Note: Redacted portions have been marked with (***). The redacted portions are subject to a request for confidential treatment that has been filed with the Securities and Exchange Commission.
FIRST AMENDMENT TO
TRAVEL SERVICES ADVERTISING AND PROMOTION AGREEMENT
THIS FIRST AMENDMENT TO THE TRAVEL SERVICES ADVERTISING AND PROMOTION AGREEMENT (the "First Amendment"), dated as of November __, 1998 (the "First Amendment Effective Date") is made and entered into between Yahoo! Inc., a California corporation ("Yahoo!") and SABRE Interactive ("SI"), a division of The SABRE Group, Inc., a Delaware corporation. Yahoo! and SI may be referred to individually as a "Party" and collectively as the "Parties."
RECITALS
A. Yahoo! and SI entered into the Travel Services Advertising and Promotion Agreement, dated as of June 30, 1997 (the "Agreement"); and
B. The Parties desire to make various changes to the Agreement including, without limitation, extending the Term of the Agreement for an additional two years, and the Parties are entering into this Amendment to document such changes to the Agreement.
AGREEMENT
In consideration of the foregoing and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree to amend the Agreement as set forth below:
SECTION 1. DEFINITIONS.
1.1 Defined Terms. Terms used in this First Amendment but not defined
herein shall have the meaning given them in the Agreement.
SECTION 2. AMENDMENTS.
2.1 The Agreement is hereby amended as follows:
(a) Section 1.2 is deleted in its entirety and replaced with the
following:
"1.2 `Exclusivity Period' means (***) through (***)."
(b) Section 2.1 is deleted in its entirety and replaced with the
following:
"2.1 Operation and Continued Development of the Travel
Services. The parties will collaborate to operate, promote and further
develop the Yahoo! Travel Page and the Co-Branded Pages. In this
regard, the parties shall have the following rights and
responsibilities:
2
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(a) Yahoo! Rights and Responsibilities.
(1) Yahoo! Travel Page. Yahoo! shall distribute the
Yahoo! Travel Page and the Co-Branded Pages (***). Yahoo!
shall provide a prominent hyperlink on the Yahoo! Travel Page
to the Co-Banded Pages, as such term is described in Section
2.2. Such hyperlink shall be placed above the fold on the
Yahoo! Travel Page. Subject to Sections 2.1(a)(8) and
2.1(b)(6), Yahoo! shall provide a hyperlink to the Yahoo!
Travel page from Yahoo!'s home page, currently located at
http://www.yahoo.com (the "Home Page Link").
(2) Yahoo! Enhancements. From time to time, Yahoo!
may request that SI make modifications, enhancements, or other
changes to the Co-Branded Pages or elsewhere in the Yahoo!
network on properties (each such requested modification,
enhancement or change being a "Yahoo! Enhancement"). Upon each
such request, the parties will negotiate for the purpose of
determining mutually acceptable terms and conditions regarding
(i) the nature and scope of the Yahoo! Enhancement, (ii) the
allocation of resources necessary by both parties to create
the Yahoo! Enhancement, (iii) the schedule for creating and
implementing the Yahoo! Enhancement, (iv) such other matters
as either party deems appropriate. Although the parties have
no obligation to reach any agreement, upon reaching an
agreement the parties will develop the Yahoo! Enhancement in
accordance with the terms thereof. For the purposes of this
Agreement, any operational inconsistencies or programming
errors relating to the use of the Co-Branded Pages shall not
be considered a Yahoo! Enhancement and shall be cured by the
parties immediately.
(3) SI Enhancements. Upon notice from SI of a
proposed SI Enhancement (as defined below) and Yahoo!'s
decision to launch such SI Enhancement on the Co-Branded Pages
or elsewhere in the Yahoo! network of properties, Yahoo! will
allocate those engineering resources reasonably necessary to
consult with SI engineering resources during the development
of any SI Enhancements. Yahoo! will collaborate with SI
engineering resources during the development of SI
Enhancements, as necessary, and will continue to interface
with SI engineering resources after the development process
for each SI Enhancement is complete. Yahoo! shall be
responsible for making any modifications, enhancements, or
changes to the Yahoo! Hosted Pages (as described below) that
are necessary for SI to launch any SI Enhancement on the
Co-Branded Pages.
