On-Line Advertising Agreement - American Airlines Inc. and Orbitz LLC
August 28, 2002
Mr. Jeff Grant
Manager, Airline Partnerships
Orbitz, LLC
200 S. Wacker Drive
Suite 1900
Chicago, IL. 60606
Dear Mr. Grant:
This letter constitutes an agreement (this "Agreement") between American
Airlines, Inc. (American) and Orbitz, LLC ("Orbitz") for on-line advertising
through the calendar year 2002. American and Orbitz are referred to collectively
herein as the "Parties" and individually as a "Party". The Parties hereby agree
as follows:
A. American shall receive the following: $250,000 of on-line media
advertising space and/or marketing opportunities on the Orbitz web site
(the "Advertising"), which advertising shall be valued at a rate which
is twenty-five percent (25%) less than the rate available on Orbitz'
then-current published rate card for the relevant Advertising provided.
The placement and specific value of such Advertising shall be set forth
on, and subject to the terms of, insertions orders to be entered into
between the parties, the form of which is attached hereto as Attachment
B (each, an "Insertion Order"). Insertion Orders entered into pursuant
to this Agreement shall be incorporated by reference herein.
B. In return for the Advertising, American agrees to provide to Orbitz, in
compliance with applicable law, travel on American Airlines, American
Eagle and/or AmericanConnection with a $212,500 net value (net value
already reflects reduction for standard 15% commission), from any
domestic or international airport served by American Airlines, American
Eagle or AmericanConnection systemwide. All travel must be completed by
June 30, 2003, and is subject to the Terms and Conditions set forth in
Attachment A.
C. Solely for the purpose of preparing and publishing Advertising
materials, American grants to Orbitz a limited, royalty free,
non-transferable, non-exclusive right to use American's trademark,
tradename, service mark and domain name, and any visual representations
thereof, including logos, designs, symbols, word marks, images, colors
and color combinations, trade dress and characters, and any other
publicity rights or indicia of ownership owned or used by American
(collectively, the "American Marks"). Any unauthorized use of the
American Marks shall constitute a material breach of this Agreement and
an infringement of American's rights in and to the American Marks.
D. The American Marks shall be reproduced from the reproduction art
furnished by American. American will provide Orbitz with limited access
to American Airlines Digital Asset Management System ("AAdams") to
obtain digital renditions of the American Marks that conform to
American's corporate graphics standards. Orbitz agrees that it will not
(1) use or display any American Marks that it has not obtained from
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AAdams; (2) alter the American Marks in any way, except that Orbitz
shall have the right to resize the American Marks; or (3) display the
American Marks without the appropriate proprietary rights notices.
Orbitz shall ensure that any of Orbitz's authorized vendors who prepare
Advertising copy shall comply to American's corporate graphics
standards and Orbitz's other obligations with respect to the use of the
American Marks in the Advertising. Orbitz acknowledges and agrees that
(a) American owns the American Marks and that Orbitz shall in no way
contest or deny the validity of, or the right or title of American in
or to, the American Marks; (b) Orbitz has no right to alienate the
American Marks; and (c) Orbitz has no right or permission to use the
American Marks for any purpose other than as expressly stated in this
Agreement. Orbitz agrees that it shall not utilize the American Marks
in any manner that would diminish their value or harm the reputation of
American.
E. Prior to publication or distribution, Orbitz agrees to submit to
American for approval layouts, artwork, photographs, and final proofs
of all copy prepared by Orbitz for the Advertising which refer to
American or include any of the American Marks. Orbitz further agrees
that no changes will be made to such materials after approval by
American unless such changes are approved by American in writing.
F. Orbitz agrees to provide American quarterly reports regarding the usage
statistics, impressions, click-throughs or other statistical
measurements of the Advertising ("Measurement Units") as measured by
Orbitz' third party ad server, provided that Orbitz makes no
representations regarding the Measurement Units other than as set forth
herein or in any Insertion Order.
G. Orbitz agrees to defend, indemnify and hold harmless American and its
directors, officers, agents and employees from and against any and all
third party claims, demands, proceedings, suits and actions, and any
related liabilities, obligations, losses, damages, judgments,
settlements, fees, costs and expenses, including reasonable attorneys'
fees (collectively, "Claims") arising out of or in connection with (a)
the acts or failure to act of Orbitz, its officers, agents, contractors
or employees in connection with the products, services or promotions
contemplated or supplied by Orbitz pursuant to this Agreement;
provided, however, that Orbitz's obligations hereunder shall not apply
to the extent such Claims arise out of American Airlines' breach of its
duties and obligations as a common carrier; and (b) Orbitz's activities
related to the Advertising (other than with respect to any materials or
American Marks provided by American to Orbitz hereunder), such as the
broadcasting of any material that was prepared by Orbitz pursuant to
this Agreement, including but not limited to (i) the unauthorized use
of the name or likeness of any person, (ii) libel, slander, defamation,
disparagement, piracy, and/or plagiarism, (iii) unfair competition,
(iv) idea misappropriation, and (v) invasion of any third party's right
to privacy or infringement of any third party's right to publicity.
H. American agrees to indemnify, defend and hold Orbitz harmless from and
against any and all Claims arising out of or in connection with (a)
Orbitz's use of or access to any Advertising materials provided by
American, (b) any American material to which the Advertising links, or
(c) any products or services made available, promoted, or advertised by
American through the Advertising.
