Marketing and Technical Services Agreement - priceline.com Inc. and PriceLine WebHouse Club Inc.
MARKETING AND TECHNICAL SERVICES AGREEMENT
This MARKETING AND TECHNICAL SERVICES AGREEMENT (this "Agreement"),
made and entered into this 26th day of October, 1999 (the "Effective Date"), by
and between PRICELINE.COM INCORPORATED, a Delaware corporation ("Priceline"),
and PRICELINE WEBHOUSE CLUB, INC., a Delaware corporation ("WebHouse") (each, a
"Party," and collectively, the "Parties"),
W I T N E S S E T H :
WHEREAS, Priceline is an Internet-based company with significant
name recognition of its trademarked "priceline" name and patented "demand
collection system" for selling products over the Internet;
WHEREAS, Walker Digital, LLC ("Walker Digital") is a research and
development company containing certain trade secrets, know-how and other
intellectual property;
WHEREAS, in connection with the establishment of WebHouse's business
of the sale of retail products in a "name your price" format over the Internet,
(i) Walker Digital is (A) contributing certain know-how and other assets and
liabilities used in or incurred during the initial development of WebHouse's
business, pursuant to an asset contribution agreement dated as of the date
hereof between Walker Digital and WebHouse (the "Asset Contribution Agreement")
and (B) licensing certain intellectual property pursuant to a license agreement
between Walker Digital and Priceline dated as of the date hereof, which
intellectual property shall in turn be sublicensed by Priceline to WebHouse,
(ii) Walker Digital Corporation, a research and development company, is
contributing certain employees to WebHouse under the Asset Contribution
Agreement, and (iii) Priceline is (A) licensing and sublicensing, as applicable,
the use of the "priceline" name, certain patent rights and other intellectual
property rights for use in connection with WebHouse's business, pursuant to an
intellectual property license agreement between Priceline and WebHouse dated as
of the date hereof (the "Priceline License Agreement"), (B) providing
professional services, including accounting and legal services to WebHouse
pursuant to a services agreement between Priceline and WebHouse dated as of the
date hereof (the "Services Agreement"), and (C) providing certain marketing and
technical services to WebHouse pursuant to this Agreement;
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WHEREAS, in consideration for the cash and the assets it has
contributed pursuant to the Asset Contribution Agreement, Walker Digital is
receiving a promissory note in the amount of $14,592,185.60, payable on April
26, 2000;
WHEREAS, in consideration of their cash contributions, Walker
Digital and certain other investors (the "Investors") are receiving a total of
23,500,000 shares of WebHouse's common stock, par value $.01 per share (the
"Common Stock"), pursuant to the subscription agreement (the "Subscription
Agreement") dated as of the date hereof between WebHouse and the Investors;
WHEREAS, in consideration for its execution and deliveries pursuant
to the Priceline License Agreement, Priceline is receiving a warrant to purchase
under certain circumstances up to 137.5 million shares of Common Stock pursuant
to an agreement between Priceline and WebHouse dated as of the date hereof (the
"Priceline Warrant") and has certain rights to participate in WebHouse's
corporate governance;
WHEREAS, in connection with the establishment of WebHouse, Priceline
is agreeing, pursuant to the Services Agreement and this Agreement, to provide
services to and to coordinate marketing activities with WebHouse in exchange for
arm's-length consideration; and
WHEREAS, subsequent to the date of this Agreement, Priceline shall,
for a period of time, provide or cause to be provided to WebHouse certain
marketing and technical services with respect to WebHouse's business.
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. General. As used herein, the following terms shall
have the following meanings:
"Affiliate" shall mean, with respect to any specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by, or is under common Control with, such specified
Person.
"Agreement" shall have the meaning set forth in the preamble.
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"Asset Contribution Agreement" shall have the meaning set forth in
the recitals.
"Buyer-Driven Commerce" shall mean any commerce system or process
that permits a prospective buyer to fix the terms and conditions, including
price, on which such buyer is willing to purchase a particular product or
service, with such offer being guaranteed or otherwise secured by the buyer
should a seller of the product or service accept the terms of the buyer's offer.