(4) Graphical User Interface Development. Yahoo! will
have the right to reasonably approve all graphical user
interface development with respect to the Yahoo! Travel Page
and the Co-Branded Pages.
(5) Page Hosting. Yahoo! will host the following
Co-Branded Pages (the "Yahoo! Hosted Pages"):
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http://travel.yahoo.com/destinations/travelocity_air/yfinal_flts_roundtrip.html http://travel.yahoo.com/destinations/travelocity/air/yfinal_flts_oneway.html http://travel.yahoo.com/destinations/travelocity/air/yfinal_flts_multiseg.html http://travel.yahoo.com/destinations/travelocity_car/yfinal_car.html http://travel.yahoo.com/destinations/travelocity_hotel/yfinal_hotel.html http://travel.yahoo.com/destinations/travelocity/terms/tcyterms.html http://travel.yahoo.com/destinations/travel_disclaimer.html
(6) Performance Standards. Yahoo! shall use
reasonable best efforts to ensure that the performance of the
Yahoo! Travel Page and the Yahoo! Hosted Pages remain
comparable (in terms of, among other things, speed) to other
similarly functional pages on the Yahoo! Site.
(7) Yahoo! Representative: Yahoo! shall designate one
(1) individual to serve as the primary point of contact for
any issues arising from or related to the development,
promotion and other operations contemplated by this Agreement
(the "Yahoo! Contact"). Initially, Susan Briggs shall serve as
the Yahoo! Contact. Yahoo! may replace the Yahoo! Contact at
any time and for any reason upon written notice to SI.
(8) Removal of Home Page Link. Yahoo! may discontinue
the Home Page Link for any reason upon (***) prior written
notice to SI. In the event that Yahoo! exercises such option,
for the period in which the Home Page Link is discontinued,
SI's monthly payment obligations under Exhibit E shall be
adjusted according to the formulae set forth on Exhibit H. If
Yahoo! discontinues the Home Page Link pursuant to this
Section, then Yahoo! may, in its discretion, contact Yahoo!
Users to notify them of, among other things, the
discontinuance of the Home Page Link and inform them of other
hyperlinks or URL addresses through which they may access SI's
Booking Engine.
(b) SI Rights and Responsibilities.
(1) SI Enhancements. SI shall be responsible for, and
shall have sole discretion in, the design, function and
creation of any enhancement to the Travel Services offered
through the Travelocity Site. SI shall notify Yahoo! of any
such proposed enhancement. If Yahoo! then determines to launch
such proposed enhancement (each such enhancement, as so
launched, being a "SI Enhancement") on the Co-Branded Pages or
elsewhere in the Yahoo! network of properties, SI will
allocate those engineering resources reasonably necessary to
develop the SI Enhancement in consultation with Yahoo!
according to a schedule mutually agreed upon by the parties.
SI will consult with the Yahoo! resources referenced in
Section 2.1(a)(2) early in the design specification phase of
the development process for each SI Enhancement so that such
Yahoo! resources may be an active part of the team working to
create SI Enhancements. SI shall provide
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Yahoo! technical specifications or other information
reasonably requested by Yahoo! so that Yahoo! may make those
modifications, enhancements or other changes to the Co-Branded
Pages or elsewhere in the Yahoo! network of properties
necessary to launch SI Enhancements on such pages. Provided
that Yahoo! has completed any such modifications, enhancements
or other changes, and otherwise approves of the SI
Enhancements, SI will launch the SI Enhancements on the
Co-Branded Pages or elsewhere in the Yahoo! network of
properties simultaneously with SI's launch of any SI
Enhancements on the Travelocity Site.
(2) Page Hosting. SI will host all pages in the
booking process subsequent to the Yahoo! Hosted Pages (the "SI
Hosted Pages").
(3) Enhancement Performance. SI will ensure that the
performance of each SI Enhancement adheres to the Performance
Specifications identified in Exhibit B, part (3).
