ADVERTISING AGREEMENT

 

 

4.                         Audit. Company shall keep, maintain and preserve at its principal place of business for at least two (2) years following termination or expiration of the term of this Agreement or any renewal(s) hereof, complete and accurate records of accounts related to services under this Agreement. Such records and accounts shall be available for inspection and audit at any time or times during or after the term of this Agreement or any renewal(s) hereof at the sole expense of SCH during reasonable hours upon notice by SCH or its designees. Company agrees to cooperate with SCH or designees of SCH in the performance of its duties of inspection and audit.

 

5.                         No Partnership. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between Company and SCH. Neither party shall have the right to obligate or bind the other party in any manner whatsoever. Nothing herein contained shall give, or is intended to give, any rights of any kind to any third persons.

 

6.                         Assignment. Any assignment or transfer of this Agreement, in whole or in part, or of any interest herein, without SCH’s prior written consent shall be void. SCH may assign this Agreement to a parent, subsidiary, or affiliate corporation.

 

7.                         Ownership of Intellectual Property. All advertising and marketing content provided by SCH and the component parts thereof, including without limitation, all ideas, plans, copy, slogans, creative concepts, videos, research, photographs, advertisements, commercials, musical compositions or other materials submitted, created, developed or supplied by SCH (the “Works”) shall be and remain SCH’s sole and exclusive property and shall be dealt with by Company as such. Company shall sign or cause to be signed such further documents as SCH may from time to time request to evidence this fact.

 

8.                         Use of Trademarks. Company shall have no right to use any of SCH’s intellectual property, including without limitation, trademarks, service marks, or copyrights of SCH or any of its subsidiaries or affiliates, except with the prior written approval of SCH. Company acquires no rights in any intellectual property, including without limitation, any trademarks, service marks or copyrights of SCH, its subsidiaries or affiliates. All usage shall inure to the benefit of SCH.

 

9.                         Internet Keyword Marketing - Company shall not purchase or sell placement rights for any of the Marks for Internet keyword marketing purposes.

 

10.                   Brand Loyal Marketing - Except as specifically permitted by this Agreement, Company shall not target, solicit, or otherwise make use of any date to seek business from, or offer business to,  IHG-brand loyal customers (i.e., customers who have expressed a preference for an IHG brand).

 

11.                   Predatory Advertising - Company shall not use, and shall prohibit all web sites within its control from using, any predatory advertising methods designed to generate traffic from IHG sites, or any other sites that exclusively promote IHG brands, for which Company has no contractual rights for the online promotion of any products or services other than IHG hotels. A predatory advertising method is an advertising method that creates or overlays links or banners on web sites, spawns browser windows, or utilizes any other method to generate traffic from a web site without that web site owner’s knowledge, permission, and participation.

 

 

12.                   Term. This Agreement shall become effective and shall terminate on the dates stated in Exhibit A. Termination of this Agreement shall not extinguish the rights or obligations of the parties hereunder with respect to indemnification, ownership and disposition of information, confidentiality, and accounting.

 

13.                   Termination for Cause and Default. If Company fails to comply with any provision under this Agreement, SCH may terminate this Agreement. In order to terminate this Agreement, SCH must give Company written notice at the breach and thirty (30) days to cure such breach. If Company fails to cure the breach within the period set forth immediately above or the breach cannot be cured, this Agreement shall be deemed terminated on the business day after the expiration of the period set forth above.

 

14.                   Company Indemnity. Company will indemnify and hold harmless SCH, its parents, divisions, subsidiaries, licensees, and affiliates, and their officers, directors, employees, agents, successors and assigns (collectively, “Indemnified Parties” and each of the foregoing being hereinafter referred to individually as “Indemnified Party”), against, and hold them harmless from, all liability to third parties and promptly reimburse them for all costs and expenses (including, without limitation, all settlements, judgments, fines, damages, reasonable legal fees, court costs, expert fees, etc.) by reason of any claim, demand, tax, penalty or judicial or administrative proceeding or investigation (even where negligence of the Indemnified Party it also alleged) arising from or in connection with:

 

A.                      any act omission or obligation of the Company, its parent, subsidiaries, licensees, affiliates, subcontractors, and suppliers and their respective officers, directors, employees, agents or successors or assigns (“Company”);

 

B.                        any service provided by the Company;

 

C.                        any failure to perform or breach of this Agreement by the Company;

 

