravel.com, as well as to analyze and enhance
BuyTravel.com's business processes and products and services.
4. To the extent that the provision of any resources or services under this
Agreement requires that Buy.com have access to or make use of any Travel
Vendor Data, Buy.com shall treat such Travel Vendor Data as Confidential
Information and shall use such Travel Vendor Data solely for the purposes
of providing such resources or services Buy.com is required to provide
under this Agreement, shall disclose such Travel Vendor Data only to such
Buy.com employees as have a need to know, and shall not disclose such
Travel Vendor Data to any third party.
5. Except as expressly provided in this Section 12.a or otherwise in this
Agreement, BuyTravel.com shall not disclose any Travel Vendor Data to any
person, including either Party, nor use any Travel Vendor Data for any
purpose.
2. BuyTravel.com Data.
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1. All BuyTravel.com Data (which excludes Travel Vendor Data) will be
jointly owned by Buy.com and UA. To the extent any right, title or
interest in or to any BuyTravel.com Data vests, by operation of law or
otherwise, in (1) either Party such Party shall, and hereby does,
irrevocably assign to the other Party a one-half, undivided interest
in and to any and all such right, title and interest in such
BuyTravel.com Data, or (2) BuyTravel.com, the Parties shall cause
BuyTravel.com to irrevocably assign to each of the Parties a one-half,
undivided interest in and to any and all such right, title and
interest in such BuyTravel.com Data .
2. Each Party and BuyTravel.com may use any such BuyTravel.com Data for
its own business purposes without restriction, except that
(1) In no event shall Buy.com, BuyTravel.com or, with respect solely
to Travel Vendors other than itself, UA, disclose BuyTravel.com
Data to any Travel Vendor or its Related Entities, nor use any
BuyTravel.com Data for the benefit of any Travel Vendor or its
Related Entities;
(2) No party will have a right to provide or otherwise sell
BuyTravel.com Data without mutual consent of UA and Buy.com; and
(3) To the extent either Buy.com or UA uses BuyTravel.com Data to
contact customers of BuyTravel.com, neither Buy.com nor UA, as
applicable, will disclose BuyTravel.com as the source of
BuyTravel.com Data unless required to do so by applicable law.
3. Access to Data.
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1. BuyTravel.com and Buy.com shall provide UA with copies of any Travel
Related Data owned by UA, and copies of any BuyTravel.com Data, that
is in the possession or control of BuyTravel.com or Buy.com, as
applicable, promptly upon reasonable request by UA.
2. BuyTravel.com and UA shall provide Buy.com with copies of
any BuyTravel.com Data, that is in the possession or control
of BuyTravel.com or UA, as applicable, promptly upon
reasonable request by Buy.com.
3. UA shall be entitled to its own Travel Vendor Data
regardless of any breach of this Agreement or any other
agreement between the Parties.
13. TAXES.
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The Parties hereto shall each bear their respective taxes, if any, incurred
in connection with this Agreement.
14. CONFIDENTIALITY.
---------------
1. Definition. "Confidential Information" means: (i) the existence of
----------
this Agreement, and any information regarding the terms and conditions
of this Agreement, (ii) any information relating to BuyTravel.com or
its business, (iii) any information, in whatever form, designated by
the party disclosing the information ("Disclosing Party") in writing
as confidential, proprietary or marked with words of like import when
provided to the party receiving the information ("Receiving Party");
and (iv) any information orally conveyed if the Disclosing Party
states at the time of the oral conveyance or within ten (10) days
thereafter that such information is to be treated as Confidential
Information.
2. Exclusions. Confidential Information shall not include information
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which:
1. at or prior to the time of disclosure by the Disclosing
Party was known to the Receiving Party through lawful means;
2. at or after the time of disclosure by the Disclosing Party
becomes generally available to the public through no act or
omission on the Receiving Party's part;
3. the Receiving Party receives from a third Person who is free
to make such disclosure without breach of any legal
obligation; or
4. is independently developed by the Receiving Party without reference to
the Confidential Information.
