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EXHIBIT 10.2
AIRLINE CUSTOMER SERVICES AGREEMENT
BETWEEN
[AIRLINE NAME]
[ADDRESS]
AND
SKYMALL, INC.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
DATED
____________________, 1995
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TABLE OF CONTENTS
1. Recitals.............................................................. 1
1.1 Airline Business............................................. 1
1.2 SkyMall Business............................................. 1
1.3 Offer of SkyMall Program..................................... 1
2. The SkyMall(R) Program and Guarantees................................. 1
2.1 The Catalog.................................................. 1
2.2 Concierge Service............................................ 1
3. SkyMall Program Agreement............................................. 1
3.1 Exclusive Rights............................................. 1
3.2 Reserved Services............................................ 1
4. Term of Agreement..................................................... 2
4.1 Initial and Renewal Terms.................................... 2
4.2 Termination.................................................. 2
5. The Catalog........................................................... 2
5.1 Catalog Production........................................... 2
5.2 Shipment and Distribution of Catalogs........................ 3
6. Customer Orders, Customer Services and Promotion...................... 3
6.1 Order Processing and Delivery................................ 3
6.2 Resolution of Customer Problems.............................. 4
6.3 Promotion of Catalog......................................... 4
6.4 Aircraft Seat Phones......................................... 4
6.5 Complimentary Air Travel..................................... 4
7. SkyMall(R) Program Costs and Expenses.................................. 4
7.1 SkyMall Expenses.............................................. 4
7.2 Airline Expenses.............................................. 5
8. Airline Sales Commissions............................................. 5
8.1 Sales Commission............................................. 5
8.2 Payment Due Date............................................. 5
9. Reports, Records and Audit............................................ 5
9.1 SkyMall Reports and Records.................................. 5
9.2 Airline Reports and Records.................................. 5
9.3 Audit of Records............................................. 5
10. Use and Approval of Names............................................. 5
10.1 Limited License to Use Airline's Names........................ 5
10.2 Mutual Approval of Advertising and Promotional Material....... 6
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11. Rights to the Catalog, Services and Purchase Information........ 6
12. Confidential Information........................................ 6
12.1 Confidential and Proprietary Information............... 6
12.2 Use and Protection of Confidential Information......... 6
12.3 Enforcement............................................ 7
13. No-Competition.................................................. 7
14. Default and Remedies............................................ 7
14.1 Default................................................ 7
14.2 Remedies............................................... 8
14.3 Consequential Damages.................................. 8
14.4 Force Majeure Excusing Performance..................... 8
15. Indemnification................................................. 8
15.1 Claims................................................. 8
15.2 SkyMall's Indemnification of Airline................... 8
15.3 Airline's Indemnification of SkyMall................... 9
15.4 Notification, Defense of Claims and Settlement......... 9
16. Insurance....................................................... 10
16.1 Insurance Amounts and Certificates..................... 10
16.2 Endorsements........................................... 10
17. Miscellaneous................................................... 10
17.1 Entire Agreement....................................... 10
17.2 Amendments and Waivers................................. 10
17.3 Assignments and Successors............................. 10
17.4 No Joint Venture or Partnership........................ 10
17.5 Severability........................................... 10
17.6 Survival............................................... 11
17.7 Further Actions and Assurances......................... 11
17.8 Governing Law.......................................... 11
17.9 Attorneys' Fees........................................ 11
17.10 Notices................................................ 11
17.11 Counterparts........................................... 11
17.12 Exhibits............................................... 11
17.13 Time................................................... 11
17.14 Effective Date......................................... 12
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AIRLINE CUSTOMER SERVICES AGREEMENT
This Airline Customer Services Agreement (the "Agreement"), is between
[Airline Name], a ________________ corporation ("Airline"), and SkyMall, Inc.,
an Arizona corporation ("SkyMall"). Airline and SkyMall agree as follows:
1. RECITALS.
1.1 Airline Business. Airline operates aircraft to domestic (U.S.) and
international destinations. The "Airline Fleet" includes Airline's
aircraft flying domestic trips.