"Change of Control" shall mean and shall be deemed to occur if: (a)
upon the exercise of the Warrant in full, Priceline would not beneficially own
or retain, directly or indirectly, more than 50% of the WebHouse Voting
Interests; (b) WebHouse shall sell, assign, or otherwise transfer all or
substantially all of its assets to any Person other than Priceline or an
Affiliate thereof; or (c) during any consecutive two (2) year period,
individuals who at the beginning of such period constituted the Board of
Directors of WebHouse (together with any new directors whose election by the
Board of Directors of WebHouse or whose nomination for election by the
stockholders of WebHouse was approved by a vote of the majority of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason (other than by action of Priceline) to constitute a majority of
the Board of Directors of WebHouse then in office.
"Common Stock" shall have the meaning set forth in the recitals.
"Confidential Information" shall have the meaning set forth in
Section 6.01.
"Control" (including the terms "Controlled by" and "under common
Control with"), with respect to the relationship between or among two or more
Persons, means the possession, directly or indirectly or as trustee or executor,
of the power to direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, as trustee or
executor, by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person.
"Cooperative Marketing Services" shall have the meaning set forth in
Section 2.03.
"Effective Date" shall have the meaning set forth in the preamble.
"Investors" shall have the meaning set forth in the recitals.
"Party" or "Parties" shall have the meaning set forth in the
preamble.
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"Person" shall mean an individual, corporation, partnership, limited
liability company, trust, business trust, association, joint stock company,
joint venture, pool, syndicate, sole proprietorship, incorporated organization,
governmental authority or any other form of entity.
"Priceline" shall have the meaning set forth in the preamble.
"Priceline License Agreement" shall have the meaning set forth in
the recitals.
"Priceline Warrant" shall have the meaning set forth in the
Recitals.
"Primary Marketing Services" shall mean services related to the
promotion and advertisement of WebHouse's business independent of Priceline's
business.
"Services" shall mean Shared Technology Infrastructure Services,
Technology Development Services, Cooperative Marketing Services and Primary
Marketing Services.
"Shared Technology Infrastructure Services" shall have the meaning
set forth in Section 2.01.
"Subscription Agreement" shall have the meaning set forth in the
recitals.
"Technology Development Services" shall mean services related to the
design and development of hardware and software related to WebHouse's business.
"Term" shall have the meaning set forth in Section 4.01.
"Voting Interest" of WebHouse means one Share of Common Stock and
any other share or unit of Capital Stock issued by WebHouse, the holders of
which are ordinarily, in the absence of contingencies, entitled to one vote in
the election of WebHouse's directors (or Persons performing similar functions),
or the approval of its management and policies, even if the right to vote has
been suspended by the occurrence of a contingency.
"Warrant" shall mean Priceline's warrant to purchase shares of
WebHouse under the Priceline Warrant.
"WebHouse" shall have the meaning set forth in the preamble.
ARTICLE II
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THE SERVICES
SECTION 2.01 Provision of Technical Services. Subject to the terms
and conditions of this Agreement and in accordance with the standards of
performance set forth in Section 2.02, Priceline shall provide to WebHouse the
Shared Technology Infrastructure Services specified in Schedule 1 hereto (the
"Shared Technology Infrastructure Services") during the Term. During the Term,
the Parties agree to share certain hardware and software systems and cooperate
regarding the purchase of other hardware and software systems in connection with
the provision of Shared Technology Infrastructure Services by Priceline to
WebHouse.
(b) Subject to the terms and conditions of this Agreement and in
accordance with the standards of performance set forth in Section 2.02,
Priceline shall provide to WebHouse Technology Development Services during the
period beginning on the Effective date and ending on March 31, 2000. Upon mutual
agreement between the Parties, the Parties may agree to extend the period within
which Priceline shall provide Technology Development Services beyond March 31,
2000, pursuant to Section 2.04.