3. Confidentiality Obligations. The Receiving Party acknowledges the
---------------------------
confidential and proprietary nature of the Disclosing Party's Confidential
Information and agrees that it shall not discuss, reveal, or disclose the
Disclosing Party's Confidential Information to any person other than the
parties to this Agreement, or use any Confidential Information for any
purpose other than as contemplated hereby, in each case, without the prior
written consent of the Disclosing Party. The Receiving Party agrees to take
reasonable precautions (no less rigorous than the Receiving Party takes
with respect to its own comparable Confidential Information) to prevent
unauthorized or inadvertent disclosure of the Confidential Information of
the Disclosing Party. In the event that a Receiving Party wishes to
disclose Confidential Information to one of its professional advisors, it
may do so only if (a) that professional advisor agrees in writing to abide
by confidentiality obligations substantially as those set forth in this
Section 14, and (b) a copy of such confidentiality agreement is provided to
the other Party before any Confidential Information is disclosed to such
professional advisor. Additionally, a Receiving Party may disclose the
terms of this Agreement to a potential or actual business partner or
acquirer of the Receiving Party's business to which the Agreement relates,
but only if that entity and its professional advisor(s) agree in writing to
abide by confidentiality obligations substantially as those set forth in
this Section 14.
4. Legal Obligations. The Receiving Party may disclose Confidential
-----------------
Information pursuant to any statute, regulation, order, subpoena or
document discovery request, provided that prior written notice of such
disclosure is furnished to the Disclosing Party as soon as practicable in
order to afford the Disclosing Party an opportunity to seek a protective
order or to utilize other available procedures to protect such Confidential
Information (it being agreed that if the Disclosing Party is unable to
obtain or does not seek a protective order or other protection of such
Confidential Information and the Receiving Party is legally compelled to
disclose such information, disclosure of such information may be made
without liability).
5. Return of Information. The Receiving Party shall, upon the written
---------------------
request of the Disclosing Party, during the Term or thereafter, (a)
promptly return all Confidential Information held or used by the Receiving
Party in whatever form, or (b) at
the discretion of the Disclosing Party, promptly destroy all such
Confidential Information, including all copies thereof, and those
portions of all documents that incorporate such Confidential
Information, and certify in writing to the Disclosing Party that such
destruction has taken place.
6. Injunctions. In view of the difficulties of placing a monetary value
-----------
on such Confidential Information, the Disclosing Party may be entitled
to a preliminary and final injunction without the necessity of posting
any bond or undertaking in connection therewith to prevent any further
breach of this Section 14 or further unauthorized use of its
Confidential Information. This remedy is separate and apart from, and
without prejudice to, any other remedy the Disclosing Party may have.
15. NONSOLICITATION. Neither Party shall, during the term of this Agreement
---------------
and for one (1) year thereafter, and whether on behalf of itself or on
behalf of any third party, solicit any employees of the other Party
involved with the negotiation of this Agreement or that Party's performance
hereunder, without the express written consent of the Party that employs
such employee, such consent to be at the employing Party's sole and
absolute discretion. If any such employee should cease to be an employee
of a Party, the other Party may solicit such employee beginning one (1)
year after cessation of such employment. Notwithstanding anything to the
contrary herein, neither Party shall be deemed to have breached or violated
this Section 15 (a) solely as a result of generic employment advertising by
that Party (including any "open position" or similar listings in that
Party's Web site or other general advertising), or (b) if any employee of
the other Party approaches and obtains employment with the other Party
after the date hereof solely as a result of any advertising or recruitment
effort contemplated in clause (a) above.
16. INDEMNIFICATION.
---------------
1. Indemnification by Buy.com. Buy.com shall indemnify, defend and hold
--------------------------
harmless UA and the UA-Related Entities from and against all Damages
arising from or in connection with (a) any misrepresentation or breach
of any representation or warranty of Buy.com under this Agreement; (b)
any breach of any covenant or agreement by Buy.com under this
Agreement; (c) any representation, misrepresentation, warranty,
covenant or agreement Buy.com may make with respect to UA or any of
its products or services to Buy.com Customers or any other entity,
without the express written consent of UA; and (d) all third-party
claims brought against UA arising from or in connection with Buy.com's
performance or non-performance of its obligations under this
Agreement.