1.2 SkyMall Business. SkyMall provides in-flight and in-transit sales
and rapid delivery of merchandise and services for travelers.
1.3 Offer of SkyMall Program. This agreement grants SkyMall the
exclusive right to offer the SkyMall(R) Program (as defined below)
to Airline's domestic air passengers.
2. THE SKYMALL(R) PROGRAM AND GUARANTEES. The "SkyMall(R) Program" includes:
2.1 The Catalog. The SkyMall(R) Catalog offers merchandise and
services which may be ordered by Airline's passengers (the
"Catalog"). SkyMall provides a total customer satisfaction
guarantee on merchandise offered in the Catalog, except as
expressly provided in Section 5.1 below.
2.2 Concierge Service. The SkyMall(R) Concierge Service offers
concierge services (the "Concierge Service") for a fee to
customers (the "Concierge Service Fee") plus the price of the
product or service. SkyMall provides a limited customer
satisfaction guarantee on the Concierge Service, depending on the
services requested.
3. SKYMALL PROGRAM AGREEMENT.
3.1 Exclusive Rights. Airline grants SkyMall the exclusive right to
provide the SkyMall(R) Program to Airline for Airline's Fleet.
Airline will not itself provide, nor obtain from any other source,
a similar program. Airline also grants to SkyMall a first right of
refusal to provide the SkyMall(R) Program on inter-active video
for Airline's Fleet.
3.2 Reserved Services. Airline reserves the right to provide to its
passengers: (a) through its in-flight magazine (1) merchandise
marked with Airline's trademarks ("Airline's Trademarked
Merchandise") and Airline's airfare and vacation packages and air
transportation services ("Airline's Services") or any other
proprietary items or services of Airline, and (2) merchandise and
services offered by other advertisers; and (b) a catalog for the
sale of duty free merchandise.
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4. TERM OF AGREEMENT. The Term of this Agreement includes:
4.1 Initial and Renewal Terms. The Initial Term from
_________________, until _________________. After the Initial Term
this Agreement will renew annually (an "Annual Renewal Term"),
unless terminated earlier by either Party pursuant to this
Agreement.
4.2 Termination.
(a) Termination for Convenience. After the Initial Term, either
Party may terminate this Agreement for any reason without
cause by 90 days written notice to the other Party.
(b) Termination For Cause. Either Party may immediately terminate
this Agreement for cause by giving written notice to the
other Party.
(c) Cooperation Upon Termination. Upon notice of termination (1)
the Parties will cooperate until termination to continue
distributing Catalogs and to secure customer orders, (2) each
party will use its best efforts to minimize the costs and
damages of the termination, and (3) Airline is solely
responsible for recycling or disposing of Catalogs in its
possession at the time of termination.
(d) Termination Rights and Obligations. Termination will not
affect rights or obligations of the Parties which are of a
continuing nature or which accrued prior to the effective
date of termination.
5. THE CATALOG.
5.1 Catalog Production. SkyMall will produce, at its expense, three or
more editions of the Catalog each year, each up to _____ pages but
not weighing more than _____________. SkyMall (a) will select and
price all merchandise and services and (b) will consider
reasonable requests of Airline for additional merchants, products,
or services (but is not obligated to secure particular merchants,
products, or services).
NOTE THAT (b) AND (c) SHOULD BE INCLUDED ONLY FOR APPROPRIATE (LARGER)
AIRLINES.
(a) Airline Approval of the Catalog. Airline will approve each
edition of the Catalog prior to production. Airline is deemed
to approve a Catalog edition if Airline's written disapproval
is not delivered to SkyMall within three business days after
Airline receives the prototype Catalog. Airline may
disapprove any merchant, product, or service on any
reasonable grounds except price, but will not unreasonably
disapprove a merchant, product, or service.
(b) Airline Pages. If Airline requests, up to ____ pages in each
Catalog (the "Airline Pages") may be devoted to merchandise
marked with Airline's
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trademarks and Airline's airfare, vacation, and
transportation services ("Airline's Goods and Services").