SECTION 2.02. Standard of Performance. Priceline agrees to provide
or cause to be provided to WebHouse the Shared Technology Infrastructure
Services and the Technology Development Services in substantially the same
manner and at substantially the same levels as such activities are conducted for
Priceline's own benefit (including, without limitation, by performing all
necessary maintenance of systems and infrastructure used in providing the Shared
Technology Infrastructure Services and the Technology Development Services).
SECTION 2.03. Marketing Services. Subject to the terms and
conditions of this Agreement, Priceline and WebHouse shall cooperate in good
faith to conduct marketing activities in respect of co-branding and
co-positioning of the Parties' respective services, during the Term (the
"Cooperative Marketing Services"). The companies shall develop and implement
brand recognition and awareness strategies and campaigns which integrate and
associate the Priceline name with WebHouse and its business. In furtherance of
these objectives, Priceline shall, inter alia, list or name WebHouse and the
goods and services offered by WebHouse in any advertising media wherein other
Priceline services or affiliates are listed or named.
(b) Subject to the terms and conditions of this Agreement, Priceline
shall provide to WebHouse Primary Marketing Services during the period beginning
on the Effective date and ending on March 31, 2000. Upon mutual agreement
between the Parties, the Parties may agree to extend the period within which
Priceline shall provide Primary Marketing Services beyond March 31, 2000,
pursuant to Section 2.04.
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SECTION 2.04. Changes. WebHouse may request the provision of
additional Shared Technology Infrastructure Services, Technology Development
Services, Cooperative Marketing Services, Primary Marketing Services or new
services which were not previously requested and may request the cessation of
specific Services then being provided. In such case, the parties shall negotiate
in good faith whether and on what terms Priceline shall provide (if at all) any
additional Services.
SECTION 2.05. Cooperation and Access. (a) Each of the Parties hereto
agrees to fully cooperate in good faith with the other in connection with the
Services provided under this Agreement and matters related to or arising
hereunder, including, without limitation, Priceline's cooperation with WebHouse
to enable WebHouse to establish its own infrastructure to perform the Technical
Services itself, independently of Priceline.
(b) WebHouse shall permit Priceline and its employees and agents
access during regular business hours (or otherwise upon reasonable prior notice)
to such data and personnel designated by WebHouse as involved in receiving or
overseeing the Technical Services as reasonably requested by Priceline to
facilitate Priceline's performance of this Agreement. Priceline shall permit
WebHouse and its employees and agents access during regular business hours (or
otherwise upon reasonable prior notice) to individuals responsible for the
Technical Services and shall provide WebHouse with such data and records as
WebHouse may reasonably request for the purposes of allowing WebHouse to
exercise general oversight and to monitor the performance of the Technical
Services.
(c) WebHouse shall be entitled to have access at all reasonable
times and on reasonable notice to the premises and records of Priceline (insofar
as such records relate to the business of WebHouse) and any agent or Affiliate
providing the Technical Services hereunder (including any individual responsible
for providing the Services) for purposes of verifying the accuracy of charges
for Services rendered hereunder and to verify the proper performance of Services
by Priceline.
(d) Each party agrees to make available any of its employees whose
assistance, testimony or presence is necessary to assist the other party in
evaluating or defending any claims, including the presence of such persons as
witnesses in hearings or trials for such purpose; provided that the party
requiring such assistance shall reimburse the party providing such assistance
(or the employee) for any direct out-of-pocket costs in connection with such
employee's assistance, testimony or presence, promptly following receipt of
appropriate documentation of such out-of-pocket costs.
(e) Each party shall cooperate with and assist the other party in
obtaining any third-party consents necessary for the performance of the
Technical Services hereunder, including, without limitation, any required
consent under any software license or real property
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lease. The costs and expenses of obtaining any such consents shall be borne
equally by the parties. In the event that the parties are unable to obtain any
required consent they shall negotiate in good faith reasonable modifications of
the Services such that such consents are not required.
