[***] CERTAIN CONFIDENTIAL INFORMATION CONTAINED
IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
Exhibit 10.40
ADVERTISING
AGREEMENT
This Advertising Agreement (the
“Agreement”), effective as of December 10, 2004,
is made and entered into by and between MyAgreeGuide.Com, Inc.
a Nevada corporation with its principal place of business located
at 1240 East 100 South, Suite 5, St. George, Utah 84790
(“Company”) and Six Continents Hotels, Inc., a Delaware
corporation with its principal place of business located at Three
Ravinia Drive, Suite 100, Atlanta, Georgia 30346-2149
(“SCH”), pursuant to the following recitals and
clauses;
WHEREAS, SCH owns several hotel brands and owns,
manages, and franchises hotels using those brand names
internationally (“IHG”);
WHEREAS, Company desires to assist SCH in the
marketing of its hotel brands by providing specified services upon
the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual
promises contained herein and for good and valuable consideration,
the parties agree as follows:
1.
Services. Company has the ability to provide the
comprehensive services described in this Agreement. In accordance
with the terms and conditions of this Agreement, Company shall
provide SCH with services and SCH shall compensate Company for the
services, as described in Exhibit “A,” which is
attached hereto and incorporated herein as if fully rewritten
herein (the “Services”). Any additional standard
Company terms shall be attached hereto in
Exhibit “B”. In the event of a conflict in the
provisions of this Agreement and any Exhibits, this Agreement shall
prevail. Any new programs or services to be added to this Agreement
shall be added as an Exhibit to this Agreement and shall be in
the same form as Exhibit “A”. Such
Exhibit shall be in writing signed by Company and SCH and
shall incorporate the terms of this Agreement.
2.
Engagement and Authorization to
Use Third Parties. Company is retained and appointed by SCH to
develop, perform and carry out the services set forth and
described in this Agreement. In order to perform the services,
Company is authorized to enter into such third party contracts as
may be reasonably necessary to carry out the purposes of this
Agreement. Except as specifically set forth herein to the contrary,
Company shall be liable to all third parties employed by the
company.
3.
Warranty. Company warrants that the purchased services
will be original, will conform to stated specifications, will
comply with descriptions in Company’s sales materials and
brochures, will match Company’s samples, will conform to
all applicable codes and standards, and will fulfill all prior
representations by Company, its employees and agents. Company
warrants that it has obtained appropriate releases granting SCH
complete and unrestricted rights (unless otherwise specified in
writing and attached to this Agreement) to use the services
provided. The above warranty shall be for the benefit of SCH, its
affiliates, successor and assigns. If Company’s standard
warranty provides longer or better protection than the above
warranty, then the Company’s standard warranty shall apply.
The inspection or acceptance of services shall not be a waiver of
rights under this warranty. This warranty shall survive delivery
and acceptance of the purchased services.
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