2. Indemnification by UA. UA shall indemnify, defend and hold harmless
---------------------
Buy.com and the Buy.com-Related Entities from and against all Damages
arising from or in connection with (a) any misrepresentation or breach
of any representation or warranty of UA under this Agreement; (b) any
breach of any covenant or agreement by UA under this Agreement; (c)
any representation, misrepresentation, warranty, covenant or agreement
UA may make with respect to Buy.com or any of its products or
services, to any other entity, without the express written consent of
Buy.com; and (d) all third-party claims brought against Buy.com
arising from or in connection with UA's performance or non-performance
of its obligations under this Agreement.
3. Limitation on Indemnification. Notwithstanding Sections 16.a and 16.b
-----------------------------
above, no Indemnified Party shall be entitled to indemnification
pursuant to Section 16.a or 16.b to the extent attributable to the
negligence or willful misconduct of such Indemnified Party or its
Related Entities.
4. Indemnification Procedure.
-------------------------
1. A party seeking indemnification (the "Indemnified Party")
shall promptly notify the other party (the "Indemnifying
Party") in writing of any claim for indemnification,
provided, that failure to give such notice shall not relieve the
--------
Indemnifying Party of any liability hereunder (except to the
extent the Indemnifying Party has suffered actual material
prejudice by such failure).
2. The Indemnified Party shall tender sole defense and control of
such claim to the Indemnifying Party. The Indemnified Party
shall, if requested by the Indemnifying Party, give reasonable
assistance to the Indemnifying Party in defense of any claim. The
Indemnifying Party shall reimburse the Indemnified Party for any
reasonable legal expenses directly incurred from providing such
assistance, as such expenses are incurred.
3. The Indemnifying Party shall have the right to consent to the
entry of judgment with respect to, or otherwise settle, an
indemnified claim with the prior written consent of the
Indemnified Party, which consent shall not be unreasonably
withheld; provided, however, that the Indemnified Party may
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withold its consent if any such judgment or settlement imposes
and unreimbursed monetary or continuing non-monetary obligation
on such Party or does not include an unconditional release of
that Party and its Affiliates from all liability in respect of
claims that are the subject matter of the indemnified claim.
17. TERM & TERMINATION.
------------------
1. Mutual Termination Rights. In addition to any other right or remedy
-------------------------
it may have, either UA or Buy.com may terminate this Agreement without
any notice of default or judicial intervention being required, in the
event:
1. proceedings in bankruptcy are instituted by or against the other
party, or the other party terminates its business activities for
any other reason.
2. there is any material breach of, or material failure to comply
with, any of the terms or conditions of this Agreement by the
other party which breach or failure is not remedied within thirty
(30) days after notice of such breach or failure.
3. at any time after the date that is three years from the date
hereof, UA or Buy.com gives the other party ninety (90) days
notice, for any reason or no reason at all.
2. United Termination Right. UA may terminate this Agreement upon twenty
------------------------
(20) days notice at any time within ten (10) days after March 31, 2000
if, prior to such time (A) Buy.com has not consummated (x) an initial
---
public offering of its equity securities underwritten by a nationally
recognized investment bank or (y) a merger or other similar
transaction in which the outstanding shares of Common Stock of Buy.com
are converted into the right to receive either cash or equity
securities of which are traded on a national securities exchange or on
the National Association of Securities Dealers Automated Quotation
System and (B) UA has not exercised, either in whole or in part, that
certain Warrant of even date herewith issued to UA by Buy.com.
3. No Prejudice to Other Rights. Exercise of the right of termination
----------------------------
afforded to either party shall not prejudice any other legal rights or
remedies either party may have against the other in respect of any
breach of the terms of this Agreement.
4. Survival of Terms. The provisions of Sections 1, 11, 12, 14, 15 (for
-----------------
one (1) year post-termination), 16, 17.c, 17.d, 18 (for the Transition
Period), 19, 20 and 21, and any and all disclaimers, limitations on
remedies and indemnities contained herein or in any schedules to this
Agreement will survive the termination of this Agreement.
18. POST-TERMINATION TRANSITION SUPPORT.
-----------------------------------
1. Transition Support. In the event of termination of this Agreement for
------------------
any reason, including breach by the other Party, each Party shall use
commercially reasonable efforts to make available to BuyTravel.com,
for a period of time not to exceed ninety (90) days after the
effective date of such termination ("Transition Period") all resources
and services as were being provided, or required to be provided,
immediately prior to notice of termination ("Transition Support").