ARTICLE III
FEES
SECTION 3.01 Fees. (a) Cooperative Marketing Services Fees: As of
the Effective Date, the amount of compensation and specific Cooperative
Marketing Services to be provided shall be negotiated in good faith quarterly in
advance of such succeeding quarter. The amount of compensation shall be based on
the fair market value of such Cooperative Marketing Services. In the event the
parties are unable to agree on the amount of compensation or the specific
Cooperative Marketing Services to be provided for any given quarter, the
compensation shall equal the amount agreed in the immediately preceding quarter
plus [**]% and the Cooperative Marketing Services provided shall be the same
Cooperative Marketing Services provided the previous quarter. The compensation
paid by WebHouse for Cooperative Marketing Services shall not exceed [**]% of
Priceline's total quarterly advertising and marketing related expenditures.
(b) Primary Marketing Services Fees. On or before December 31, 1999,
WebHouse shall pay Priceline $[**] as compensation for past Primary Marketing
Services and for Primary Marketing Services to be performed through December 31,
1999. On or before March 31, 2000, WebHouse shall pay Priceline $[**] as
compensation for Primary Marketing Services to be performed through March 31,
1999. Thereafter, WebHouse shall not be obligated to pay Priceline any
compensation for Primary Marketing Services unless the Parties agree upon the
provision of additional Primary Marketing Services pursuant to Sections 2.03(b)
and 2.04. In the event that the Parties agree that Priceline shall provide such
additional Primary Marketing Services, the Parties shall negotiate in good faith
quarterly in advance of such succeeding quarter the amount of compensation to be
paid by WebHouse to Priceline as compensation for such additional Primary
Marketing Services. Such compensation shall be based on the fair market value of
such additional Primary Marketing Services.
(c) Shared Technology Infrastructure Services Fees: On or before
December 31, 1999, WebHouse shall pay Priceline $[**] as compensation for
past Shared Technology Infrastructure Services and for Shared Technology
Infrastructure Services to be performed through December 31, 1999. Thereafter,
the amount of compensation and specific Shared Technology Infrastructure
Services to be provided shall be negotiated in good faith quarterly in advance
of such succeeding quarter. The amount of compensation shall be based on the
fair market value of such Shared Technology Infrastructure Services and the
unamortized value of
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any capitalized assets (as determined in accordance with generally accepted
accounting principles consistently applied by Priceline) acquired by Priceline
that are directly related to and required for Priceline's provision of Shared
Technology Infrastructure Services. In the event the parties are unable to agree
on the amount of compensation or the specific Technical Services to be provided
for any given quarter, the compensation shall equal the amount agreed in the
immediately preceding quarter plus [**]% and the Shared Technology
Infrastructure Services provided shall be the same Shared Technology
Infrastructure Services provided the previous quarter. In the event the parties
are unable to agree on the amount of compensation or Shared Technology
Infrastructure Services for the first quarter of the year 2000, the compensation
shall be $[**] and the Shared Technology Infrastructure Services shall be the
same Shared Technology Infrastructure Services provided during 1999. Any
hardware or software purchased or developed by Priceline for the exclusive use
of WebHouse shall be billed to WebHouse at Priceline's cost and shall be owned
exclusively by WebHouse.
(d) Technical Development Services Fees. On or before December 31,
1999, WebHouse shall pay Priceline $[**] as compensation for past Technical
Development Services and for Technical Development Services to be performed
through December 31, 1999. On or before March 31, 2000, WebHouse shall pay
Priceline $[**] as compensation for Technical Development Services to be
performed through March 31, 2000. Thereafter, WebHouse shall not be obligated to
pay Priceline any compensation for Technical Development Services unless the
Parties agree upon the provision of additional Technical Development Services
pursuant to Sections 2.01(b) and 2.04. In the event that the Parties agree that
Priceline shall provide such additional Technical Development Services, the
Parties shall negotiate in good faith quarterly in advance of such succeeding
quarter the amount of compensation to be paid by WebHouse to Priceline as
compensation for such additional Technical Development Services. Such
compensation shall be based on the fair market value of such additional
Technical Development Services.