SkyMall does not guarantee Airline's Goods and Services and
Airline (a) assumes responsibility for the merchandise and
services and (b) indemnifies SkyMall for all product
liability and other costs and expenses arising in connection
with Airline's Goods and Services, including costs of legal
or other proceedings, judgments, fines, and penalties, costs
of defense, and reasonable attorneys' fees.
(c) Cover and Name. The cover of each catalog will be customized
to identify Airline and will not be identical to SkyMall's
general catalog. At Airline's option, the catalog will bear
SkyMall's name or another name selected by Airline. SkyMall
does not own, and acknowledges Airline's ownership of, any
custom name selected by Airline for the Catalog and any
associated goodwill.
(d) Suppliers. SkyMall will contract with each supplier of
merchandise or services (a "Supplier") for the SkyMall(R)
Program. SkyMall is solely responsible for each Supplier's
merchandise and services.
5.2 Shipment and Distribution of Catalogs.
(a) Delivery to Hubs. SkyMall will deliver the Catalogs to
Airline's facilities at up to _______ Airline hub locations
(the "Airline Hubs"). Airline may change the hub locations.
SkyMall will deliver the Catalogs in proportions as directed
by Airline at least five days before the scheduled
distribution of the Catalogs to the Airline Fleet.
(b) Distribution to Airline Fleet. Airline will use reasonable
efforts (at least the same efforts used in connection with
Airline's in-flight magazine) to distribute Catalogs to the
seatbacks of all aircraft in Airline's Fleet, so that each
Airline passenger has access to a reasonably unsoiled and
presentable copy of the Catalog. Airline will carry 20
additional copies of the Catalog on each aircraft to replace
Catalogs taken daily by passengers. Until a Catalog expires
Airline will not remove a Catalog from an aircraft (except
for soiled and unpresentable Catalogs).
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6. CUSTOMER ORDERS, CUSTOMER SERVICES AND PROMOTION
6.1 Order Processing and Delivery. SkyMall, at its sole expense, will
deliver merchandise and services offered through the Catalog.
SkyMall will give prompt attention to any complaint or requested
change with respect to SkyMall's order processing or delivery
services.
(a) Order Processing. SkyMall will offer customer order inquiry
and processing 24 hours per day, 365 days per year (but may
use voice messaging and other equipment during early morning
hours, Sundays, holidays, and at other appropriate times).
SkyMall will maintain an "800" customer order telephone
number, including an in-flight equivalent of an "800"
telephone number for Airline's in-flight telephone equipped
aircraft.
(b) Merchandise Deliveries. SkyMall or its vendors will offer
delivery within the United States, Puerto Rico and the Virgin
Islands. SkyMall may, in its sole discretion, offer delivery
to international destinations.
(c) Payment for Merchandise and Services. SkyMall may require
payment for merchandise by cash (U.S. Dollars), cash
equivalents, and major credit cards. SkyMall is solely
responsible for establishing appropriate contractual
arrangements with companies issuing credit cards honored by
SkyMall.
(d) No Airline Liability. Airline assumes no liability for, and
is not responsible for the credit worthiness of, any Airline
passengers or customers.
(e) SkyMall Employees. SkyMall's order processing and delivery
personnel are SkyMall's employees or independent contractors.
SkyMall's employees and independent contractors will comply
with reasonable security measures imposed by Airline.
(f) Airline Employee Discounts. Subject to proper identification,
SkyMall will allow Airline employees a ____% discount on
merchandise and services to the extent permitted by SkyMall's
vendors.
6.2 Resolution of Customer Problems. SkyMall is solely responsible for
handling, to the reasonable satisfaction of its customer and
Airline, all correspondence, claims, and complaints generated by
the SkyMall(R) Program. Airline may, at its option, respond
directly to any customer request or complaint.
6.3 Promotion of Catalog. Airline will use reasonable efforts to
promote use of the Catalog (at least the same efforts used for
Airline's in-flight magazine), including in flight, boarding area,
and flight club area announcements, information booths, and video
introductions.