Each Party shall use commercially reasonable efforts to provide
consulting services and technical assistance as is reasonably
requested by BuyTravel.com during the Transition Period (also,
"Transition Support").
2. Transition Support Payment Terms. All resources and services provided
--------------------------------
pursuant to Section 18.a above shall be provided on the same pricing
terms as governed immediately prior to notice of termination, except
that estimates of amounts due for any given month shall be due on the
first day of that month, and a Party shall
have no obligation to provide such resources or services if any
amounts due to such Party under this Agreement remain more than thirty
(30) days past due.
19. LIMITATION OF WARRANTIES & REMEDIES.
-----------------------------------
1. Representations & Warranties. Each Party represents that it has full
----------------------------
power to enter into and complete the transactions required hereunder,
and that this Agreement is enforceable against it in accordance with
its terms, and that the activities contemplated hereunder do not
conflict with or constitute a breach of or default under any contracts
or commitments to which it is a party.
2. Warranty Disclaimer. EACH PARTY ACKNOWLEDGES AND AGREES THAT ALL
-------------------
RESOURCES AND SERVICES PROVIDED UNDER THIS AGREEMENT BY THE OTHER
PARTY ARE PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT ANY WARRANTY,
CONDITION, GUARANTY OR REPRESENTATION OF ANY KIND WHATSOEVER, EXPRESS
OR IMPLIED, IN LAW OR IN FACT, ORAL OR IN WRITING, INCLUDING WITHOUT
LIMITATION ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION OF YEAR
2000 COMPLIANCE, ACCURACY, NON-INTERRUPTION, COMPLETENESS,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-
INFRINGEMENT, OR THE LIKE.
3. Liability Disclaimer. EXCEPT IN CONNECTION WITH AN INDEMNIFICATION
--------------------
CLAIM PURSUANT TO SECTION 19 ABOVE, IN NO EVENT SHALL EITHER PARTY NOR
ANY RELATED ENTITY OF SUCH PARTY BE LIABLE TO THE OTHER PARTY, A
RELATED ENTITY OF SUCH PARTY OR ANY THIRD PERSON FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND
(INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST SAVINGS, LOSS OF
DATA, LOSS OF BUSINESS OPPORTUNITIES) ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, THE SERVICES OR THE LICENSED PRODUCTS, WHETHER
BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR
OTHERWISE, EVEN IF THE PARTY PROVIDING THE RESOURCE OR SERVICE, OR A
RELATED ENTITY OF SUCH PARTY, HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES OR SHOULD HAVE FORESEEN SUCH DAMAGES.
20. AUDIT RIGHTS. Each Party may, upon ten (10) business days' notice,
------------
inspect, or have a mutually agreeable independent auditor, the operations,
books and records of the other Party to verify compliance with the terms
and conditions of this Agreement. Any such audit shall be conducted at the
audited Party's relevant facilities during normal business hours. Each
Party may invoke its audit rights under this Section 20 once every six (6)
months during the term of this Agreement and for one (1) year thereafter.
The auditing Party shall conduct, or cause to be conducted, such audit at
its own expense, except that the auditing Party shall be entitled to
reimbursement of its auditing expenses by the auditing Party in the event
that such audit reveals that the audited Party has overcharged the other
Party or BuyTravel.com for an amount, or failed to provide resources and
services as required by this Agreement fairly valued at an amount, greater
than 5% of the proper amount, or properly valued amount, for the audited
time period. Neither Party shall be required to provide access to third
party data, facilities or other assets if that Party does not have the
contractual right to provide access to such assets to the other Party.
21. MISCELLANEOUS.
-------------
1. Force Majeure. Neither Party will be liable for any failure to
-------------
perform any obligation (other than payment or reimbursement
obligations) hereunder, or from any delay in the performance thereof,
due to causes beyond its control, including without limitation
industrial disputes of whatever nature, acts of God, public enemy,
acts of government, failure of telecommunications, or other calamity.
2. Assignment. No Party may assign this Agreement without the prior
----------
written consent of the other Parties under any conditions, except in
connection with a corporate reorganization, merger or the sale of
substantially all of its business or assets or substantially similar
transaction; provided, however, that, notwithstanding the foregoing,
-------- -------
in the case of an assignment by Buy.com to a competitor of UA, or by
UA to a competitor of Buy.com, including in connection with a
corporate reorganization, merger, sale of substantially all of the
business or assets of UA or Buy.com, as applicable, or substantially
similar transaction, the prior written consent of UA or Buy.com, as
applicable, shall in all instances be required. Any purported
assignment or transfer in violation of this provision shall be void
and without effect.