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ARTICLE IV
TERM AND TERMINATION
SECTION 4.01. Term. Unless earlier terminated under the terms of
this Agreement, the Term of this Agreement (the "Term") shall commence on the
Effective Date and continue for a period of 12 months and shall automatically
continue for successive one-year terms thereafter until terminated by either
party effective at the end of such initial 12-month term or the then current
one-year term, in each case on written notice given at least 18 months prior to
the end of such initial 12-month term or the then current one-year term;
provided that, unless the parties otherwise agree in writing, the term of this
Agreement shall not extend beyond the termination of the trademark license
granted under Section 2.02 of the Priceline License Agreement.
SECTION 4.02. Termination. Priceline shall continue to make each
Service available through the end of the Term or, if earlier, until canceled by
WebHouse by written notice to Priceline. Notwithstanding the foregoing, this
Agreement (and the obligation to provide any Services) may be terminated:
(a) by WebHouse, at any time upon ninety (90) days written notice to
Priceline;
(b) by mutual agreement of Priceline and WebHouse;
(c) by Priceline, at any time, not less than 90 days after delivery
of notice to WebHouse, in the event that WebHouse shall have defaulted on
or breached any material term of this Agreement and shall not have cured
such breach within 60 days after receiving notice from Priceline
specifying the nature of such default or breach;
(d) by WebHouse, at any time, not less than 90 days after delivery
of notice to Priceline, in the event that Priceline shall have defaulted
on or breached any material term of this Agreement and shall not have
cured such breach within 60 days after receiving notice from WebHouse
specifying the nature of such default or breach;
(e) by either party, immediately upon delivery of notice to the
other party, in the event that such other party (i) requires a composition
or other similar arrangement with creditors, files for bankruptcy or is
declared bankrupt or (ii) shall have assigned or transferred to any third
party any of its rights or obligations hereunder except in accordance with
Section 7.07; or
(f) by Priceline, at any time, following the expiration of the
Warrant.
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SECTION 4.03. Payments Upon Termination. In the event that, upon
termination of this Agreement, any capitalized assets acquired by Priceline that
were directly related to and required for Priceline's provision of Shared
Technology Infrastructure Services retain any unamortized value (as determined
in accordance with generally accepted accounting principles consistently applied
by Priceline), WebHouse shall continue to pay Priceline compensation for Shared
Technology Infrastructure Services quarterly until the value of such capitalized
assets has been completely amortized.
ARTICLE V
RESPONSIBILITY
SECTION 5.01. Relationship of the Parties. Nothing in this Agreement
shall be construed as (a) an assumption by Priceline of any obligation to
maintain or increase the sales or profits of WebHouse or otherwise to assume
responsibility for WebHouse's operations; (b) an assumption by Priceline of any
financial obligation of WebHouse; (c) the creation of any relationship of
employment or agency between WebHouse and employees or consultants of Priceline,
its subsidiaries or associated companies; (d) an assumption by Priceline of any
responsibility for the work performed by outside suppliers employed by WebHouse
at the suggestion or recommendation of Priceline; or (e) the delegation of any
function or authority of WebHouse to Priceline. In all matters relating to this
Agreement, each Party hereto shall be solely responsible for the acts of its own
employees, and employees of one Party shall not be considered employees of the
other Party. Except as specifically permitted by this Agreement, no Party hereto
or any of its employees shall have any authority to negotiate, enter into any
contract or incur any obligation, on behalf of the other Party. The Parties
hereto are independent contractors and neither Party is an employee, partner or
joint venturer of the other.
SECTION 5.02. Limitation of Liability. Priceline MAKES NO WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER. Priceline
shall have no liability for any losses or damages that WebHouse may incur as a
result of the provision or non-provision of Services except to the extent caused
by the gross negligence or wilful misconduct of such person. In no event shall
Priceline, its officers, directors, employees, agents, independent contractors,
affiliates and stockholders be liable for any consequential or special damages
suffered by WebHouse as a result of any representations, actions or inactions by
any person or entity in respect of its obligations hereunder.