D.                       any injury or death to persons or damage to property, sustained by any person that is a result of the alleged acts or omissions of the Company, including theft;

 

E.                         any and all claims alleging violation of Company’s Privacy Policy or misuse or Personal information of any customer or guest, or prospective customer or guest;

 

F.                         any violation or claimed violations of any third party’s trade secrets, proprietary information, trademarks, copyrights, patent rights, or other Intellectual property rights;

 

G.                        Company’s failure to perform all obligations owed to Company’s employees, including any claim that employees of Company might have or make for privilege, compensation, or benefits under any employee benefit plan: and

 

H.                       any and all sums due and owing to the Internal Revenue Service (IRS) for withholding, FICA, unemployment, or any other state or federal taxes. Company further agrees to timely make such withholdings, deposits, and payments to the IRS and appropriate state authorities for all employment related taxes withholding, FICA, and other taxes.

 

 

In any event, SCH will have the right, through counsel of its choice and at Company’s expense, to conduct or participate in the defense and to control any matter to the extent it could directly or indirectly affect SCH. Company shall cooperate with such defense to the fullest extent possible. Company will also reimburse SCH for all payments of money (including without limitation, all costs, expenses, fines, damages, legal fees, court costs, settlements, judgments, etc.) incurred by SCH to defend and protect itself from, or to remedy, defaults of Company under this Agreement.

 

15.                   SCH Indemnity. SCH will indemnify and hold harmless the Company, its parents, divisions, subsidiaries, licensees, and affiliates, and their officers, directors, employees, agents, successors and assigns (collectively, “Indemnified Company Parties” and each of the foregoing being hereinafter referred to individually as “Indemnified Company Party”), against, and hold them harmless from, all liability to third parties and promptly reimburse them for all costs and expenses (including, without limitation, all settlements, judgments, fines, damages, reasonable legal fees, court costs, expert fees, etc.) by reason of any claim, demand, tax, penalty or judicial or administrative proceeding or Investigation (even where negligence of the Indemnified Company Party is also alleged) arising from or in connection with:

 

A.                      any failure to perform or breach of this Agreement by SCH;

 

B.                        any and all claims of SCH alleging violation of SCH’s Privacy Policy or misuse or Personal Information of any customer or guest, or prospective customer or guest;

 

C.                        any violation or claimed violations of any third party’s trade secrets, proprietary information, trademarks, copyrights, patent rights, or other Intellectual property rights by SCH:

 

In any event, under this Indemnity agreement the Company will have the right, through counsel of its choice and at SCH’s expense, to conduct or participate in the defense and to control any matter to the extent it could directly or indirectly affect the Company. SCH shall cooperate with such defense to the fullest extent possible, SCH will also reimburse the Company for all payments of money (Including without limitation, all costs, expenses, fines, damages, legal fees, court costs, settlements, judgments, etc.) incurred by the Company to defend and protect itself from, or to remedy, defaults of SCH under this Agreement.

 

This Indemnity provision shall survive the expiration or termination of this Agreement by either party for any reason.

 

16.                   Limitation of Liability. Company understands that most participating hotels are independently owned by franchisees in the SCH system of hotels and that SCH does not control the day-to-day operations of franchised hotels. Company understands and agrees that the sole remedy available against SCH for failure by such franchisees to abide by their obligations shall be notification to the participating hotel that it may no longer participate in the activities contemplated by this Agreement. This shall not however, effect the ability of the Company to pursue damages against any Individual hotel owner in the event such occurs.

 

17.                   Confidentiality. In addition to, and not in lieu of, any Confidentiality Agreement the parties may have executed, each party agrees to keep confidential all data and other information that is designated as confidential. Information that is designated as confidential includes,

 

 

without limitation, the following: (a) business, strategic development, financial, and marketing plans of both parties; (b) any information related to any SCH guest or employee, customer lists, sales plans, research, and market share Information; (c) any Information designated, orally or in writing, by either party as Confidential (hereinafter, “Confidential Information”).

 

Each party agrees not to use, sell or otherwise make Confidential Information available to any third parties. Each party shall restrict all Confidential information to employees or agents on a “need to know” basis, shall inform employees and agents of the confidentiality requirement, and shall take reasonable precautions to prevent any disclosures. For information that meets the applicable definition of a trade secret and retains trade secret status under applicable law, this obligation shall survive the termination of this Agreement. For all other Confidential Information, this obligation shall survive the termination of this Agreement for a period of two (2) years.