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In the event of a Claim, the Party seeking indemnity hereunder shall
promptly notify the indemnifying Party of such Claim; provided,
however, that any failure to give such notice will not waive any of the
indemnified Party's rights except to the extent the indemnifying
Party's rights are actually prejudiced thereby. The indemnifying Party
shall assume the defense and settlement of such Claim at its sole risk
and expense; provided, however, that the indemnified Party (a) may join
in the defense and settlement of such Claim and employ counsel at its
own expense and (b) shall reasonably cooperate with the indemnifying
Party, at the indemnifying Party's expense, in such defense and
settlement. The indemnifying Party may not settle any Claim without the
indemnified Party's written consent unless such settlement (i) includes
a release of all covered claims pending against the indemnified Party;
(ii) contains no admission of liability or wrongdoing by the
indemnified Party; and (c) imposes no obligations upon the indemnified
Party other than an obligation to cease use of any infringing item.
J. Neither Party shall be liable for failure to perform under this
Agreement when such failure is caused by accidents, strikes, schedule
changes, lockouts, or other labor disturbances or other cause similar
or dissimilar beyond its reasonable control.
K. This Agreement may not be assigned by either Party without the prior
written consent of the other Party, and any attempted assignment
without such consent shall be void.
L. If any one or more of the provisions of this Agreement, or the
application thereof in any circumstance, is held to be invalid, illegal
or unenforceable in any respect for any reason, the validity, legality
and enforceability of such provision(s) in every other respect and the
remaining provisions of this Agreement shall be unimpaired, and this
Agreement shall continue in full force and effect, unless the
provisions held invalid, illegal or unenforceable shall substantially
impair the benefits of the remaining provisions hereof.
M. This Agreement may not be modified or amended, and no provision
contained in it may be waived, except in writing signed by authorized
representatives of both Parties. The failure by either Party to
exercise any right, power or option given to it by this Agreement, or
to insist upon strict compliance with the terms of this Agreement,
shall not constitute a waiver of the terms and conditions of this
Agreement with respect to any other or subsequent breach thereof, nor a
waiver by such Party of its rights at any time thereafter to require
exact and strict compliance with all the terms hereof. No waiver of the
performance or breach of, or default under, any condition or obligation
in this Agreement will be deemed to be a waiver of that condition or
obligation or any other current, future, or past performance, or breach
of, or default under, any other condition or obligation of this
Agreement.
N. The validity, interpretation and performance of this Agreement will be
controlled by and construed under the laws of the State of Texas,
without regard to its principles of conflicts of laws.
O. Any notice, request, demand, or other communication required or
permitted hereunder shall be in writing, postage prepaid, to the Party
to be notified. All communications will
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be deemed given when received. The address for the Parties for the
purpose of such communications are:
If to Orbitz:
Orbitz, LLC
200 South Wacker Drive, Suite 1900
Chicago, IL 60606
Attn: General Counsel
it to American:
American Airlines, Inc.
P.O. Box 619616
Mail Drop 4407 HDQ
DFW Airport, TX 75261 -9616
Attn: Anita Peterson
P. This Agreement and any Insertion Order entered into in connection with
this Agreement, the terms of which shall be incorporated by reference
herein, constitute the entire agreement between the Parties with
respect to the subject matter and supersede any and all prior and/or
inconsistent negotiations, representations, understandings, agreements
and promises, written or oral, between the Parties. This Agreement
shall be construed as if both Parties had equal say in its drafting,
and thus shall not be construed against the drafter.
Q. Either Party may terminate this Agreement for cause in the event that
the other Party fails to cure a material breach within 30 days after
receiving written notice thereof. In addition, American may terminate
this Agreement for convenience by delivering to Orbitz written notice
at least 30 days in advance of such termination, specifying the extent
of termination and the effective date.
R. Nothing in this Agreement is intended or shall be construed to
establish any relationship of agency, partnership, joint venture or
employment between the Parties, and the Parties (a) expressly disclaim
such relationship, (b) agree that they are acting solely as independent
contractors hereunder, and (c) agree that they have no fiduciary duty
to one another or any other special or implied duties that are not
expressly stated herein. Neither Party has any authority to act as
agent for, or to incur any obligations on behalf of or in the name of,
the other Party or its affiliates.
S. Each Party covenants that it (1) will conduct all activities under this
Agreement in full compliance with all applicable laws and regulations;
(2) is qualified to do business in the geographies in which it will
perform its obligation under this Agreement; and (3) will obtain all
necessary licenses, permits, and satisfy any other legal, regulatory,
and administrative requirements necessary to its performance hereunder.
If this Agreement meets with your approval, please indicate acceptance by
signing and returning BOTH copies to the undersigned.
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THIS AGREEMENT WILL NOT BECOME BINDING UNTIL COUNTERSIGNED BY AMERICAN AIRLINES
AT ITS CORPORATE HEADQUARTERS IN FORT WORTH, TEXAS.
Sincerely,
/s/ Stephen E. Schlachter
Stephen E. Schlachter
Manager, Advertising and Promotions
ORBITZ, LLC AMERICAN AIRLINES, INC.
By: /s/ STEVE HAFNER By: /s/ ROBERT A. BRITTON
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Steve Hafner Robert A. Britton
Vice President Managing Director
Orbitz, LLC Advertising and Marketing Planning
Date: 9/6/02 Date: 9/6/02
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