6.4 Aircraft Seat Phones. Airline (a) will equip its aircraft with
seat phones or other in-flight telephone equipment as business
conditions warrant and (b) will keep
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SkyMall informed about the installation or change out of in-flight
telephone equipment on its aircraft.
6.5 Complimentary Air Travel. Airline will provide, at its discretion,
complimentary round-trip passes to SkyMall to be used for business
travel related to performance of this Agreement (the
"Complimentary Air Travel"). The Complimentary Air Travel must be
booked at least one week in advance and is available on a positive
space basis.
7. SKYMALL(R) PROGRAM COSTS AND EXPENSES. The costs and expenses associated
with the SkyMall(R) Program will be paid as follows:
7.1 SkyMall Expenses. SkyMall will pay for all costs and expenses
associated with the SkyMall(R) Program except for those assumed by
Airline.
7.2 Airline Expenses. Airline will provide and pay for: (a) the cost
of distribution of the Catalog from the Airline Hubs to Airline's
Fleet and of carrying the Catalog on Airline's Fleet; (b) the
promotional costs incurred by Airline to the extent mutually
agreed upon prior to instituting a promotion; (c) the
Complimentary Air Travel costs; and (d) the costs of any optional
service as mutually agreed by SkyMall and Airline.
8. AIRLINE SALES COMMISSIONS.
8.1 Sales Commission. SkyMall will pay a monthly sales commission (the
"Sales Commission") to Airline equal to the greater of (a)
$__________ per month or (b) _____% of Net Sales (as defined in
EXHIBIT A).
8.2 Payment Due Date. SkyMall will pay the Sales Commission to Airline
on the first day of the second month after the month when the
sales occurred. SkyMall will deliver, with the payment, a
supporting statement showing (a) the number of orders filled for
the month, (b) the net dollar amount of sales related to the
orders, and (c) the calculation of the Sales Commission.
9. REPORTS, RECORDS AND AUDIT.
9.1 SkyMall Reports and Records. SkyMall will provide Airline monthly
reports of SkyMall's performance under this Agreement and of
Airline's Sales Commissions (collectively, the "SkyMall Reports").
The SkyMall Reports will be in a form agreed by the Parties, but
need not include information about activities with anyone other
than Airline. SkyMall will maintain the SkyMall Reports during the
Term and for one year after termination (the "Record Maintenance
Period").
9.2 Airline Reports and Records. Airline will provide SkyMall
information reasonably requested by SkyMall, including data about
actual and projected passenger enplanements and actual and planned
aircraft schedules (collectively, the "Airline Reports"). The
Airline Reports will be in a form agreed by the Parties, but need
not include information about activities with anyone other
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than SkyMall. Airline will maintain the Airline Reports for the
Record Maintenance Period.
9.3 Audit of Records. During the Record Maintenance Period each Party
(or auditors it selects) may, at a mutually convenient time and at
its sole cost and expense, examine and make copies of the other's
Reports at the other's offices.
10. USE AND APPROVAL OF NAMES
10.1 Limited License to Use Airline's Names. Airline grants SkyMall a
non-exclusive license to use Airline's corporate name and
Airline's tradenames, trademarks, and service marks (the "Airline
Names") (a) solely as directed and approved in writing by Airline
and (b) solely in connection with the production and promotion of
the Catalog for Airline. SkyMall will not otherwise use, publish
or reproduce (including, without limitation, in any form of
advertising) any Airline Names. This license creates no third
party rights and will immediately terminate upon termination of
this Agreement.
10.2 Mutual Approval of Advertising and Promotional Material. Airline
must give written approval before any distribution of material
which refers to Airline. SkyMall must give written approval before
any distribution of material which refers to SkyMall.