 

Company shall not use, sell, loan, rent, barter, transfer, or otherwise enter into any transaction regarding any personally-identifiable information related or relatable to any IHG hotel customer, IHG hotel guest, Priority Club^® Rewards member, or Six Continents Club^® member, derived from such customer’s, guest’s, or member’s use, purchase, or viewing of any goods or services offered or provided to any such customer or guest or prospective customer or guest by way of this Agreement (“Customer”), to any third party, except as such Customer may agree in advance in writing or by “check-box” approval on-line, with respect to such Customer’s personally-identifiable information. Company shall keep and maintain any records relating to such approvals for a period of no less than one year following the expiration of the term hereof.

 

Company shall defend and indemnify SCH against all losses (including legal costs) that SCH may incur by reason of any breach of this Section or any breach by SCH of any applicable data protection and privacy laws and regulations that is caused by Company.

 

18.                   Data Ownership, Collection and Access. SCH shall own all Personal Date collected by Company and Company’s agents, subcontractors, employees and contractual parties in the performance of this Agreement, or as otherwise acquired by Customer.

 

Personal Date may be disclosed to Company to perform a specific task under this Agreement. Company will use the data only to perform such task. Company shall ensure that the data is not used for any other purpose not specifically requested in writing by Customer. Company shall ensure that Personal Data is safely secured.

 

Company shall co-operate with SCH in complying with the exercise by SCH of rights with regard to Personal Data processed by Vendor under this Agreement and with any actions of data protection authorities.

 

Company shall identify to SCH an individual within your organization to act as point of contact for any Inquiries from SCH or data protection authorities relating to Personal Data.

 

Company shall cause the Personal Data disclosed to Company to be removed from all records after the specific task to which it relates under this Agreement has been performed or to be corrected or removed upon request.

 

 

19.                   Notices.

 

A.                      Notices of default and termination as well as any other notices, demands and other communications contemplated by this Agreement shall be addressed as follows:

 

To SCH at:

 

Six Continents Hotels, Inc.
Three Ravinia Drive, Suite 100
Atlanta, Georgia 30346-2149
Attention: Marketing Services
E-mail Address:                                  
With a copy to the Legal Department
Fax number: 770-604-8442

 

To Company at:

 

MyAreaGuide.com, Inc.
1240 East 100 South, Suite5
St. George, Utah 84790
Attention: Dustin Moore, Vice-President Operations
E-mail address:

 

With a copy to:
Barry E. Clarkson, Esq.
CLARKSON & DRAPER, LLC
1240 East 100 South, Suite 222
St. George, Utah 84790

 

B.                        All notices of default and termination must be hand-delivered with proof of receipt; sent by certified or registered mail, return receipt requested; or sent by overnight courier, with proof of receipt; and shall be deemed given as of the date the receipt is signed. Notwithstanding the foregoing, notices of default and termination if being sent to Company may be e-mailed at the address above and shall be deemed given as of the date a response is received by SCH that the notice was received and opened.

 

C.                        All other notices, demands or communications may be sent by regular mail, postage prepaid, or by facsimile or e-mail (with evidence of completed transmission).

 

20.                   Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia.

 

21.                   Compliance with Law. Each party hereto shall, at its own expense, comply with all applicable federal, state, county and local laws, ordinances, regulations and codes in the performance of this Agreement.

 

22.                   Entire Agreement. This Agreement, together with the terms and conditions set forth in the Exhibits hereto, comprises the entire understanding of the parties and supersedes and

 

 

cancels any previous oral or written agreements between the parties with respect to the subject matter hereof. Further, any and all prior representations or agreements by any agent or representative of either party shall be null and void. Any waiver, modification or amendment to this Agreement must be in writing and signed by officers of both parties. Any attempted waiver, modification or amendment not in writing and signed by officers of both parties shall be null and void.

 

IN WITNESS WHEREOF, the parties have executed this Agreement, effective as of the day and year first written above.

 

MYAREAGUIDE.COM, INC.

SIX CONTINENTS HOTELS, INC.

By:

/s/ Dustin Moore

By:

/s/ Chris Copp

Name:

Dustin Moore

Name:

Chris Copp

Title:

VP

Title:

[ILLEGIBLE]

Date:

12/09/04