(4) Customer Fulfillment. SI shall be solely
responsible for processing orders on a real-time basis, and
for fulfilling booking requests, from the users obtaining
Travel Services through the Yahoo! Site ("Yahoo! Users")
through the Co-Branded Pages, and shall ensure that
fulfillment of such transactions is performed according to the
Performance Specifications set forth in Exhibit B, part (3).
Additionally, SI will apply Yahoo! branding in a form subject
to Yahoo!'s prior written approval ("Yahoo! Branding") to the
packaging used to ship all tickets purchased through the
Co-Branded Pages, and all tickets, jackets and itineraries
will also include Yahoo! Branding. Yahoo! Branding may not be
altered without Yahoo!'s prior written consent. SI and
Travelocity branding will likewise be prominently displayed.
(5) Customer Service. SI will allocate a unique
800/888 phone number as the customer service line for Travel
Services furnished through the Co-Branded Pages. This phone
number will be the customer service line for Yahoo! Users. SI
will establish a customer care team to collaborate with a
customer care team established by Yahoo! to strive for high
levels of customer service. SI will comply with the Customer
Service Metrics set forth in Exhibit B, part (2); provided
that in any event, SI will provide, in all material respects,
the same level of customer service to Yahoo! Users as SI
provides to users of the Travelocity Site and provided further
that SI shall ensure that its customer service performance
pursuant to this Agreement meets or exceeds all generally
accepted industry standards.
(6) Performance Penalties. In the event that SI fails
to achieve the Performance Specifications identified in
Exhibit B, part (3), then Yahoo! may (i) (***), and (ii)
(***), provided that the (***) will be (***) no more than
(***) after SI satisfactorily demonstrates to Yahoo! that the
problem(s)
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causing SI to fail to meet such Performance Specifications
have been addressed to the extent necessary to cause such
Performance Specifications to be met. In the event that SI
fails to meet the Customer Service Metrics identified in
Exhibit B, part (2), for (***), then Yahoo! may (***) until
such time as SI meets the Customer Service Metrics for (***).
(7) SI Representative. SI shall designate one (1)
individual to serve as the single point of contact for any
issues arising from or related to the development, promotion
and other operations contemplated by this Agreement (the "SI
Contact"). Initially, Michael Altomari shall serve as the SI
Contact. SI may replace the SI Contact at any time and for any
reason upon written notice to Yahoo!.
(c) Ownership of SI Enhancements and Look and Feel
of Pages. SI shall own all right, title and interest in and to any and
all copyrights, patents, trademarks, trade secrets, and other
intellectual or industrial property rights in or related to the SI
Enhancements and the "look and feel" of the SI Hosted Pages where such
look and feel is consistent with the look and feel of the Travelocity
Site. Yahoo! shall own all right, title and interest in and to any and
all copyrights, patents, trademarks, trade secrets, and other
intellectual or industrial property rights in or related to the "look
and feel" of the Yahoo! Hosted Pages where such look and feel is
consistent with the look and feel of the Yahoo! Site."
(c) Section 2.3 is deleted in its entirety and replaced with the
following:
"2.3 Year 2000. Yahoo! and SI each covenants for
themselves that the equipment and software such party will
use to host and display the Yahoo! Hosted Pages or the SI
Hosted Pages during the Term will not be materially impaired
by failures to process, calculate, compare or sequence date
data accurately. This covenant does not cover the
transmission to such party of any data from third parties or
any equipment or software not controlled by such party,
including without limitation Internet connections and
backbones, third party servers and software, end-user
equipment and software, internet service provider equipment
and software, and telecommunications and/or satellite
equipment, or the effects produced by any of the foregoing."
(d) Section 2.4(c) is deleted in its entirety and replaced with
the following:
"(c) Registration and User Information.
(1) Ownership of User Information. All User
Information registered prior to (***) shall be the
sole property of (***), provided that (***) shall
have an (***) right to (***) such User Information in
any manner (***) deems appropriate, subject to
applicable laws and
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regulations. All User Information registered on or
after (***) shall be the sole property by (***),
provided that (***).
(2) SI's Use of User Information. SI's use
of User Information shall be restricted as follows:
(i) Under no circumstances, and at
no time (whether during or after the Term),
shall SI use User Information in violation
of any applicable law or regulation or to
communicate with Yahoo! Users unless such
Yahoo! Users have expressly consented to
receive such communications. Further, all
such communications shall be subject to
Yahoo!'s prior approval, which approval
shall not be unreasonably withheld.