11. RIGHTS TO THE CATALOG, SERVICES AND PURCHASE INFORMATION. SkyMall owns (a)
the Catalog and the Concierge Service, their contents, their name or
names, the designs and other information created or developed by SkyMall
(or jointly by SkyMall and Airline) in connection with the Catalog and the
SkyMall(R) Program, and the associated goodwill and (b) the names,
addresses and other direct marketing information about persons who order
from the Catalog (the "SkyMall Buyer File"). SkyMall may use the SkyMall
Buyer File, or make it available to third parties, so long as the file
information is not selectable by airline and does not indicate that an
individual is a passenger of Airline or a member of Airline's frequent
flyer program.
12. CONFIDENTIAL INFORMATION.
12.1 Confidential and Proprietary Information. The Parties may furnish
to each other confidential or proprietary information (the
"Confidential Information"). Confidential Information must be
marked in a manner that indicates it is proprietary and includes
information about marketing philosophies and objectives, plans,
designs, orders, forecasts, competitive advantages and
disadvantages, types of services provided, trade secrets, ideas,
creations, materials, intellectual property (including, without
limitation, patents, copyrights, trademarks, service marks,
designs, logos, and slogans), data processing programs or
procedures, source code, object code, business methods and
procedures, employees, suppliers, and customers. Confidential
Information excludes: (a) information approved for release to the
public without qualification as to the recipient; (b) information
which a Party obtained, had, or possessed independently of the
other Party (unless such information is confidential
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pursuant to another agreement or understanding); (c) information
in the public domain; and (d) the SkyMall Buyer File.
12.2 Use and Protection of Confidential Information. Each Party has
exclusive ownership and use of its own Confidential Information.
The Parties and their officers and employees will: (a) preserve
the confidentiality of the other's Confidential Information; (b)
not disclose, directly or indirectly, any of the other's
Confidential Information to any third party for any purpose; (c)
not use the other's Confidential Information except as expressly
permitted by this Agreement; (d) immediately notify the other of
any loss or disclosure of the other's Confidential Information;
(e) comply with reasonable security procedures for protection of
Confidential Information; and (f) employ at least the same degree
of care in protecting the other's Confidential Information as it
employs in protecting its own Confidential Information. A Party
served with a subpoena or other legal process requiring the
production or disclosure of the other's Confidential Information,
will promptly notify the other and will in good faith attempt to
permit the other (at the other's expense) to intervene and contest
such disclosure or production.
12.3 Enforcement. If a Party breaches or threatens to breach its
confidentiality obligations, the other's remedies at law would be
inadequate. Each Party is entitled to a temporary restraining
order or injunction (without any bond or other security) to
prevent disclosure or use of the Confidential Information. This
remedy does not preclude any other action or remedy for any breach
or threatened breach of this Agreement, including the recovery of
damages, reasonable attorneys' fees, costs and other expenses in
connection with the actions.
13. NO-COMPETITION. During the Term, the Parties will not compete with each
other in any way, including use of information or knowledge about the
other in competition with the other, and will not provide any information
or knowledge about the other to any competitor of the other.
14. DEFAULT AND REMEDIES.
14.1 Default. The following are defaults under this Agreement:
(a) Non-Payment. Failure to make a required payment, or to
perform a monetary obligation, within 30 days after written
notice;
(b) Performance or Condition. Failure to perform, or breach of,
any non- monetary obligation under this Agreement which
continues for 45 days after written notice;
(c) Bankruptcy or Insolvency. Either Party: (1) becomes
insolvent; (2) does not pay its bills when due without just
cause; (3) takes any material steps leading to its cessation
as a going concern; (4) ceases or suspends operations; (5)
makes a general assignment for the benefit of creditors or
files a
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voluntary application for appointment of a custodian or
receiver; or (6) has an action commenced against it under any
law relating to bankruptcy, insolvency, reorganization or
relief of debtors (except that if any of the foregoing
actions are filed involuntarily, a Party has 60 days to
secure dismissal before the filing is deemed a default). If
bankruptcy proceedings are commenced and this Agreement is
not otherwise terminated, the non-defaulting Party may
suspend all further performance, other than making payments
when due, until the defaulting Party assumes or rejects this
Agreement pursuant to ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Bankruptcy Code or any similar or successor provision. A
suspension of performance pending the defaulting Party's
assumption or rejection is not a breach of this Agreement and
does not affect the non-defaulting Party's right to pursue or
enforce its rights under this Agreement or otherwise.