ARTICLE VI
CONFIDENTIALITY
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SECTION 6.01. Confidentiality. WebHouse will receive or learn from
Priceline, and Priceline's parents, subsidiaries and Affiliates, and Priceline
will learn from WebHouse, information, both orally and in writing, concerning
the business of Priceline or WebHouse, respectively, including, without
limitation, financial, technical and marketing information, data, information
related to the development of technology and services, trade secrets,
technology, plans, methods, processes, specifications, models, protocols,
techniques, research projects, information management systems and software,
whether protectable by patent, copyright or other statutory means, relating to
WebHouse's and Priceline's business, as the case may be, and which information
is deemed, in the case of WebHouse, proprietary to WebHouse and, in the case of
Priceline, proprietary to Priceline. Both Parties hereby agree, as set forth
below, to protect such information, whether furnished before, on or after the
date of this Agreement, as it protects its own similar confidential information,
but never less than commercially reasonable efforts, and not to disclose such
information to anyone except as otherwise provided for in this Agreement. Such
information, in whole or in part, together with analyses, compilations,
programs, reports, proposals, studies or any other documentation prepared by the
Parties, as the case may be, which contains or otherwise reflects or makes
reference to such information, is hereinafter referred to as "Confidential
Information". Both Parties hereby agree that the Confidential Information will
be used solely for the purpose of this Agreement and not for any other purpose.
Both Parties further agree that any Confidential Information pertaining to the
other Party is the sole and exclusive property of such other Party, and that the
receiving Party shall not have any right, title, or interest in or to such
Confidential Information except as expressly provided in this Agreement. Both
Parties further agree to hold in the strictest confidence and not to disclose to
anyone for any reason Confidential Information pertaining to the other Party;
provided that
(a) such Confidential Information may be disclosed to the receiving
Party's respective officers, directors, employees, agents, or
representatives (collectively, "Representatives") on a "need to know"
basis for the purpose of this Agreement on the condition that
(i) each such Representative will be informed by the receiving
Party of the confidential nature of such Confidential Information
and will agree to be bound by the terms of this Agreement and not to
disclose the Confidential Information to any other person and
(ii) both Parties agree to accept full responsibility for any
breach of this Section 6.01 by their respective Representatives; and
(b) Confidential Information pertaining to the other Party may be
disclosed upon the prior written consent of the other Party.
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Both Parties hereby agree, upon the request of the other Party, to promptly
deliver to the other Party, at its own cost, the Confidential Information
pertaining to such other Party, without retaining any copies thereof.
SECTION 6.02. Non-Confidential Information. The term "Confidential
Information" shall not include any information: (a) which at the time of
disclosure or thereafter is generally available to or known by the public (other
than as a result of a disclosure directly or indirectly by the receiving Party);
(b) is independently developed by the receiving Party, without reference to or
use of, the Confidential Information of the other Party; (c) was known by the
receiving Party as of the time of disclosure without breach of confidentiality;
(d) is lawfully learned from a third party not under obligation to the
disclosing Party; or (e) is required to be disclosed pursuant to a subpoena,
court order or other legal process, whereupon the receiving Party shall provide
prompt written notice to the other Party prior to such disclosure.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Expenses. Except as otherwise specified in this
Agreement, all costs and expenses, including, without limitation, fees and
disbursements of counsel, financial advisors and accountants, incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the Party incurring such costs and expenses.
SECTION 7.02. Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given or made
(and shall be deemed to have been duly given or made upon receipt) by delivery
in person, by courier service, by telecopy or by registered or certified mail
(postage prepaid, return receipt requested) to the respective parties at the
following addresses (or at such other address for a Party as shall be specified
in a notice given in accordance with this Section 7.02):
(a) if to Priceline:
priceline.com Incorporated
Five High Ridge Park
Stamford, CT 06905
Telecopy No.: (203) 595-8345
Attention: Melissa Taub
(b) if to WebHouse:
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Priceline WebHouse Club, Inc.