(ii) Notwithstanding Section
2.4(c)(2)(i), SI may send (***) to Yahoo!
Users who registered prior to (***), subject
to Yahoo!'s prior approval. Such
communication shall be co-branded and shall
explain Yahoo!'s privacy policy, give such
Yahoo! Users the ability to expressly
consent to receive additional communications
from SI and Yahoo!, describe the type of
information they would receive and the
potential benefits they could obtain, and
any other information agreed upon by the
parties.
(iii) SI may place a dialog box on
(***) Co-Branded Page mutually selected by
the parties, allowing Yahoo! Users to
expressly consent to receive communications
from SI and Yahoo! related to Travel
Services. The parties shall agree upon the
design and specific placement of such dialog
box. Such communications shall be subject to
the restrictions of this Section 2.4(c).
(iv) It is expressly understood
that, subject to Section 2.4(C)(2)(I), SI
may use User Information to deliver (***)
communications to Yahoo! Users during the
(***) prior to the expiration of the Term
and to deliver (***) communication within
(***) after the expiration of the Term. Such
communications shall be for the purpose of
thanking Yahoo! Users for their patronage of
the Co-Branded Pages, informing them that
access to SI's Travel Services in
conjunction with Yahoo! is no longer
available, informing such Yahoo! Users of
the Travel Services available through the
Travelocity Site, or other sites, including
relevant URL addresses, and providing Yahoo!
Users with the option to consent to receive
additional such communications from SI. SI
may copy the User Information of those
Yahoo! Users who consent to receive such
further communications. Such copy shall not
be considered User Information and shall not
be subject to the restrictions of this
Agreement. Rather, such copy shall be the
sole property of SI. However, SI shall have
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no right to deliver the communications
described in this Section 2.4(c)(2)(iv) in
the event of the Agreement's termination
pursuant to Section 11.2.
(v) General, nonspecific
demographic or other statistical information
derived or gathered from the User
Information that does not identify
particular Yahoo! Users or their respective
accounts shall not be considered User
Information. SI will make such information
available to Yahoo! to the extent that SI
possesses such information.
(vi) SI shall have (***) for
routine internal business purposes
including, for example, record-keeping,
audits and responses to litigation or
governmental investigations. Under no
circumstances, however, shall SI (i) use
such User Information to communicate with
Yahoo! Users other than as expressly
provided for in this Agreement; or (ii)
disclose any such User Information to third
parties except (x) as required by law or
government authority, or (y) in order to
facilitate the completion of Travel Services
transactions for individual Yahoo! Users
(e.g., SI may provide an individual Yahoo!
User's User Information to an airline to
complete the purchase of an airline ticket
by such Yahoo! User)."
(e) Section 2.5 is deleted in its entirety and replaced with the
following:
"2.5 (***). Prior to (***) Yahoo! will provide
written notice (the "First Presentment Notice") to SI in the
event that Yahoo! intends to offer Yahoo! Users (***). Yahoo!
shall describe the opportunity and Yahoo!'s business
requirements for the opportunity in the First Presentment
Notice. Thereafter, if Yahoo! receives a written proposal from
SI to furnish such services to Yahoo! (the "SI Proposal")
within (***) of SI's receipt of the First Presentment Notice,
the parties will (***). Without limitation, Yahoo! will notify
SI of its objections to SI's proposal and give SI a reasonable
opportunity to address those objections. If SI declines to
commence negotiations with Yahoo! regarding any opportunity
described in the First Presentment Notice (or fails to submit
the SI Proposal within (***) after receiving the First
Presentment Notice), or if the parties fail to reach agreement
in principle subject to definitive documentation within (***)
following Yahoo!'s receipt of the SI Proposal (or such later
date as is agreed by the parties), Yahoo! may (***) relating
to the opportunity described in the First Presentment Notice,
with (***)."
(f) Section 2.6 is deleted in its entirety and replaced with the
following:
"2.6 Log Files and Statistics. SI shall provide
Yahoo!, at least (***), with electronic copies of all log
files and statistics resulting from
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