14.2 Remedies. Upon a default the non-defaulting Party may, consistent
with applicable laws and at its option, do one or more of the
following:
(a) Temporary Restraining Order or Injunction. Proceed
immediately, when Confidential Information or non-competition
requirements are involved, to obtain a temporary restraining
order or injunction;
(b) Damages for Breach. Institute proceedings to recover damages,
including reasonable attorneys' fees, costs and other
expenses;
(c) Other Remedies. Exercise any other right, privilege or remedy
available under this Agreement, or in law or equity; and
(d) Terminate the Agreement. By written notice to the defaulting
Party immediately terminate this Agreement.
14.3 Consequential Damages. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR, AND
EACH PARTY WAIVES AND RELEASES ANY CLAIMS AGAINST THE
OTHER PARTY FOR, ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST REVENUES, LOST
PROFIT OR LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE)
RESULTING FROM PERFORMANCE OR FAILURE TO PERFORM, OR ACTS
OR OMISSIONS UNDER, THIS AGREEMENT.
14.4 Force Majeure Excusing Performance. No Party is liable to the
other if a failure or delay in performance arises out of any cause
beyond the reasonable control of the Parties (including loss of
facilities, breach by suppliers of supply agreements, fires,
floods, strikes, labor unrest, embargoes, civil commotion,
rationing or other governmental orders or requirements, acts of
civil or military authorities, war, acts of God, unavoidable
accidents, acts or omissions of sovereign states, or serious
adverse weather conditions). All requirements of notice and other
performance are extended to accommodate the period when
performance is impeded, except that the Party claiming to be
excused must deliver written
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notice to the other Party within 30 days stating the cause, the
reasonable efforts taken to overcome the cause, and the period of
time the cause is expected to continue.
15. INDEMNIFICATION.
15.1 Claims. "Claims" means any and all claims, liabilities, damages,
demands, suits, causes of action, proceedings, recoveries,
judgments, expenses, taxes, fines, penalties or executions
(including but not limited to litigation costs and expenses and
reasonable attorneys' fees).
15.2 SkyMall's Indemnification of Airline. SkyMall indemnifies and
holds harmless Airline, its directors, officers, employees, and
agents against all Claims for: (a) SkyMall's negligent acts or
omissions; (b) SkyMall's offering, providing, or failing to
provide any Catalog merchandise or services; (c) SkyMall's
advertising, promotions, or activities; (d) Airline's use of
patents, copyrights, trademarks, tradenames, logos, slogans,
imprints, or any copy supplied by SkyMall and used as directed by
SkyMall; and (e) any claim that merchandise sold in the Catalog
infringes upon the valid patent or other rights of a third party.
This indemnification does not apply to Claims arising from (a)
merchandise, services, advertising, or promotions offered or
provided by Airline or (b) negligent acts or omissions of Airline,
its directors, officers, employees, contractors, or agents.
15.3 Airline's Indemnification of SkyMall. Airline indemnifies and
holds harmless SkyMall, its directors, officers, employees, and
agents against all Claims for: (a) Airline's negligent acts or
omissions; (b) Airline's offering, providing, or failing to
provide any merchandise or services which are to be provided by
Airline; (c) Airline's advertising, promotions, or activities; (d)
SkyMall's use of patents, copyrights, trademarks, tradenames,
logos, slogans, imprints, or any copy supplied by Airline and used
as directed by Airline; and (e) any claim that merchandise
provided by Airline infringes upon the valid patent or other
rights of a third party. This indemnification does not apply to
Claims arising from (a) merchandise, services, advertising, or
promotions offered or provided by SkyMall or (b) negligent acts or
omissions of SkyMall, its directors, officers, employees,
contractors, or agents.
15.4 Notification, Defense of Claims and Settlement. A Party seeking
indemnification (the "Indemnitee")is subject to the following
procedures:
(a) Notice. Indemnitee must notify the other Party (the
"Indemnitor") promptly after learning of a Claim. Failure to
notify Indemnitor of a Claim relieves Indemnitor from the
obligation to indemnify to the extent the delay materially
prejudices defense of the Claim.