One High Ridge Park
Stanford, CT 06905
Telecopy No.: (203) 595-8305
Attention: Anne Maffei
SECTION 7.03. Public Announcements. Except as required by law,
governmental regulation or by the requirements of any securities exchange on
which the securities of a Party hereto are listed, no Party to this Agreement
shall make, or cause to be made, any press release or public announcement in
respect of this Agreement or otherwise communicate with any news media without
the prior written consent of the other Party, and the Parties shall cooperate as
to the timing and contents of any such press release or public announcement.
SECTION 7.04. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement.
SECTION 7.05. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any Party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the Parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the Parties as closely as possible in an acceptable manner in
order that the transactions contemplated hereby are consummated as originally
contemplated to the greatest extent possible.
SECTION 7.06. Entire Agreement. This Agreement constitutes the
entire agreement of the Parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral,
with respect to the subject matter hereof.
SECTION 7.07. Assignment. This Agreement shall not be assigned
without the express written consent of the Parties (which consent may be granted
or withheld in the sole discretion of any Party) except that this Agreement may
be assigned, without consent, in connection with the sale of a Party's entire
business whether such is a sale of all or substantially all of such Party's
assets, a merger or a stock sale. This Agreement shall inure to the benefit of,
and be binding upon, the successors of the Parties hereto and the assignees of
the Parties hereto, provided such assignment was in compliance with the terms
hereof.
SECTION 7.08. No Third Party Beneficiaries. This Agreement shall be
binding upon and inure solely to the benefit of the Parties hereto and their
permitted assigns and nothing
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herein, express or implied, is intended to or shall confer upon any other person
or entity any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
SECTION 7.09. Amendment. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, each of
the Parties.
SECTION 7.10. Governing Law. This Agreement shall be governed by the
laws of the State of New York. All actions and proceedings arising out of or
relating to this Agreement may be heard and determined in any New York State or
federal court sitting in the City of New York, County of Manhattan, and the
Parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of
such courts in any such action or proceeding and irrevocably waive any defense
of an inconvenient forum to the maintenance of any such action or proceeding.
SECTION 7.11. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different Parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement. Copies of executed
counterparts transmitted by telecopy, telefax or other electronic transmission
service shall be considered original executed counterparts for purposes of this
Section 7.11; provided that receipt of copies of such counterparts is confirmed.
SECTION 7.12. Specific Performance. The Parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the Parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
SECTION 7.13. Waiver of Jury Trial. Each of the Parties hereto
irrevocably and unconditionally waives trial by jury in any legal action or
proceeding relating to this Agreement or the transactions contemplated hereby
and for any counterclaim therein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective authorized signatories thereunto duly authorized
as of the date first above written.
PRICELINE.COM INCORPORATED
By: _________________________________
Name:
Title:
PRICELINE WEBHOUSE CLUB, INC.
By: _________________________________
Name:
Title:
[**]=Confidential Treatment requested for redacted portion
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SCHEDULE 1
TECHNICAL SERVICES
1. Clarus Accounting System: A system that provides accounts payable,
accounts receivable, general ledger processing, budgeting and reporting,
including shared network connections.
2. MIS Data Warehousing: Shared database server and database environment.
Priceline WebHouse Club will have separate database layouts for its operational
database and data warehouse on the shared server, including shared network
connections.
3. Brio Reporting Software: Shared BRIO software engine, server, and
network. Priceline WebHouse will have separate BRIO reports specific to its
business on the server, including shared network connections.
4. Informatica ETL: Shared tool used to transform data from operational
MIS database to data warehouse.
5. Oracle Database Servers: Three production database servers, each with a
shared Oracle database engine, will be shared, including shared network
connections.
6. Shareplex Software: Software that copies data between the primary and
secondary production databases, including shared network connections.
7. Silknet Software: Software and servers that provide application for
call center operations, including shared network connections.
8. Kana Software: Software and servers that provide e-mail management for
call center operations, including shared network connections.
9. Paylinx: Software and servers that provide interface to Paymentech for
credit card authorization, including shared network connections.
10. Networking Infrastructure: Networking hardware and software including
servers routers and related service fees.
[**]=Confidential Treatment requested for redacted portion