3. Notices. All notices and other correspondence under this Agreement
-------
shall be in writing and shall be sufficiently given if delivered
personally, if sent by facsimile transmission with proof of receipt by
the recipient, or sent overnight courier with proof of receipt, to the
addresses first stated herein, or to such other address as either
Party may specify by such notice.
4. Modification and Waiver. No modification, amendment, supplement to or
-----------------------
waiver of this Agreement or any attachment hereto shall be binding
upon the parties hereto unless made in writing and duly signed by both
parties. No invoice or other similar form may vary the terms hereof,
and any term thereof that is inconsistent with or additional to the
terms hereof shall not be binding. A failure or delay by either Party
to enforce at any time any of the provisions hereof, or to exercise
any option which is herein provided, or to require at any time
performance of any of the provisions hereto shall in no way be
construed to be a waiver of such provisions of the Agreement.
5. Severability. The provisions of this Agreement are severable, and in
------------
the event that any provisions of this Agreement are determined to be
invalid or unenforceable under any controlling law, such invalidity or
unenforceability shall not in any way affect the validity or
enforceability of the remaining provisions thereof. If any provision
of this Agreement is found to be invalid or unenforceable, the invalid
provision shall be modified to the minimum extent required to comply
with applicable law, and the modified provision shall be construed as
having been in effect since the Effective Date.
6. Entire Agreement. This Agreement and the Operating Agreement,
----------------
including the schedules and exhibits referred to herein and therein
and attached or to be attached hereto and thereto, constitutes the
entire agreement between the parties and supercedes all prior
agreements, promises, proposals, representations, understandings and
negotiations, whether or not reduced to writing, between the parties
respecting the subject matter hereof.
7. Governing Law; Choice of Forum. The validity of this Agreement, the
------------------------------
construction and enforcement of its terms, and the interpretation of
the rights and duties of the parties shall be governed by the laws of
the State of Delaware, excluding the choice of law and conflicts of
law principles of that state.
8. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of
which shall be considered one and the same instrument.
UNITED AIR LINES, INC.: BUY.COM, INC.:
By:_______________________________ By:_____________________________
Title:____________________________ Title:__________________________
Date:_____________________________ Date:___________________________
BUYTRAVEL.COM, LLC
By: UNITED AIR LINES, INC.
Its: Member
By:___________________________
Title: _______________________
Date:_________________________
By: BUY.COM, INC.
Its: Member
By:___________________________
Title: _______________________
Date:_________________________
[SIGNATURE PAGE TO MARKETING AND SERVICES AGREEMENT]
SCHEDULE A
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BUYTRAVEL.COM WEB SITE
HOSTING SERVICES AND SERVICE LEVELS
22. SERVICES.
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1. Hosting of BuyTravel.com Web site, including Web pages, and Web site
services. Such hosting services shall include:
1. Provision of a suitable hosting facility, with adequate
electrical, air conditioning and fire safety utilities (including
back-up resources)
2. Installation and configuration of all hardware and software for
the Web site, including all support software directly related to
the Web site, and interface software to other BuyTravel.com
information systems. Such installation and configuration services
shall apply to all upgrades and modifications of the above
referenced hardware and software.
3. Monitoring and operational control of the BuyTravel.com Web site.
4. Web site visitor data capture and generation and reporting of Web
site statistics.
5. Implementation and management of problem handling procedures.
2. Interfacing to, and cooperation with, providers of third party Web
site services utilized on the BuyTravel.com Web site.
3. Internet connectivity through high speed (competitive with other
travel services Web sites), highly available network access.
4. Back-up and restoration services.
23. SERVICE LEVELS.
--------------
1. Web site uptime availability: 99.5% (with the exception of scheduled
downtime for maintenance and support).
2. Network uptime availability: 99.5% (with the exception of scheduled
downtime for maintenance and support)
SCHEDULE B
CRS LIST
Amadeus (including SystemOne Amadeus)
Galileo International (including both Apollo and Galileo)
Sabre
Worldspan