(b) Defense. Indemnitor is entitled to assume the defense of the
Claim, with counsel reasonably acceptable to Indemnitee.
Indemnitor is not liable for legal or other expenses incurred
by Indemnitee after notice of Indemnitor's election to assume
the defense of the Claim, other than the reasonable costs
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of investigating the matter and cooperating with counsel.
Indemnitee may employ its own counsel, but the fees and
expenses are at the Indemnitee's expense unless (1)
Indemnitor authorizes employment of counsel by Indemnitee,
(2) Indemnitee reasonably concludes based on the opinion of
counsel that there is a conflict of interest between
Indemnitor and Indemnitee in the conduct of the defense, or
(3) Indemnitor fails to employ counsel to assume the defense.
(d) Settlements. Indemnitor is not obligated for any settlement
unless it agrees to the settlement in writing. If Indemnitor
agrees to a settlement, but Indemnitee unreasonably fails to
enter into the settlement, then Indemnitor's indemnification
obligation for the Claim will not exceed the amount of the
settlement (plus expenses incurred up to the time the
settlement could have been effected).
16. INSURANCE.
16.1 Insurance Amounts and Certificates. Each Party must keep in force
insurance, and furnish to the other certificates evidencing
insurance, as follows: (a) comprehensive general liability
insurance, $4,000,000 combined single limit coverage; (b) products
liability insurance, $4,000,000 combined single limit coverage;
(c) advertisers liability insurance, $4,000,000; and (d)
automobile liability insurance, $1,000,000. Each party must also
keep in force policies of workers compensation insurance in
amounts required by law.
16.2 Endorsements. Each Party will endorse all required policies to:
(a) provide that the insurance is primary insurance and
acknowledge that insurance procured by the other Party is
secondary or excess insurance; (b) name the other Party, its
directors, officers, agents, and employees as additional insureds;
(c) contain a waiver of subrogation clause in favor of the
additional insureds; and (d) require 30 days written notice to the
other Party of any cancellations or adverse material change in
such insurance.
17. MISCELLANEOUS.
17.1 Entire Agreement. This Agreement is the entire agreement of the
Parties regarding its subject matter and supersedes all prior oral
or written agreements.
17.2 Amendments and Waivers. This Agreement may not be amended except
in a writing signed by each Party. No waiver is effective unless
in writing and signed by the Party granting the waiver. Any single
waiver does not operate as a continuing waiver or waive any other
provision or breach of this Agreement, whether in the past or in
the future.
17.3 Assignments and Successors. Neither Party may assign this
Agreement without the prior written consent of the other Party,
which shall not be unreasonably withheld. This Agreement is
binding on, and inures to the benefit of, the Parties and their
respective successors and assigns. Nothing in this Agreement
confers
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on any person, other than the Parties or their respective
successors and assigns, any rights, obligations, remedies or
liabilities.
17.4 No Joint Venture or Partnership. Nothing in this Agreement
constitutes, creates, or establishes any agency, joint venture or
partnership relationship between the Parties. No Party has any
power or right to represent, act on behalf of, or contractually
bind the other Party as its agent, partner or otherwise.
17.5 Severability. The unenforceability, illegality, or invalidity of
any provision of this Agreement will not alter the remaining
provisions of this Agreement. Each provision of this Agreement is
severable from all other provisions of this Agreement.
17.6 Survival. All agreements, obligations, covenants, terms,
conditions, representations, and warranties made in this Agreement
will survive the execution and delivery of this Agreement until
all obligations of the parties are fully performed. All rights and
obligations of the Parties with regard to Confidential
Information, Non-Competition, Indemnification, and Insurance shall
survive termination of this Agreement.
17.7 Further Actions and Assurances. Each Party will cooperate in good
faith to take actions, and to execute and deliver documents, as
reasonably requested by the other Party.
17.8 Governing Law. This Agreement is governed by and interpreted in
accordance with the laws of Arizona.
17.9 Attorneys' Fees. In any proceeding arising out of or related to
this Agreement, the prevailing Party is entitled to receive, in
addition to any other remedy or award, reasonable attorneys' fees,
costs and other expenses incurred in connection with such
proceeding.
17.10 Notices. Notices must be in writing and are effective (a) on the
date of delivery or (b) 72 hours after mailing by United States
first class mail, registered or certified, return receipt
requested, postage prepaid and properly addressed. Notices must be
sent to the address stated on the signature page (or to any other
address designated by a Party).
17.11 Counterparts. This Agreement may be executed in counterparts, each
of which is an original. All counterparts constitute one and the
same Agreement.
17.12 Exhibits. The Exhibits to this Agreement are incorporated in and
made a part of this Agreement.
17.13 Time. Time is of the essence of this Agreement.
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17.14 Effective Date. This Agreement is executed ______________, 19____,
to be effective on ___________________________, 19____.
[AIRLINE NAME]
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
[Airline Name]
[address]
____________ (Voice)
____________ (Fax)
SKYMALL, INC.
By: ______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
SkyMall, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
(▇▇▇) ▇▇▇-▇▇▇▇ (Voice)
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax)
With a copy to:
▇▇▇▇▇ and ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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EXHIBIT A
NET SALES CALCULATION
PART OF THE AIRLINE CUSTOMER SERVICES AGREEMENT
BETWEEN AIRLINE AND SKYMALL
"Net Sales" are determined as follows:
A. Definitions:
(a) "Gross Merchandise Sales" is defined as all gross merchandise
sales from the Catalog but not sales to Airline's employees.
(b) "Concierge Service Fees" is defined as the charge SkyMall
collects from Airline customers for each concierge service
request and is exclusive of the price of goods or services
required to fulfill such request.
(c) "Returned Merchandise Revenue" is defined as the sale amounts
on all returned merchandise or refunds from Airline customers
and applicable restocking charges.
(d) "Cancelled Concierge Service Fees" is defined as any
Concierge Service Fees charged by SkyMall for services
rendered and thereafter cancelled by Airline customers, and
the cost to cancel or return the applicable service or
product.
(e) "Sales Taxes, Excise Taxes and Duties" is defined as all
applicable sales and excise taxes and duties on Catalog
merchandise and services paid by SkyMall for Airline
customers.
(f) "Shipping and Handling Charges" is defined as all shipping,
handling and insurance costs for all Catalog merchandise and
services sold to Airline customers.
(g) "Giftwrapping and Monogramming Charges" is defined as all
extra and special services requested and paid by Airline
customers.
(h) "Advertising Revenues" is defined as the depiction fees and
advertising charges paid by Suppliers for having their
products or services featured in the Catalog.
(i) "Bad Debts" is defined as all bad debts incurred by SkyMall
in administering the SkyMall(R) Program for Airline.
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B. Calculation:
Net Sales =
(a) Gross Merchandise Sales
+ (b) Concierge Service Fees
+ (c) Sales Taxes, Excise Taxes and Duties
+ (d) Shipping and Handling Charges
+ (e) Giftwrapping and Monogramming Charges
(Less):
- (a) Returned Merchandise Revenue
- (b) Cancelled Concierge Service Fees
- (c) Sales Taxes, Excises Taxes and Duties
- (d) Shipping and Handling Charges
- (e) Giftwrapping and Monogramming Charges
- (f) Bad Debts
Net Sales excludes Advertising Revenues
C. Example:
Merchandise Sales $3,100,000
Concierge Fees 100,000
Taxes 192,000
Shipping & Handling 320,000
Giftwrapping 30,000
----------
Subtotal $3,742,000
(Less):
Merchandise Returns $ 160,000
Cancelled Fees 5,000
Taxes 192,000
Shipping & Handling 320,000
Giftwrapping 30,000
Bad Debts 32,000
----------
Subtotal $ 739,000
----------
TOTAL NET SALES $3,003,000